Hon Hoi-wah and Another v. The Queen
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CACC000663/1981 Criminal trial - fairness - alleged undue advocacy by trial judge in summing up - strong comment may be justified by strong facts but points for the defence must not be overlooked - jury should be persuaded by the facts and not by the judge - principle in R. v. Sparrow adopted (Silke, J. demurring on this point) - Appeal dismissed
BETWEEN
_________ Coram: McMullin, V.-P., Li & Silke, JJ.A. Date: 14 May 1982 ___________ JUDGMENT ___________ McMullin, V.-P. : 1. The applicants were convicted of assisting the passage within Hong Kong of a number of unauthorized persons contrary to the provisions of section 37D(1)(a) of the Immigration Ordinance, Cap. 115. 2. It Is not in dispute that shortly after 5.00 a.m. in the morning of the 8th of October, 1980, a party of police officers raided premises on the second floor of a building known as 64-66 Junction Road, Kowloon and therein found some 22 persons who were unauthorized entrants. The documents seized at the time of this raid make it clear that these premises were being used as a centre for assembling illegal immigrants and delivering them to various relatives resident in Hong Kong or Kowloon. Six of these illegal immigrants are named in the charge and these gave evidence for the prosecution the trial. The applicants were arrested on the same occasion. 3. The case for the Crown rested upon the testimony of these illegal immigrants together with that of a number of police officers who took part in the events of the 8th of October. The applicants gave evidence on their own behalf in which they denied any complicity in the activities alleged against them. After a deliberation of some two and a half hours, the jury came to a unanimous verdict of guilty against both the applicants. 4. In order to appreciate the nature of the complaints urged on behalf of the applicants in the Grounds of Appeal, it will be helpful to outline as briefly as possible the case for the Crown and then that for the defence before turning to consider these complaints in detail. 5. Two police officers attached to the Vice Squad of Police Headquarters in Kowloon, Station Sergeant TSE Lap-chi and P.C. CHAN Yun-shing were on surveillance duty outside the block of flats known as 64-66 Junction Road, Kowloon at 4.00 a.m. in the morning of the 8th of October 1980. It appears that these premises were suspected of harbouring illegal gamblers. At about 4.20 they observed a convoy of five saloon cars arriving in rapid succession and parking immediately outside that building. As each car stopped, the driver would emerge, go to the entrance of the building and then wave towards the car after which five or six passengers would alight hurriedly and hasten into the building with the driver. On each occasion the action was similarly hurried and somewhat furtive. 6. The watching officers took notes of the registration numbers of these cars and amongst them they noted one particular car No. CD6813. Some of the cars drove off shortly after parking and others remained there for some time. The police officers decided to report to Headquarters and they left the area at about 4.30 at which time CD 6813 was still parked at the pavement some twenty yards from the entrance to the building. 7. A police party under the leadership of Senior Inspector LIU Ho-yee arrived at Junction Road at about five or ten minutes past 5.00 a.m. and the same car was still parked at the pavement. P.C. CHAN Yun-shing and P.C. KO King-lim were posted outside the building at a point of vantage to observe if anybody left the building. Two other officers, who did not give evidence, were put on guard at the rear of the building. 8. The entrance to the building was barred by an electrically operated metal grille. It was necessary for Sergeant Tse to force two of the bars apart a little enabling the only woman police constable in the party, P.C. SIU King-yee, to reach between the bars and operate the button which opened the grille. The party, consisting of Station Sergeant Tse, Inspector Liu and two detective constables, then went upstairs and the woman police officer remained on the ground floor. The investigating party explored some of the higher floors before being attracted by a noise form the second floor whereupon they approached the flat on that floor from which the noise had come. Sergeant Tse managed to open the iron grille outside that door with the aid of a bamboo stick with which he operated the opening mechanism. He then pressed the bell on the front door and this produced an immediate increase of noise within the flat but the door was not opened. Somebody peeped out through the peephole and the Sergeant endeavoured to show his warrant card while he and the other officers called out to those within that they were police officers. The lights were then switched off within the flat and since the door was not opened, the police broke in and were confronted with a scene of very great confusion with people running in all directions through the sitting-room and into one of the bedrooms the door of which was open. People were hiding in various ways and some were trying to escape from the windows. The other bedroom, which was to the right hand side of the front door, was locked. Sergeant Tse broke in to that bedroom and found the window open. The light was on but no person was present. 9. At about the same time P.C. Chan and P.C. Ko, who were on guard outside the building, saw two men leap out of the window of this bedroom onto a cement canopy projecting over the pavement above the ground floor. One of these men managed to make his way to the ground by the scaffolding of a nearby building. The other, however, tripped and fell from the canopy and when one of the police officers went up to him, he discovered that this man had suffered severe injuries and was in considerable pain. This man was the 1st applicant HON Hoi-wah. The other man was one of the illegal immigrants called LEUNG Po-wah and he was arrested by the other constable. He was found to have a slight injury to the eyelid. An ambulance was fetched and LEUNG Po- wah and the 1st applicant were put in it and taken to the hospital. Hon was found to have fractures of both legs. 10. Meanwhile in the flat on the second floor the police were investigating the various people whom they had arrested there. This included the 2nd applicant CHEUNG Shi-choy. He was searched and found to be in possession of an ignition key to which was attached a tag bearing the number of the car CD6813. Further examination of that car disclosed fingerprints of the 2nd applicant on various parts of the interior. 