No: 2002/4316/C2 
Neutral Citation Number: [2005] EWCA Crim 476
IN THE COURT OF APPEAL 
CRIMINAL DIVISION 
Sitting at Cardiff Crown Court
Law Courts, Cathays Park
South Glamorgan CF10 3PG 

Friday 18 February 2005
 
B E F O R E:
LORD JUSTICE PILL 

MR JUSTICE CURTIS 
 
MR JUSTICE PITCHFORD
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R E G I N A 

-v- 

YAN TONG WANG 
 
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MR F JONES appeared on behalf of the APPELLANT
MR C JAMES appeared on behalf of the CROWN
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J U D G M E N T
1.	MR JUSTICE PITCHFORD:  On 5th August 2004, His Honour Judge Burr sitting at Swansea Crown Court made a finding against the appellant of contempt of court under section 3 Criminal Procedure (Attendance of Witnesses) Act 1965.  In consequence the appellant was committed to prison for one month.  He was released from that period of imprisonment on 5th September.  The appellant now appeals the finding of contempt as of right under section 13(2)(bb) Administration of Justice Act 1960.
2.	The circumstances giving rise to the contempt hearing are as follows.  A man named Cheng Xing was charged with conspiracy to assist illegal immigration into the United Kingdom and money laundering.  The appellant made a witness statement dated 6th May 2003 in which he described the circumstances in which he was assisted to make an illegal entry into the United Kingdom.  The trial of the defendant was fixed for 10th May 2004.  
3.	The appellant, it was common ground, is unable to communicate in English, speaking some Mandarin and a Fujan dialect.  It was a condition of his temporary residence in the United Kingdom imposed by the Immigration Service that the appellant reside at 19 Portland Road, Aberystwyth, premises at which the business of a Chinese restaurant was carried on.
4.	The commencement of the trial being imminent, the appellant was visited in Aberystwyth on Friday 6th May 2004 by DC Lyndon Smith, who warned him that he would be needed at Swansea Crown Court on Tuesday 10th May.  This information was imparted to him with the assistance of an interpreter, Alice Cheung, who translated to the appellant by means of a mobile telephone.  Neither she nor the police officer was in any doubt that the appellant understood the requirement to attend.
5.	Having heard evidence from them, from an immigration officer and from the appellant, the judge found that within 48 hours - that is on or before Sunday 8th May - the appellant left his address in Aberystwyth without, as he was obliged, informing the Immigration Service and travelled to London.  There he remained until arrested on 4th August 2004 under a bench warrant issued by the judge on 25th May in circumstances which we shall describe in a moment.  
6.	No step had been taken to compel the appellant's appearance at court until 24th May 2004 when, at the prosecution's request, the court issued a witness summons.  The summons was served that day at the appellant's last known address by posting it through the letter box at 19 Portland Road.  The officer, however, saw that the property appeared to be unoccupied and so informed the court when an application for a warrant was made on 25th May.  It follows from the judge's finding of fact that the summons did not come to the personal attention of the appellant.
7.	The judge found at the contempt hearing on 5th August 2004 as follows, and we commence at page 39G of the transcript of the proceedings: 
"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."
8.	Mr Francis Jones has renewed his submissions on behalf of the appellant to this court.  Witness orders in committal proceedings were abolished by section 65 Criminal Procedure and Investigations Act 1996.  Schedules 1 and 2 of the Act apply to criminal investigations commenced after 1st April 1997.  The principal effect of the change is that there is no obligation on a witness to attend court merely because his evidence is included in what is called the 'committal bundle'.  The legal obligation to attend is triggered by a summons sought by the prosecution and issued by the Crown Court under section 2 Criminal Procedure (Attendance of Witnesses) Act 1965, as substituted by the 1996 Act.  Section 2 now reads:
"(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.
9.	A witness summons, it was accepted before the judge, is a document for the purposes of Crown Court Rules, r.28 which provides that:
"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..." 
10.	The witness summons issued to the appellant was regularly served by posting through the letter box at 19 Portland Road on 24th May 2004.  The application for a warrant under section 4 of the 1965 Act was regularly made and granted the following day.  The judge dealt with the appellant's failure to attend under section 3 of the 1965 Act which in its relevant parts reads as follows:  
"(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.
11.	In reaching this conclusion we consider that the judge fell into error.  There was no obligation upon the appellant to attend arising from any order of the court until 24th May and it was common ground that at no time did the appellant have actual notice of the summons issued on that day.  In those circumstances it seems to us it was not open to the judge to find that the appellant was in contempt of court.  We have no doubt that the judge was right to conclude that the appellant deliberately evaded a responsibility which he knew he should meet, but the mere failure to oblige the prosecution is not a contempt of court.  Only disobedience by the appellant to an order of the court of which he had notice would in our view have been sufficient.
12.	Had there been evidence, however, that the appellant was warned on 6th May that the prosecution would obtain a witness summons and had the appellant in that knowledge gone to ground for the purpose of evading service of a witness summons which he knew was coming, the judge's conclusion that there was a contempt under section 3 or, we add, at common law, may have been sustainable.  We do not reach a concluded view since the subject has not been fully argued before us.
13.	Authority has however been drawn to our attention.  In particular a decision of this court in R v Robert Abbott [2004] EWCA Crim. 91 of which we have helpfully been provided with a transcript.  The problem which faced the court on that occasion, a court over which my Lord, Pill LJ, presided, was not identical to that which faces the court in the present appeal.  However, in delivering the judgment of the court, Gray J at paragraph 13 described the arguments advanced on behalf of the prosecution as follows: 
"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."
14.	The court proceeded to find in Abbott that the summons having been issued it was regularly brought to the attention of the witness for the purposes of section 3(1) of the 1965 Act orally and, accordingly, a contempt had been committed under the statutory provisions.  We do not understand the court in Abbott to have said any more than this, namely that where the circumstances covered by section 3 of the 1965 Act exist, then the procedure in which the court is engaged in finding a contempt is that provided by section 3.  It does not seem to us that the court was intending to convey that the only contempt which may exist in consequence of the behaviour of the witness who evades an obligation to attend is that provided by section 3.  Nevertheless, we repeat that not having received full argument it has been unnecessary for us to consider the application of the common law to the facts of the particular appeal before us.  As it is, there was no evidence before the learned judge that the appellant with knowledge that a court order would be issued then went to ground to avoid its service.
15.	Accordingly, and with regret, we conclude that the finding of contempt was not open to the learned judge and must be quashed.