HKSAR v. Singh Gursewak

Case No.CACC 399/2013

Court

Court of Appeal

Date26 Nov 2014

Judge—

Case Document

100%Judiciary

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)

____________

BETWEEN
	HKSAR	Respondent
	and
	SINGH GURSEWAK	Appellant

____________

Before : Hon Yeung, Lunn VPs and D. Pang J in Court

Date of Hearing : 26 November 2014

Date of Judgment : 26 November 2014

Date of Reasons for Judgment : 11 December 2014

_______________________________

REASONS FOR JUDGMENT

_______________________________

Hon Lunn VP (giving the Reasons for Judgment of the court) :

1.Having been granted leave by the single judge on 27 June 2014, the appellant appealed against his convictions 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. 210 (Charge 1) and a charge of fraud, contrary to section 16A of that Ordinance (Charge 2). With the leave of the single judge, he also appealed 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. Accordingly, the total sentence imposed on the appellant was 4 years’ imprisonment.

2.At the conclusion of the hearing, we allowed the appeal and quashed the appellant’s convictions and ordered an expedited retrial in the District Court before another judge, remanding the appellant in custody. We said that we would give our reasons in due course. That we do now.

The Charges

3.The appellant was charged jointly with his co-defendant Chan Ho (“the 1^st defendant”) on each charge. The fraud charge alleged that on 22 March 2012 the appellant and the 1^st defendant dishonestly and falsely represented to Kit Ki Ying that the appellant was the registered owner of the Light Goods Vehicle (“LGV”) and that he had agreed to sell it for $175,000, which monies Mr Kit had paid to them.

The history of the proceedings in the lower court

4.The appellant was arrested by the police on 26 March 2012, and granted bail by the police. On 5 February 2013, he was charged with the two offences and on 20 February 2013, he attended Tuen Mun Magistracy and was granted bail by the court. After subsequent appearances in that court on the 13 March and 24 April on 8 May 2013, the case was transferred to the District Court, in which court he first appeared on 28 May 2013. Subsequently he appeared in that court on 11 and 25 June 2013. On the latter date, the case was set down for trial from 26 to 29 August 2013. Although the appellant was represented by the Duty Lawyer Scheme in the Magistracy, he was unrepresented throughout in the District Court.

Trial

5.On 26 August 2013, the first day of trial, the appellant and the 1^st defendant failed to attend court and Mr Swainston, for the prosecution, applied for warrants of arrest to be issued for both of them. As the transcript shows, it was the judge who raised first the question of proceeding with the trial in the absence of the appellant and the 1^st defendant. 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. In response, the judge said that she intended to adjourn the trial to 29 August 2013, Thursday, for mention and that she was minded to commence the trial on 30 August 2013, Friday.

6.On 29 August 2013, the prosecution indicated to the court that they were prepared to proceed with trial, if the court was content to do so. However, the prosecution did not draw the attention of the court to any authority relevant to the issue of conducting a trial in the absence of an unrepresented defendant. As Mr Edmund Lee, for the respondent, pointed out in the hearing the relevant authorities were cited and summarised succinctly in the then current edition of Archbold Hong Kong.[1] Having reviewed the available information as to the failure of the appellant and the 1^st defendant to comply with their terms of bail, namely by attending court, reporting to a police station and residing at a specified address, the judge said that, prima facie, they had shown a deliberate intention to be absent from their trial. The judge said that she was satisfied that they had voluntarily absented themselves from their trial. In the result, she determined to proceed with the trial in their absence and on the basis that they had pleaded not guilty to the charges.

The prosecution case

7.In the absence of the appellant and the 1^st defendant the prosecution called a total of ten witnesses. The registeredowner of the LGV Mr Wong testified that the LGV was used in his ‘recycled goods’ business in Yuen Long. He employed the 1^st defendant to work for him on a casual basis as a driver. On 13 March 2012, Mr Wong initiated the transfer of the ownership of the LGV to his sister Madam Wong Yau Lan, but he remained in possession and control of it. He did so because he had been disqualified from driving. However, the transfer procedure was not completed because the Vehicle Registration Document was not signed by Madam Wong.[2] The unsigned document was placed in a folder, which was left on the dashboard near the windscreen of the LGV.

