HKSAR v. Lai Oi Yan
Read the full judgment text of CACC 265/2014 on BabelCite. This Court of Appeal judgment was delivered on 17 May 2016.
1. The applicant appeared before Andrew Chan J (“the judge”) in the High Court on an Indictment containing 5 counts of conspiracy to steal, contrary to section 9 of the Theft Ordinance, Cap 210 and sections 159A and 159C of the Crimes Ordinance, Cap 200. She pleaded not guilty to the charges. On 28 July 2014, the applicant was convicted by the unanimous verdict of the jury on Charges 1 and 2. She had been acquitted of Charges 3 to 5 after the judge ruled she had no case to answer on each of thos
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CACC 265/2014 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO 265 OF 2014 (ON APPEAL FROM HCCC 395/2013) ------------------------
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_________________ J U D G M E N T _________________ Hon McWalters JA (giving the judgment of the court): 1.The applicant appeared before Andrew Chan J (“the judge”) in the High Court on an Indictment containing 5 counts of conspiracy to steal, contrary to section 9 of the Theft Ordinance, Cap 210 and sections 159A and 159C of the Crimes Ordinance, Cap 200. She pleaded not guilty to the charges. On 28 July 2014, the applicant was convicted by the unanimous verdict of the jury on Charges 1 and 2. She had been acquitted of Charges 3 to 5 after the judge ruled she had no case to answer on each of those three charges. The applicant was sentenced to a total term of 10 years’ imprisonment. 2.The applicant applied for leave to appeal both her conviction and her sentence but on 7 May 2015 abandoned her application for leave to appeal her sentence. At the hearing of her application for leave to appeal her conviction we reserved our judgment which we said we would hand down at a later date. This we now do. The trial 3.The applicant was a general banking officer of the Hong Kong and Shanghai Banking Corporation (“HSBC”) who, between June and November 2012 worked at the bank’s Festival Walk branch. It was alleged that in return for a reward she conspired with others to steal monies from the accounts of a number of the bank’s customers. The customer who was the victim named in count one was Xia Jia (“Xia”) and the victim named in count two was Zhang Jianxin (“Zhang”). 4.The prosecution case was that she took advantage of her position at the bank by logging into the bank’s database and obtaining customer information contained in it which she then supplied to her co‑conspirators with the intention of enabling them to steal money from the bank accounts of the two customers. The prosecution also relied on two sets of admissions she made on the day of her arrest which were recorded as notebook entries. Finally the prosecution relied on a sudden increase in her wealth that came from substantial deposits of monies into her bank account shortly after the thefts occurred. 5.The defence case was a denial that the applicant had been a participant in a conspiracy to steal, a denial that the admissions to the police were made, together with a claim that the police behaved oppressively, and an assertion that her accessing the victim’s customer information was done in order the research their background with a view to promoting the bank’s services and products. As to the source of her sudden increase in wealth she claimed the monies came from her boyfriend who operated a restaurant business and that they were proposing to purchase a property in a development known as “The Reach”. 6.The key issues in the trial were:
The counts in the indictment 7.Each charge alleged that between certain dates the applicant conspired to steal a chose in action, being, in reality, the monies in the account of a particularized account holder with the HSBC. In legal terms the chose in action was the debt owed to the particular account holder by the bank the value of which was represented by the credit balance in the account holder’s account. 8.Each count particularized a different account holder. In respect of counts 1 and 2 the account holders were Xia and Zhang. The conspiracies were particularized as commencing on 27 July 2012 for count 1 and 28 July 2012 for count 2 and as ending on the day of the thefts, that is 14 August 2012. The commencement date of the conspiracies reflected the first occasion the applicant logged into the accounts of Xia and Zhang. The voir dire 9.A voir dire was conducted at the beginning of the trial in respect of the admissibility of two statements alleged to have been made by the applicant and recorded as police notebook entries. The statements and notebook entries were ruled admissible at the end of the voir dire. 10.The first statement was taken from her at the time of her arrest at her parent’s flat at Fanling. This was at 7:30 am on 5 November 2012. At this time she said:
11.At other premises at Yuen Long that she occupied with her boyfriend she made a second statement after the premises had been searched and the police had seized certain items. When the police searched the Yuen Long flat they found and opened the boyfriend’s safe. The police said that it contained mostly HK$100 banknotes which were creased and oily. Inspector Fung decided not to seize them. 12.This second statement was made at 11:22 am on 5 November 2012 and on this occasion the applicant said:
13.The applicant’s main objections to the admissibility of the statement entries on the voir dire proceedings were that the admissions were involuntarily made and were fabricated by the police officers. The prosecution case 14.It was undisputed that on 14 August 2012, HK$11 million and HK$4.5 million were stolen from Xia and Zhang’s HSBC bank accounts respectively. This took place at the HSBC branches at East Ocean Centre and Peninsula Centre when persons impersonating the account holders transferred the monies out of their accounts with the aid of false Chinese passports and by means of forged signatures. 15.In the admitted facts the applicant’s duties as a General Banking Officer were described as follows:
16.It was not in dispute that during the period of July and August 2012, the applicant had on many occasions logged into the bank’s computer system and viewed both Xia’s and Zhang’s account information. 17.The only direct evidence implicating the applicant was her admissions, made in the two police notebook entries, which were admitted into evidence after the voir dire. In addition, there was circumstantial evidence. 18.This other circumstantial evidence was:
