The Queen v. Yeung Mau Lam

CACC000550/1989

Headnote

Complaints having been made as to excessive interference by the trial judge. The court was satisfied that the authorities established. Five propositions apposite to the circumstances of the appeal: 1. interruptions by their number alone are not decisive; 2. the quantity and quality of the interruptions must be looked at as factors which react upon each other; 3. actual bias on the part of the judge need not be established, it being enough by his conduct 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 defendants had not had a fair trial. The court emphasize that when considering the propriety of interventions by a judge, it must be borne in mind that it was the judge's duty throughout to ensure that the trial was properly and coherently conducted.

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Coram: Hon. Silke, V.-P., Power & Macdougall JJ.A.

Dates of Hearing: 19 and 20 March 1991

Date of Judgment (on Conviction): 21 May 1991

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JUDGMENT

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Power, J.

1. This is the judgment of the court.

2. The applicant faced 40 charges: charges 1-11 were offences of evasion of liability by deception contrary to s 18B(1) (b) of the Theft Ordinance Cap.210; charges 12-18 were offences of obtaining property by deception contrary to s.17(1) of the Theft Ordinance; charges 19-29 were offences of forgery of a cheque contrary to s.17(2) (a) of the Crimes Ordinance, Cap.200; and charges 30 to 40 were offences of uttering a forged document contrary to s.74(1) of the Crimes Ordinance. He pleaded not guilty to all of them and was, after trial before Judge Yeung in the District Court, convicted and sentenced to imprisonment for five years on each of the charges 1-18 to be served concurrently, to six months imprisonment on each of the charges 19-40 to run concurrently with each other but consecutive to the period of imprisonment of five years imposed on charges 1-18. He was also ordered to pay costs of $40,000 and to pay $10,000 to each of the six victim companies.

3. It was the Crown case that the applicant and CHEUNG Sat-yim were directors of Wyld Industrial Ltd. (Wyld). This company conducted the business of buying and selling cloth from Flat A, 5/F, 21 Tung Yuen Street, Yau Tong Bay, Hong Kong. There was evidence that at the time of the charges, 1988, the cloth trade in Hong Kong was conducted largely on a credit basis. If a company purchased cloth from another, it would make the order by telephone agreeing upon price, quantity and date of delivery, and a delivery order would be prepared by the vendor which would be passed to the purchaser allowing him to collect the goods from the warehouse. At the time the delivery order was handed over, the purchaser would normally issue a post-dated cheque for the goods indicating a date of presentation, usually between 30 and 60 days after the date of the transaction.

4. Wyld had bank accounts at the Hua Chiao Commercial bank Ltd., the Sin Hua Trust Savings and Commercial Bank Ltd. Both directors were required to sign all cheques. Charges l-11 alleged that the applicant had induced a vendor to deliver cloth to him by falsely representing that a post-dated cheque would be a good and valid order for the payment of the sum set out therein. It was the Crown case that the applicant knew that there would be insufficient funds in the appropriate account to pay the cheques on. presentation. Charge 12 alleged that the applicant obtained a cheque from a cloth merchant in the sum of $23,550 by falsely representing to him that an exchanged cheque from Wyld in the same sum would be met on presentation. Charges 13-18 alleged that the applicant, having no intention to make payment, ordered and obtained delivery of cloth by representing that the goods would be paid for. Charges 19-29 alleged forgery of the signature of CHEUNG Sat-yim on the cheques used in charges 1-11. Charges 30-40 alleged the uttering of those forged cheques.

5. There were eleven sets of charges, each comprising a charge of evasion of liability by deception, forgery of a cheque and the uttering of that cheque, and seven charges of obtaining property by a false representation.

