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Written by: Zhu Xixin
2019-11-28 20:45
Last updated: 2019-11-28 20:45The defendant convicted of drug trafficking claimed that he had been absent from the trial for half a day because of toothache, but was processing the cautionary statement of the court, and the trial judge stated that the court would continue unless the defendant was or was about to die. , And considered that it had no effect on the defendant. However, the defendant claimed that, just this afternoon, the police officer who had been tempted to confess him was summoned. Finally, the judge ruled that his cautionary statement could be presented, and he was finally convicted and sentenced to 8 and a half years in prison. The defendant believed that the trial judge's unfair treatment prevented him from obtaining a fair trial. He (28th) sought a reversal in the Court of Final Appeal and the Court adjourned the verdict.
The appellant, Zou Haoxian, was convicted of drug trafficking and sentenced to 8 and a half years in prison. He accused the trial judge of unfair handling of the case and sought a verdict in the final court. (Profile picture)
Confessed during the interview
The appellant, Zou Haoxian, was convicted of drug trafficking after trial in the High Court, stating that on August 21, 2016, he had trafficked about 41 grams of methamphetamine in Xianghua Village, Fanling.
The prosecution case stated that Zou was intercepted by two police officers on the same day and taken to the nearby disabled person's toilet to search for his body and seize the methamphetamine involved. The prosecution accuses Zou of admitting that he bought the drug for his own use, and the police officer wrote down his words in a notebook. Zou also made similar statements in the video meeting.
Feeling sick in the morning
However, when the case was brought to the High Court, Zou claimed that he pleaded involuntarily, so before the formal trial of the case, a procedure called "case-in-case" was conducted without a jury to determine the police officer's record. Whether the meeting in the book and the video can be presented as evidence.
The "in-case" procedure was tried on Friday, February 9 last year for one afternoon. When the trial was renewed on Monday morning, Zou informed the court through a lawyer that he felt unwell, but the trial judge responded that he could be in Zou's absence but his lawyer was present. Case continues. His barrister stated at the time that this was one of the practices. At about 11:00 am, Zou requested that the hearing be continued in his absence, and was approved by the trial judge.
Hearing Continues Unless He Dies
After a morning break in the court, the defense lawyer said that Zou needed to see a doctor in the afternoon, and the judge repeated his previous statement, saying that "unless he was dead or dying," the case will continue. And stated that the move did no harm to the appellant. Zou You was returned to court until lunch time at 1 o'clock.
Key Police Constable summoned in absentia
When the case was reopened in the afternoon, the defense lawyer stated that Zou had returned to the reception due to toothache. In the absence of the appellant, the case continued to call witnesses to testify in the afternoon and summoned a police officer who Zou allegedly induced him to confess.
Zou Yiri returned to court and defended himself in the "case in case". It was the police officer who induced him to admit possession of the drug in question, and also said that the drug actually belonged to the woman accompanying him. The trial judge did not accept Zou's statement, but accepted the confession of the police officer in the "case in the case", ruling that the police officer's notebook and video interview could be presented. Zou was convicted in the interrogation and sentenced to 8 and a half years in prison.
Barrister Xie Yingquan believes that the trial judge wrongly exercised his right of consideration in Zou Haoxian's case. (Photo by Zhu Xixin)
The judge of the appellate court looked at the documents and found
Zou had appealed to the Court of Appeal, but he was not represented by a lawyer at the time, so he did not mention that he was absent from the hearing when referring to the "case in the case", and the appeal was ultimately rejected. However, the judge of the Appeals Division found the matter by looking at relevant documents when writing the verdict. However, as the Appeals Division had decided to reject his appeal at that time, the appeal case was no longer reopened to address this issue.
Zou involuntarily waives his presence at the trial
Zou was represented by a lawyer when he appealed to the Court of Final Appeal, and his written submission emphasized that the "Human Rights Law" stipulates that the defendant can enjoy the right to be tried in court and can give instructions to the lawyer immediately. His lawyer stated that Zou had involuntarily waived his right to attend the trial, and that he was dealing with important evidence against Zou at that time.
Witnesses cannot be stressed without retrial
The appellant considers that the defendant was present at the trial and could see and hear the witness's testimony, which was used to charge the defendant. Even if the defendant has given instructions, the barrister can make cross-examinations, but if the defendant is deprived of his presence in court, he will not be able to face the witness and give the witness "stress". The appellant emphasized that "Justice must not be done, but must be seen to be done."
The defendant's absence must be handled with care
The appellant emphasized that the judge could continue the trial in the absence of the defendant, but he must use this right of care very carefully and use it only in exceptional circumstances. However, the trial judge of this case did not explain why this case is an exceptional case, and the right of consideration can be used.
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Whether the trial is appropriate
The judge of the final court, Ma Daoli, said that there are two parts to be dealt with in this case. First, the trial of the trial judge should be exercised in the absence of the defendant. If the trial judge does not exercise his right of consideration properly, he must consider whether the case is fair.
Mr. Xie Yingquan, the counsel representing Zou, emphasized that the trial judge misjudged his right to consider and deprived Zou of his rights, and stressed that if Zou was present, it would cause “stress” on the testimony of witnesses. However, Ma asked whether the prosecution witness still gave evidence in subsequent trials. Mr. Xie said that the police officer also gave testimony later, but the trial judge also ruled that the police officer's notebook and video interviews could be attended.
Questioning whether it will make outsiders question our system
The representative of the Department of Justice responded that Zou had always been represented by a barrister and had been represented by a barrister in the original trial, and Zou was also instructed by the barrister. In addition, there were only six prosecution witnesses throughout the "case in the case". During Zou's absence, only one witness was called.
Judge McLaren asked whether this kind of situation would make the outside world question the system in Hong Kong. The representative of the Department of Justice responded that the public opinion was indeed taken into account, but did not consider the case to be the case of the judge.
The final judge adjourned the ruling.
Case number: FACC 4/2019
Court of Final Appeal