The Queen v. Yeung Kai Yin(D1) and Others

CACC000220A/1984

IN THE COURT OF APPEAL

BETWEEN

_________________

Coram: Hon. Li, V.-P., Barker, J. A. & Penlington, J.

Date of hearing: 23rd, 24th & 25th April, 1985

Date of judgment: 25th April, 1985.

Reasons for judgment: 16th May, 1985.

___________

JUDGMENT

___________

Barker, J. A

1. The Appellants were Defendants on an indictment containing one count of forgery of banknotes with intent to defraud and five counts of possession of forged banknotes. For convenience, we shall refer to them hereinafter as the second, third and fourth defendants. Each has appealed against his convictions.

2. The Crown at the outset conceded that the convictions of the third defendant could not be supported, a concession which in our view was proper. Accordingly we allowed his appeal and quashed the convictions.

3. The first defendant at the trial pleaded guilty to all the charges laid against him, and gave evidence for the prosecution, before being sentenced.

4. The Crown's case was as follows. On the 13th August, 1983 a team of police officers went to No. 50 Morrison Hill Road on a dangerous drugs raid. The flat they wished to search was on the eighth floor, but they were unable to gain entry. However they noticed a man, who turned out to be the first defendant, behaving suspiciously on the nineth floor, where he had a flat. They entered this flat, and, on searching it, found a large number of partly completed U.S. Bank notes and equipment. They therefore laid an ambush and, within a period of about 11/2 hrs., the second, third and fourth defendants arrived at the building and were arrested. Meanwhile, the first defendant told the police about other premises, namely Flat A, 10th floor 381-383 Hennessy Road. When these latter premises were searched, large quantities of forged banknotes and printing equipment were found. According to expert evidence, the banknotes found at both premises came from the same source, namely Hennessy Road.

5. The second defendant during the course of the trial, pleaded guilty to the possession of twenty-one forged banknotes which, together with nineteen pieces of paper, had been found at his home, and which he said had been given to him by the third defendant for safe-keeping.

6. Although, when interviewed by the police, the second defendant denied any complicity in or knowledge of any forgery there was strong circumstantial evidence against him. Keys, which fitted the Hennessy Road flat, were found in his possession. He had various letters from a Nigerian Company which, though they did not specifically mention forgery of banknotes according to the Crown did in fact relate thereto. As to these letters, it was the second defendant's case that these letters referred to the printing in Canton of revenue stamps which were exported to Nigeria. Furthermore the nineteen sheets of paper found in the second defendant's flat were of the approximate size of U. S. bills and the Crown contended that these were test plates used for the purpose of forgery. The defence case was that these pieces of paper had been cut up from larger pieces by the second defendant's servant for his children to make paper aeroplanes or ships. Finally an ultra violet lamp was found at the second defendant's business premises to be used, said the Crown, for the purpose of checking the quality of the paper from which the forged banknotes would be made. The defence was that the second defendant frequently received cash in the course of his business and that he used the lamp to check the authenticity of banknotes.

7. The case against the fourth defendant was also strong. He had made a number of cautioned statements, the voluntariness of which had been challenged on the voire dire but which had been ruled admissible by the judge, which contained many damaging admissions. A fingerprint of the fourth defendant had been found on a drying machine in the Morrison Hill Road flat. His explanation for this was that he had indeed been to that flat but to repair an electrical fan at the request of the second defendant. Another fingerprint of the fourth defendant was found on a tin of ink in the Hennessy Road flat. The fourth defendant denied ever having been to that flat but there was evidence that materials and equipment were from time to time transferred from Morrison Hill Road to Hennessy Road. Two US$100 notes were found in his possession, which according to the fourth defendant, had been given to him by the second defendant to purchase components. Next, there was evidence that he possessed a Minolta camera, which, belatedly, since the camera was never seised by the police nor produced in evidence and the fourth defendant was never cross-examined about it, the Crown suggested could have been used for the purpose of making negatives. The fourth defendant's explanation for this was that he used the camera for ordinary purposes, e.g. taking pictures of his friends. Finally (and this is a factor common to the second and fourth defendants) there was the evidence of the first defendant who implicated them both up to the hilt but whose evidence as an accomplice required careful scrutiny.

8. The main ground of appeal, and indeed the only one with which it is necessary to deal in this judgment, is that by reason of the conduct of the judge during the proceedings, neither applicant had a fair trial.

9. The case of each applicant must be examined separately.

10. The relationship between the first and the second defendant was a crucial element of the second defendant's case. The second defendant's case was that it was that of businessman and broker - the first defendant selling paintings on commission for the second defendant.

11. Secondly, the second defendant alleged that he had visited the Morrison Hill Road flat but once, and that at the request of the first defendant as a fung Shui man.

12. Thirdly, and at a late stage in the prosecution case, the first defendant produced a piece of paper, exh. P.208, which he said the fourth defendant had managed to pass to him, during the course of the trial, at Lai Chi Kok. This letter, the translation of which into English is execrable, is meaningless, but according to the first defendant it was in the second defendant's writing and constituted an attempt by the second defendant to persuade the first defendant to give false evidence at the trial in return for a large sum of money. Clearly, if this evidence was accepted, its effect must have been damning to the second defendant's case.