6. Broadly stated, it was the applicant's defence that he had never intended to defraud anyone and that he was involved at this time in a substantial transaction in China from which he had every expectation of receiving an amount in excess of $4m which, together with other smaller sums outstanding, would cover the amount of the relevant cheques as they came due. The Crown sought to establish, inter alia, that one of the reasons why he could not have had any expectation of being in funds to meet those cheques was because he had a large number of other unpaid cheques outstanding at the relevant time. The applicant gave evidence that, while on the face of it these cheques would have required payment of a much larger sum than he had any expectation of receiving, many of them would never have had to be met because they were given either "in exchange" for other cheques or "lent" in circumstances which did not involve their encashment. He said that in the cases where the cheques were exchanged he would, in return for a wyld cheque, receive that of another company. Each party would then obtain working capital by discounting the other's cheque. If such cheques were not met on presentation by the discount house, it would, in accordance with the understanding of both sides, be the responsioility of each party to redeem its discounted cheque by paying the discount house. When a cheque was lent, the person to whom it was lent would similarly discount the cheque by paying the discount house to obtain cash and would similarly be responsible for redeeming that cheque if it were not met on presentation. There can be no question that these were devious and dishonest arrangements which were fraught with danger for the discount houses who thought they were dealing with valid instruments. Nonetheless, this was put forward by the applicant as part of his defence of honest belief that he would have money to meet the cheques the subject of the charges on their presentation.

7. The trial lasted from 1st September 1989 to 11th October 1989, a period of just under six weeks. It involved a comprehension of the involved arrangements under which the cloth trade in Hong Kong was said to be then conducted and of the complex and devious procedures which the applicant said he used in the conduct of his business. In the outcome, the judge was satisfied that the defence was a sham and that the applicant was guilty on all charges.

8. Before turning to the evidence, we think it useful to make reference to the authorities relied upon by Mr. Nguyen and as to the applicability of which there was no real contest.

9. Mr. Nguyen referred to two passages from the judgment of Denning L.J. in Jones v. National Coal Board [1957] 2 Q.B. 55 where he said, at p. 64:

"The judge's 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 the advocates behave themselves seemly and keep to the rules laid down by law; to exclude irrelevancies 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.'";

and at p.65:

"Nevertheless, it is obvious for more than one reason that such interventions should be as infrequent as possible when the witness is under cross-examination. It is only by cross-examination that a witness's evidence can be properly tested, and it loses much of its effectiveness in counsel's hands if the witness is given time to think out the answer to awkward questions; the very gist of cross-examination lies in the unbroken sequence of question and answer."

10. He submitted that the observations of Briggs C.J. in R v. Or Cnung-yan [1975] HKLR 243 were particularly apposite. The Chief Justice said, at p.245:

"These are all cases where the trial judge interrupted the examination-in-chief of the accused person or interfered in the address of counsel for the defence. In the present case, the address of counsel for the defence was not interrupted and only on one occasion did the judge ask questions of the appellant when he was being examined in chief. What the appellant complains of is the excessive questioning of the appellant in cross-examination . Excessive questioning by a judge, whether it occurs in examination-in-chief or in cross-examination, may show that the judge has taken sides. It is true that in all the cases quoted before us the trial at first instance was a jury trial which is not the case in the present case, but the principle is the same: the trial must be conducted in such a way as to show that the judge has remained impartial throughout. In our view, therefore, in order to succeed on this ground of appeal, the appellant must show that the judge gave an indication of blas, for it is not alleged here that counsel was unable to present the defence adequately."

Mr. Nguyen referred also to the observation, at p.247, where the Chief Justice indicated that the test was whether "a person listening to the conduct of the case would have the impression that the judge had 'entered the arena' ..." We think it also important, given the circumstances in the case before us to which we will shortly come, to adopt the earlier observation, also at p. 247, where Briggs C.J. said:

"It is, of course, perfectly proper for the judge to ask questions of a witness to clarify what has gone before where the evidence has been left in an ambiguous state."