19.In respect of the first piece of evidence, the prosecution proved that the applicant was the only staff member of the bank who had logged into the victims’ accounts. She commenced logging into their accounts on 27 and 28 July 2012 but stopped doing so after 14 August 2012, the day the thefts were committed. The first theft took place between 15:12 and 15:42 hours and the second theft at 16:03 hours and the applicant had checked into these two accounts shortly before the thefts occurred. The prosecution suggested that the applicant had accessed the two accounts with such frequency and for such duration that her interest in these two accounts could not have been due to her needing these two customers’ information in order to sell them the bank’s products, as she asserted in evidence, but was, rather, due to her wishing to monitor the balance in the accounts on behalf of her co-conspirators. 20.According to Miss Choi, the applicant’s supervisor, the applicant was required to call customers on a list that was generated by the bank’s computer system. Each list contained the names of 40 to 50 account holders. Selling bank products was one of the applicant’s main duties. However, it was Miss Choi’s evidence that the account holder Xia was not on the list of customers provided to the applicant. Her name appeared as a related customer of one of the account holders on the list. The prosecution suggested that there was no reason for the applicant to concern herself with Xia’s account as she was not her customer. 21.The applicant also had in her possession at her boyfriend’s flat and at her parent’s home HSBC computer printouts relating to the victims of counts 3, 4 and 5 and stored within her mobile phone the passport number of Zhang, the victim named in count two, in a file created on 13 August 2012. There was evidence from the bank that staff were prohibited from removing from bank premises any confidential information relating to customers of the bank and the accounts relating to them. To do so was regarded as a breach of the bank’s Code of Conduct and as serious misconduct. 22.In respect of the second piece of circumstantial evidence, a large amount of cash totaling HK$1.653 million was deposited into the applicant’s bank account at Hang Seng Bank (HSB) between 16 August and 6 October 2012. Of this amount HK$1.57 million was deposited in the months of August and September 2012. HK$500,000 was deposited two days after the theft, on 16 August, and within a week of the theft HK$1.1 million had been deposited. The prosecution alleged that the amount of these cash deposits was at odds with the applicant’s income as she only made HK$13,000 per month and even with a bonus, she could only earn up to HK$17,000 per month. Furthermore, there had never been such large cash deposits into her account in the past. There might have been some odd cash deposits in the past but they were mostly in small sums and the pattern of balances in the applicant’s account was in fact very steady. 23.In respect of the third piece of circumstantial evidence, the prosecution proved that the denominations of these large cash deposits were on one occasion all HK$1,000 notes and on other occasions all HK$500 notes and were made after the bank’s closing hours. In response to the applicant’s claim that the monies were deposited to fund the later purchase of a property known as “The Reach”, the prosecution countered:
24.Fourthly, the prosecution said that shortly after the thefts on 14 August 2012, the applicant had made very substantial investments. The applicant had opened a Securities Account with CITIC Securities Brokerage (HK) Limited (“CSB”) in September 2011. According to the records of CSB, as at 31 August 2012, the market value of the shares held in the account was only HK$67,280, but between 10 and 26 September 2012, a total of HK$1,467,000 was transferred into the account. It was the prosecution case that out of the approximately HK$1.5 million cash, HK$1.47 million was deposited into the CSB account with HK$1.31 million of this amount being used to purchase three new stocks. 25.The circumstantial evidence was put forward so that the jury would draw the inference that the persons carrying out the thefts had “inside information” and that the only person who provided them with the necessary inside information was the applicant. 26.Based on this circumstantial evidence, and the applicant’s admissions, the prosecution invited the jury to find that the applicant was the person who had provided the thieves with the information needed by them to carry out the thefts. The defence case 27.The applicant elected to give evidence and agreed much of the prosecution case. She did not dispute that the two thefts had occurred and that she had gained access to Xia and Zhang’s bank accounts and had obtained their personal information. However, the applicant denied that she had passed any information about Xia and Zhang’s accounts to anyone and she especially denied having looked up their sample signatures on the on‑line banking system (“OBS”). She asserted that she accessed the accounts solely for the purpose of promoting the bank’s services and products. 28.The applicant explained that every month, her supervisor Miss Choi would assign to her a list of contacts to work on. Mr Hu Zhiping and Zhang were on the call list given by Miss Choi. Mr Hu was also authorized by Xia to operate her bank account and by this route the applicant was able to access Xia’s information. The applicant said she did not contact Mr Hu but did call Xia twice but was unable to reach her; thereafter, she did not call Xia again. As for Zhang, she said she contacted him in early August 2012 but at that time he was in Mainland China. She introduced to Zhang insurance and foreign currency products by phone and subsequently met Zhang on 4 October 2012 when he came to Hong Kong. The applicant said that she did not log into Xia and Zhang’s accounts after 14 August 2012 because Miss Choi gave her a new call list. 29.The applicant also explained how she came to deposit such large sums of money into her bank account. She said a property agent called her in August 2012 and informed her that “The Reach” was about to be sold so she asked her boyfriend for the money needed for the purchase of this property. Although the date for the sale had not been fixed, she obtained HK$500,000 from the safe and on 16 August 2012 she deposited it into the bank account. Similarly, in respects of deposits of HK$100,000 on 20 August, HK$500,000 on 21 August and HK$178,500 on 24 and 25 August. On 14 September she said her boyfriend accompanied her to the bank when she deposited HK$289,000 which she had taken from his safe. 30.In addition, she explained that her boyfriend would give her pocket money from time to time and these other smaller sums of money that she deposited into her bank account also came from her boyfriend’s safe. Examples of such deposits were the sums of HK$20,000 and HK$13,300 that she deposited on 25 and 29 August respectively. 