8.On 21 March 2012, Mr Wong received an anonymous phone call telling him to go to Yau Ma Tei Police Station because someone had picked up the Vehicle Registration Document of the LGV. Mr Wong confirmed that it was missing from the LGV. On 22 March 2012, believing what the caller had said to him, Mr Wong left his yard in Yuen Long and went to Yau Ma Tei Police Station. There, he learned that he had been sent on a fool’s errand, there being no record of his missing Vehicle Registration Document.

9.On his return to his yard, Mr Wong discovered that the yard gate was open, the chain and a padlock were broken and the LGV was missing. The 1^st defendant returned to the yard a little later but, after police officers had attended the scene to make enquiries, the 1^st defendant left not to be seen again by Mr Wong.

10.On 23 March 2012, the police located the LGV, but a vehicle video recorder, a camera, an electronic scale, a bag of tools and about $200 coins were missing.

11.Unknown to Mr Wong, the 1^st defendant had made arrangements with a car salesman, Mr Ko, to sell the LGV to Mr Kit, a bona fide purchaser. As part of that fraudulent scheme, the appellant had been named as the registered owner of the vehicle. A clerical officer of the Transport Department adduced into evidence the relevant documents. Madam Wong testified that she had not signed the Notice of Transfer of Ownership of the LGV dated 21 March 2012 in her name and apparently bearing her signature transferring the LGV to the appellant or the cancelled Vehicle Registration Document bearing the same date.[3] The former document contained not only the appellant’s name but also his identity card number. Finally, the clerical officer produced the replacement Vehicle Registration Document in the name of the appellant bearing the same identity card number and dated 21 March 2012.[4]

12.On 21 March 2012, Mr Kit met the 1^st defendant, the appellant and Mr Ko and agreed to buy the LGV for $175,000. As part of the procedure of sale the appellant’s identity card was photocopied and compared with the details of the appellant set out on the Vehicle Registration Document. Then, being satisfied, Mr Kit signed the sale and purchase agreement and issued a cheque in the amount of $175,000 in favour of the appellant.[5] That process was recorded on CCTV video in Mr Kit’s office. It depicted the faces of the appellant and the 1^st defendant.

13.On 23 March 2013, Mr Kit went to the Transport Department and attempted unsuccessfully to transfer the ownership of the LGV.

14.Ms Fung, an employee of DBS Bank testified that the cheque drawn in favour of the appellant, which had been cashed, also bore the identity card number of the appellant. She testified that was the bank’s process of checking the identity of a person cashing such a cheque.

15.Having been arrested on 26 March 2012 and cautioned for the offence of taking a conveyance without authority, the appellant denied any involvement. When interviewed under caution subsequently in respect of that offence and fraud the appellant said that he had no knowledge of the matter and declined to answer questions.

16.Mr Kit identified the appellant at an identification parade as one of the persons depicted in the CCTV recording taken of the sale of the vehicle. For their parts, Mr Wong and Mr Ko identified the 1^st defendant and the appellant in that CCTV recording.

17.A police officer testified that he lifted fingerprints from the LGV after it was recovered. A second police officer identified as a fingerprint of the appellant, a fingerprint that had been lifted from the passenger door of the LGV.

Reasons for Verdict

18.In her Reasons for Verdict, the judge explained the circumstances which led her to the determination to conduct the entire trial in the absence of both defendants and their representatives :[6]

“ 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 (sic) 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.”

