The Queen v. Lau Hing-on

CACC000378/1986

BETWEEN

Coram: Cons, V. -P., Silke & Clough, JJ. A.

Date of hearing: 4th December, 1986.

Date of delivery of judgment: 4th December, 1986.

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JUDGMENT

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Cons, V-P. delivered the judgment of the Court:

1. The Applicant was convicted by Mr. David Yam, sitting as a Deputy Judge of the Kowloon District Court, of one charge of robbery and sentenced to 6 years' imprisonment. He applies now for leave to appeal against both conviction and sentence.

2. The evidence before the judge below was that at about 3 o'clock in the morning of the 6th August 1983, four men gained entry to premises known as the "Wai Wai Recreation Centre", which is on the first floor of an address in Shanghai Street. The men carried knives. They tied up the persons they found in the premises, some of whom at least were employees of the Centre. They robbed those persons of money, jewellery and other articles of value.

3. One of the items stolen in the robbery was a Tudor wrist watch. Sometime later the same day, the judge did not decide exactly when, that Tudor watch was pawned by the Applicant for $1,100. He explained in his evidence to the judge that he did so on behalf of a friend from whom he had been seeking to borrow money, and as a result of the pawning was able to borrow $400 which he repaid about two weeks later.

4. The judge found that explanation to be "entirely incredible and untrue", and in that circumstance it is not surprising that he found the Defendant guilty. And viewed from that aspect only one minor complaint is made.

5. The main ground upon which the application for leave to appeal against the conviction is based is the conduct of the judge during the course of the trial. It complains of his intervention at the close of the Defendant's evidence when he asked, according to counsel's arithmetic, some 63 questions. This number may be compared with the 53 questions which were asked by counsel for the Crown in his cross-examination.

6. Unfortunately a complaint of this nature is not unique. We have been referred to several cases in which others have been made to this Court or Courts of Appeal in other jurisdictions. For our part we are content to rely upon the judgment of this Court R. v. Tam Chi Ping & Others⁽¹⁾ where the Chief Justice, giving the judgment of the Court, said -

"        It must be made clear that there is nothing improper in interventions as such by a judge, even if they are frequent and lengthy, provided that the judge follows the principles set out in Jones v. National Coal Board⁽²⁾ by Denning, L. J. in the following terms -

'

The Judges' part in all this is to hearken to the evidence, only himself asking questions of witnesses when it is necessary to clear up any point that has been overlooked or left obscure: to see that advocates behave themselves seemly and keep to the rules laid down by the law; to exclude irrelevance and discourage repetition 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. If he goes beyond this he drops the mantle of a judge and assumes the robe of an advocate and the change does not become him well. Lord Chancellor Bacon spoke right when he said that 'Patience and gravity of hearing is an essential part of justice; and an over speaking judge is no well tuned cymbal."

7. The case before that court related to a jury trial and the court went on to quote, and rely upon, three principles that had been formulated by Lord Parker in R. v. Hamilton⁽³⁾. The first two of those principles are not appropriate to trial by a single judge and no reliance has been placed upon the third in the present instance. We find assistance however in a later passage of the judgment: -

"Nevertheless we administer an adversarial and not an inquisitorial system. Until the law is changed, as we hope it will not be we must seek to preserve it. One of its most important rules is that the judge must continue to preserve an appearance of neutrality throughout a trial. Whatever he may think, he must not seek to impose his views on the jury, during the course of a trial, by interventions of a volume or nature which put pressure on a jury to find as the judge has shown he wishes them to do.

It would, of course, be naive to expect that every convicted defendant would acknowledge that his trial had been fair. But the judge must strive to so conduct himself during a trial that a neutral observer would be left in no doubt that the trial was conducted fairly before a judge who stood above the conflict and retained his air of impartiality throughout."

8. Those remarks must apply even more strongly to trial by a single judge, for should the judge assume the robe of an advocate, as Lord Denning put it, not only is the appearance of neutrality lost, but the judge being a judge of fact as well law, there is a very real possibility that his judgment will be influenced by his conduct and the defendant genuinely deprived of a fair and impartial trial.

9. Has then that happened in this instance? Of course it is not necessarily the length of the questioning or the number of questions asked that is crucial. We have to consider rather their nature and the purpose that lay behind them.

10. We have in this case been taken very carefully through all the questions put by the learned judge and we have had the benefit of comments thereon from counsel on both sides. It is not easy in every instance to understand what the judge had in mind, but seldom do the questions appear to have been asked solely to clear up points that had been overlooked or left obscure. Taking them overall we find we cannot escape the conclusion that the questioning was indeed aggressively hostile and could only have given to the neutral observer posited by this court the impression that the judge was not impartial. In his record of the trial the judge has preceded his questioning with the heading "cross-examination". We feel that is a true description of what subsequently followed.

11. We feel too that it must to some extent have influenced his subsequent decision, for in his written Reasons for Verdict he refers on several occasions to the answers that were then given. In those circumstances we feel impelled to quash the conviction.

12. Counsel for the Crown has asked that we remit the matter to the District Court for retrial. Unquestionably there is evidence upon which another judge could find the Defendant guilty, his verdict necessarily turning upon his assessment of the Defendant's explanation. We appreciate too that the Defendant's demeanor in the witness box may perhaps detract from that explanation. Nevertheless, and with every respect to counsel for the Crown, we do not think that the Crown's case was as strong as he would have us believe. We are satisfied that at the trial the Defendant lost a real possibility that he might have been acquitted. In these circumstances we are not disposed to order a retrial. It is therefore not necessary to deal with the application for leave to appeal against sentence.

(1) unreported Cr. App. 119 of 1985, 10 July 86

(2) [1957] 2 Q. B. 55

(3) [1969] Crim. L. R. 486

Representation:

A. Macrae (D. L. A.) for Applicant re conviction only

Lau Hing On, Applicant in person re sentence

M. J. Hartmann, Crown Counsel for Respondent