11. It was common ground that the 1st applicant was the sub-tenant occupying the bedroom on the right hand side of the flat from which he and LEUNG Po-wah were seen escaping. 12. Five of the six illegal immigrants who gave evidence were able to say no more than that they had been carried by a speed-boat of some kind from Macau to a beach in Hong Kong where they had boarded motor cars at the direction of those who were conducting them into the Colony and that they had then been transported to this flat in 64-66 Junction Road. 13. LEUNG Po-wah, however, purported to identify both of the applicants as persons who were within that flat at the time that he and his fellow immigrants entered it in to early hours of the 8th of October. It will be necessary to comment on the quality of his evidence in due course. For the moment, and to round off the prosecution story, it will suffice to say that he identified the 1st applicant as the man who took his particulars. These, according to the witness, were written by him upon a piece of paper and given to the applicant. At the trial he was shown a piece of paper upon which these particulars appeared but he said that that was not the same piece of paper. It did, however, contain the relevant particulars. This was one of the many sheets of paper recovered at the premises on each of which was recorded details of relatives of the various unauthorized persons who had been gathered in that flat. 14. The other illegal immigrants described how a man, whom they did not identify as the 1st applicant, had taken these details from them and had made endeavours to contact their relatives by using the telephone which was in the flat. 15. From this recital it will be evident that there was, on the face of it, a very strong case for the prosecution. 16. The accounts given by each of the applicants of his movements on that night were essentially the same in so far as each was describing what occurred in the other's company. 17. Their story begins with the second applicant, Cheung, joining a friend in a billiard saloon in Wanchai. This was a man called TONG Kei-fan. They played billiards until about half past twelve and then drove together in Tong's car to a nightclub called the Washington in Kowloon. Tong telephoned the 1st applicant, HON Hoi-wah, with whom he was acquainted, and asked him to join them at the Washington. Hon did so and they spent several hours together in each other's company at that place. The 1st and 2nd applicants were not previously known to each other. 18. At about 3 o'clock the three men moved together to a nearby restaurant called the Kam Bo where they were about to order food when the paging instrument worn by Tong gave its signal as a result of which he went to the telephone. He returned and informed the others that two other friends of his would join them shortly. In due course these two men came and were introduced as Ah Hing and WONG Kar-ming. According to Hon, these men joined them at 4.15 approximately; according to Cheung, they came at about 4.30. Thereafter the five men had a meal at the Kam Bo. The question then arose as to how Hon was to be taken back to his premises. One of the late arrivals, Wong, said that he had hired a car from a garage, on the Hong Kong side of the harbour, known as the Bun Tung. Since the 2nd applicant, Cheung, was the only one of their number who lived on that side, Wong suggested that Cheung should take this car, drive Hon to his premises in Junction Road and thereafter return home himself and return the car to the Bun Tung garage later in the day. 19. Cheung then went with Wong to fetch this car which was parked a short distance away in Wu Sung Street. Wong demonstrated the controls of the car and then drove with Cheung back to the kam Bo. Thereafter Wong, Tong and Ah Hing drove away in Tong's car. The time was then about 4.45. The two applicants then drove in Tong's car to Junction Road, arriving there at about five minutes past five. They parked the car at the pavement outside No. 64-66. This car bore the registration number CD6813. It is not in dispute that it was the same car which the police allege had been seen by them at around 4.20 on the same night. 20. According to Hon and Cheung they then made their way upstairs to the flat upon the second floor. On the way they passed W.P.C. Siu although they did not at that time realize that she was a police officers. Hon suggested that Cheung should go to fetch Hon's wife from her place of work at a massage parlour in a different part of the city. Cheung agreed to this. However, when they entered the flat on the second floor, they discovered a very large crowd of people in the sitting-room. They both exclaimed at this sight and, according to Hon, he asked the principal tenant, Ah Hung, who was present, why there was so many people there. Ah Hung did not answer but merely smiled. At this point Cheung decided that it would be "inconvenient" to remain because of this crowd and, abandoning the plan to fetch Hon's wife, he parted from Hon and went downstairs. He said that on his way out of the building, he was accosted by a man who turned out later to be a police officer and he was escorted by that man and another plain-clothes officer back up to the flat on the second floor. 21. Hon said that after parting from Cheung, he made his way to his own room and closed the door. He changed into singlet and shorts for the sake of comfort and thereupon his room was invaded by a number of persons from the sitting-room shouting that the police were on their way. He said that people were clambering out the window to escape and, being infected with their panic, he himself jumped out the window but missed his footing on the cement canopy and fell to the ground breaking his legs. 22. It will be seen at once that if the police story was true, the account given by the applicants of their movements could not be correct. If the motor car, CD6813, was parked at the kerb outside 64-66 as Sergeant Tse and P.C. Chan said, at about 4.30 when they left to report to Headquarters, it could not have been parked in Wu Sung Street 15-minutesdrive away at approximately the same time. That would be so whether Hon's estimate of 4.30 or Cheung's estimate of 4.15 be accepted as the approximate time when they were joined in the Kam Bo by Ah Hing and Wong. 23. It was this salient feature of the defence case which occasioned one of the strong comments made by the judge in summing-up, of which complaint is made by Mr. Sedgwick for the applicants. The