13. The conduct of the judge during the examination in chief, cross-examination and re-examination of the second defendant cannot be and is not criticised. It is the questioning by the Judge thereafter of which complaint is made. The second defendant had been severely cross-examined - the adverb used by his counsel in his final speech to the jury was ferociously - and yet the Judge took it upon himself to ask a considerable number of further questions on each of the three foregoing topics. (In parenthesis it is worthy of note that the Judge asked no questions of the first defendant). Furthermore, quite Apart from asking questions, the Judge purported to give evidence, and expert evidence at that, the second defendant having himself only said he was dealing in pictures, not that he was an expert.

14. We give a number of examples.

And later,

Later,

15. That was a statement not a question.

16. We turn then to the issue of fung Shui. The Judge began his questioning by saying, "Now you also say that you are an expert in fung shui."

17. The second defendant had said exactly the opposite, but that in no way deterred the judge. He questioned the second defendant at length about the positioning of a mirror and concluded by saying, in the guise of a question.

"If you put a mirror of that sort facing the door you will drive away all your customers. So much for you knowledge of fung shui."

18. We turn next to the disputed document P.208. Although introduced at a late stage, it was obviously an important part of the prosecution base. If, on the one hand, the jury were satisfied that the second defendant was trying to persuade the first defendant to give false evidence, this would indeed be a telling point in favour of the prosecution. If, on the other hand, the jury might have thought that the first defendant was producing a forged document in order to lighten his load, this would be a telling point for the second defendant.

19. The attack on behalf of the second defendant against P.208 took two forms. First, there was called on his behalf Mr. Wong Kwok Cheung, a principal officer in the Correctional Services Department, who said, in effect, that it was impossible for the second defendant on the date and in the circumstances alleged to have passed P.208 to the first defendant at Lai Chi Kok. Secondly, a handwriting expert, Professor Lai Tim Cheung testified that in his view P.208 was not in the handwriting of the second defendant.

20. The Judge's attitude to Mr. Wong was disturbing. Even during the course of cross-examination he interjected.

21. "Look, do you know your job at all!" And after re-examination, the Judge asked a series of hostile questions of which we give one example -

"In fact, we don't know what you were doing that day because your answers throughout this whole session seem to one to evade responsibility. You never answered one question straight, did you?"

22. We then turn to the evidence of Professor Lai, the handwriting expert. The prosecution also called a so-called handwriting expert, a forensic scientist, and it is to be observed that the Judge asked no question of him at all. Professor Lai was not so fortunate. The Judge asked him no less than fifty-four questions, himself again giving evidence.

23. We have dealt only with the major issues in the second defendant's case. There were others in which, unfortunately, the Judge indulged in the same kind of conduct.

24. We turn therefore to the case of the fourth defendant. It was fundamental to that case that he had been to the Morrison Hill Road flat to repair an electrical fan. After this defendant had been examined in chief and cross-examined (there was no re-examination) the Judge decided to question further.

25. He began by asking what tools the fourth defendant took to repair the fan. Upon receiving the defendant's answer he said,

"As an experienced person, you should know that these are not the tools required for adjusting the speed of a motor."

And shortly thereafter,

"It appears to me that it is not they who did not understand but it is you who did not know what they wanted. All they wanted was an adjustment to the speed of the fan."

And later,

26. After much further questioning `the Judge observed,

"You seem to know very little about electrical appliances."

27. He returned to this theme, later on, ending up by saying,

"You are talking nonsense."

28. These comments must have been devastating to the fourth defendant's credibility in the eyes of the jury.

29. Although, the prosecution had made no issue over the Minolta camera, the Judge was not prepared to let the matter rest and he resuscitated it. He closely questioned the fourth defendant as to the kind of lens used and its focal length. When faced with an answer,

"I am not sure whether it was 25 or 30 to 200".

The Judge commented,

"Your lens was being an extremely advanced one because the 30 to 200 zoom is still not yet on the drawing board. They haven't thought about that yet."

And shortly after the Judge said,

"Look the ranges are from 70 to 200, never from 30 to 200. So I would like to see that lens 30 to 200."

30. The fourth defendant thereupon offered to produce the camera, to which the Judge related -

"I don't need it. I can describe it to you."

31. In a memorable passage in Jones v. National Coal Board ⁽¹⁾ Denning L. J., as he then was, said,

"The Judges' part in ail 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 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 does 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 overspeaking judge is no well tuned cymbal."

32. These words were uttered in relation to a civil case. They apply all the more to a criminal case.

33. It is with regret and reluctance that we have to say that in this case the Judge descended into the arena. He showed his obvious disbelief of the defence. He gave evidence himself. All these things he should not have done.

34. We do not for one moment doubt that the judge had any desire other than that righteous verdicts should be returned, but on a full consideration of the case we have come to the firm conclusion that the defence did not have a fair opportunity. In these circumstances it is our duty to quash the convictions and set aside the sentence.

Nevertheless, the case against each applicant was strong. Although this is not the only factor in deciding whether or not to grant a new trial, it is one of great importance. In all the circumstances of this case we are of the view that the interests of justice require that the applicants be tried afresh. We so order.

(1)    (1957) 2 Q.B. 55 at p.64

Representation:

Mr. G. Plowman (Ng & Yung) for D2.

Mr. A. Bell (D.L.A.) for D3.

Mr. R. Whitehead (So & Karbbari) for D4.

Mr. D. Y. Marash, Sr. Asst. Crown Prosecutor, for Crown/Respondent.