11. Mr. Nguyen laid particular emphasis on a passage at p.248:

"This is not a case where the conduct of the judge was such that the defence counsel was unable to present his case fairly, as stated in the ground of appeal. However, what we have to decide is whether the conduct of the judge suggested a bias against the defence. It must be kept in mind that the explanation given by the accused of the undisputed fact that he had attempted to dispose of forged securities was, in the absence of direct proof of guilty knowledge, of central importance in deciding the issue of guilt. It cannot be said that bias was shown by the judge in the sense of unfair of hostile questioning - by anything in the nature of an attempt to trap, confuse or browbeat the appellant. What the judge did was patently done out of a desire to explore and test to the fullest extent the nature and implications of the appellant's explanation. The judge clearly felt, and not without justification, that there were parts of that story which seemed implausible. But even a laudable desire to come at the truth does not accord the Bench an unlimited latitude in pursuing that inquiry and an improper bias in the wider sense way be said to arise where the reins of the prosecution are taken from the hands of the prosecutor and the inquiry is directed upon an extensive excursion into areas which ought to have been left to the prosecutor to explore and which he might have been expected to explore, and way have been about to explore at the time of the interruption. Judicial zeal for the uncovering of truth must stop short of any practice which in the eyes of a detached beholder might seem to destroy the valuable distinction between the inquisitorial and the accusatorial procedures.

12. It is Mr. Nguyen's submission that the judge in the present case had by his questioning displayed "an improper bias in the wider sense ..."

13. We note that the court in R. v. OR Chung Yan considered applying the proviso but was not prepared to do so as "it was not a strong case".

14. We finally refer to the headnote of Matthews (1984) 78 Cr. App. R. 23 which, in convenient form, sets out the proper approach when considering interventions by a trial judge:

"In considering the propriety relating to the questioning by a judge of witnesses during a criminal trial the following principles should be considered - (1) while a large number of interruptions must put the Court of Appeal on notice of the possibility of a denial of justice, mere statistics were not of themselves decisive; (2) the critical aspect of the investigation was the quality of the interventions as they related to the attitude of the judge as might be observed by the jury and the effect that the  interventions had either on the orderly, proper and lucid deployment of the defendant's case by his advocate or on the efficacy of the attack to be made on the defendant's behalf on vital prosecution witnesses by cross-examination administered by his advocate on his behalf; (3) in analysing the overall effect of the interventions, quantity and quality could not be considered in isolation but would react the one on the other. The question which the Court on appeal must ultimately ask itself was - might the case for the defendant as presented to the jury over the trial as a whole, including the adducing and testing of evidence, the submissions of counsel and the summing-up of the judge, be such that the jury's verdict might be unsafe? If that was so and there was a possibility of a denial of justice, then the Court of Appeal ought to interfere."

15. We are satisfied that the authorities establish the following five proposition apposite to our considerations:

16. We think it appropriate also to emphasize that a court, when considering the propriety of interventions by a judge, must bear in mind that it is the judge's duty throughout to ensure that a trial is properly and coherently conducted.

17. As Denning L.J. pointed out in Jones v. National Coal Board (supra), questions must, where necessary, be asked to clear up points which have been overlooked or left obscure, the judge should discourage repetition and should intervene to ensure that he follows the points being made by advocates. In our view, it can be added to these observations that it is the duty of the judge to ensure, at all times, that he understands the evidence of the witnesses and that the witnesses make responsive answers to the questions asked. We further observe that while it is desirable that judicial questioning comes either at the end of cross-examination or, preferably, at the end of re-examination, there may well be circumstances in particular trials which make it proper for the judge to intervene by asking questions at much earlier stages.

18. The only ground of appeal argued before us reads as follows:

"The learned trial judge in hearing the case in effect conducted an inquisitorial inquest into where the truth lay by asking almost every witness, including the defendant and his witnesses, at every stage of the witness' evidence, numerous questions pertaining to areas that the learned trial judge felt had not been sufficiently and exhaustively explored, thereby descending into the arena and leaving the accused person with the grievance that he was not getting a fair trial from a Judge who was impartial.