judge correctly pointed out that the testimony of Sergeant Tse and P.C. Chan as to the hour at which they had observed the convoy of cats and the parking of CD6813 had never been disputed. Returning to this matter at page 25, he said :
24. Mr. Sedgwick does not contest the propriety of the judge's observation that the timing given by the police officers was unchallenged. Nor could he. It is clear that none of those police officers were pressed in cross-examination on the accuracy of their estimate of times. And it is clear that the timing of their movements was a matter of vital importance to the defence which the applicants put forward. What Mr. Sedgwick says, however, is that this very strong direction - and there is another in very similar terms in reference to the same matter shortly thereafter - was wholly uncorrected by putting into the balance on the other side of the scales something of great significance which amounted to a glaring inconsistency in the prosecution's own evidence. 25. It will be remembered that P.C. Chan and P.C. Ko were left on guard out side the building to watch for anybody escaping therefrom. W.P.C. Siu was also left downstairs. In examination - in-chief P.C. Chan said that while he was on guard, and after the police party had entered the building, he saw two men enter that building. He confirmed this in cross-examination and said that one of them was quite strongly built (as is the first applicant) and the other was of medium size. 26. P.C. Ko both in examination-in-chief and in cross-examination confirmed that he had seen two men enter the building after the police party. He said that it would have been a few minutes after he and his companion took up the position outside the building. He put the interval before the 1st applicant and LEUNG Po-wah jumped out of the window at five to six minutes. P.C. Chan said that he saw those two persons jump out of the window shortly after he had seen the two men enter the building. Neither P.C. Chan nor P.C. Ko purported to identify the persons that they had seen entering the building. 27. In cross-examination W.P.C. Siu was pressed upon the same matter. She agreed that she had seen two men enter the building after the main squad had gone upstairs. The iron grille had already been opened by the police. 28. Counsel then said :
29. To this she replied simply :
30. It is not surprising that Mr. Dick for the Crown was taken somewhat aback by this answer. He endeavoured to clear it up in re-examination. The official note of question and answer is as follows :
31. That answer, assuming that it was correct, set a startling question mark against the entire prosecution edifice of proof. Only two alternative possibilities would be available to explain it. Either W P.C. Siu's recollection of an event which was then some nine months earlier was simply wrong, or else the men whom she saw entering the building were in truth Hon and Cheung who thereafter had managed to conclude the movements described by them upon entering the flat and parting therein while the investigating party of police officers was still on a higher floor and before those officers had descended and broken into the flat. 32. A direction on this point occurs early in the summing-up where the judge said :
33. That, coupled with the concluding sentence in the passage already quoted :
is the sum total of the directions on this point. There was some evidence that a number of people were trying to escape from various windows other than the window of the bedroom from which the 1st applicant and LEUNG Po-wah were seen to jump by the two police officers at the front of the building. There was no evidence as to the situation at the rear. 34. P.C. Chan had put the interval between seeing the two men enter the building and the commencement of the raid when two persons were seen to jump from the window at ten minutes. That being the state of the evidence it remained possible, if not very likely, that persons other than the two applicants might have been in charge of the illegal immigrant operation and might have made their escape as the police were breaking down the front door. 35. Against that there was, of course, the firm evidence of P.C. Yung who arrested the 2nd applicant and who, in cross-examination, resisted the suggestion that he had arrested him as he was leaving the building. That officer was quite clear that he had arrested the 2nd accused who was among the many people discovered within the flat. D.C. WAN Wing-Kui was equally positive that the second applicant had been discovered within the flat. 36. Had the evidence of LEUNG Po-wah been sound both in manner and content and if his identification of the applicants had been convincing and unhesitating, this difficulty might never have put a doubt of any kind at the disposal of the defence; the judge's underlining of the impossibility in the defence story would then have been no more than a common sense emphasizing of the obvious. It is plain, however, as the Crown concedes, that LEUNG Po-wah was a hesitant, unhappy and distinctly unconvincing witness. In chief he seemed to indicate that he had seen both the applicants as soon as he arrived in the flat. He was wholly unable to account for what the 2nd applicant was doing at any time but he gave a fairly detailed account of how he 1st applicant had dealt with him in taking the particulars of his family and in asking for the fee of $800 and in using the telephone on his behalf. In cross-examination, however, he agreed that there were four persons in the flat when he first arrived. It was not at all clear whether he meant that those four persons included other illegal immigrants or whether they were all part of the reception committee. Having already said that he had spent several hours in the flat before the police came, he agreed both in cross-examination and in re-examination, that these dealings between himself and the 1st applicant had taken place a very short time before the police arrived. At one point he put this at one minute. He conceded to Mr. Barretto that he thought his chances of staying in Hong Kong would improve by co-operation with the police and when it was put to him that he was prepared to agree with the police whether what he said was true or false, he answered simply "Yes". 