From Court with a Summons

Mr Gordon Chan represented a defendant stuck in the United States during the COVID-19 pandemic and pleaded guilty on her behalf.

In HKSAR v Ho Sin Ping Teresina ESS 3837/2021, the defendant was summonsed to the Magistrate Court for failing to comply with a building order, a criminal offence under s 40(1BA) of the Building Ordinance (Cap 123). She was out of Hong Kong at the time and could not return from the United States due to travel restrictions at the time. Upon being notified of the summons, she took remedial actions and instructed a law firm and counsel to handle the summons on her behalf.

Mr Gordon Chan appeared on the defendant’s behalf in her absence. After entering a guilty plea, she was fined $3,000 after mitigation.

Under s 18 of the Magistrates Ordinance (Cap 227),  a defendant who is represented by counsel in summary proceedings shall not be deemed to be absent unless the defendant must be present due to other legal requirements such as bail. In a judicial review case of  Inglis v Loh Lai Kuen Eda (Permanent Magistrate) [2004] 4 HKC 220, the Court of First Instance also confirmed that section 18 also applied in entering a plea on behalf of an absent defendant.

Even though a defendant is entitled to such a right under section 18, irrespective of the reason for his absence, whether such a right should be exercised is subject to other considerations. These may include the likely sentence and the seriousness of the offence.

On the other hand, failure to attend court proceedings is a serious matter. A warrant of arrest may be issued, and the defendant may also be subjected to bail conditions.

Suppose some reasons prevent one’s appearance in court. In that case, such persons should consider consulting a lawyer to see whether an alternative arrangement could be made instead of missing important court dates.