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Hksar v Walsh Kent Andrew

Judgment Cited authorities 12 Cited in Precedent Map Related
Vincent
Judgment Date26 March 2018
Neutral Citation[2018] HKCFI 688
Year2018
Judgement NumberHCCC368/2015
Subject MatterCriminal Case
CourtCourt of First Instance (Hong Kong)
HCCC368A/2015 HKSAR v. WALSH KENT ANDREW

HCCC 368/2015

[2018] HKCFI 688

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 368 OF 2015

_______________

HKSAR
v
Walsh Kent Andrew

_______________

Before: Hon Zervos J in Chambers
Date of Hearing: 24 February 2018
Dates of Written Submissions: 8, 13 and 16 March 2018
Date of Ruling: 26 March 2018

_____________________________________________

FURTHER RULING ON PERSONAL ATTENDANCE

_____________________________________________

Introduction

1. The accused, Andrew Kent Walsh, is seeking to be arraigned without him being physically present. He faces an indictment charged with the offence of trafficking in a dangerous drug but under his conditions of bail he is currently residing in Australia. The prosecution has indicated that it will terminate the proceedings and offer no evidence against him. This circumstance invokes the application of section 51A of the Criminal Procedure Ordinance, Cap 221, (the CPO). The issue for resolution is where an accused intends to plead not guilty and the prosecution intends to offer no evidence can arraignment be conducted without the physical presence of the accused with the accused’s counsel entering a plea of not guilty on the accused’s behalf or can the arraignment be conducted via video link invoking the court’s inherent jurisdiction. I have concluded that the accused’s physical presence is required in order to fulfil his legal obligations to be present at his arraignment and to answer his bail. I have found no exceptional or extenuating circumstance or reason to warrant otherwise.

2. I previously handed down a ruling on the issue as to whether the accused’s personal attendance before this Court was required in order for him to be formally arraigned.[1] Two methods were proposed by which it was suggested that this could be done. One method was pursuant to section 49(1) of the CPO, which concerns the arraignment of an accused, and the other was pursuant to sections 79H to 79L of the CPO, the Live Television Link (Witnesses outside Hong Kong) Rules, and Practice Direction 9.9. I concluded in my ruling that the accused’s personal attendance was required by these two methods.

3. An application was filed by the accused for a certificate for leave to appeal the ruling to the Court of Final Appeal but this was abandoned at a hearing on 17 January 2018 on the accused’s behalf by Mr Gerard McCoy, SC[2], submitting that no issue would be taken as to the correctness of the ruling. Instead, an application was made for a further ruling on this issue on a different basis. As directed, the parties filed written submissions on this issue prior to a hearing on 24 February 2018. After the hearing, I directed the parties to file by 8 March 2018 further written submissions to address the proposition of an accused’s trial taking place in his absence without being arraigned. There followed further written submissions from the parties on inherent jurisdiction on 13 and 16 March 2018. This is my ruling which I said I would hand down in due course at the conclusion of the hearing.

Background

4. The accused is an Australian national who on 3 March 2015 was arrested by officers of the Customs and Excise Department when leaving Hong Kong to return to Australia following the discovery of a large quantity of methamphetamine hydrochloride, commonly known as Ice, in his check-in luggage. He was charged with the offence of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

5. On 11 September 2015, the accused was committed to the Court of First Instance for trial having indicated a plea of not guilty to the charge. An indictment dated 15 September 2015 was filed in the Court of First Instance, setting out the allegations of the offence charged.

6. On 11 November 2015, his case was fixed for a pre-trial review on 15 April 2016 and fixed for trial commencing on 15 June 2016. His case was one of the batch of similar cases that came before the courts, that were variously dealt with together in a series of hearings mainly concerned with the common issue of disclosure.

7. The accused maintained that he was innocent of the charge and that he had been tricked by members of a drug syndicate to come to Hong Kong and to return to Australia with drugs secreted in his luggage. The accused also relied on the fact that he had previously been a victim of a car accident where he sustained head injuries. It was claimed that as a result of the accident he suffered serious cognitive impairment and that he was therefore particularly vulnerable to exploitation by others.