37. Thus, the possibility that the applicants had become innocently embroiled in an illegal operation, while it involved a very extraordinary and unfortunate coincidence, was one which was made available by the prosecution's own evidence taken in conjunction with the defence specifically put forward. But in presenting the defence story as a plain impossibility, the judge did so in such emphatic terms that, counsel contends, the jury may have felt that it was unnecessary to look at it more closely. If they had been prepared to accept LEUNG Po-wah's evidence in so far as he had at one stage purported to identify the two applicants as persons in the flat when he arrived there, W.P.C. Siu's evidence, supported to some extent by that of her colleagues, stood in direct contradiction of that identification. Even in its final version, Leung's identification of the applicants could scarcely have stood together with the testimony of W.P.C. Siu. 38. The judge was well aware of the deficiencies in LEUNG Po-wah's evidence. But the manner of his dealing with it is the subject of a further ground of complaint. At several points in the summing-up the judge uses phrases such as "the Crown says", "the Crown would say", "the Crown asks you to believe" and so on. In itself there is nothing remarkable in that. Such expressions are frequently used by judges when outlining the case for the prosecution. It does not matter that the direction upon the evidence given in conjunction faith any such phrase does not exactly match the manner in which counsel for the Crown has framed his case, either by questions put to the witnesses or by statements made by him to the jury, provided it is clear that the approach of the Crown to the case at large is consistent with the manner in which it is represented by the judge to the jury. Here, however, it is said that the judge sought to fortify the Crown's case by representing it as being stronger than counsel for the Crown was prepared to put it. Even that would not be wrong provided the evidence adduced really did support the emphasis laid upon it by the judge. It is the judge's task to assist the jury in making a fair and reasonable estimate of the evidence both for and against the prisoner. If the prosecutor has failed to notice some particular which tells in favour of the Crown's case, there is no reason whatever why the judge should not draw it to the jury's attention. When he does so, phrases such "as the Crown would say" or "the Crown would no doubt say" will amount to nothing more than an endeavour to evaluate the evidence coupled, perhaps, with the polite hint to the prosecutor that he has not appreciated the full value of his own case. But the thing must, of course, be fairly done. 39. Dealing with the identification of the 1st applicant by LEUNG Po-wah, the judge was aware that the Crown was confronted with the difficulty that the witness, although he professed to have been in the flat for several hours, in the end could only say that he had seen the 1st applicant for the very short time while he was giving him his particulars just before the police arrived. He put that time at about a minute and although, no doubt, it was not meant to be an exactly accurate estimate, it did indicate a very short time. Hence the question of the correctness of his identification was an important feature in the case. The possibility that the witness might have confused the man in the ambulance with the one who dealt with him in the flat was treated in this way :
40. There is no doubt that this was the judge's own idea for Mr. Dick for the Crown had never put forward any such suggestion to the jury. This was still, however, neither the invention of a new case or of a new theory which had not been thought of by the prosecution. The applicant was there and the jury could see him and draw their own conclusions. 41. Nevertheless, it was unfortunate that the judge in thus recommending the most important part of the evidence of a badly shaken witness neglected to balance it on the other side by reference to a fact which stood, if anything, more strongly in favour of the defence - the fact that of the six illegal immigrant witnesses who gave evidence five, notwithstanding an equal opportunity with Leung to observe the appearance of the 1st applicant, had wholly failed to identify him. 42. The judge correctly warned the jury that LEUNG Po-wah was an accomplice and that they should look for corroboration of his evidence. He reminded them that there were discrepancies in his evidence and he suggested that they might find corroboration firstly, in the very fact that Leung, who was admittedly a subtenant in the premises, was seen on the night of the raid when the place was filled with illegal immigrants, trying to escape therefrom. The fact that counsel for the Crown did not suggest that these matters, or indeed any other matters arising from the evidence, could afford corroboration of Leung's evidence would not of itself render the judge's direction improper. A judge has an obligation in all cases involving accomplice evidence to warn the jury to look for corroboration and to indicate what, in his opinion, might afford corroboration in law and no objection has been taken before us on the question of corroboration. 43. The complaint here again is really one relating to the alleged advocacy of the judge on behalf of the prosecution. Although counsel had never sought to put the matter in this way to the jury, the judge in dealing with the first of the facts said to afford corroboration put it to the jury in this way :
44. It is not an improper comment but it is one of several similar comments which disclosed fairly clearly that the judge felt obliged to stress what he deemed to be the strength of the prosecution case more forcefully than the prosecutor had seemed inclined to do. Where a comment, whether favourable or unfavourable to the accused, is supported by an inference arising reasonably and naturally from the evidence, a judge is not to be inhibited from making it merely by reason of the fact that counsel has failed to do so. Again, the question is one of balance and fairness. And any such comment has to be considered in the context of the summing-up as a whole. It is preferable, however, that where a judge is making comments deriving solely from his own impression of the evidence that he should not advise the jury that such is the view taken by the Crown. To say that "the Crown says" this or that when in fact the prosecutor has said no such thing but has, on the contrary, said something quite different is not only inaccurate and wrong but is an unnecessary and perhaps misleading camouflage for the judge's own opinion when it might be that the jury would find some significance in the divergence of opinion between the judge and the prosecutor which would redound to the benefit of the accused's case. 45. That there was such a divergence in the present case is evident from the principal matter complained of in this connection by the defence. The judge told the jury that the really important evidence given by the illegal immigrant witnesses was that of LEUNG Po-wah. Then, having pointed out that Leung was an accomplice and having given them a warning upon corroboration, the judge went on to say :
