HKSAR v. Ngai Wan Cheung

CACC 198/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 198 OF 2005

(ON APPEAL FROM DCCC NO. 1146 OF 2004)

----------------------

BETWEEN

--------------------

Before : Hon Stock JA, Cheung JA and Beeson J in Court

Dates of Hearing : 4 May 2006

Date of Judgment : 4 May 2006

Date of Handing down Reasons for Judgment: 15 May 2006

----------------------------------------------

REASONS  FOR  JUDGMENT

-----------------------------------------------

Hon Stock JA (giving the Reasons of the Court):

Introduction

1.The applicant was one of two defendants who was tried before Judge Chua in the District Court and who was convicted on 30 April 2005 and sentenced to a term of four years four months’ imprisonment.  At trial he was the first defendant (D1) and he applied for leave to appeal out of time against conviction and sentence.  On 4 May 2006 at the conclusion of the hearing, we granted leave, treated the hearing of the application as the appeal, and allowed the appeal, saying that we would in due course give reasons for our decision.  These are the reasons.

2.There were two charges.  Charge 1 alleged a conspiracy to defraud and the allegation was that this applicant and D2 (called Li) conspired with a person unknown to defraud a lady by the name of Chen Cuilan and succeeded in doing so to the tune of HK$18000.  Ms Chen was the first prosecution witness at trial (PW1). 

3.Charge 2 was an allegation that four days later, namely, on 17 August 2004 the applicant and Li conspired with a person unknown to defraud another lady, this time one Ng Oi-lin (PW3).

4.The prosecution case in relation to both these charges was that the defendants were operating a street scam whereby innocent passers-by were lured into parting with money on the basis of quick profits held out to be available if only they would contribute towards the purchase of goods which could be sold at a substantial and quick profit.  Such scams depend upon the obvious naivety of the target and upon several fraudsters acting in concert but so playing out their scene as to appear to the victim to be strangers one to the other.  The money is contributed, the goods do not exist, and the crooks make off with the proceeds of the scam.  It is a cruel trick and amazing how many people fall for it.

The evidence of Madam Chen

5.The prosecution evidence came, naturally enough, from the two female victims.  The essence of Madam Chen’s evidence was that on 13 August 2004 she was approached at a market in Wong Tai Sin by a man (the ‘person unknown’ in Charge 1) who asked her if she would momentarily keep an eye on some goods whilst he looked for some delivery workers.  Just at that point, Li approached and noticed that the man was holding some electronic item and Li said that he, Li, had been looking for just such an item and wanted to know how much it cost for each part.  $300, was the answer.  The item was sold there and then.  Then the applicant appeared.  He approached Li – all this happening in Ms Chen’s presence and hearing – and himself expressed interest in such items saying that he was willing to pay $500 per item.  Thus was the scene set, for Li then took Madam Chen aside and asked whether she would join him, Li, in buying a large quantity of these parts so that they could make a profit of $200 per item.  There was then a discussion at a nearby restaurant, a bogus purchase to lend verisimilitude to the charade, and then Madam Chen was asked how much cash she could offer.  She said she could offer about $10,000 and she was taken to her home by the man who had first approached her but before she did so, Li wrote his mobile telephone number for her on a piece of paper which she retained.  At her home she took $18,000 and left home with her chaperone and later met Li as well as the applicant and parted with the cash.  She was told to wait where she was and she did so but, of course, no one returned.  In due course she reported the matter to the police.

6.Three days later, on the morning of 17 August, Madam Chen was in Tsuen Wan with a friend and suddenly encountered the applicant and Li.  She asked a friend to make a report to the police.  That was done and, in a restaurant called Café de Coral, the applicant and Li were arrested.

The evidence of Madam Ng

7.In the cafe was a third person, namely Madam Ng, the victim named in the second charge.  Her evidence emerged in a most unusual fashion.  She remembered some details but not those that formed the kernel of the facts underlying the second charge.  In circumstances that form the second ground of appeal, counsel for the prosecution was permitted to read to her line by line her witness statement, merely for her to confirm that what she had been read was, when originally recorded, the truth of the matter.  The evidence that the prosecution had anticipated from her, and which in this extremely unusual manner emerged, was that she was walking along a street in Tsuen Wan a while earlier and she was asked by some man whether she was interested in taking delivery work for a small remuneration and, to this, she agreed.  She followed the man, supposedly to a place where they would wait for his employer, but on the way he encountered Li who also agree to take up some delivery work for remuneration.  Off they went to a park and there, the applicant, a man of robust build and wearing a blue shirt, approached and asked Madam Ng for directions.  He engaged her in conversation, pretending to be a merchant from Singapore and told her that he was looking to purchase some special electronic parts.  Li said that he had some and he presented one to the applicant who said that he needed to buy some, offering $500 each. Li and the applicant exchanged telephone numbers and then Li made a telephone call in the presence of Madam Ng the result of which, according to Li’s tale to Madam Ng, was that he could secure 4000 such pieces for $300 each, so that there was a very substantial profit to be made upon resale to the applicant.  There then took place a supposed telephone call between Li and the applicant and a meeting was arranged to see the applicant at the Café de Coral.  Madam Ng went along and sat at a table where this discussion took place about the purchase of electronic parts.  It was at this stage that the police entered and the arrests took place.  Madam Chen arrived and identified the applicant and Li as the persons who had deceived her a few days before.