PARTICULARS

19. Ground 2 which complained of the court's approach to the evidence of the handwriting expert was properly not pursued.

20. Mr. Nguyen, who appeared for the applicant both here and below, prepared a helpful table showing the number of questions asked by the judge of each of the witnesses.

21. He complains of excessive questioning of a number of the 24 prosecution witnesses. The judge, in fact, asked a limited number of questions of all but 3 witnesses, PW5, PW9 and PW16. All of these questions were directed to the witnesses after re-examination. There can be no suggestion that the court interfered either with the examination-in-chief of the witnesses or with their cross-examination.

22. If we understand Mr. Nguyen correctly, he does not suggest the judge interfered with the examination of these witnesses, but rather suggests that the number of questions asked be regarded as a background against which to examine what he says was 'unwarranted and excessive questioning during the defence case'. The questions asked of PW5, PW9 and PW16 did not, we are satisfied,  go beyond proper questioning by a trial judge. The other complaints of questioning by the judge of prosecution witnesses were properly not pursued.

23. The only other complaint with regard to the prosecution witnesses is the suggestion that the trial judge, by intervening, shielded PW18 Li Fung-ming during cross-examination. We can do no more in this regard than observe that the record gives no support to such a suggestion.

24. The hearing before this court was not made easier by the fact that we were presented with two records of proceedings. One was the record kept by the trial judge. This was, from the applicant's point of view, not as helpful as it might have been as much of it was recorded in narrative, rather than in question and answer form. The second record was that kept by Mr. Kenneth Chow, Mr. Nguyen's junior at trial. This was sent to the trial judge for his comments and he agreed that, from his recollection now somewhat dim, it was substantially correct though taken in a different form. This record was, unfortunately, not complete and it was necessary in the course of the appeal to supplement it by reference to the judge's record.

25. We turn to complaints made of excessive questions of the applicant by the judge. Mr. Nguyen's table shows that the judge asked him 178 questions during his evidence in chief, 18 questions after he had finished his evidence in- chief, and 100 questions during cross-examination. It is also clear that the judge asked further questions after cross-examination. It is, however, not possible to make an exact estimate as to the number of these as the relevant passage, in narrative form, appears only in the record kept by the judge.

26. The record kept by counsel appears in some instances to show more questions than were actually asked. On occasions the judge set out the background against which he wisned to ask a question. Each of the sentences describing the background, i.e. setting the stage for the question, has been recorded as an unanswered question. On other occasions the number of questions actually asked by the judge is exaggerated because the failure of the applicant to make a proper answer made it necessary to repeat the question.

27. As we have said it is desirable that a judge, if he needs to clarify matters, should do so at the conclusion of either cross-examination or re-examination. The judge was, however, in some difficulty in this regard in the present case. By the time the defendant came to give evidence, there were in evidence 121 prosecution exhibits. It was expected that there would be a large number of defence exhibits and there were, in fact, 58. Of these, about 50 were cheques which the applicant was seeking to explain would not have to be met because, to use our own words, of the complex and devious procedures adopted by him in the conduct of his business. e have no doubt that if the judge had let all of the matters about which he asked questions rest until what is normally considered to be the appropriate time, satisfactory elucidation thereof would have been difficult and protracted, if not impossible.

28. The first passage of which particular complaint is made occurs at p.256 of counsel's record. Unless otherwise indicated, all of the following references are from counsel's record. The applicant was then giving evidence about the lending and exchanging of cheques to enable each party to obtain money by discounting rather than by cashing the cheque. He had just identified a cheque as being one which had been lent rather than exchanged and, without having advanced any satisfactory reason as to how he had been able to identify that cheque, he proceeded to give evidence regarding another cheque which he said was an exchanged cheque. The judge questioned the witness about the cheque then in his hand asking him how he could identify it as an exchanged cheque:. Given the complexity of the matter, we think it was proper for him to have intervened at this stage.