31.The applicant also explained why she had Zhang’s passport number in her mobile phone, saying that it was because she considered him to be a target customer and she could use the passport number to check on his account information and also see whether he was in Hong Kong. 32.In respect of the police’s conduct at her parent’s flat she maintained that she was not informed of her right of silence and was not shown a search warrant or any police warrant cards. She said Inspector Fung threatened to slap her and intimidated her father into not contacting a lawyer. 33.The applicant then said she was taken to the bedroom where the police interviewed her. When asked about the source of the monies in her account she said she told the police that they were the proceeds of sale of a flat and were monies given to her by her boyfriend for their joint purchase of a property of The Reach. 34.One of the police officers picked up her mobile phone and asked who the person Bak Tau was and she said he was just a friend of a friend with whom she had meals. 35.She was then told that as the police had entered her home she had to sign something in acknowledgement. It was, she was told, just a formality and furthermore if she did not sign her mother would be late for work and her younger sister would also be taken to the police station. She agreed to sign but was not allowed to read the contents and it was not read to her. 36.Similarly at the Yuen Long flat, she was told to write out a declaration and sign without knowing what was recorded in the notebook. 37.The applicant also called her mother who gave evidence as to what transpired in her flat after the entry of the police. She confirmed that the police had taken the applicant into her bedroom and they remained there until after she, the mother, went to work which was about 10 minutes later. 38.The applicant’s boyfriend, Mr Cheung, next gave evidence and he testified he was the owner of a cash‑intensive restaurant and he kept the money it generated in his safe. He said that in 2012 daily takings reached over $20,000 a day and most customers paid with $500 banknotes. He explained that some of the money would be used for paying goods and salaries and, once or twice in each month, he would also take out some money and deposit it into the bank, the amounts being just enough to cover cheque payments. The bulk of the business takings would be kept in the safe. He testified that he would give the applicant pocket money, from seven thousand dollars to several hundred thousand dollars since he met her in 2008. He said the bulk of the money in the safe was in $500 notes and a few $1000 notes. He maintained that none of the banknotes were greasy or oily. 39.He explained that in August 2012, he had $2 million cash in his safe and between August and September, he gave the applicant $1.57 million from the safe for the purpose of purchasing a property of The Reach. He admitted to having in his possession the restaurant’s ledger, but did not produce it to substantiate his claim of a successful business generating a large cash income. The grounds of appeal against conviction 40.In his Perfected Grounds of Appeal against conviction filed on the applicant’s behalf on 12 May 2015, Mr David Ma put forward two grounds of appeal:
41.The first ground of appeal related to the judge’s conduct both on the voir dire and the trial proper. Mr Ma submitted that during the voir dire proceedings, the judge had failed to retain an air of impartiality and had prejudged the case from the outset; hence, his ruling in admitting the cautioned statements as recorded in the two police notebook entries should not be upheld. 42.In support of this ground, as it related to the judge’s conduct during the voir dire, Mr Ma relied on interventions or observations by the judge which evidenced that he was biased against the applicant and was pre‑judging her testimony. 43.In respect of the judge’s conduct during the trial, Mr Ma submitted that the judge had intervened repeatedly to give an impression to the jury that he did not believe the applicant’s testimony. He relied on passages of the trial transcript which, he said, showed:
44.Mr Ma relied on the case of HKSAR v Chan Kwan Kan [1998] 1 HKLRD 495 in which the Court of Appeal held that when a judge was sitting alone, it was particularly important for him to retain his air of impartiality and that an accused had the right to feel that during the trial, his case was being given a fair and balanced consideration, however implausible it might be. It was also held that the ultimate test was whether there was a real possibility that by his conduct the judge deprived the defendant of a fair and impartial trial throughout and he pre-judged the case before the evidence was complete. 45.In his written submission Mr Ma argued that it was clear from the judge’s conduct that he pre-judged the case and disbelieved the applicant from the outset. 46.Mr Ma further submitted that judicial interventions must not be to such an extent and of such a nature that they invite the jury to disbelieve the applicant; and that where this occurs it cannot be cured by the common formula in the summing-up that the facts are for the jury to decide. He referred the court to Michel v The Queen [2010] 1 WLR 879 where it was said by the Privy Council, on appeal from Jersey, that notwithstanding the safety of the conviction was not in doubt, a conviction should be quashed when a trial judge had acted, effectively, as a second prosecutor, and thereby deprived the defendant of a fair trial. 