46. That was certainly not what the prosecutor thought. Mr. Dick for the Crown made his position quite clear to the jury when he said (p.182 of the record) :
47. A little later he says:
48. At no point did Mr. Dick suggest that he was relying, as the judge put it, on the inherent probabilities of the evidence leaving aside the testimony of LEUNG Po-wah. 49. Pursuant to this complaint, counsel points out that in stressing the inherent probabilities of the situation generally, the judge was guilty of a positive misrepresentation of fact. Commenting on the inherent unlikeliness of the applicants' stories, he reminded the jury how both the applicants had said that WONG Kar-ming, the hirer of the car CD6813, had lent that car to the 2nd applicant to drive the 1st applicant home. The judge then continued :
50. The second applicant's evidence was, however, that he had known Wong for something over a year. This is the only mistake of fact in an address which, in relation to the facts of a not uncomplicated case, was otherwise meticulously accurate. It was nevertheless an unfortunate misdirection in the context of a series of observations which were clearly intended to imply considerable scepticism on the judge's part in relation to the defence case. 51. Immediately after that comment, the judge went on to consider the evidence relating to motor car CD6813 and he said :
52. Such a comment might have been justified if there had been evidence from the police that they had checked up on CD6813 themselves and had come to a dead end. The police had possession of the car after the arrest of the applicants and it seems most unlikely that they would not have sought to discover the true ownership and if relevant evidence had come to light, would not have made it available to the court. In the circumstances the judge's comment is a further example of his anxiety to see that what he clearly regarded as a strong prosecution case should not go awry through want of diligence in the investigation or prosecution or by virtue of an ingenious but, in his view, insubstantial suggestion thrown out late in the evidence by the applicants. 53. Mr. Sedgwick also complains of what he regards as blatant advocacy for the prosecution in three further matters. Firstly, there was the reiterated emphasis that certain parts of the prosecution evidence was unchallenged by the defence. This Mr. Sedgwick says is unfair in several instances in as much as the defence were not concerned to challenge such evidence being in no position to do so and since it was the defence case that such evidence did not, in any event, conflict with the defence story. An example of that would be the evidence of the police officers who described the arrival of the convoy of cars at 4.20 outside 64-66 Junction Road. 54. Although the judge was correct to say that this evidence and other evidence in the same category was not challenged, the constant reiteration of that word might, counsel says, have conveyed to the jury the impression that it was evidence which ought to have been challenged and that the want of challenge was therefore an indication of guilt in the applicants. 55. Again, the judge told the jury in most emphatic terms that P.C. Yung had never yielded to the suggestion that the statement made to him by the 2nd applicant after the latter's arrest could have been to the effect that his friend asked him to drive his "friend" (singular) to that place, a version which could be made to fit in with the defence story; whereas, if the final reference had been to "friends" in the plural, that could not have suited the defence story and would have fitted neatly into the prosecution's story. 56. Mr. Sedgwick points out that at the end of cross-examination, the judge himself asked the constable whether he might have misheard what was said and only thought that the applicant had used the plural. The constable answered "It is possible.". Hence, counsel says, the judge has once more misdirected the jury on the evidence. That would be so if the questioning had stopped there, but immediately after that reply, in answer to further questions by the judge the constable made it clear that the answer given by the applicant, whether it used the form "friend" or "friends" was in response to his question which was in effect "did you drive them here" "them" meaning the illegal immigrants. 57. Finally, Mr. Sedgwick directed our attention to pages 29-31 of the summing-up where there appears a series of rhetorical questions relating to the inherent probabilities of the situation each strongly worded and very plainly inviting an answer adverse to the credibility of the applicants' story. 58. In effect, there is a single ground of appeal of which the several other grounds are simply particulars. The burden of that ground is that a fair trial of the applicants by the jury was rendered impossible by the manner of the judge's summing-up which, it is said, "was couched in terms which suggested to the jury what they ought to do, what evidence they ought to find reliable and which invited the jury to disbelieve the evidence for the defence in such strong terms that the mischief was not cured by the common formula in the summing-up that the facts were for the jury and that they might disregard anything said on the facts by the learned judge with which they did not agree.". 59. There have been very many cases in most of the common law jurisdictions in which this kind of complaint has been made and in which appellate courts have indicated the lengths to which a trial judge may go without overstepping the boundary between fairness and bias. The many decided cases vary from each other considerably both in evidential circumstances and in the nature of the language used by the trial judge. A convenient statement of principle which may fairly be said to represent a consensus is to be found in The Queen v. Joyce(1), a decision of the Supreme Court of South Australia. At page 198 the Court said this :
60. By contrast in R. v. Denis(2), the court said :