29. The next intervention came, at p.257 when the witness, having earlier explained the difference between lending and exchange, said that they were more or less the same thing. This contradictory answer cried out for clarification. Again we think it was proper for the judge to have intervened and question the witness as he did.

30. The applicant was, on the face of the record, a far from satisfactory witness. His evidence lacked clarity, was often difficult to understand, and was, at times, contradictory. This might not, in an ordinary case, justify the intervention of the judge at an inappropriate stage. However, this was not an ordinary case. Had the judge not intervened when he did, the evidence of the witness overall might well in the outcome, have been impossible to comprehend.

31. The next intervention, at p.261, again related to the applicant's evidence as to the cheques. Again the witness's evidence was less than clear and again the court felt it necessary to ascertain exactly what the witness was saying in relation to that particular cheque (Exh.D6). Our earlier observations have equal application to this passage.

32. The next passage of any length comes at p.282. Again the trial judge was endeavouring to ascertain how the applicant was able, given the multiplicity of cheques and the apparent lack of records relating thereto, to identify which were lent and which exchanged. Many of the judge's questions are, it seems to us, explained by the following admonition which he directed to the applicant at p.286:

"I am very confused. I repeat your evidence to you. Think about it carefully and answer the question. Because evidence so far is most confusing."

The next significant passage, at p.293, is again concerned with evidence of the applicant in which he was endeavouring to explain how he came to issue the two cheques marked Exhs.D44 and D45. The judge commenced his questions only after the applicant had, in an answer which was far from easy to understand, stated that "repaying" meant the same thing as "paying". The court queried the amount of a cheque, namely $255,378.75, which the applicant said was a part payment for goods. When asked was this not an odd figure for part payment, the applicant said it would be easier for discounting. When asked why this should be so he failed to make answer and a series of questions followed which were an endeavour by the judge to obtain an answer to what was a quite simple question. Had the applicant answered in the first place, as he should have, this whole series of questions would have been unnecessary. Indeed, 13 questions later, the applicant still had not answered the question and, in the outcome, never did.

33. When the content of the questions asked by the judge during examination-in-chief is examined, it can be seen that they were for the most part asked in order to seek elucidation of what were often obscure and conflicting answers regarding the exchange and lending of cheques. They do not on their face indicate any taking of sides on the part of the judge. Indeed, it was Mr. Nguyen's submission that it was their multiplicity rather than their form which indicated the submission of incredulity on his part. We do not accept this.

34. During the course of his evidence in chief, the witness had nowhere explained why, if he was owed more than $4m, he had made no attempt to recover that money. This was a very substantial gap in the applicant's explanation and was clearly one which worried the judge. At the end of examination in chief, the judge asked a number of questions seeking clarification of the matter. It would, we are satisfied, have been preferable had the judge left this matter until after cross-examination by which time it might well have been so thoroughly canvassed as to make it unnecessary for him to ask anything.

35. The next series of questions of any significance came from the judge during cross-examination at p.316. These followed a confusing series of answers which the applicant gave about his brother having been a director of Wyld. The judge reminded hin that he was contradicting himself, and endeavoured to ascertain just what it was that he was trying to say. Had the applicant given clear and responsive answers to the cross-examiner it is unlikely that the judge would have found it necessary to intervene at all. The answeres to the judge's questions were no more satisfactory than had been those to counsel. Each answer was such that it required the asking of a further question which would not have been necessary had the preceding answer been responsive. This exchange arose from, and was prolonged by the manifestly unsatisfactory answers coming from the applicant.

36. The next two series of questions from the judge, at p.317, again came about because the applicant was, on the face of his answers, directly contradicting his earlier evidence. The judge was giving him the opportunity to explain this apparent contradiction. Indeed, this was an occasion when there were less actual questions than are indicated in counsel's record. The judge set the scene  before asking the question which he wished to have answered.