47.At the hearing of the application Mr Ma said that the only issue in the appeal is whether the number and extent of the interventions deprived the applicant of a fair trial, thereby rendering her conviction unsafe. In order to make good this ground of appeal Mr Ma focused on the judge’s interventions that took place during the applicant’s evidence in front of the jury. 48.Mr Ma dealt with a number of interventions by the judge in order to demonstrate the extent to which he had intervened and the effect his interventions would have had on the jury. He made it clear that he had no complaint against anything the judge said in his summing up but argued that no matter how fair the summing-up might have been it could not cure what had transpired at trial and could not remove the prejudicial impact that the judge’s interventions would have had on the jury’s view of the credibility of the applicant. The respondent’s submissions 49.The respondent submitted that a judge is entitled to interrupt proceedings, including during the making of submissions or the examination of witnesses, in order to advance the interests of justice. The respondent cited HKSAR v Wong Kam Tong CACC 522/2005, unreported, 22 May 2007, where the court held that a judge’s interventions are not improper, even if they are frequent and lengthy, provided that the judge follows the principles set out in the well known passage of Denning LJ in Jones v National Coal Board [1957] 2 QB 55, namely that he only asks questions of witnesses when it is necessary to clarify any point that has been overlooked or left obscure; to exclude irrelevance and discourage repetition; and to make sure by wise intervention that he follows the points that the advocates are making and can assess their worth and at the end to make up his mind where the truth lies. 50.It was submitted that the trial judge’s interventions in this particular case were in accordance with what was said in Wong Kam Tong in that they were fairly and properly made for the purpose of gaining clarification in the applicant’s evidence which was unclear, inconsistent and contradictory. The respondent argued that the questions asked were necessary in order to remove ambiguities and that none of the interventions caused any prejudice or detriment to the applicant. Discussion 51.Judicial interventions as a ground of appeal has led to the creation of a considerable body of case law. The test as to when this ground will lead to a conviction being quashed was stated by Power JA, in giving the judgment of the Court of Appeal in R v Yeung Mau Lam [1991] 2 HKLR 468. He said at page 473E-F:
52.This test was cited with approval by Li CJ, in giving the judgment of the majority in the Appellate Committee of the Court of Final Appeal in Chan Kam Keung v HKSAR (2008) 11 HKCFAR 664.[1] 53.The starting point to understanding how to apply this test is to recognise the context in which the interventions take place. That context is the common law adversarial system of criminal justice where the judge does not have an inquisitorial role but rather stands aloof from the arena in which the legal representatives of the parties advocate on their behalf. In giving the judgment of the Board in Michel v The Queen [2010] 1 WLR 879 at 887G-888A Lord Brown of Eaton-under-Heywood JSC described it thus:
54.Lord Brown then said:
55.Though of recent exposition these comments merely echo what had been stated by our own Court of Appeal in R v Tam Chi Pang & ors [1986] HKLR 1122, almost a quarter of a century earlier. In giving the judgment of the court, Roberts CJ recognized that the trial judge in the case under appeal had warned the jury that the facts were for them to decide and, furthermore, that there was abundant evidence to justify the 1st defendant’s conviction. At, 1128C-E, he continued:
56.But remaining aloof from the fray and not descending into the arena, in order to preserve the appearance of neutrality, does not mean that the judge is relegated to an entirely passive role. He is not. Bokhary JA, as he then was, in The Queen v Wu Chi Wai CACC 230/1996, unreported, 11 April 1997 said that the word “descended” in the expression “descended into the arena”:
57.Since the judge presides over a process whose aim is to see that justice is done, it is perfectly proper for him to intervene to ensure that justice is not diverted from its true course. In R v Saville Criminal Appeal 4181/W2/91 a trial judge made a number of suggestions of a legal nature so as to ensure that legal side issues which had the potential to frustrate the course of what was, on the facts, a fairly straightforward prosecution case, would not arise. Simon Brown LJ, in giving the judgment of the English Court of Appeal, said at page 3:
58.These comments have been cited with approval on many occasions by our Court of Appeal.[4] 59.For a true expression of the judge’s role, common law courts, including our own, frequently quote the well known observations of Denning LJ from his judgment in Jones v National Coal Board [1957] 2 QB 55 where, at page 64, he said that the judge should “hearken to the evidence” and that if the judge went beyond asking questions in order to clarify matters of evidence or exercising his powers for case management purposes then “he drops the mantle of a judge and assumes the role of an advocate; and the change does not become him well.” 60.These celebrated comments of Denning LJ have been relied on in the context of judicial interventions since at least the Tam Chi Pang case. In applying them in Yeung Mau Lam Power JA said:
61.In order to lessen the impact of a judicial intervention appellate courts have encouraged trial judges to defer the asking of questions until the conclusion of the cross-examination. Thus, in Yeung Mau Lam Power JA said:
62.This is very much a commonsense rule of thumb and a number of benefits flow when a judge adheres to it. Firstly, it lessens the chance of the judge taking over the cross-examination and appearing to wear the mantle of advocate. Secondly, premature intervention can have the effect of disrupting the flow of the cross-examiner’s train of thought and so by biding his time the judge’s intervention is less likely to have an impact on the advocate who is questioning the witness. This is especially important if the advocate is defence counsel and he is conducting the examination-in-chief of the defendant. Examination-in-chief is crucial to the way in which the defence counsel will wish to present his client’s evidence to the jury and professional judgment and forensic tactics all play a role in how a counsel examines his client. A defence counsel must be allowed a free hand in this important area of his advocacy. Finally, a witness’s response to a single question in clarification can easily lure the judge into follow-up questions which when further pursued become a line of cross-examination. 63.Nevertheless, it is only a rule of practice and not a rule of law and as long as the judge is alert to these dangers there is no prohibition on him from asking questions of a witness before the conclusion of the witness’s evidence, by which time the point that troubled him may no longer be at the forefront of his mind. As Mayo JA said in HKSAR v Chan Kwan Kan [1998] 1 HKLRD 495 said at 506F:
