HKSAR v. Singh Gursewak

CACC 399/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 399 OF 2013

(ON APPEAL FROM DCCC NO. 441 OF 2013)

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BETWEEN

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1.The applicant seeks leave to appeal out of time against his conviction on 10 September 2013 after trial in absentia by District Court Judge S D’Almada Remedios of a charge of the theft of a Light Goods Vehicle and various items of property taken from the vehicle on 22 March 2012, contrary to section 9 of the Theft Ordinance, Cap. 212 and a charge of fraud, contrary to section 16A of that Ordinance. In addition, the applicant sought leave to appeal out of time against the sentences of imprisonment that were imposed on him by the judge in consequence of those convictions, namely 3 years and 6 months’ imprisonment for each charge, of which 6 months of the sentence of imprisonment imposed in respect of Charge 2 was ordered to be served consecutively to the sentence imposed in respect of Charge 1.

2.In each charge the applicant was jointly charged with Chan Ho.  In the fraud charge, it was alleged that on 22 March 2012 the applicant and Chan Ho dishonestly and falsely represented to Kit Ki Ying that the applicant was the registered owner of the Light Goods Vehicle and that he had agreed to sell it for $175,000, which monies the Kit Ki Ying had paid to them.

Grounds of appeal against conviction and sentence

Conviction

3.Attached to the Form XI, filed on 11 November 2013, by which the applicant sought an extension of time to give notice of his application for leave to appeal against sentence, were submissions in respect of his personal and family circumstances, in consequence of which he sought the reduction of his sentences.

Sentence

4.Attached to the Form XI, filed on 7 February 2014, by which the applicant sought an extension of time to give notice of his application for leave to appeal against conviction, the applicant asserted that he was an uneducated person and entirely unaware of his legal rights, in consequence of which he made the mistake of being absent at his trial.  As a result, he had been unable to defend himself.

Written submissions

5.In letters to the court dated 22 April and 2 May 2014, the applicant developed those submissions.  In respect of conviction, he repeated his submissions arising out of his absence from the trial.  Of the theft charge, he suggested that the judge’s analysis of the evidence showed that he played no part.  By contrast, the evidence pointed to the culpability of his co-accused at trial.  Of the fraud charge, he contended that he had been involved “unintentionally and unknowingly”.  In support of those submissions he sought to make allegations against Chan Ho, contending that the latter had led him to believe that the owner of the vehicle was disqualified from driving and thus was transferring the ownership of the vehicle to another person.  Chan Ho offered him $5,000 to be the transferee.

Trial in absentia

6.At the conclusion of the Reasons for Verdict, the judge explained the circumstances in which the whole trial had been conducted in the absence of the applicant and his co-defendant.[1]  The judge referred to the applicant as D2 and his co-defendant as D1.

“ The defendants were released on bail. Part of their conditions of bail was to reside at the address as given and to report to the police. D1 was to report to Castle Peak Police Station every Tuesday and Saturday between 9 pm and midnight. D2 was to report to Tuen Mun Police Station between 6 pm and 9 pm every Tuesday, Thursday and Saturday.

D1 was legally represented at all appearances in the District Court. D2 was unrepresented. They both appeared at the mention hearings prior to the trial on 28 May, 11 June and 25 June 2013. On 11 June the hearing was adjourned so that D2 could seek legal representation however he did not have legal representation on 25 June and the case was adjourned to for trial to the dates of 26 August 2013 at 9.30 am with four days reserved.

On the trial date of 26 August D1 and D2 were absent. Up until that date the defendants had been complying with most of their bail conditions. D1’s counsel informed the court that he had seen D1 in conference in late July but since about 12 August his instructing solicitors had lost contact with D1. They had told D1 in the conference in July that they would need to see D1 again in conference as they required more instructions from him. However thereafter they were unable to locate D1.

At the first day of trial D1’s legal representatives were still unable to locate or contact D1.

The prosecution informed me that D1 and D2 had both as required by their bail conditions reported to the respective police stations two days earlier. I therefore adjourned the matter for a further three days to see if the defendant would also report to the police stations, as both defendants were to report the next day or the day after respectively. Nevertheless warrant of arrests was issued with no bail.

I granted D1’s counsel application to discharge himself from representing D1 on the first day of the trial.

At the resumes (d) adjourned hearing on 28 August (noting this would have been the third day of trial) the prosecution informed me that neither defendant had reported to the police station and that they were no longer residing at the address as was given for some time (as required by the bail conditions). Both defendants were absent once again and the defendants had not surrendered to court or any police station.

