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England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Wang, R v  EWCA Crim 476 (18 February 2005)
Cite as:  EWCA Crim 476
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Law Courts, Cathays Park
South Glamorgan CF10 3PG
B e f o r e :
MR JUSTICE CURTIS
MR JUSTICE PITCHFORD
|R E G I N A|
|YAN TONG WANG|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MR F JONES appeared on behalf of the APPELLANT
MR C JAMES appeared on behalf of the CROWN
Crown Copyright ©
"I do not accept and I specifically reject and I am satisfied so as to be sure that there was no question of Wang Yen Tung, the defendant, being under any misapprehension at all as to the necessity for his attendance at court either on the 10th May or at some subsequent date and his failure to attend on that or subsequent dates was a deliberate failure, that he for whatever reason ... quite deliberately absented himself and made sure that he did not attend court.
Mr Francis Jones in his submissions says that on the 6th May there was no witness summons in existence and of course he is right about that. And if there was no witness summons in existence, there was no obligation upon the defendant to attend court under the terms of the original statement that was made and attached to the prosecution bundle because he was never notified that he was fully bound and, even if he was, that did not of itself create any obligation to attend court. In the face of those submissions it is suggested that it cannot now be said that he is in breach of any obligation to this court to attend.
I do not accept that. Once a person is notified of the requirement to attend court, he having made a statement in terms that he understood at the time which were fully explained to him and translated to him, then that obligation remains and his deliberate intention to absent himself from the address at which he was required to reside demonstrated to me when the summons was issued that he had no intention of attending court. And even though that was issued some weeks after the 6th May, it was properly and lawfully deposited in the premises where he was required to reside where it should have come to his attention had he been lawfully in occupation as he was required to be. And he failed to answer to that summons.
It seems to me, therefore, that the summons was properly issued. The warrant in consequence of the summons was properly issued and I am satisfied so as to be sure on the finding that he deliberately absented himself and was, for whatever reason, determined not to attend this court that he is responsible without just excuse for disobeying the requirement to attend before this court and I find the allegation against him - which is framed by me, these being contempt proceedings - proved in accordance with the burden, the criminal burden, and standard of proof."
"(1) This section applies where the Crown Court is satisfied that-
(a) a person is likely to be able to give evidence likely to be material evidence, or produce any document or thing likely to be material evidence, for the purpose of any criminal proceedings before the Crown Court, and
(b) the person will not voluntarily attend as a witness or will not voluntarily produce the document or thing.
(2) In such a case the Crown Court shall, subject to the following provisions of this section, issue a summons (a witness summons) directed to the person concerned and requiring him to-
(a) attend before the Crown Court at the time and place stated in the summons, and
(b) give the evidence or produce the document or thing."
We need not for present purposes recite succeeding subsections, save to note that witness summonses should be applied for as soon as is reasonably practicable after committal or transfer. In the usual course it is unnecessary for the prosecution to apply for witness summonses because witnesses will usually agree to attend to give evidence on the date notified. It is however important to note that the court makes no order of which a witness can be in contempt unless and until it issues a witness summons on application under section 2 of the 1965 Act and Crown Court Rules, r.23.
"Any notice or other document which is required by these Rules to be given to any person may be served personally on that person or sent to him by post at his usual or last known residence or place of business in England or Wales..."
"(1) Any person who without just excuse disobeys a ... witness summons requiring him to attend before any court shall be guilty of contempt of that court and may be punished summarily by that court as if his contempt had been committed in the face of the court."
The judge reached the conclusion that the appellant, despite understanding the need conveyed to him on 6th May to attend court on the 10th, deliberately left his address and made himself unavailable. Since the summons was regularly issued and served, and since the appellant failed to attend in answer to the summons, his conduct was deemed a contempt of court. The appellant, in view of the intention he evinced within 48 hours of DC Smith's visit on 6th May to go to ground, had no just excuse for his disobedience to the summons subsequently issued on 24th May.
"Firstly, he points out that the learned judge had concluded that, although he had been contacted by an intermediary and informed of his obligation to attend court on 22nd August 2003, the appellant had deliberately by his actions made himself unavailable for service of the summons and that in fact the summons was never served. The contention advanced by [counsel] is that as the summons was not served section 3(1) of the Act had no application and the learned judge was entitled to proceed under the common law. The alternative submission advanced by [counsel] is that if the summons is deemed to have been served by reason of its communication, and as a consequence the appellant commits a statutory contempt, then section 3 of the 1965 Act does not exclude the operation of the common law contempt at least in those cases where a defendant's conduct is contumelious."
At paragraph 14:
"We are unable to accept either of those submissions. Leaving aside for the moment the question of service of the summons, it does appear to us to be clear that, whilst prior to the enactment of the 1965 Act the failure of a witness to attend court was punishable as a contempt at common law, the effect of the enactment of section 3 was to convert what was previously a common law contempt into a statutory contempt. That being so, we cannot accept that there exists a parallel jurisdiction, namely, contempt at common law, in circumstances where section 3 applies."