Chief Justice Ma: 1. I agree with the judgment of Madam Justice McLachlin NPJ. Mr Justice Ribeiro PJ: 2. I agree with the judgment of Madam Justice McLachlin NPJ. Mr Justice Fok PJ: 3. I agree with the judgment of Madam Justice McLachlin NPJ. Mr Justice Cheung PJ: 4. I agree with the judgment of Madam Justice McLachlin NPJ. Madam Justice McLachlin NPJ: A. Introduction 5. The appellant was convicted of trafficking in a dangerous drug and sentenced to 8½ years in prison after a trial before a jury. The appellant was absent for a portion of the trial due to a medical condition. The issue on this appeal is whether the trial judge’s refusal to adjourn the trial while he sought medical help for a painful dental problem requires that his conviction be set aside and a new trial ordered. 6. I conclude that while the trial judge should have granted the brief adjournment requested for the appellant to seek medical attention, the appellant’s absence from a portion of the trial did not render his trial unfair, having regard to the entirety of the proceedings. Accordingly, I would dismiss the appeal. B. Facts and Judicial Proceedings B.1. Events Leading to the Arrest 7. In August 2016, PC 4543 (“PW1”) and PC 9687 (“PW2”) were on plain clothes patrol on the street. PW1 spotted the appellant who was accompanied by a female friend, Ms Chan. PW1 thought the appellant was acting suspiciously because of the way he was walking and holding his hands in front of his crotch area as if to conceal something in his clothing. PW1 asked PW2 to join him in intercepting the appellant and Ms Chan. PW1 touched the crotch area of the appellant and felt something hard. The police officers took the appellant to a nearby disabled toilet for a further search, which revealed drugs hidden in the appellant’s underpants. PW1 cautioned the appellant, who made certain admissions. The appellant says that PW2 induced him to admit possession of the drugs by promising that the appellant would only be charged for possession of dangerous drugs and Ms Chan would be released (“inducement”). He was taken to the police station, where he signed a post-record of his verbal admissions given in the disabled toilet and made further admissions in a video-recorded interview (“confession”). He was then charged with trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. B.2. The Trial 8. The trial began with a voir dire to determine whether the confession was voluntary and hence admissible. The appellant alleged that the confession was inadmissible because of the inducement. On day 2 of the voir dire, while the prosecution’s first witness, PW1, was still testifying, the appellant indicated that he was unwell with a swollen and infected gum and a headache, for which he had taken painkillers. The trial judge responded that the trial could continue in his absence because he was represented by counsel. The appellant’s counsel replied that this was an option but indicated that after completion of the evidence of PW1, he would seek the trial judge’s further direction. At 11:06am, while PW1 was still being cross-examined, the appellant informed the trial judge that he felt dizzy and requested to leave but the proceedings could continue in his absence. The trial judge agreed, saying he could be brought back when he felt fit. 9. Shortly after the appellant left the courtroom, at 11:29am, the court adjourned for the mid-morning break. After the break, the appellant’s counsel informed the trial judge that the appellant felt a bit better but would go to see the doctor at Lai Chi Kok Reception Centre in the afternoon. The trial judge responded, “we’ll continue this afternoon without him”. The transcript then reveals the following exchange: “MR. LO: Yes. Well, but, your Ladyship, is it I … COURT: That’s perfectly proper. He is not well. There is no reason why he should be here. You said you had full instructions. We can move on. Otherwise, unless he is dead or dying, he stays. So he has a choice. MR. LO: Your Ladyship, but … COURT: I can’t see that he is in any prejudice. It’s a voir dire. You have full instructions. MR. LO: Okay.” After the conclusion of the cross-examination of PW1 at 1:03pm, immediately before the lunch adjournment, the appellant’s counsel renewed his concern: “MR. LO: Your Ladyship, my latest instruction from my client is still – is that he would like to go back to the Lai Chi Kok for … COURT: To be then … MR. LO: Yes. COURT: Well, then we will … MR. LO: But I – your Ladyship, your stance is clear and I know it’s hard to convince your Ladyship otherwise. However, I urge you to – I urge your Ladyship to reconsider whether it is the best interest to the defendant if he is – if … COURT: He is well-represented, Mr Lo. He has given full instructions. Your case has been put. It has been reduced to your grounds of objection. If he is that unwell, then of course he must go back. If he feels he needs to be here, then he can choose but as far as I am concerned, there will be no prejudice to your client whatsoever being represented by you and your instructing solicitor. This isn’t the trial. This is – before a jury at this stage. This is a voir dire. MR. LO: Yes, but such decision would affect to some certain extent his – the trial. COURT: No, Mr, I’m not with you on that. He has a choice. It’s up to him to decide what he wishes to do. You’re more than competent to deal with this. MR. LO: Well, I’m … COURT: He hasn’t with the main witness given you other instructions during your cross-examination. You’re well prepared. MR. LO: All I could say, your Ladyship, is I’m flattered. COURT: And I hope he manages to get some sort of medication which will make him better. MR. LO: Grateful, your Ladyship. COURT: And we’ll see what the doctor has to say. 2:30, gentlemen.” 