64.The exercise of the trial judge’s case management function is a very important one and that importance has been the subject of many comments. Power JA in Yeung Mau Lam said:
65.This passage was quoted with approval by Li CJ in Chan Kam Keung who said:
66.In performing this duty the court may be called upon to act firmly but firmness in this situation does not undermine the judge’s neutrality or in any way dilute the fairness of a defendant’s trial.[9] 67.When judicial interventions are a ground of appeal the first step of the appellate court is to examine them in context to determine whether they can be characterized as interventions properly made in accordance with Jones v National Coal Board principles. That is, whether they fall into the category of interventions that are made for the purpose of clarifying the evidence or are made for a legal procedural or evidential purpose, or are made in the exercise of a case management function. If they are made for any of these reasons then the judicial interventions will usually be proper and should not have impacted upon the fairness of the trial. 68.We say “usually” because it will also be relevant to consider not just why they are made by the judge but also how they made. Thus, interventions which are made in an aggressive, sarcastic, disbelieving or denigratory way, though made for a perfectly legitimate reason, may nevertheless cause an appellate court to have concerns at the fairness of the trial. This will be especially so if by his choice of words or manner of expression the judge evinces hostility or animosity towards the defendant. It must be remembered that it is not necessary for the defendant to impute, or the appellate court to find, any particular inclination of the trial judge adverse to the defendant. In the Yeung Mau Lam case the Court of Appeal held that actual bias on the part of the judge need not be established. The court is concerned with appearances and how the judge’s conduct would appear to the informed bystander. 69.If the interventions are not excusable on Jones v National Coal Board principles then the appellate court will be concerned to see how these interventions have impacted on the fairness of the trial. One convenient means that appellate courts have employed to assess this has been to examine the effect of the interventions on the trial process. The effects with which the appellate court is concerned are those set out by Parker LJ in R v Hamilton [1969] Crim LR 486. This unreported judgment was followed by another division of the English Court of Appeal in the reported judgment of R v Hulusi (1974) 58 Cr App R 378. At page 382, Lawton LJ quoted with approval the transcript of Lord Parker’s judgment which is as follows:
70.The Hamilton principles look to the effect of the interventions on the key players in the trial process; the jury, defence counsel[11] and the defendant himself. When the judicial interventions have any of these Hamilton effects then the appellate court will question the safety of the conviction as well as being concerned with the fairness of the trial process. 71.However, when addressing the Hamilton effects a number of matters must be borne in mind. The first is the potential for the judge, by virtue of his position and authority in the trial, to inadvertently influence the jury as to the view they should take of a particular piece of evidence or of the credibility or honesty of a particular witness. This danger is at its greatest when the defendant is in the witness box and great caution should always be exercised by a judge in any questioning of the defendant. 72.Secondly, when an appellate court is examining the transcript of a judge’s questioning of a defendant and concludes that it clearly went beyond clarification and became a cross-examination, it should be wary of too readily dismissing the possibility that the defendant was adversely affected by it. Giving evidence in court is, for any person, a stressful exercise; giving evidence for a defendant with so much for him hanging on how credibly he testifies is far more stressful again. The appellate court is not present and cannot determine for itself how well the defendant coped with the judge’s questioning, what impact that questioning had on his demeanour and how the jury might have been affected by the way he responded to the judge’s questioning. 73.The final stage in the appellate court’s consideration of this ground of appeal is reached when it has to determine whether, even though the judicial interventions did not have any of the Hamilton effects and even though the appellate court is satisfied the conviction is safe, it can still be said that the defendant did not receive a fair trial. As Power JA said in Yeung Mau Lam, this is the “ultimate question” for the appellate court.[12] 74.The reason for this being the ultimate question flows from the importance the law ascribes to the right to a fair trial, whether that right is based on the common law or a human rights instrument. The importance of the right was eloquently explained by Lord Bingham of Cornhill in Randall v The Queen [2002] 1 WLR 2237 at 2251, paragraph 28 when he said:
75.Consequently, a conclusion that the defendant did not receive a fair trial will inevitably lead to the conviction being quashed notwithstanding that there is overwhelming evidence to sustain it. 76.In considering whether the trial has been fair it is well to remember that in Yeung Mau Lam the Court of Appeal said that interventions by their number alone are not decisive[13] and that the quantity and quality of the interventions must be looked at as factors which react upon each other. This includes the timing of the interventions, the importance to the defence case of the issues to which the interventions relate and the manner of the judge when asking the questions. 77.The mere fact that the trial judge has departed from good practice does not automatically render a trial unfair. Ultimately it will be a question of degree, with the appellate court drawing on its own experience to obtain a feel for how the interventions of the judge impacted upon the fairness of the trial. 78.It now becomes necessary to apply these principles to the present case. In this applicant’s appeal it is the first of the Hamilton effects on which Mr Ma relies, that is, that by his interventions the judge would have influenced the jury adversely to the applicant. In advancing his argument he prays in aid the frequently quoted comments by the Lord Chief Justice of England in the case of R v Fraser Marr (1990) 90 Cr App R 154 where he said at page 156:
