HKSAR v. ECHENE MATHIAS (ALSO KNOWN AS ECHENE MATHIAS HUBERT MARIE)

HKSAR v. ECHENE MATHIAS (ALSO KNOWN AS ECHENE MATHIAS HUBERT MARIE)

The court found on the facts that the 2nd defendant voluntarily absconded and waived her rights to be present and to legal representation, the prosecution had made reasonable efforts to notify her, and there was a real risk of irreversible prejudice to the prosecution (loss of essential witnesses due to age, health and overseas locations) if the trial were deferred; accordingly the court exercised its discretion to order the trial to proceed against the 2nd defendant in her absence but qualified that the trial judge must reassess fairness on the first day of trial and may order otherwise.

Citation
[2020] HKDC 876
Parties
Prosecution: HKSAR; 1st Defendant: ECHENE Mathias (also known as ECHENE Mathias Hubert Marie); 2nd Defendant: ECHENE Gaelle Francoise Marie
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
17 November 2020
Case Number
DCCC1029/2012
Procedural Posture
Criminal Allegation of Dealing With Proceeds of Indictable Offence (organized and Serious Crimes Ordinance S25) / Pre Trial Application to Permit Trial to Proceed in Absence of 2nd Defendant (decision Made Before Trial Due to Commence 23 November 2020)
Outcome
Application by prosecution granted to permit trial to proceed against 2nd defendant in her absence, subject to review by the trial judge on the first day of trial
Legal Topics
Trial in Absence, Waiver of Right to Be Present, Right to Legal Representation, Proceeds of Crime, Court Discretion
Source Language
EN
Criminal Law Criminal Procedure Human Rights Trial in Absence Waiver of Right to Be Present Right to Legal Representation Proceeds of Crime Court Discretion

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Parties

HKSAR

Prosecution

ECHENE Mathias (also known as ECHENE Mathias Hubert Marie)

1st Defendant

ECHENE Gaelle Francoise Marie

2nd Defendant

Procedural Posture

Criminal Allegation of Dealing With Proceeds of Indictable Offence (organized and Serious Crimes Ordinance S25) / Pre Trial Application to Permit Trial to Proceed in Absence of 2nd Defendant (decision Made Before Trial Due to Commence 23 November 2020)

Legal Issues

  1. 1 Whether the trial may proceed against the 2nd defendant in her absence
  2. 2 Whether the 2nd defendant's absence was voluntary and amounted to waiver of rights
  3. 3 Whether proceeding in absence would be fair to the defence and to the prosecution

Ratio Decidendi

The court found on the facts that the 2nd defendant voluntarily absconded and waived her rights to be present and to legal representation, the prosecution had made reasonable efforts to notify her, and there was a real risk of irreversible prejudice to the prosecution (loss of essential witnesses due to age, health and overseas locations) if the trial were deferred; accordingly the court exercised its discretion to order the trial to proceed against the 2nd defendant in her absence but qualified that the trial judge must reassess fairness on the first day of trial and may order otherwise.

Court Disposition

Application by prosecution granted to permit trial to proceed against 2nd defendant in her absence, subject to review by the trial judge on the first day of trial

Orders

  • Application granted on 20 October 2020 permitting trial to proceed against 2nd defendant in absence
  • Qualification that the trial judge shall review all circumstances on the first day of trial and decide whether to hold trial against 2nd defendant in her absence or make other orders