I was satisfied on the evidence before me that the defendants had deliberately breached their bail conditions and had absconded.  They were voluntarily absent from their trial without any reasonable explanation.  I had not heard that they were absent from their trial because of illness or any other reasonable cause. The defendants had voluntarily abandoned their right to be present at their trial and for that reason I continued in their absence.”  [Italics added.]

7.As is apparent from the judge’s description of the various hearings which the applicant and his co-accused did attend, the applicant was never legally represented.  Furthermore, although it appears that at the hearing on 25 June 2013 he indicated to District Court Judge Browne that he intended to plead not guilty, the applicant was never arraigned or asked to respond to the charge formally.

8.It is apparent from the audio tape recordings, part of which were played in this Court, that at the hearing of 26 August 2013 it was the judge who raised first the question of proceeding with the trial in the absence of the applicants.  In response, counsel for the prosecution asked for and was granted an adjournment.  Later in the morning he made an application that the case be adjourned for two weeks for mention and asked that warrants be issued for the arrest of the defendants.  In response, the judge said that she intended to adjourn the trial to Thursday (29 August 2013) for mention and that she was minded to commence the trial on Friday.  The judge made certain observations about the position taken by the prosecution.  On 29 August 2013, no contact having been made with the applicant or his co-accused, the prosecution indicated to the court that they were prepared to proceed with trial, if the court was content to do so.  Counsel for the prosecution answered in the affirmative the enquiry of the judge, “Is the prosecution now seeking to proceed?”  Having reviewed the information as to the failure of the applicant and his co-accused to honour their terms bail; namely either by attending court, reporting to a police station and residing at a specified address, the judge said that, prima facie, the defendants had shown a deliberate intention to be absent from their trial.  In the result, the judge determined to proceed with trial in the absence of either accused or any legal representation of either of them.  In the event, the applicant was re-arrested on 5 November 2012.  His co-defendant has not been re-arrested.

9.In the course of the hearing, the court drew the attention of counsel for the respondent to the judgment of the Court of Appeal of England and Wales in R v Hayward [2] and the judgment of the House of Lords in an appeal from Hayward, sub nom R v Jones (Anthony) [3], as articulating principles relevant to the exercise of the discretion to commence or continue with proceedings in the absence of a defendant.  In the judgment of the court in R v Hayward delivered by Rose LJ, as he was then, principles were identified “which should guide the English courts in relation to the trial of a defendant in his absence”, namely:

“ 1. A defendant has, in general, a right to be present at his trial and a right to be legally represented.

2．Those rights can be waived, separately or together, wholly or in part, by the defendant himself. They may be wholly waived if, knowing, or having the means of knowledge as to, when and where his trial is to take place, he deliberately and voluntarily absents himself and/or withdraws instructions from those representing him. They may be waived in part if, being present and represented at the outset, the defendant, during the course of the trial, behaves in such a way as to obstruct the proper course of the proceedings and/or withdraws his instructions from those representing him.

3. The trial judge has a discretion as to whether a trial should take place or continue in the absence of a defendant and/or his legal representatives.

4. That discretion must be exercised with great care and it is only in rare and exceptional cases that it should be exercised in favour of a trial taking place or continuing, particularly if the defendant is unrepresented.

5. In exercising that discretion, fairness to the defence is of prime importance but fairness to the prosecution must also be taken into account. The judge must have regard to all the circumstances of the case including, in particular:

(i) the nature and circumstances of the defendant’s behaviour in absenting himself from the trial or disrupting it, as the case may be and, in particular, whether his behaviour was deliberate, voluntary and such as plainly waived his right to appear;

(ii) whether an adjournment might result in the defendant being caught or attending voluntarily and/or not disrupting the proceedings;

(iii) the likely length of such an adjournment;

(iv) whether the defendant, though absent, is, or wishes to be, legally represented at the trial or has, by his conduct, waived his right to representation;

(v) whether an absent defendant’s legal representatives are able to receive instructions from him during the trial and the extent to which they are able to present his defence;

(vi) the extent of the disadvantage to the defendant in not being able to give his account of events, having regard to the nature of the evidence against him;

(vii) the risk of the jury reaching an improper conclusion about the absence of the defendant;

(viii) the seriousness of the offence, which affects defendant, victim and public;

(ix) the general public interest and the particular interest of victims and witnesses that a trial should take place within a reasonable time of the events to which it relates;

(x) the effect of delay on the memories of witnesses;

(xi) where there is more than one defendant and not all have absconded, the undesirability of separate trials, and the prospects of a fair trial for the defendants who are present.