79.Notwithstanding that Mr Ma focussed in his oral submissions on what transpired in the course of the applicant’s evidence in front of the jury, we have carefully considered all the occasions during the voir dire on which Mr Ma relies in support of his complaint that the judge improperly descended into the arena and by his excessive interventions denied the applicant a fair trial. 80.These interventions have to be placed in the context of a judicial hearing, namely a voir dire, where the judge is also the tribunal of fact. As we have said, having this fact finding role may require him from time to time to clarify matters relevant to his fact finding duties, more so than in the trial proper when the fact finding role is assumed by the jury. 81.Certainly in respect of defence counsel’s examination-in-chief of the applicant on the voir dire it cannot be said that the judge’s interventions hindered counsel or the applicant in the presentation of the applicant’s evidence. Mr Ma does not assert that it did. Rather, he argues that by his interventions the judge lost the appearance of neutrality and impartiality and created the appearance of having pre-judged the evidence and prematurely reached an unfavourable view of the credibility of the applicant. 82.There is one occasion during cross-examination where the judge pursues a line of questioning which is probing and challenging of the applicant. It continues for a page and a half of the transcript and consists of 12 questions.[15] 83.It is only this one occasion on the voir direwhere it could be said the judge may have gone too far. We certainly would have preferred him to have left the cross-examination of the applicant to the prosecutor for when a judge’s questioning becomes an interrogation akin to cross-examination then he is at risk of losing the appearance of neutrality and is more likely to be perceived as assuming the mantle of an advocate. 84.However, this is only one incident on the voir dire and, on its own, is not sufficient to satisfy the Yeung Mau Lam test. We see no merit in this ground of appeal as it relates to the voir dire. Nevertheless, we shall bear this incident in mind when considering the judge’s interventions during the applicant’s evidence on the trial proper. 85.In respect of the trial proper the applicant’s complaints are that the judge’s repeated interventions in the course of the applicant’s testimony gave the jury the impression that the judge disbelieved her. 86.Particular reliance is placed on an intervention by the judge that arose when the applicant was being cross-examined on her possession, outside of bank premises, of HSBC computer printouts and whether her possession of these printouts was a breach of the bank’s Code of Conduct. 87.It was the applicant’s case that even though the bank prohibited the removal from bank premises of customer information there were exceptions to this prohibition and staff of the bank occasionally took bank documents home to work on them. This, she said, was the reason she took these documents away from the bank. The applicant’s case, therefore, was that there was no criminal impropriety attached to her removal of these documents from bank premises and that her possession of them was to enable her to better perform her official duties and was therefore to advance the interests of the bank. 88.The prosecution case was that she possessed them in order to render assistance to her co-conspirators. It was asserted that her possession of them was a breach of the Code of Conduct which would have subjected her, if detected, to disciplinary action and the risk of dismissal and that she would not have exposed herself to these risks just to better perform her official duties. 89.This led the prosecutor[16] to put to the applicant that she might not only face dismissal but that she could also face prosecution for stealing customer information. It was at this point that the judge intervened and the transcript records what then followed:
90.The applicant could, of course, have been charged with accessing a computer with a criminal or dishonest intent which is an offence contrary to section 161(1) of the Crimes Ordinance, Cap 200. But she was not; and for the very obvious reason that had she been, the prosecution, in order to prove that the applicant’s intent was criminal or dishonest would have been relying on establishing that the reason the applicant accessed the computer was for the purpose of providing the confidential information stored within it to third parties whom, she knew, would use that the information for the same criminal purpose particularized in the conspiracy charges. 91.The existence of the section 161(1) offence was quite irrelevant and there was no justification for raising it in front of the jury. The factual issue for the determination of the jury was whether the applicant passed confidential customer information to the thieves in order to assist them carry out this joint enterprise theft. Her possession of these documents was probative of the prosecution case but only if the jury rejected her exculpatory explanation for why she possessed them. Relevant to the jury’s assessment of the credibility of the applicant’s explanation was that her conduct in taking these documents away from the bank was in breach of the bank’s Code of Conduct and, if detected, could expose her to serious consequences, including, possibly, dismissal. 92.The problem with the reference to the section 161(1) offence is that it may have suggested to the jury that mere possession of these documents in breach of the Code of Conduct was by itself dishonest and a criminal offence. Of course, it was not. This was a distracting and unhelpful line of questioning to say the least. But could it have influenced the jury to form an adverse view of the applicant and her evidence? 