61. That case, however, involved an extreme example of a judge usurping the functions of Crown Counsel and taking over the cross-examination of witnesses. Nothing of the kind is involved in the present case. 62. In R. v. Giffin(3), the Queensland Court of Criminal Appeal, noted what the Privy Council had said in R. v. Broadhurst (4), viz.: that the crux of the matter is that an accused person is entitled to a fair trial. 63. But the Court also said (p.16) :
64. The court also noted that counsel had not been able to point to any reported case in which an Appellate Court had actually quashed the conviction solely on the ground of excessive emphasis on evidence against the accused person where there had been no other irregularities in the conduct of the trial. This latter observation would certainly apply to Broadhurst(4), a case upon which Mr. Sedgwick strongly relies. The summing-up in that case was strongly adverse to the accused, but, in addition, it contained many misdirections on fact. These included a major misdirection whereby the jury were told that the accused had given an account of the circumstances surrounding the death of his wife which, in fact, he had not given. The judge then proceeded to tell the jury that this story, which the accused had not given to the court, was contradicted by other evidence so that the jury were entitled to conclude that he had been lying in court. But the most significant difference between that and the present case is that in Broadhurst(4) the jury were given no general warning by the judge to the effect that his opinions on matters of fact were not, in any sense, binding upon them. It is conceded that a very strong warning to that effect was given in the present case. 65. In the Canadian case R. v. Ritchie(5), the charge was murder. The judge commented in strong terms on what he regarded as the incredibility of the testimony of the appellant. The court relied upon Broadhurst (4) and said (p.212) :
66. The conviction was quashed and a new trial was ordered. It is noteworthy, however, that in addition to a positive direction to the effect that the evidence overwhelmingly demonstrated that the appellant had murdered the victim, there was a serious misdirection in law relating to the statutory definition of murder. In any event it cannot be said that the directions of the judge in the present case went anything like so far as an express opinion that the applicant was guilty. 67. The case which comes closest to suiting the argument for the defence is perhaps R. v. Blackley(6), an English case decided in 1963. The only full report of that case which has been produced appears as an appendix to the West Indies case Mills & Gomes v. R.(7). In Blackley(6), the manner and content of the summing-up afforded the only reason for the quashing of the conviction upon appeal. The facts were very short and simple and there does not appear to have been a considered judgment. At page 424 of the West Indies Report, Lord Parker, C.J., said:
68. The excesses of the judge in that case included a more or less derisive dismissing of the testimony of a perfectly independent witness called for the defence. 69. In Mills & Gomes(7) itself, the role of judge as impartial umpire receives strong support in the language employed by Woodward, C.J. , at page 422 :
70. The appeal was allowed, but again the advocacy by the judge appears to have been extreme. It also included a grossly inaccurate representation of the facts and a direction which was, in effect, a direction that the jury could disregard a vital contradiction in the testimony of the sole identifying witness without whose testimony, there would have been no case against any of the three defendants. 71. Against the description of the role of the judge in a criminal case given by the West Indies Court in Mills & Gomes(7), we find a somewhat different account in the fully considered opinion of the Court of Appeal in the case of Sparrow(8). Somewhat surprisingly we were not referred to it by counsel on either side. The prosecution case was that the appellant was guilty of murder on the basis of participation in a common enterprise with another man who had used a revolver to shoot and kill a police officer. The appellant himself was not armed and never used the gun. The evidence was simply that he was together with the other man when the latter fired the shots that killed the police officer. The appellant did not give evidence. On six occasions in the course of the summing-up the judge referred to the fact that the appellant had not given evidence. The fifth of those directions was in very strong terms. The judge reminded the jury that the defence of non-participation rested wholly upon the questioning of the witnesses by defence counsel and upon defence counsel's address to the jury. He pointed out that it was very easy to make a defence in that way and he said:
72. The appeal was dismissed. Delivering the judgment of the court, Lawton, L.J., said (page 362) :
73. We adopt this, with respect, as the proper test in the current state of authority. 74. There is no doubt that the summing-up in the present case, read as a whole, was unfavourable to the appellants. Mr. Dick, while contending that it falls to the hither side of the limits of fair comment, concedes that it is, nevertheless, close to that line. Has the appellant had a fair trial? (1) There was one misrepresentation of the evidence. In probing the plausibility or otherwise of the appellant's story, the judge was wrong to suggest that it was unlikely that Wong would have lent the car to the second appellant as being a stranger to him. (2) The judge's comment on the failure of the appellants to call evidence as to the hiring of CD6813 was not justified in view of the fact that there was no evidence from the side of the prosecution, whether initial or by way of rebuttal, as to the ownership of the car. At the least this comment should have been balanced by reference to the absence of any evidence of police investigation relating to ownership, registration etc. (3) It was desirable that in commenting on the identification of the first appellant by LEUNG Po-wah, the judge should have reminded the jury that he was the only person out of 23 illegal immigrants who purported to identify him. (4) Most importantly, in view of the generally sceptical tone of his directions relating to the defence case, the judge failed to underline the possible importance to the defence of the evidence of W.P.C. Siu. Likewise, he did not specifically refer to the generally consistent evidence of the illegal immigrant witnesses to the effect that they had been some two to three hours in the premises before the police raid. This latter factor is not of great importance because even on the Crown's case those witnesses must have been at least an hour in the premises before the raid. Under circumstances of stress an hour may seem a very long time. Furthermore, the chance that these were not the people seen by the police officers leaving the motor cars, but were some other crowd of persons taken to the premises an hour or two prior to that is in the circumstances so unlikely as not to merit much in the way of serious comment. 