HKSAR v. Ismail Isaac Theodore

HCMA1149/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1149 OF 2005

(On Appeal From ESCC 3418 OF 2004)

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BETWEEN

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Before : Deputy High Court Judge M. Poon in Court

Date of Hearing : 25 July 2006

Date of Judgment : 25 July 2006

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J U D G M E N T

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1.The appellant was convicted after trial of one charge of indecent assault, contrary to section 122(1) of the Crimes Ordinance, Cap. 200 and was sentenced to 15 months imprisonment.  He now appeals his conviction.

The prosecution case

2.The victim “Nicky” was 16 at the material time and had registered as a model with a modelling agency on a part-time basis.  She was selected to go to the appellant’s home for ‘casting auditions’ on two occasions.

3.The prosecution case is that various lewd acts of touching and fondling was performed by the appellant on her on the second of those occasions on 5 December 2003 under the pretext of teaching her how to act.  Parts of what happened were recorded on the videotapes.  After she left the appellant’s flat, she complained to her friend “Vicky” and a partner of her modelling agency.  They accompanied her to make a report to the police.

4.The appellant participated in a video recorded interview after his arrest.  It was admitted to have been made by him voluntarily.  In gist, he did not deny touching her but said it was with her consent.   According to him, this was a ‘trial’ to prepare her for casting.

The defence case

5.The appellant elected not to give evidence but called his domestic helper to testify that on that occasion of alleged indecent assault she saw Nicky leave the appellant’s flat happily and they teased each other.

Grounds of appeal

6.There are originally three grounds of appeal.  Mr McNamara for the appellant today has indicated that he is not pursuing the first two grounds and only pursuing the third, namely, that the learned magistrate, during the testimony of Nicky, had assumed the role of a prosecutor and by her intervention had descended into the arena, giving an overall impression of bias, thus making the conviction unsafe and unsatisfactory.  Mr McNamara has, by submission, taken me through various parts of the transcript which it was alleged that the magistrate had intervened by assuming that PW4 had already given certain answers and putting words in the mouth of PW4, asking her questions in a most inappropriate way.

Respondent’s reply

7.It was submitted that the various questions or alleged ‘intervention’ by the magistrate could not be viewed in isolation.  Putting them in the proper contexts, they were merely follow-up questions for clarification purpose, or to ascertain proper translation, or even seeking witness to repeat her answers which were not heard.  It is submitted that viewed as a whole, no persons listening to the case would ever form the opinion that the magistrate, by her questions, had entered the arena or manifested any bias.

8.Furthermore, Ms Lam for the respondent submitted that the trial involved viewing of a videotape.  It is only understandable that the magistrate ascertained with PW4 as to what was done as seen on the tape.

My judgment 

9.It was submitted that during the examination-in-chief, the magistrate’s number of intervention gave the public impression of taking over the conduct of the case from the prosecution and manifesting bias, and such intervention was also apparent during cross-examination.   

10.According to R. v. Yeung Mau Lam [1997] 2 HKLR 468, the court considered the propriety of a judge’s intervention by questioning the witnesses.  The court was satisfied that the following principles were established by the authorities :

(1) Interruptions by their numbers alone are not decisive.

(2) The quantity and quality of the interruptions by their number alone are not decisive.

(3) Actual bias on the part of the judge need not be established, it being enough by his conduct that he would be thought by the informed bystander to be taking over the conduct of the case from the prosecution;

(4) Where a judge sits without a jury, the appeal court must ask itself whether a person listening to the case would justifiably have had the impression that the judge had by his questions entered the arena.

(5) The ultimate question for the consideration of an appellate court is whether the judge’s conduct was such that it would have caused the informed bystander listening to the case to say that the defendant had not had a far trial.  

11.In the case of HKSAR  v. Tsang Wai Man (曾偉民), CACC190/2001, the Court of Appeal said (in its English version) :

“13. In an adversarial system, the role assumed by a judge in a trial is primarily one of listener.  Findings have to be arrived at by a judge on questions in issue based on the evidence and submissions adduced by both parties.  A judge should not over-participate in the questioning of witnesses lest he might give an impression of favoring any one side.

14. The above fundamental principle is beyond question.  However, as the judge of fact, a judge must hear sufficient evidence on the questions in issue before he could come up with the findings on the facts.

15. Under normal circumstances where both parties are represented, counsel from both sides would have elicited from witnesses all relevant evidence through examination-in-chief, cross-examination and re-examination, thereby allowing the judge to be able to have sufficient evidence to reach his findings on the questions of fact at issue.

16. However, very often, things go athwart.  Due to factors like different perceptions of matters, tactics deployed in the course of the trial, the demeanour of witnesses when answering questions, the competency of individual counsel etc, a judge may not necessarily be able to obtain the information so required through the examination-in-chief, cross-examination and re-examination of witnesses by counsel on both sides, rendering it necessary for the judge to put questions directly to witnesses in order to get a better grasp of the evidence before reaching his findings.

17. So long as a judge adopts an impartial attitude when questioning a witness such that the reasonable bystander listening to the case would not have had the impression that the judge is showing favour to one side, the conduct stated in the above gives no cause for much criticism.  Not only is there nothing to be said against it, it is also reasonable and necessary, albeit a more proper way of obtaining the requisite information is to leave the questioning of witnesses to counsel on both sides.”  (emphasis added)

12.I am not going to list those alleged interventions in this judgment, suffice it to say that after I have referred myself to the various parts of the transcript where counsel alleged that the magistrate intervened, I find most of those questions were raised by the magistrate in order to gear prosecution counsel to focus on or go directly to questions to elicit from the witness answers that could provide the court with sufficient evidence to reach findings on questions of fact, or to clarify matters which should have been done but was not done before counsel left those areas for others.  In none of those questions did the magistrate show any favour to any side other than what could be described as an eagerness to obtain facts that could assist her in making her findings.  When questions which could have been asked were not so asked by counsel, questions by the magistrate were not just proper but were necessary.  PW4, being a young victim, had been in the witness box for some six to seven hours over two days.  It is only understandable that the magistrate was anxious not to keep her in court any longer than was necessary.  Unlike the case of HKSAR v. Kong Ting Chan, CACC 510/2005, no counsel in the present case had, by the various questions of the magistrate, been prevented from carrying out his or her task.

13.I am not of the view that the magistrate had descended into the arena and assumed the role of a prosecutor, and an objective bystander would not form the opinion that the appellant did not receive a fair trial. 

14.This ground fails.

15.The appeal is dismissed and I affirm the conviction.

Ms Winnie Lam, GC of Department of Justice, for HKSAR

Mr McNamara John Patrick, instructed by Messrs John Ho & Tsui, assigned by Director of Legal Aid, for the Appellant