93.The applicant’s own answer, which we have emphasized with italics, was an effective response and, had it been left without further comment by the judge, would have directed the jury’s mind to the issue they had to decide, namely what was the true purpose for the applicant’s possession of these documents. 94.But, regrettably, the judge did not leave the matter alone. His immediate response was highly damaging to the applicant. In his attempt to explain the concept of dishonesty in the mens rea element of the section 161(1) offence he conveyed the impression that an unauthorized accessing of a computer, even if done for a proper motive, may be dishonest. This intervention completely neutralized the effectiveness of the applicant’s earlier answer and clearly put the applicant on the defensive, and unable to respond, in front of the jury. 95.It may well be that by his comments the judge had in mind the distinction commonly drawn in the context of mens rea between intent and motive. But where the mens rea is dishonesty and where a particular motive is put forward in order to show a lack of dishonesty, it will be necessary for the jury to consider the credibility of that explanation. By his comments the judge left the jury with the impression that the motive of the applicant would have been irrelevant to whether her conduct was dishonest. 96.The judge’s comments were damaging to the applicant’s credibility and were wrong as a matter of law; motive for a person’s conduct can be highly relevant to the assessment of whether that conduct is dishonest. And, of course, the applicant’s motive for possessing these computer printouts was key to the probative value of the evidence of her possession of them. In these circumstances it was highly prejudicial to the applicant for the judge to leave the jury with the impression that the applicant’s conduct, irrespective of her motive, may have been dishonest. 97.Nothing was ever said again by the judge in respect of this passage in the cross-examination of the applicant, either during the applicant’s evidence or in his summing up to the jury. 98.We are in no doubt that the way the matter was ultimately left deprived the applicant of a fair hearing of her evidence by the jury. It satisfied both the first and the third of the Hamilton effects to justify the quashing of the conviction. 99.In addition to this incident there were other interventions by the judge which, cumulatively, would have satisfied the Yeung Mau Lam test. They commenced when the applicant was being examined in chief and we have already emphasised the importance of allowing defence counsel a free hand in leading the evidence from his client. 100.The first intervention of concern occurred when the following exchange took place:
Thereafter, the judge asked some seven questions, not in clarification but simply pursuing a line of cross-examination of his own. In doing so he took over from Mr Khosa and changed the course in which Mr Khosa was planning to elicit his client’s evidence. This was not justified. 101.On another occasion the judge intervened and asked the applicant over two pages of questions towards the end of which Mr Khosa tried unsuccessfully to take back control of his examination. This was made worse by the fact that the judge could not understand the applicant’s evidence and said as much in front of the jury. The relevant extract from the transcript reads as follows:
102.The comment by the judge conveyed the impression to the jury that the applicant’s evidence did not make sense. This made defence counsel’s job even more difficult as he now not only had to elicit his client’s evidence from her, he had to do so in a way that would persuade the jury that, notwithstanding the judge’s comment, the applicant’s evidence did, in fact, make sense. Nor can this court too readily dismiss the impact that the judge’s comment would have had on the applicant herself. 103.There are other occasions during the examination-in-chief where the judge questioned the applicant in a way which clearly raised a questioning eyebrow in respect of her evidence.[19] Indeed on one such occasion the judge actually said to the applicant in respect of her evidence:
Denigrating the applicant’s evidence in this way in front of the jury is completely unjustifiable and should not have happened. The potential for such a comment to influence the jury against the applicant is huge. 104.On another occasion the judge was asking the applicant about her boyfriend’s bank accounts:
105.This attempt at scoring a debating point demonstrates very clearly the extent to which the judge was willing to descend into the arena and play the role of advocate. But, when he does so it is an unequal contest as he possesses all the authority of his judicial office and many a defendant will not possess the confidence to engage the judge in an argumentative dispute. It is hardly surprising that the applicant could make only the meek response that she did. But when a judge argues with a defendant in front of the jury and appears to win that argument, it is bound to affect the way the jury regards the defendant. 106.On another occasion the judge made a wholly gratuitous comment of a kind which an advocate might make in a closing speech which would have had the potential to influence the jury adversely to her evidence. The judge was questioning the applicant on why her boyfriend did not give her a supplementary credit card and the applicant answered that he offered to do so but she refused his offer because annual fees would have to be paid. The judge pursued this issue by querying whether a waiver of the annual fee could be requested to which the applicant answered:
To this the judge immediately rejoined:
107.On their own these interventions may not be sufficient to impugn the fairness of the applicant’s trial but, when taken together, they contribute significantly to the impression that the judge had lost his neutrality and assumed the role of a second prosecutor. We have no doubt that the informed bystander listening to the case would conclude that the applicant had not had a fair trial. Conclusion 108.For these reasons we allow the application for leave to appeal against conviction and treating the hearing of the application as the hearing of the appeal, we allow the appeal, quash the conviction and set aside the sentence. 109.We shall now hear any ancillary applications arising from our judgment.