37. In our opinion, the disarray evident in the evidence of the applicant can, in no way, be attributed to the questioning by the judge. At p.324, the following exchange occurred:

The applicant here seems to be admitting that when he did not know how correctly to answer a question, he was prepared to give any answer which came into his mind. It was not surprising that the judge shortly thereafter cautioned the. applicant in the following terms:

We note that, in counsel's record, the observations and cautions of the judge have all been recorded as questions asked. We are fully conscious that it could be suggested that the judge, when he reminded the applicant that he was giving different versions, was, in effect, cross-examining him. It must, however, also be remembered that the judge had a duty to direct the applicant that he must make responsive answers. In any event, a reminder to a witness to think before answering and not to speculate can hardly be said to be against his interest.

38. As we have already indicated, it was the contention of Mr. Nguyen that the number of questions rather than their form indicated a taking of sides on the part of the trial judge. At only one place, p. 326-7 of counsel's record, does Mr. Nguyen suggest that the judge raised his voice. This is an exchange where the applicant appears to be failing, evasively and repeatedly, to answer the questions being asked. Mr. Nguyen concedes that there was on the face of the questions no hostility displayed towards the applicant.

39. We now turn to the passage in the judge's record, at p. 301, setting out an exchange after the close of cross-examination. This long passage is not broken into questions and answers but clearly records the answers to questions put by the judge about matters which he felt had not been satisfactorily canvassed in either evidence in chief of in cross-examination.

40. Again no complaint is made of aggressive questioning. It seems to be conceded that the judge was endeavouring to elicit information from the applicant which would clarify these matters.

41. From the judge's record, at p. 312, it appears clear that, after re-examination, the judge asked further questions. In these questions, the judge sought clarification as to the payments which had been made in and out of Wyld bank account in about the month of June 1988.

42. Both counsel at the conclusion of this passage indicated that they did not wish to ask any further questions.

43. As can be seen from the foregoing, the judge asked the applicant a large number of questions. They were, it is conceded, not asked in an aggressive manner. They were, in very large part, attempts to clarity matters which, on the face of the transcript, appear to have been purposely left obscure by the applicant. We are satisfied that there was nothing in the questioning of the applicant by the judge which either indicated bias or prevented the applicant from giving evidence in his own way, nor do we think that he interfered with the applicant in placing his defence before the court. It is plain to us that there was an attempt by the applicant to obfuscate and confuse, that it was this which led the judge to take steps to ensure that he gave comprehensible and responsive answers and that no one listening to the case could justifiably have said that because of these questions the applicant was not given a fair trial.

44. We turn now to the suggestions that the judge improperly questioned the two witnesses called by the defence. The most important of these witnesses was Mr. Ha She Keung. He said that he had agreed to purchase from the defendant for about $4m odd some superficially dyed cloth which was then being stored in China. As it was illegal to export such cloth from China in an undyed state it seems that it was the practice to dye the cloth superficially in order to deceive the authorities and obtain permission for export. Mr. Ha said that he received a delivery order from the applicant and took delivery of the goods in Wai Chau City. He transferred them to Jiang Men City from where they were to be exported to Hong Kong. He said that he was then informed that "the customs said the heat was on" and that he would have to wait for an opportunity to ship out the goods. He said that on one occasion, when he returned from a trip to Taiwan, he learnt that the applicant was being investigated and that the three corrupt Chinese officials with whom he was dealing, one of whom was a relative, said the goods should not be delivered. According to him, this suggestion was made because the officials believed that there was a likelihood that they would all be able to profit from the applicant's misfortune by not paying for the goods at all.