75. It cannot be denied that there are deficiencies in the summing-up and that read as a whole, it gives a distinct impression of advocacy for the prosecution on the part of the trial judge. Such advocacy provided it is firmly rooted in the facts is by no means always reprehensible. In R. v. Pope(9) Darling, J., in a passage (approved by the Supreme Court of Southern Australia in The Queen v. Joyce(1)) said : "Even a judge is not disentitled to use advocacy if it is proper for the occasion." The question ultimately is one of fairness. The judge should not indulge in unbalanced criticism of either side. But strong facts may justify strong comment. Where the comment is strong and the facts too weak to justify it, there will clearly be a serious objection to any conviction which follows. 76. In the end, however, we cannot say that the conviction in this case resulted from persuasion by the judge rather than persuasion by the facts. We cannot, of course, be sure just how the mind of the jury worked. It may well be that the judge's advocacy had some part in the conclusion to which they came but the facts were very strong. We cannot say that the misdirection of fact and the other deficiencies to which we have referred must, even in combination, have distorted the picture put to the jury by the judge sufficiently to make the convictions unsafe. Even if the judge had less energetically pursued the deficiencies in the defence, and even if he had been as "coldly neutral" as the West Indies Court recommended, we are satisfied that the jury must nevertheless have been persuaded by the facts alone to bring in the verdict which they delivered. 77. The details of what the police observed and the police timing of the various incidents was, as the judge noted, not challenged. The defence case, in effect, was content to accept that evidence and to avoid its criminal implications by fitting the movements of the appellants themselves within the time-frame advanced on behalf of the prosecution. Accepting the appellant's story, that would mean that whoever drove CD6813 to Wu Sung Street from Junction Road could only have done so sometime after 4.20 a.m. Even if that person were following closely upon the retreating heels of Sergeant Tse and P.C. Chan, it would still mean that a few minutes would be employed in going to the car and starting it and later in parking it in Wu Sung Street and going from there to the Kam Bo Restaurant. This time would be in addition to the time taken travelling to Wu Sung Street which, by an estimate accepted generally, was about 15 minutes. Even if it could be assumed, taking the matter at its most favourable to the defence, that it was Mr. Wong who had been in 64-66 Junction Road and who drove the car from that place together with Ah Hing to Wu Sung Street, it would still mean that he and Ah Hing arrived in the restaurant at 4.45 or 4.50. That can, in no way, be brought into alignment with the appellants' story that Ah Hing and Ah Wong joined them for a meal at that restaurant at about 4.15, or possibly 4.30, and only left it to go to fetch the car at about 4.50. The full squad was back at the premises by about 5.05 and at that time the car CD6813 was, according to the police officer, still parked at the kerb outside 64-66. If it had arrived and had been parked after the police squad came to the premises, it must have been observed by some of the police officers in the squad, more especially by P.C. Chan and P.C. Ko or W.P.C. Siu. Such a thing was never suggested to any of those witnesses. Both Sergeant Tse and P.C. Chan said that CD6813 was still parked in Junction Road when they returned at 5.05 or 5.10 and this was never challenged. If the two men seen by W.P.C. Siu and the other officers had emerged from that car, this must have been observed by them. Taken as a whole the "facts themselves so strongly negatived the story for the defence, that we are satisfied that the jury even without the emphatic assistance of the judge must have come to the conclusion that the appellants were the guilty persons. (1) (1970) S.A.S.R. 199 (1a) (1970) S.A.S.R. 184 at 198 (2) (1967) C.C.C. 196 (3) (1971) C.C.A. 13 (4) (1964) 1 All E.R. 111 (5) (31 C.C.C. (2d) 208) (6) (1963) Crim. L. R. 443 (7) (1963) 6 W.I.R. 418 (8) (1973) Cr. App. R. 352 (9) (1910) Cr. App. R. 123 at 127 A.W. Sedgwick & Ruy Barretto (H.M. So & Co.) for both appellants J.W. Dick for respondent/Crown Li, J.A.: 78. Counsel for the applicants has examined the direction by the learned trial judge with a fine-tooth comb. It is said that in this case there had not been a fair trial because of the judge's advocacy and misdirection of fact. 79. All such criticisms have been considered by my lord, the Vice-President, in his judgment, with which I respectfully agree. I am also of the opinion that there has been no miscarrage of justice despite one instance of misdirection of fact and the strong comments on what was a strong prosecution case. 80. Perhaps I should add that although the line of defence was not, technically speaking, an alibi yet the effect was the same. Indeed it was not a complete denial of presence of the applicants. However, they dove-tailed their timing of arrival at the premises with the prosecution evidence of the raid by the police to the effect that they never arrived at the same time with the unauthorised entrants. They said that, at that material time, they were at a restaurant some 15 minutes car journey away from the premises and that they were not in the premises for more than 5 minutes before the police raid. They said they were with their friends, Tong, Wong and one Ah Hing. They knew the whereabout of, at least, Tong and Wong. Yet neither of these two were called to give evidence. They did not offer any explanation why they were not called. This appears to have escaped the attention of prosecuting counsel as well as that of the trial judge. 81. This may be a minor point. Whether it also escaped the notice of the jury is a matter of speculation. Even if the learned judge did not adopt a sceptical approach in his direction I am of the opinion the jury would have inevitably arrived at the same verdict. 82. I accordingly also refuse the application.