19.In her analysis of the evidence, the judge found :[7]

“ At the time of sale of the LGV to PW2 (Mr Kit) by D2 (the appellant), D2 was the registered owner of the LGV. PW1 (Mr Wong) and PW12 (Madam Wong) never sold nor transferred the ownership of the LGV to D2. The signature of PW12 as the registered owner was left blank on VRD. She did not sign it. I was satisfied that someone had forged her signature on the VRD (P9) as well as her signature on the transfer of ownership document (P8) so that the transfer could be made to D2.

I was satisfied that although D2 was the registered owner on the VRD he was not the owner of the LGV as he had received the ownership fraudulently.

I was satisfied that the LGV belonged to PW1 however the legal owner was PW12 as evidenced by the VRD.”

20.In support of that latter finding the judge noted :[8]

“ The facts show that even after the transfer of ownership from PW1’s name to PW12’s name the LGV was still kept at the yard and used solely by PW1.”

21.Of the consequences that flowed from those findings, the judge said :[9]

“ As D2 was not the owner of the LGV and it was a stolen LGV D2 had dishonestly and fraudulently represented to PW2, the buyer of the LGV that he was the owner of the LGV. He had agreed to sell a vehicle to PW2 that was not owned by him for a sum of $175,000. D2 cashed the cheque PW2 made in payment of the LGV.”

22.Of the evidence in respect of the roles of the 1^st defendant and appellant in the commission of the offences, the judge said :[10]

“ D1 and D2 were indisputably the two who were present at PW2’s office on 22 March. They were captured on CCTV video recording in PW2’s office. They were identified by PW2, PW3 as the persons selling the LGV. PW6 (a police officer) identified D1 and D2. PW1 identified D1. D1 had contacted PW3 on the day the LGV was stolen that he had the vehicle for sale. The very next day D1 and D2 took the car for sale to PW2. Much of the negotiation of the sale of the LGV was conducted with D1 but eventually D2 agreed the price. D1 had driven the vehicle to the station. D2 was a passenger. D1’s fingerprints were found on the driver’s door. D2’s fingerprints were found on the passenger door.”

23.The judge went on to note :[11]

“ On the same day that is 21 March, that the LGV was stolen :-

(i) the LGV was transferred to D2’s name,

(ii) D1 had called PW3 telling him he had the LGV for sale.

On the following day 22 March the LGV was sold to PW2 and D2 cashed the cheque in the amount of $175,000.

Both defendants were inextricably involved with the stolen LGV on the day it went missing and the day after when it was eventually sold by them.”

24.In the result, the judge concluded :[12]

“ The evidence in this case against D1 and D2 was overwhelming. On all the evidence before me I was satisfied that D1 and D2 stole the LGV and its contents and also fraudulently sold the LGV to PW2. I was satisfied beyond all reasonable doubt that the defendants are guilty of both charges.”

Grounds of Appeal

25.On behalf of the appellant, Mr Trevor Beel advanced two grounds of appeal against conviction. First, he submitted that the judge erred in law and exercised her discretion wrongly in determining to conduct the trial in the absence of the appellant and any legal representative. Secondly, it was contended that the judge failed to enquire properly into the question of whether the trial should proceed in the appellant’s absence and/or failed to properly consider the following matters :

(a) that the appellant was at all material times without legal representation;

(b) whether any proper reason existed for the appellant’s non attendance and whether the results of any investigation by the police into the matter tended to establish that the appellant had deliberately absented himself from the trial proceedings;

(c) the extent of the disadvantage to the appellant in not being able to put forward a positive defence;

(d) that the circumstances of the allegations giving rise to the charges against the appellant were straightforward and any delay in proceeding with the trial would not have had any material affect upon the memory of the witnesses;

(e) the seriousness of the offences; and

(f) the personal circumstances of the appellant and whether in such circumstances, if an adjournment was granted, it would result in, or the likelihood, of the appellant’s re-arrest.