10. At 2:30pm, the trial resumed in the absence of the appellant. The appellant’s counsel informed the trial judge that the appellant had gone back to Lai Chi Kok Reception Centre to consult a doctor as he had a dental problem with tremendous pain, and it was anticipated that the appellant could be present in court the next morning. He reapplied for a short adjournment to the next day. The trial judge stated the proceedings would continue and told the appellant’s counsel not to try again as she had already made her ruling and decision. The appellant was absent from the voir dire for the whole afternoon and thus not present for the examination in chief and cross-examination of PW2, who had allegedly given the inducement that made the confession involuntary. Having sought medical attention, the appellant returned to the trial the next morning. B.3. The Court of Appeal 11. The appellant applied for leave to appeal against his conviction to the Court of Appeal. Unrepresented, he complained of the refusal of the trial judge to adjourn his case to allow his counsel to prepare for the voir dire, and of the trial judge’s failure to provide adequate jury directions on the possibility of hiding the dangerous drugs inside his underpants. The application was dismissed. 12. In an Addendum to its judgment, the Court of Appeal noted that the clerk’s log revealed that the appellant had claimed he was ill on day 2 of the voir dire but that the trial had continued that afternoon in his absence. However, since it had already issued an order dismissing his application for leave to appeal, the court viewed itself as functus officio and did not deal with this matter or its significance. This is now before us. B.4. The Present Appeal 13. The Appeal Committee of this Court granted leave to appeal on the substantial and grave injustice ground, namely that it was reasonably arguable that the appellant was deprived of a fair trial by the trial judge’s refusal to grant a short adjournment due to the appellant’s stated inability to attend court by reason of illness and instead, continuing with the trial in his absence. C. The Law 14. Article 11(2)(d), section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383,provides that in the determination of any criminal charge against him, a person shall be entitled to be present at his trial: “Article 11 Right of persons charged with or convicted of criminal offence … (2) In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality— … (d) to be tried in his presence …” 15. This well-established right allows the accused to see and hear the case against him, confront his accusers, and give prompt and continuous instructions to his legal representatives. The presence of the accused may also place psychological pressure on witnesses to tell the truth, enhancing public confidence that justice has been done. See R v David Jeremy Taylor, Tina Kaisa Paivarinta-Taylor [2008] EWCA Crim 680 at [16]: “...The right to be present at court is vital. It is not only a right so that the defendant can participate by giving instructions and following the trial, but also so that he can see and hear the witnesses who are giving evidence against him. This is not only part of the process by which a defendant participates at trial, but is also a sanction by which the public can be confident that there are pressures on those witnesses who give adverse evidence against a defendant to tell the truth. To give an account of events in a witness statement or within the seclusion of a police station is one thing. It is quite another to have to stand up in public, face-to-face with a defendant, and repeat those assertions. …” 16. The right to be present at one’s trial is part of the broader right of everyone charged with a criminal offence to a fair trial.[1] It is not an absolute right. The trial judge has a discretion to allow the trial to proceed in the accused’s absence in appropriate circumstances. As Lord Bingham said in R v Jones (Anthony), [2003] 1 AC 1 (“Jones”), at [6]: “... The presence of the defendant has been treated as a very important feature of an effective jury trial. But for many years problems have arisen in cases where, although the defendant is present at the beginning of the trial, it cannot (or cannot conveniently or respectably) be continued to the end in his presence. This may be because of genuine but intermittent illness of the defendant … . In all these cases the court has been recognised as having a discretion, to be exercised in all the particular circumstances of the case, whether to continue the trial … . The existence of such a discretion is well established … . But it is of course a discretion to be exercised with great caution and with close regard to the overall fairness of the proceedings; a defendant afflicted by involuntary illness or incapacity will have much stronger grounds for resisting the continuance of the trial than one who has voluntarily chosen to abscond.” 