Once a witness is summonsed to court, he has a duty to attend. This also applies to a complainant. Failing to do so without proper excuses could result in dire consequences.
In KCS 14022/2022, Mr Gordon Chan acted pro bono under the Bar Free Legal Service Scheme in defence of a taxi driver who had been summonsed for refusing the hire of a man in Sai Kung at noon one day in February 2022. It is a classic “one-on-one” case which should have been resolved within half a day, where the focus is on the credibility of the witnesses.
The case went to trial but not smoothly. It was twice adjourned when the complainant, being the key witness, left Hong Kong shortly before the fixed trial date.
The first incident occurred in September 2022, just a few days before the fixed trial date. The complainant informed the police that he needed to fly abroad urgently due to a family emergency. As a result, the court refixed it to November 2022.
The second time occurred just the day before the refixed trial date. The complainant informed the police that he had booked a flight to Japan and departed Hong Kong the same day for important business affairs.
The last-minute departure of the complainant was revealed in court when everyone was ready for the trial. While the prosecution refused to withdraw the case and asked that it be adjourned, the defence heavily opposed it as the complainant’s behaviour was without good reason. It would also be unfair to the taxi driver, who was much less educated and older than the complainant.
While the case was adjourned to the end of December 2022, the learned Magistrate found that the complainant’s conduct was wholly unacceptable and issued a warrant of arrest against him. This is a rare turn of events.
The complainant finally shows up in December, and a simple, one-day trial is finally concluded. In acquitting the taxi driver, the learned Magistrate found that the complainant was not completely honest in his testimony in court.
This case serves as a reminder that even though a case seems trivial. It is vital for all parties involved to attend any court hearings and to adhere to court orders. Unexplained absences and breaches could attract severe consequences.
Gordon Chan, Esq
Barrister-at-law, Archbold Hong Kong Editor on Public Health, and Member of the Bar Association's Committee on Criminal Law and Procedure. Specialised in medical, technology and criminal law.
