HKSAR v. Miyashita Akira

CACC000624/1996

IN THE COURT OF APPEAL

1996, No. 624
(Criminal)

- Headnote -

Criminal law and procedure - allegations that judge entered arena - R v Savilleadopted - not incumbent on a judge to remain silent and watch justice miscarry - judge's duty to ensure criminal proceedings are tried fairly and efficiently and to intervene as necessary to ensure that goal - wholly unwarranted attack of bias.

IN THE COURT OF APPEAL

1996, No. 624
(Criminal)

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Coram: Hon. Power, V.-P., Mayo, J.A. and Stuart-Moore, J. in Court

Date of hearing: 31 October 1997

Date of delivery of judgment: 31 October 1997

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J U D G M E N T

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Mayo, J.A. (giving the judgment of the Court):

1. The Applicant was convicted after a trial before Judge McMahon on one charge of offering an advantage to an agent contrary to section 9 of the Prevention of Bribery Ordinance and six charges of false accounting contrary to section 19(1a) of the Theft Ordinance. He now seeks leave to appeal against these convictions.

2. These offences were alleged to have been committed between 1 March 1991 and 30 June 1992 when the Applicant was a director of a company called Fuji Shoko Company Limited (FSCL). FSCL imported materials from Japan. For the purposes of these proceedings the Japanese supplier of the materials was a company called Kaneko Metal Co Limited and they would ship the materials through their agent Shimtekno Boeki Co Limited (SBCL).

3. The gentleman who the Applicant mainly dealt with in Kaneko was a Mr. Fukazawa.

4. After the Applicant left FSCL it was discovered from the records of the company that on 6 occasions between March and November 1991 he had withdrawn (4,304,197 which was equivalent to HK$257,487 from the company. These payments purported to be agents' commissions which were to be payable to SBCL. SBCL denied having received the payments. It was the prosecution case that the accounting documents supporting these payments and the entries in the company's records relating to them were false. Charges 2 to 7 relate to these false accounting entries.

5. To put the matter succinctly the moneys which were withdrawn from FSCL's accounts were used by the Applicant for his own purposes and included payments to Mr. Fukazawa, and the various falsifications were made to camouflage these activities.

6. So far as the 1st charge is concerned it was the prosecution case that the Applicant paid to Mr. Fukazawa in June 1991 (500,000 as an inducement to him to favour FSCL in its trading activities.

7. In this connection Mr. Fukazawa gave evidence having received an immunity from prosecution. His evidence that he had received payments, including the payment referred to in the 1st charge, was accepted by the Judge notwithstanding his reservations concerning Mr. Fukazawa's reliability.

8. Mr. Fukazawa also gave evidence concerning charges 2 to 7. He rejected the suggestion put to him in cross-examination that any of the moneys he received were intended to be passed on to Kaneko.

9. A number of other witnesses gave evidence for the prosecution. These included members of the accounts staff of FSCL. What emerged from their evidence was that they had acted upon the instructions of the Applicant and had generally done what they had been asked to do by him.

10. The Applicant did not give evidence at his trial or call any witnesses. The nature of the defence emerged from the case put to the prosecution witnesses in the cross-examination.

11. What was put was that the payments in question were payments to compensate Kaneko for exchange losses they had sustained while undertaking transactions with FSCL.

12. In a lengthy and detailed judgment the Judge analysed with care the implications arising out of this. One of the matters he referred to was that so called official receipts for the payments were signed by Mr. Fukazawa for and on behalf of SBCL and there was clear evidence which the Judge accepted that this company had never received any payments from FSCL.

13. Perhaps more important than this no possible explanation was available as to why FSCL should reimburse Kaneko for the exchange losses they were said to have suffered.

14. At the end of the day the Judge was prepared to accept the evidence of the prosecution witnesses when this was taken in conjunction with the available documents. He was satisfied at the appropriate level that all of the charges had been proved.

