HKSAR v. Walsh Kent Andrew
Court of First Instance
Criminal Case No 368 of 2015
Zervos J in Chambers
16 November, 15 December 2017

Criminal law and procedure — arraignment — defendant’s personal attendance at his arraignment necessary even if he resided abroad and arraignment only for purpose of his formal acquittal

Words and phrases — “direct otherwise” — Criminal Procedure Ordinance (Cap. 221) s. 49(1)

The Department of Justice having decided to terminate the prosecution of D for unlawful trafficking in dangerous drugs and he wanting to be arraigned so as to be formally acquitted, the Court was asked to decide whether his arraignment could take place without his presence or via television link from Australia where he was currently residing.

Held, ruling that neither of those two courses was open to the Court, that:

  • The court’s discretion under s. 49(1) of the Criminal Procedure Ordinance (Cap. 221) to “direct otherwise” related to the norm of defendants being placed at the bar of the court unfettered and not in prison clothes. It did not extend to permitting his absence at his arraignment. (See paras. 5–6.)
  • As appears by ss. 79H to 79L (Taking Evidence From Witnesses Outside Hong Kong by Live Television Link) of the Criminal Procedure Ordinance (Cap. 221) and Practice Direction 9.9, what was permitted by television link was the taking of evidence of evidence from witnesses. It did not include a defendant’s arraignment. (See para. 7.)


This was an application for a ruling that the defendant’s personal attendance at his arraignment was unnecessary in the circumstances. The facts are set out in the judgment.


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