17. The authorities[2] establish a number of factors that should be considered in determining whether a trial should be continued in an accused’s absence. They include the following: - Was the accused’s absence voluntary or involuntary? Where an accused is absent because of illness, the absence is generally treated as involuntary. - Has the accused waived the right to be present at his trial? This is a question of fact to be determined in all the circumstances. - Would an adjournment resolve the problem of the accused’s absence? If so, would the adjournment required be short or long? Would an adjournment impact negatively on the conduct of the trial, for example, the effect of delay on the memory of witnesses? - Is the accused legally represented? If so, to what extent are his legal representatives able to receive and act upon instructions in his absence? - Would the accused be prejudiced by his absence, having regard to the nature of his defence and the evidence against him? - Would there be a risk of the jury reaching an improper conclusion about the accused’s absence? 18. The factors to be considered cannot be reduced to an exhaustive or conclusive checklist. It is clear, however, that a judge in exercising the discretion should carefully consider all the relevant circumstances arising in the case at hand with the “overriding concern … to ensure that the trial, if conducted in the absence of the [accused], will be as fair as circumstances permit and lead to a just outcome.”[3] It is also clear that the judge should proceed with “utmost care and caution”[4]. The decision to proceed with a trial in the absence of an accused should only be in “rare and exceptional cases”[5], and if an accused is absent because of illness “it would very rarely, if ever, be right to exercise the discretion in favour of commencing the trial, at any rate unless the defendant is represented and asks that the trial should begin.”[6] Indeed, it has been said that the discretion “should be sparingly exercised and never if the accused’s defence will be prejudiced by his absence.”[7] 19. Where an appellate court concludes that the discretion has been exercised improperly, the remaining question is whether, viewing the trial as a whole, the absence of the accused rendered the trial unfair. See Jones.[8] 20. As I earlier stated, the right to be present at one’s trial is part of the broader fair trial right. Not every departure from the norm will require a new trial. As the proviso in section 83(1) of the Criminal Procedure Ordinance, Cap 221 states: “…the Court of Appeal may, notwithstanding that it is of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no miscarriage of justice has actually occurred.” While this Court is not bound to apply the proviso, the principle enshrined is nevertheless inherent in the Court’s function to do justice. As Bokhary PJ observed in Tang Siu Man v HKSAR [1998] 1 HKLRD 350, at p.379I-J, “To allow an appeal just because something has gone wrong at the trial even though it has not resulted in a miscarriage of justice would not be doing justice.” D. Application of the Law 21. The first question is whether the trial judge in this case exercised her discretion to order the trial to continue in the appellant’s absence correctly. I conclude she did not. 22. The trial judge did not consider the factors referred to in the cases in a careful and systematic way. She did not allude to the authorities that suggest great caution in ordering a trial to proceed where an accused cannot be present because he is genuinely ill. Most importantly, she very quickly concluded that there would be no prejudice to the accused because the matter at that stage was the voir dire, not the trial proper; and because the accused had instructed his counsel. 23. The trial judge’s suggestion that the accused’s presence is less necessary at a voir dire to determine the admissibility of a confession than at the trial proper was, with respect, misplaced. The issue of the admissibility of the confession was crucial to the appellant’s defence. 24. The trial judge’s suggestion that the appellant had a choice to stay or leave is also questionable. The appellant’s counsel advised the trial judge that the appellant was in great pain. To suggest the appellant had a real choice of whether or not to avail himself of his right to be present at the trial when he was in great pain was unrealistic and goes against the weight of authorities, which have consistently treated absence due to genuine illness as involuntary. 25. Similarly, the trial judge’s assumption that the appellant would not be prejudiced because he had instructed his counsel, and his objections to the admissibility of the confession had been reduced to grounds of objections filed with the court, while relevant, does not fully answer the appellant’s concern. One of the purposes of giving the accused the right to be tried in his presence is to allow him to instruct his counsel on the basis of what he hears the witnesses testifying against him say. The trial judge seems to have assumed that, because the appellant did not give his counsel instructions in relation to PW1, he also would not do so for PW2 and accordingly would not be prejudiced by being absent for the testimony of PW2. Yet the two officers played different roles in the arrest, and PW2 was the officer alleged to have made the vitiating inducement. 26. Critically, the trial judge appears not to have taken into account the fact that the adjournment would have been brief: for the afternoon only. When the brevity of the proposed adjournment is weighed against the importance of the appellant’s right to be present at all stages of his trial and his involuntary absence, the cautious approach required by the authorities suggests that the better course here would have been to adjourn the proceedings until the next morning. 