15. The first two grounds of appeal can conveniently be dealt with together.

16. Complaint is made that the Judge descended into the arena. The main justification for this is that the Judge expressed the view that it was "a shame" that the prosecution had not led in evidence the cautioned statement the Applicant had made to ICAC officers.

17. It would appear that the reason stated by the prosecution for not placing reliance upon the statement was the difficulty encountered in connection with its interpretation.

18. We do not think that the Judge in any way descended into the arena. It was a perfectly justifiable observation to express concern that because of practical or administrative difficulties it had not been possible to introduce this evidence. Indeed the Judge could well have expressed himself in a much more trenchant manner. We echo his view that it is unfortunate that the difficulties which were encountered did arise. Certainly there was no reason at all for the Judge to recuse himself. These grounds are bereft of merit.

19. In this connection it is pertinent to note the words of Simon Brown LJ at page 4 of the transcript of R v Saville (unreported) being Criminal Appeal 4181/W2/91:

"If the presiding judge perceives the risk of a case going off on a wholly wrong basis, whether because of some legal technicality which has been overlooked, or because of some lacuna in the evidence, it is not incumbent on him to grit his teeth, remain silent and watch justice miscarry - for it is no less a miscarriage of justice when an accused person escapes conviction through inefficiency or carelessness on the part of the Crown than when he is convicted as a result of comparable error on the part of the defence. Rather it is the duty of the judge to ensure that criminal proceedings are tried fairly and efficiently, and to intervene as necessary to ensure that that goal is achieved."

20. In ground 3 the Applicant has chosen to make a general rather than a detailed criticism concerning interventions by the Judge. A statement is made in the written submissions which were lodged to the effect that there is hardly a page of the transcript which does not contain some interventions.

21. It was conceded by Mr. Harris for the Applicant that if grounds 1 and 2 are not successful this ground also falls with them. We would just add there is no reason at all to conclude that the Applicant did not receive a fair and impartial trial. It is a very serious matter to make unjustified allegations of this nature and the attack on the Judge was wholly unwarranted.

22. Grounds 4, 5 and 6 can also conveniently be considered together.

23. The Judge did carefully consider all of the documents which were adduced as evidence. He also considered the case which was put to the prosecution witnesses. There was insufficient reason to speculate upon what other material may exist as the case being put forward was contrary to virtually all of the evidence which was available. There was an abundance of evidence to support the prosecution case and no justifiable criticism can be made of the way the Judge conducted the case. These grounds are without merit.

24. As to grounds 7 and 8 there was no need for the Judge to attempt to divine what the Applicant's motives might have been. There was more than sufficient evidence to support convictions on all of the counts and this took the matter far beyond simply a question of suspicion.

25. Ground 9. Having regard to all of the evidence which was before the Judge it would have been surprising if the Judge had not drawn the inferences he did.

26. In my view these convictions were in no way unsafe or unsatisfactory and this application should be dismissed.

Stuart-Moore, J.:

27. I agree with the judgment given by Mayo, J.A. This was an outstanding example of the exercise of sensible judicial management in a difficult case. A wholly unwarranted attack of bias has been made against the learned Judge. It was without any foundation whatever, so that it is not surprising Mr. Harris has made no real attempt to particularise this serious complaint. The passages that he has chosen to highlight from the transcript only illustrate how fair, necessary and helpful the Judge's interjections had been. As an example, prosecuting counsel in the lower court had made a decision to omit evidence for a reason that was clearly unsatisfactory. It was then that the trial Judge rightly remarked it was "a shame that a document was not produced simply because the translation is inadequate, if it is relevant and admissible."

28. Advocates would do well to remember the words of Simon Brown LJ in the case of Saville to which reference has already been made in this judgment.

Power, V.-P.:

29. I concur with all that has fallen from my brothers Mayo and Stuart-Moore. I refer in particular to the observations rejecting suggested impropriety and bias on the part of the trial judge. There was no warrant for making those suggestions. The application for leave to appeal against conviction is refused.

Representation:

Mr. Alain Sham (DPP) for Respondent

Mr. Graham Harris instructed by M/S Haldanes for Applicant