26.Mr Beel submitted that the legal principles relevant to a determination of whether to conduct a trial in the absence of a defendant were set out in the speeches in the House of Lords in R v Jones (Anthony),[13] approving in large part the relevant factors identified in the judgment of the Court of Appeal of England and Wales delivered by Rose LJ in R v Hayward [14]. He submitted that whilst the judge’s findings addressed the factors identified in paragraph 22(1) and (2) of the judgment of Rose LJ, namely the issue of whether or not the appellant had deliberately and voluntarily and absented himself from the trial and waived his right to be present, they did not address any of the voluminous remaining factors.

The Respondent’s submissions

27.On behalf of the respondent Mr Edmond Lee submitted that given that a trial judge has the discretion to try a case in the absence of a defendant, the real issue was whether the judge erred in the exercise of the discretion to do so. He contended that this Court should not interfere with the exercise of a discretion, unless it is manifest that the discretion had been exercised unreasonably or where it will result in injustice. He acknowledged that the legal principles relevant to a determination of whether to conduct a trial in the absence of a defendant were set out in the speeches in the House of Lords in R v Jones (Anthony) [15], cited with approval by this Court in HKSAR v Kwan Wai Keung and Others [16].

28.Mr Lee invited the court to note that the judge was told on 29 August 2012 that :

· the appellant had not reported to the police station;

· the appellant had moved away from the address to which he was required to reside; and

· the appellant was no stranger to court, given that he had been convicted of the offence of using a false instrument in 2011 and possession of a dangerous drug in 2013.

29.Further, he submitted that there was an urgency to proceed with the trial expeditiously. Mr Wong was unable to use the LGV because of ambiguity of its ownership and lack of insurance. It had been lying idle for 8 months. He submitted that in all those circumstances, the judge was right to find that the appellant had deliberately absconded and thereby voluntarily abandoned his right to be present at his trial, so that the judge was correct to proceed with the trial in his absence.

A consideration of the submissions

30.There is no dispute that a judge has a discretion to commence and/or continue with a trial in the absence of a defendant. In HKSAR v Kwan Wai Keung & Others [17] this Court approved expressly the principles endorsed by Lord Bingham in his speech in R v Jones (Anthony) as applicable to the exercise of the judicial discretion to commence or continue with a trial in the absence of a defendant. Save in respect of the relevance of the issue of the seriousness of the offence [18], the factors which Lord Bingham endorsed were those stipulated in the judgment of the Court of Appeal of England and Wales delivered by Rose J, as he was then, in R v Heyward [19], 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.” [Italics added.]

31.There is no dispute that the judge did not advert to any authority relevant to the issue, either in the interchanges that she had with counsel or in her considered reasons in the Reasons for Verdict.

32.It is apparent from the statements that the judge made in those interchanges and in her ruling that she gave primary consideration to her finding that the appellant and the 1^st defendant had “deliberately breached their bail conditions and had absconded”. In consequence, she determined that they were “voluntarily absent from the trial without any reasonable explanation”, so that they had “voluntarily abandon their right to be present at their trial and for that reason I continued in their absence.” [20]

33.Plainly, in all the circumstances the judge was entitled to take the view that the appellant had absconded voluntarily. However, relevant to the exercise of the discretion to proceed to trial was the issue of fairness, both to the prosecution and the defence.[21]

34.Obviously, the judge was well aware that the appellant was and never have been legally represented in the proceedings in the District Court. Furthermore, it is clear that he had never been arraigned and/or the charges put to him, although he had indicated in a pre-trial hearing that he intended to plead not guilty. No doubt, because her attention was not drawn to the judgment of this Court in HKSAR v Kwan Wai Keung & Others [22], approving expressly of the principles endorsed by Lord Bingham in his speech in R v Jones (Anthony), the judge made no reference to the many other considerations relevant to the exercise of the discretion to determine to proceed with the trial of an absent and unrepresented defendant. Of particular importance, was the unambiguous statement :[23]

“ That discretion must be exercised with great care and it is only in rare and exceptional case that it should be exercised in favour of a trial taking place or continuing, particularly if the defendant is unrepresented.” [Italics added.]