27. The remaining question is whether the trial, considered as a whole, was fair, notwithstanding the appellant’s absence during PW2’s evidence. The appellant argues that the admissibility of the confession was important, and suggests that his absence may have prejudiced the possibility of having the confession declared inadmissible. He argues that because of the trial judge’s ruling, he was deprived of the opportunity to confront the most crucial witness of the voir dire in person – a witness whose evidence was consequently given free of pressure from the physical presence of the appellant and resulted in the admission of the confession. He says that this in itself constituted irremediable prejudice, rendering other considerations irrelevant. 28. The respondent’s counsel counters that the court must view the proceedings as a whole and ask whether the appellant’s trial was fair. He submits that the appellant’s absence from the courtroom for PW2’s evidence did not prejudice him and thus did not render his trial unfair. The respondent points to nine considerations. 1. The appellant had experienced counsel throughout the trial and the voir dire. 2. The appellant’s counsel agreed with the trial judge that he had full instructions. 3. The appellant’s counsel had filed detailed written grounds of objection to the confession, containing all conceivable challenges. 4. The alleged inducement by PW2 was made in the presence of PW1, who testified as to how it was not made in the appellant’s presence. 5. The appellant before leaving the courtroom knew that the trial would proceed in his absence and probably instructed his counsel over the lunch break before leaving to seek medical attention. (However, there is no evidence of what was discussed and the appellant was in pain.) 6. The absence of the appellant was for a short period of time. 7. The appellant did not attempt to recall PW2 at the end of the voir dire. 8. The appellant testified in the voir dire and had meaningful participation. 9. The voir dire was recanvassed in the trial proper. The evidence presented on the voir dire was again presented on the trial proper before the jury. (Although it can be countered that at this stage the damage had been done, in that the confession has been admitted and the jury had seen it.) 29. I agree with the respondent’s submission that the proceedings must be viewed as a whole and reject the appellant’s submission that his absence, without more, constituted an irremediable prejudice of his right that rendered the trial unfair. While some of the respondent’s points are stronger than others, I find it impossible, viewing the proceedings as a whole, to conclude that the appellant’s absence from the trial for the afternoon during which PW2 testified on the voir dire rendered his trial unfair. When asked by this Court whether additional or different questions would have been put to PW2 had the appellant been present, the appellant’s counsel did not identify any. He also rightly conceded that the appellant’s presence was only one facet of a fair trial and that other considerations listed by the respondent’s counsel also played a part. I find that any actual or perceived prejudice or unfairness by reason of the appellant’s absence could be, and was in fact, counterbalanced by other safeguards that the appellant enjoyed in his trial. 30. The trial judge should have granted a brief adjournment of the trial for the afternoon while the appellant sought medical assistance. However, in the circumstances of this case, it cannot be said that continuing the trial in his absence prejudiced his defence and thus rendered the trial unfair. Nor is this a case where the trial judge’s improper exercise of discretion would in itself bring the administration of justice into disrepute, requiring a new trial on that ground alone – something the respondent admitted could occur. While the trial judge’s “dead or dying” comment was insensitive and inappropriate, it was isolated, and offset by her stated belief that the appellant would not be prejudiced by continuing the trial that afternoon in his absence. 31. I conclude that the appellant has failed to show prejudice resulting in an unfair trial. In the words of the Hong Kong Court of Final Appeal Ordinance, Cap 484, he has not shown that a substantial and grave injustice has been done to him. 32. I would dismiss the appeal. Mr James Tze, instructed by H.Y. Leung & Co. LLP and assigned by the Director of Legal Aid, and Mr Tom Cheung, instructed by H.Y. Leung & Co. LLP on a pro bono basis, for the Appellant Mr Ira Lui SADPP (Ag.) and Mr Andy Lo SPP, of the Department of Justice, for the Respondent [1] Article 87 of the Basic Law and Article 10 of the Hong Kong Bill of Rights Ordinance. [2] Jones at [13] – [15] approving the Court of Appeal’s list of relevant factors (except “the seriousness of the offence”) in R v Hayward [2001] QB 862, applied in HKSAR v Kwan Wai Keung & Others (CACC 259/2011, unreported) at [6] and HKSAR v Singh Gursewak [2015] 1 HKC 498 at [30]. [3] Jones at [14]. [4] Jones at [13]. [5] R v Hayward at [22(4)]. [6] Jones at [13]. Although this is couched in the context of commencing trial in the accused’s absence, Lord Bingham also specifically recognised that the same discretion exists regardless of whether the question is one of commencing or continuing a trial in the accused’s absence, at [10]. [7] R v Pearson, The Independent25 February 1998 CA, [1998] Lexis Citation 3879 at p.13, citing R v Howson (1982) 74 Cr App R 172 at p.179. [8] Although their Lordships diverged on the question whether or not the lower court was correct in finding that the accused had waived his right to be present at his trial by absconding, the disagreement did not have any bearing on the unanimous decision to dismiss the appeal on the basis that the accused had, in all the circumstances, “enjoyed his Convention right to a fair trial”: [15].