8. Because of the circumstances and state of his case, the accused was granted bail on 23 September 2015, subject to various conditions, including not to leave Hong Kong and to surrender all travel documents. On 11 July 2016, bail was varied, allowing the accused to return to Australia where he was to reside at a particular address, and waiving his attendance at any other hearings save for the first day of trial. The defendant confirmed and acknowledged the conditions of bail and gave an undertaking to surrender himself to the court when required. The defendant signed the following confirmation and undertaking in the Extract of Record of Bail Proceedings:

“I do confirm and acknowledge that I understand I am being admitted to bail on the conditions as stated in this extract and on my undertaking to surrender myself to the court at the time and date as stated in this extract to:

(i) answer (further) to the charge against me and to be (further) dealt with according to law; and

(ii) appear before such court as may then be sitting, namely, the *Magistrates’ Court/District Court/High Court/Court of Final Appeal for *plea, trial, sentence, appeal or otherwise as ordered by the court and/or when called upon.”

9. It should be noted that the provisions for bail are governed by Part IA of the CPO. Section 9L(1) provides that a person admitted to bail commits an offence if, without reasonable cause, he fails to surrender to custody at such time as shall have been appointed by the court. Section 9C provides that “admitted to bail” means the release by a court of a person from detention on his undertaking that he shall surrender to custody on the day that the court may appoint, and “surrender to custody” means appearing before the court on being called on the day as shall have been appointed by the court.

10. Later in the proceedings, the Prosecutions Division of the Department of Justice advised the legal representatives of the accused in a letter dated 9 November 2017 that on 16 November 2017, the adjourned date of the case, it would offer no evidence to the charge the accused faced. In a letter of the same date, Mr McCoy, for the accused, indicated that the accused was impecunious and only had a limited source of income. It was on this basis that he requested, and proposed, that the formality of terminating the proceedings against the accused be done in his absence. This lead to the ruling I gave on 15 December 2017 and to the one that I now give.

The statutory provisions

11. The relevant statutory provisions in relation to the arraignment of an accused are found in sections 49, 50, 51 and 51A of the CPO. So far as material the sections read as follows:

“49. Arraignment of accused person

(1) The accused person shall be placed at the bar unfettered and not in prison clothes, unless the court sees cause to direct otherwise.

(2) The indictment shall then be read over to him by the Registrar, and explained, if necessary, by the Registrar or the interpreter of the court; and he shall be required to plead instantly thereto, unless he objects to the want of due service of the indictment and notice of trial, and the court finds that he has not been duly served therewith.

(3) Where the accused person is a corporation, a plea in writing may be entered by its representative, and if either the corporation does not appear by a representative or, though it does so appear, fails to enter as aforesaid any plea, the court shall order a plea of not guilty to be entered and the trial shall proceed as though the corporation had duly entered a plea of not guilty.

(4) …”

“50. Effect of plea of not guilty

The accused person, on being arraigned, by pleading generally the plea of not guilty, shall, by such plea, without further form, be deemed to have put himself upon the country for trial.”

“51. Trial of offences

(1) If a person is arraigned on an indictment—

(a) he shall in all cases be entitled to make a plea of not guilty in addition to any special plea;

(b) he may plead not guilty to the offence specifically charged in the indictment but guilty to another offence of which he might be found guilty on that indictment;

(c) if he stands mute of malice, or will not answer directly to the indictment, the court may order a plea of not guilty to be entered on his behalf, and he shall then be treated as having pleaded not guilty.

…

(6) Subsections (1) and (2) shall apply to an indictment containing more than one count as if each count were a separate indictment.

…”

“51A. Entry of verdict of not guilty by order of judge

Where an accused person arraigned on an indictment pleads not guilty and the prosecutor proposes to offer no evidence against him, the court before which the accused person is arraigned may, if it thinks fit, order that a verdict of not guilty shall be recorded without the accused person being given in charge to a jury, and the verdict shall have the same effect as if the accused person had been tried and acquitted.”

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