45. Mr. Ha appeared to be indicating that, while in the process of carrying out a genuine, but illegal, business transaction with the applicant, he allowed himself to become involved, at the suggestion of the 3 corrupt Chinese officials, in a deliberate policy of delay with the hope that this would enable himself and the corrupt officials to defraud the applicant of $4m. At this point that the trial judge asked the witness questions in an endeavour to ascertain what exactly that he was saying. The witness then said that he didn't have a part in the matter, that the corrupt officials were still waiting and that it was not his intention to hurt the applicant. He then told the applicant's counsel that as the payment date approached he continued to tell the applicant to trust him and his partner and that his company could pay the amount owing. It was at this point that the following exchange occurred:

The complaint about this passage was that the court was cross-examining the witness. This complaint has substance in that the questions amount, in both form and content, to cross-examination. It would, in our view, have been very much more preferable had the judge left such questions to the cross-examiner and not asked them, as he did, during the examination-in-chief of the witness. We say this fully   conscious of the fact that this witness was giving very unusual evidence indeed. He seemed to be suggesting both that he was prepared to be a party to a fraud which, on its face, would work great financial damage to the applicant and that he had, at the same time, no "intention to hurt" him. While it was wrong for the judge to do so we find it easy to understand how it was that, in a fashion more forthright than can be justified, he called upon the witness to explain this extraordinary evidence.

46. The witness went on to say that he had got about 10,000 yards of the 800,000 yards of goods out of China by using a Zhen Jen company which he described as "smugglers". It was his evidence that the goods were then under the control of his relative LI Wan Zee, the relative who was one of the corrupt officials and the vice-manager of the Jiang Men City Foreign Corporation Ltd., and that, without telling LI Wan Zee, he promised to pay Li's right hand man, a driver, $7,000 if he would "quietly deliver 20,000 to 30,000 yards to Zhen Jen". At this stage the judge asked how this was to be done and the witness said he did not know how the driver went about it. The judge then pursued the question asking him:

The witness went on to say that the balance of the 800,000 yards of goods remained in the godown under the control of LI Wai Zee. The judge again intervened, asking him whether there were any documents relating thereto.

47. He pursued this questioning, asking how it was that he was so dominated by his relative that he was, despite his desire not to hurt the applicant, unable to demand that the goods should be sent in accordance with the original agreement to Hong Kong.

48. It is again submitted that he was in these passages cross-examining the witness.

49. At the end of the cross-examination of the witness, the judge asked another series of questions. These questions were a further endeavour to ascertain from the applicant how it was that LI Wai Zee could, in effect, take control of the goods and how he, given that he was bound to a business agreement in Hong Kong, could have allowed this to happen.

50. We are satisfied that the judge when questioning this witness gave the appearance of having taken over the cross-examination and of having entered the arena. The fact that the witness was asking the court to give credence to a convoluted and contradictory tale, which was, on its face, implausible, explains, but cannot justify, such questions.

51. The defence next called CHAN Chiu-kwan who was a quality controller for the dyeing of cloth. He gave evidence of the superficial dyeing of about 1,000,000 yards of cloth in the first half of 1988 in a factory in Wai Chau, China. He said at that time he was working for the defendant as an assistant manager in charge of processing of cloth, which included dyeing. He said that between February and April 1988, he supervised the superficial dyeing of about 1,000,000 yards of grey cloth said to have been bought by Wyld from a company in the Mainland. He said that this cloth was then stored in a military godown and that he learnt from the godown operators that eventually delivery of this cloth had been made. After re-examination, the court directed a number of questions to this witness regarding the dyeing of this cloth, the management of the factory in China and the delivery of the cloth. The complaint that is made of these questions is that they were not necessary to clarify anything that had been said by the witness. We are satisfied that they are proper questions which the judge was quite entitled to ask and that no complaint can properly be made of them.

52. The judge, as we have indicated, overstepped the borderline of propriety in his questioning of the witness Ha She Keung

We are nonetheless satisfied that we should dismiss the appeal, having given leave, as in our judgment, the evidence against the applicant was overwhelming and no miscarriage of justice has been occasioned by the crossing of the borderline by the trial judge. That which he did did not render the applicant's trial an unfair one so as to cause it to be unsafe or unsatisfactory.

Representation:

Mr. M.A. McMahon (Crown Prosecutor) for the Respondent.

Mr. Peter Nguyen (instructed by Messrs. Patrick Chung & Co.) for the Applicant.