6． If the judge decides that a trial should take place or continue in the absence of an unrepresented defendant, he must ensure that the trial is as fair as the circumstances permit.  He must, in particular, take reasonable steps, both during the giving of evidence and in the summing up, to expose weaknesses in the prosecution case and to make such points on behalf of the defendant as the evidence permits.  In summing up he must warn the jury that absence is not an admission of guilt and adds nothing to the prosecution case.”

10.In his speech in R v Jones, Lord Bingham endorsed those factors in general, save that he expressed disagreement with the relevance of the factor of the seriousness or otherwise of the offence.[4]  He endorsed the statement in Hayward that “the discretion to commence a trial in the absence of a defendant should be exercised with the utmost care and caution.”  Lord Hutton and Lord Rogers supported Lord Bingham’s endorsement of the guidelines articulated in Hayward.[5]

11.Helpfully, Ms Fung referred the court to the judgment of this Court in Chinese in HKSAR v Kwan Wai Keung [6].  Although no English translation of that judgment is available, there is no dispute that the principles stipulated in Hayward and endorsed in Jones were cited with approval as applicable in Hong Kong.

Conclusion

12.In all the circumstances I am satisfied that the applicant has an arguable ground of appeal on this point.  Accordingly, I grant the application for leave to appeal out of time to file a notice to seek leave to appeal against conviction.  I grant the application for leave to appeal against conviction.

SENTENCE

13.In sentencing the applicant to 3½ years’ imprisonment on each of the two charges, the judge said:[7]

“ This case was, as I mentioned, well-planned in that the owner was lured away from his premises, his vehicle stolen while he was absent from his premises, the vehicle registration document which was left in the vehicle was taken from it then to be used to change the ownership by re-registering, fraudulently, D2’s name. Thereafter it was then sold on to a bona fide purchaser for value at a high cost of $175,000. There was sophistication in relation to this theft and sale. The defendants made a large profit much from this fraudulent sale.

In respect to the appropriate term of imprisonment I have had regard to a number of cases. I refer to paragraph 76 of Cheng Chi Wai where counsel for the applicant suggested that a sentence of 4 to 5 years is appropriate for persons involved in an organized way in providing that level of professional service. A 5-year imprisonment starting point in Chan Ko Po Joseph CACC 29/2000 was upheld for the attempted smuggling by container of two luxury vehicles to the mainland. In Wong Kam Tat [2002] 2 HKC 677, the Court of Appeal upheld a starting point of 4 years’ imprisonment in respect of a motor car dealer disposing of a stolen motor vehicle.

Given the cases cited, I consider that for this case the proper sentence after trial for the theft of a vehicle is one of 3½ years of imprisonment. In respect of the 2nd charge of fraud, I also consider the same term to be appropriate.

Although these offences were linked, the selling of the vehicle was a separate and distinct offence.  In those circumstances, taking into account the principle of totality, I consider that a sentence of 6 months’ imprisonment should run consecutive to Charge 1 and therefore the total sentence of imprisonment for the 1st and 2nd defendants would be one of 4 years’ imprisonment to which they should be so sentenced.”

Conclusion

14.Albeit that the applicant’s home-made grounds of appeal are unarguable, in my judgment in all the circumstances, in particular that one motor vehicle only was involved and having regard to its value, it is arguable that the sentence imposed on the applicant was manifestly excessive.  In those circumstances, I grant the application for an extension of time to file a notice for leave to appeal against sentence.  I grant the application for leave to appeal against sentence.

Refusal of legal aid

15.It is a matter of regret to this court to note that the applicant’s applications for legal aid in respect of conviction was refused on 10 April 2014 and against sentence on 9 January and 13 March 2014.

Ms Mickey Fung, SPP, of the Department of Justice, for the respondent

Applicant appeared in person

[1] Appeal Bundle; pages 33 K - 35 G, paragraphs 57-64.

[2] R v Hayward [2001] QB 862.

[3] R v Jones (Anthony) [2003] 1 AC 1.

[4] R v Jones (Anthony), paragraph 13.

[5] R v Jones (Anthony), paragraphs 39 and 53.

[6] HKSAR v Kwan Wai Keung (CACC 259/2011; unreported, paragraph 6).

[7] Appeal Bundle, page 14 F - 15 E.