Silke J.A.: 83. My Lord Vice President has set out in meticulous detail the facts of this case and I do not think it necessary to repeat them. Suffice to say that the main evidence as against the first appellant was his presence in the flat which contained a large number of unlawful entrants and of which he was subtenant of a portion, his precipitate flight from there upon the entrance of the police party, that which was said in relation to the car CD6813 and his identification by leung Po Wah. 84. As against the second appellant the main evidence was his connection with the car CD6813 and with the first appellant, his arrest in the flat and his answer to the constables' question as to whether he DROVE them there which answer was disputed as to its meaning. 85. The defences generally were of innocent association. That there was a large number of unlawful entrants brought to this flat in several cars including CD6813 was basically unchallenged. Of these entrants one, Leung Po Wah, was of greater importance to the Crown than the others. Leung was a bad witness changing and shading his story throughout his evidence. The jury was left under no illusion as to the unsatisfactory nature of this witness. They were equally left under no misapprehension as to the facts being for them and them alone. 86. The whole thrust of the submissions made on behalf of the appellants is that the summing-up amounted to a second speech for the prosecution. 87. The Crown before us has conceded, and rightly so in my view, that it comes very close to crossing the border between that which is fair comment and that which is not. The essential question for us is, looking at the summing-up overall, has the Judge gone so far as to deny the appellants a fair trial. And as was said in The Queen v. Joyce(1):
I note that passage in Broadhurst(2) as is the criteria adopted by a Court of Appeal in cases such as this. 88. R. v. Blackley(3) which appears in a truncated version and which is, oddly, nowhere reported in full in any English report does appear as an appendix to the West Indian case of Mills & Gomes(4) - the discovery of which is a piece of detective work upon which Mr. Sedgwick is to be congratulated. I am however doubtful as to precisely what reliance can be placed on Blackley(3) which, as my Lord has said, does not appear to be a considered judgment. Further the Judge there clearly went far beyond that which was, in the circumstances, fair. Here the issue is by no means so clear. 89. I am not however so persuaded as is my Lord Vice President that Sparrow(5) is of such general application as to define the proper test of the role to be adopted by a trial Judge. 90. In Sparrow(5) the trial Judge was faced with the difficulty, which thankfully no longer exists in Hong Kong, of getting the jury to understand that the appellant's exculpatory statement to the police after arrest, which he had not verified in the witness box, was not evidence of the facts in it save in so far as it contained admissions. Further he had to do what he could to ensure that the jury did not draw any inferences which they should not from the appellants election not to give evidence. 91. In the course of attempting what was virtually the impossible he commented six times on the appellants failure to give evidence. It was advanced on his behalf before the Court of Appeal that while five of these comments considered separately could not be said to be either wrong or unfair the sixth one should not have been made and that its harm was compounded by the cumulative effect of the earlier ones. 92. That sixth comment, as set out at p.357 of the judgment, was:-
93. At p.359 Lawton L.J. in delivering the judgment of the Court said:
94. In my judgment it is in the light of this that the passage at p.362 and quoted by my Lord should be viewed. The passage bears repetition:
95. At the conclusion of the judgment Lawton L.J. at p.364 said:
96. The appeal however was dismissed. 97. These words just quoted of Lawton L.J. I think to fortify the view I have taken that the somewhat more general comments of the Lord Justice do not seek to lay down a general proposition of law as to the duties of a trial Judge other than in the circumstances which pertained in Sparrow(5). 98. That having been said I am in respectful agreement, though not without some hesitation, with the conclusions reached by my Lord Vice President. While the effect of the wording of a summing-up upon the jury must always be a matter of speculation I think here on the whole there to have been no miscarriage of justice and that the limits of fairness have not been transgressed. 99. I too would refuse the application. (1) [1970] S.A.S.R. 184 (2) [1964] l All E.R. 111 (3) [1963] Crim. L.R. 443 (4) [1963] 6 W.I.R. 418 (5) [1973] 57 C.A.R. 352 Representation: A.W. Sedgwick Esq. and R. Barretto Esq. instructed by H.M. So & Co. for both appellants. J.W. Dick Esq. for Crown/Respondent. |