R. v. Clive George Holgate
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CACC000721/1995 IN THE COURT OF APPEAL 1995, No. 721 ---------------------- H E A D N O T E ----------------------- Unavailability of important defence witness - defence application of stay refused - how trial judge should ensure fair trial in the circumstances IN THE COURT OF APPEAL 1995, No. 721
---------- Coram : Hon Yang, C.J., Power, V.-P. and Mortimer, J.A. Date of Hearing : 19 and 23 April 1996 Date of Judgment : 13 June 1996 ---------------------- J U D G M E N T ---------------------- Hon Yang, C.J.: 1. This is the judgment of the court. 2. The applicant was convicted after trial of being a Crown servant maintaining a standard of living above that which is commensurate with his official emoluments, contrary to section 10(1)(a) of the Prevention of Bribery Ordinance, Cap.201. The Particulars of Charge allege that he was at all material times a Government Building Surveyor of the Buildings and Lands Department. The period specified in the charge is between 1 January 1989 and 6 July 1993. 3. He now seeks leave to appeal against his conviction, on the grounds, inter alia, that -
4. There were nine other grounds of appeal. The last ground that s.10 of the Ordinance was repealed as being inconsistent with the Bill of Rights, was not pursued. Arguments on the ten other grounds of appeal from counsel on both sides were heard. We have also studied with care the very full written arguments advanced on behalf of the applicant and also the respondent's skeleton argument. We have also considered the accountant's reports. In the event counsel agreed with us that if we were able to dispose of the application on Grounds 1 and 2, it would not be necessary for us to consider the remaining grounds. 5. For the purpose of these proceedings, we do not propose to delve into the great volume of evidence and arguments in respect of the movements of the applicant's bank and credit card accounts, nor the incomes and expenditures of his wife. We shall, instead, examine the broad principles involved. 6. The gist of the applicant's explanation of how his expenditure exceeded his official emoluments was that his wife was the source from which moneys were channelled to him. 7. By section 10(1), the burden is upon the applicant to give a satisfactory explanation. 8. The applicant gave evidence that his wife, Pauline, could confirm his explanation, but unfortunately she had disappeared since January 1992 and had not been seen since. Between 1989 and 1992, husband and wife led separate lives, and she would frequently spend nights away from home. She was by all accounts an inveterate gambler, and she had often asked her husband to pay her gambling debts. She had also borrowed money from her friends, even her housemaid, to sustain her gambling. According to the applicant, she would on occasion pay back some of the money to him if she had won. 9. Without the applicant's knowledge she had a boyfriend called Demuth, who had been intimate with her. He too had given her large sums of money. 10. There was evidence that she was a frequent customer at the Chau Tai Fook Jewellery Company from which she made purchases by cheque or credit card. Then she would return the items purchased and receive cash from the company. In effect the jewellery company was offering her a kind of banking facilities. 11. The credit card she had was an American Express card in the name of the applicant. It was known as an "01 card", by which she could pay for purchases or services, and the applicant would be billed as principle holder. From October 1990 to August 1991, her husband withdrew the card facilities from her. During that period she used her own bank account to fund her purchases of jewellery from Chau Tai Fook Jewellery Company. 12. She had no regular employment but sometimes dealt in real estate. 13. The judge found two areas in which the applicant needed to explain himself. First, the unidentified cash receipts which had been paid into his accounts during the charge period. Second, the origin of the $103,000 cash found in his home by the Independent Commission Against Corruption on 6 July 1993, and $135,000 which he had spent on buying a boat in June 1993. 14. On the evidence, Pauline received money from Demuth, had her own bank account, and also dealt in real estate. Apart from Demuth who specified the amounts he gave, there is nothing to show what the size of her bank account was, or what the credits and debits were. Nor is it known how successful or unsuccessful her property dealings were. Moreover, the court was not told the extent of her gambling debts or winnings. 15. It is true that during the period that Pauline was still living with the applicant, various sums of money were paid into the applicant's account with the Hong Kong and Shanghai Bank. These could be sums of money given by Pauline to her husband to enable him to pay her gambling debts. Credence to this inference is to some extent supported by the fact that such payments ceased as soon as she disappeared, but this is not necessarily the only reasonable inference. 