The main complaint

8.We turn first to the second ground of appeal which complains of the frequency and nature of the judge's interruptions during the course of cross-examination, by counsel for this applicant, of both the prime prosecution witnesses.  It suffices for the purpose of this appeal to say that, at least in relation to the cross-examination of Madam Chen, the ground is, in our judgment, made out.  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.  We understand from submissions that were made that the witness was upset from time to time when recounting the fact of her serious financial loss, and Mr Tolliday-Wright, who appeared before us for the applicant and who appeared also in the court below fairly suggested that the judge, no doubt for laudable reasons, felt sympathy for the witness.  That we can understand, and we understand also that a judge might in such circumstances wish to save a witness from as much pressure as is sometimes visited upon a witness by the very experience of cross-examination, no matter how gently that examination might be conducted.  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.  The fact is that in this particular case and as we read the transcript, the judge was over zealous in her desire to press on apace, and the result was that she did not permit counsel to develop points in the way he wished.  She directed him to deal with cross-examination in steps not of his choosing.  On matters he wished further to explore – even though it may be that he would have had little success at the end of the day – in relation to confessedly false stories the witness had first given to the police (false because she wished, she said, to ward off the scorn of her family for her naivety), his questioning was curtailed.  Some lengthy passages of the transcript illustrate well how he was directed to move to other matters before he had a chance to develop a point.  This may be because the judge felt that he would not get anywhere, but the impatience which is sometimes wholly understandable and will warrant firm management by the court was here premature and exceeded acceptable limits.  

9.In our judgment, a reasonably objective and informed observer would not have thought other than that almost each question asked by counsel was being pounced upon, so much so that counsel was bound, before long, to be on edge and this applicant could hardly have felt that, weak case or not, he was given a fair run.  Judges are entitled to be firm – indeed they have a duty to be firm – to preclude irrelevant questioning, bullying, and prolixity.  But Mr Tolliday-Wright had not in our judgment so conducted himself as to warrant the frequency or nature of the interruptions which we see in the transcript.  It is, at the end of the day, a question of one’s experience and feel, and we were unanimously of the view that, unfortunately in this case, the judge was allowing counsel virtually no leeway. 

10.In the circumstances, we did not see how the conviction in relation to the first charge could be sustained.

The second charge: present memory and past recollection

11.Cross-examination of Madam Ng did not suffer quite in the same way.  But we did not think it proper to permit the conviction in relation to the second charge to stand either, because by the time Madam Ng came to give evidence the perception of a fair trial was already too much undermined.  It is therefore unnecessary to delve into the second ground of appeal which concerns itself with the manner in which Madam Ng’s testimony was adduced.  The only relevance of the ground seemed to us in the event to relate to the question whether on the second charge there should be a retrial.  We took the view that there should be a retrial in relation to be first charge but not in relation to the second.  

12.In relation to the second charge and the evidence of Madam Ng, there seems to have been considerable confusion as to whether she had forgotten key events or whether, on the other hand, she was simply unable to express herself.  It seems that the reading of her witness statement was not an exercise in refreshing present memory but rather an exercise in presentation of a past recollection, and that it was on this latter basis that she was permitted not only to look at the statements but to have them read to her line by line.  This, according to the judge’s suggestion, was a course taken because the witness ‘was obviously confused, bewildered and struck by the novel experience of giving evidence that what she read in her statement made contemporaneously with the event while her memory was fresh did not register with her.’ 

13.As to the circumstances in which a prior statement may be used to jolt present recollection or to present a past recollection, there is much law into which it is not necessary for the purpose of this case to enter.  Nonetheless in considering this ground, our own researches have led us to texts which we would commend for study should the issue arise in future in other than the usual circumstances in which it tends to arise in criminal litigation: Wigmore on Evidence, 1970, Chapter 28 paragraphs 735 et seq.; Delisle, Evidence: Principles and Problems, 4^th ed., pages 322 et seq.; Cross on Evidence (Australian edition) para 17170 et seq.; and McWilliams’ Canadian Criminal Evidence para 18: 30:20:50.  It seems to us, without deciding the matter, that in this case there was inadequate exploration of the circumstances in which the witness seemed unable to give evidence of the key events to warrant the course taken.  But in any event, the weight to be attributed to her testimony, given the way it went, is not sufficient to warrant a retrial in relation to that charge.  Ms Lai for the respondent took the sensible course of not applying for a retrial on the second charge.  

Bail revoked

14.Our attention was drawn to the fact that after closing submissions the judge adjourned to a date about three weeks hence for the rendering of a verdict and that as she rose to depart she revoked bail, but without giving any prior warning that she had that in mind and without affording counsel an opportunity to address her on the matter.  Whilst the revocation of bail at that stage of a trial is not unusual, it nonetheless always behoves a judge to afford an opportunity for representations before any deprivation of liberty.  That said, if counsel was taken by surprise and wished to persuade the court to a contrary view, he ought to have asked, through the judge’s clerk, for an immediate opportunity to do so.

Costs

15.Given the result of the appeal, Mr Tolliday-Wright sought costs in the appellant’s favour of the trial below, where the appellant was privately represented.  The application was opposed, but we take the view that he is entitled to his costs and the order is that the appellant shall have his costs of the trial below paid by the respondent, to be taxed if not agreed.

Mr David Tolliday-Wright instructed by Hong Kong Bar Association’s Free Legal Service Scheme for Applicant

Ms Louisa Lai, SADPP of Department of Justice for Respondent