Miss Maggie Yang SADPP and Miss Jessie Sham SPP (Ag), of the Department of Justice, for the respondent Mr David Ma and Ms Tiffany Tin, instructed by Ivan Tang & Co, for the applicant [1] At page 668F-H, paragraph 11 Li CJ quoted the test, saying: “As is accepted by the applicant, the test generally applied where curial interventions are alleged to be such as to call into question the fairness of the trial is that enunciated by the Court of Appeal in R v Yeung Mau Lam [1991] 2 HKLR 468 at 473.” [2] Michel v The Queen [2010] 1 WLR 879 at 888D, paragraph 32. [3] See also the comments of Lord Brown in Michel when he said at page 888D-E of the judgment: “None of this, of course, is to say that judges presiding over criminal trials by jury cannot attempt to assist the jury to arrive at the truth. On the contrary, they should. That is part of their task. Judges exist to see that justice is done and justice requires that the guilty be convicted as well as that the innocent go free.” [4] See, for example, HKSAR v Mohammad Jahangir & ors [1998] 1 HKC 455; HKSAR v Sin Wing Yi [2008] 3 HKLRD 352; HKSAR v Lee Vernon [2012] 4 HKLRD 145. [5] R v Yeung Mau Lam [1991] 2 HKLR 468, 473G-H. [6] Ibid. [7] R v Yeung Mau Lam [1991] 2 HKLR 468, 473F. Similarly, in HKSAR v Chan Kwan Kan [1998] 1 HKLRD 495 Mayo JA referred to the obligation on a judge to retain his air of impartiality and to permit counsel for the defence to present the accused’s defence fully and fairly but then said at page 506G-H: “This is far from saying that a judge should relinquish control of his court. He is entitled to control his court firmly. He must stop irrelevant, inadmissible, repetitive or unnecessarily prolix cross‑examination but he can do this fairly and without stopping legitimate cross-examination and without being openly dismissive of the defence.” [8] Chan Kam Keung v HKSAR (2008) 11 HKCFAR 664, at 669D-E. [9] See the comments by McMahon J, in giving the judgment of the Court of Appeal in HKSAR v Sin Wing Yi [2008] 3 HKLRD 352, 371, paragraph 42 when he said: “Judges are not there to flow with whatever tide is created by the approach adopted by counsel. To the contrary, the managerial flow of a case is in the judge’s hands, not counsel’s. It is a judge’s positive duty to manage trials. His function is to adjudicate cases and that means adjudication upon evidence properly and efficiently presented. If that requires vigorous management, then he must manage vigorously.” [10] Hamilton has been followed in Hong Kong in the Tam Chi Pang judgment and on many other occasions since then. See, for example, R v Lau Hing On [1987] 1 HKC 89; HKSAR v Hui Po Keung & anor CACC 240/2011, unreported, 29 November 2012. [11] For an example of such an occasion see HKSAR v Ngai Wan Cheung [2006] 3 HKC 98 where Stock JA at page 102A-E commented on the efforts of a trial judge to be overly protective of a witness, to whom he felt some sympathy, whilst that witness was being cross-examined. He said: “The interruptions were extremely frequent although that is hardly conclusive of the matter. What is conclusive, though, is that the effect and nature of the interruptions were such that, in our judgment, counsel was, in effect, not permitted to do his job as an advocate ... Yet there are boundaries beyond which intervention becomes so intrusive as to stifle counsel and if counsel’s attempts at pursuing his examination are within acceptable parameters then he must be allowed to perform what is after all a duty to his client.” [12] In Michel’s case, at page 886E-F, Lord Brown referred to cases in which a fairness of trial challenge had been made to the conviction and said: “There is, however, a wider principle in play in these cases merely than the safety, in terms of the correctness, of the conviction. Put shortly, there comes a point when, however obviously guilty an accused person may appear to be, the appeal court reviewing his conviction cannot escape the conclusion that he has simply not been fairly tried: so far from the judge having umpired the contest, rather he has acted effectively as a second prosecutor. This wider principle is not in doubt.” [13] Though a large number will put the court on notice, see Mathews & Another (1984) 78 Cr App R 23 at 32, cited with approval in HKSAR v Sin Wing Yi [2008] 3 HKLRD 352, 358, paragraph 16. [14] These comments in Fraser Marr have been cited with approval many times by the Court of Appeal. See, for example, HKSAR v Chan Kwan Kan [1998] 1 HKLRD 495. [15] See Appeal Bundle page 445F-446P [16] The prosecutor was Ms Liza S H Yip and defence counsel was Mr David Khosa. [17] The applicant is here referring to her supervisor. [18] The judge was no doubt referring to Chan Tak Ming v HKSAR (2010) 13 HKCFAR 745 in which a doctor was charged with the offence of misconduct in public office in respect of his accessing confidential contact information of patients at the hospital. His reason for doing so was because he was leaving the Hospital Authority and was to commence private practice and he wished to advertise this fact. One of the issues before the Court of Final Appeal was whether on these facts the element of the offence that the misconduct is serious was satisfied. The Court of Final Appeal had no difficulty in finding that these facts constituted a “plainly sufficient basis on which to find the necessary seriousness.”[18] The motive of the doctor was clearly a relevant piece of evidence in assessing the seriousness of his misconduct. [19] AB187B-J; 189O-R; 210D-V and 222O-223E. |
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