35.That statement begs the question: what was rare and exceptional about the circumstances of the instant case? The judge did not address that issue at all. As is apparent from the ensuing discussion, despite Mr Lee’s valiant endeavours, no answer was provided to that most fundamental question.

36.Relevant to the issue of fairness to the prosecution and the defence were the multiple factors identified in R v Heyward [24], other than the issue of the seriousness of the offence. The issue of whether or not other defendants, who had not absconded, might be prejudiced by the trial being delayed is one of those factors.[25] That was one of the consideration to which the Court had regard in HKSAR v Kwan Wai Keung. There, the absconding appellant had five co-defendants, to which fact the court adverted specifically in determining that the judge had exercised his discretion correctly to proceed with the trial.[26] However, that significant factor was wholly absent in this case.

37.In her Reasons for Verdict, the judge made it clear that her decision to proceed with the trial was made before she became aware of the difficulties to Mr Wong, the owner of the LGV, arising from ambiguity as to ownership and the stance taken by the Transport Department.[27] In any event, such difficulties as might have arisen were obviously susceptible of resolution given the application of common sense, or civil litigation if necessary. As the judge noted Mr Wong and Mr Kit had settled matters between themselves by the payment of $98,000 by Mr Wong to Mr Kit.[28]

38.Another relevant factor was whether an adjournment might result in the appellant being apprehended and the likely length of such adjournment. In the event, the appellant was re-arrested on 5 November 2013, about 9 to 10 weeks after he absconded, although the 1^st defendant is still at large.

39.The legitimate interest of victims and witnesses in testifying in a trial within a reasonable time of the events was obviously ameliorated by the nature of the offence and the evidence adduced by the prosecution. The ordeal, for example, for a victim of rape of unnecessary delay in the giving of her testimony no doubt adds to the burden on the victim. There was no such relevant factor in this case. The effect of delay on the memories of witnesses was unlikely to be of any significance. Furthermore, a substantial part of the prosecution case against the appellant included the real evidence of the cheque made in favour of the appellant, bearing his identity card details, the notice of transfer of ownership of the vehicle in the appellant’s name and the CCTV film. None of that evidence was subject to the risk of the failure of fading memory.

40.Finally, there was the inevitable disadvantage of the appellant not being able to give his account of events. Given that the documentary trail that led directly and inexorably to the appellant, but not the 1^st defendant, was on its face compelling, his right to give evidence was an opportunity to explain those circumstances. As Mr Beel pointed out in argument, the appellant had outlined the evidence that he would have given of those circumstances in a letter to the court dated 22 April 2014. There, he asserted that he was “involved unintentionally and unknowingly”, saying that he became involved only after the 1^st defendant, an employee of Mr Wong, had told him that Mr Wong was disqualified from driving and wished to change the name of the owner of the LGV and sell the vehicle. Clearly, the appellant was asserting that he had been made use of or duped. His account in that respect was relevant to the inferences adverse to the appellant that the judge drew from the appellant’s conduct in the circumstances the fraud to which she had regard in respect of the theft charge. Of the theft charge, the appellant contended that whilst there was clear direct evidence of the involvement of the 1^st defendant, he being the driver of the LGV and the person who initiated and made the arrangements with Mr Ko and Mr Kit for the sale of the vehicle, there was no such evidence in his case.

Conclusion

41.In all the circumstances, we were satisfied that the judge’s exercise of her discretion miscarried so that was a material irregularity which rendered the trial unfair and the convictions unsafe. In the result, we quashed the appellant’s convictions.

Re-trial

42.There being no opposition to the respondent’s request, and having regard to all the circumstances, we ordered that the appellant be re-tried, directing that the re-trial be expedited. Similarly, there being no application for bail, and having regard to the appellant’s earlier conduct, we remanded the appellant in custody pending the re-trial.