16. In support of the application of stay, it was argued that her evidence was material and relevant, that it was more likely than not that she would confirm the applicant's explanation, and that the trial judge could not rectify or discount the prejudice to the applicant caused by the unavailability of Pauline's testimony. 17. Strangely the application was not made until after all the evidence, both for the prosecution and the defence, had concluded. Nevertheless the judge entertained the application but exercised his discretion to dismiss it. 18. We turn to the principles to be applied in an application for a stay in the present circumstances. Mr McCoy has cited three Canadian authorities but with respect, we find them unhelpful. The law on this subject is the same in Hong Kong as in England and it is clear. 19. The principle upon which any application for a stay depends is the court's "residual discretion to prevent anything which savours of abuse of process". Connelly v. DPP [1964] AC 1254, 1296 per Lord Reid. It is an obvious abuse of process if the circumstances are such that an accused is prevented from having a fair trial. If he cannot have a fair trial the judge will stop the prosecution. But this power is exercised only "in most exceptional circumstances". R. v. Derby Crown Court, ex parte Brooks (1984) 80 Cr App R 164, 168 approved in Attorney-General's Reference (No. 1 of 1990) [1992] 1 QB 630 at 641G-642D. At 343G on the same point, Lord Lane CJ adopted the reasoning of Brennan J in Jago v. District Court of New South Wales (1989) 168 CLR 23:
20. Whether the application for a stay is based on the unavailability of a defence witness or delay, the law is the same. An applicant must show on a balance of probability that his trial is so prejudiced by the matter of which he complains that it is beyond the power of the judge to preside over and hold a fair trial. Usually - but not always - the matter complained of can be remedied by the judge by proper use of his power in the conduct of the trial. 21. In Attorney-General's Reference (No. 1 of 1990) (supra) at 644A-C, Lord Lane CJ said:
22. These principles were adopted and applied by this Court in HH Judge Sweeney with the Attorney General v. Tsang Yuk Kiu Civil Appeal No. 239 of 1995 (unreported). It is unnecessary to refer to other cases both in this jurisdiction and in England in which those principles have been applied. 23. We turn to the instant application. It is submitted on behalf of the applicant that:
24. With respect the emphasis in this proposition is not correct. The correct proposition is that the defendant has the burden of showing, on a balance of probability, that the absence of Pauline's evidence was so prejudicial to his case that no fair trial could be held. 25. The application for stay was made after all the evidence had been given. The timing was unusual but the judge was in a good position to form a sound view. He refused the application and gave reasons for refusing it later. These reasons do not focus in detail on the correct principles but the judge recognised the potential importance of Pauline's evidence to support the applicant's explanation of the source of the "excess" money - particularly when the burden was on him. 26. However, all the money in issue for which an explanation was required had been, at one time or another, either in his physical possession, or through his bank accounts, or through charge card accounts over which he had ultimate personal control. Prima facie there was nothing unfair or unjust in holding a trial in which he was required to discharge the burden of explaining such money. His explanation was that the "excess" money came from his wife. Although no statement of his wife's possible evidence was in existence, no such statement could be expected. She disappeared before his arrest. The witness Demuth's statement, which was in evidence before the judge, was some indication that had she been available, she would have been able to assist. 27. We have no doubt that the judge's decision to refuse a stay was correct. It could not be shown that Pauline's absence from the witness box prejudiced the applicant to the extent that "no fair trial could be held". This is especially so when the trial was by a judge alone. He could ensure that the applicant had a fair trial in spite of the absence, and potential importance, of the witness. 28. The first ground of appeal fails. 29. We now come to the second ground of appeal. The proper approach is usefully examined in R. v. John E. (1996) 1 Cr App R 88. At 91C Lord Taylor CJ said:
30. That was a jury trial. The same applies with equal force where trial is by a judge alone. He must ensure that an accused is not prejudiced by matters beyond his control and that he has a fair trial. In the present case, there is nothing in the reasons for verdict which indicates that the trial judge considered the extent to which the defence might have been handicapped by Pauline's absence at the trial. And we find nothing there to indicate that after his refusal to stay, he had directed his mind to how the questions of the unavailability of Pauline as a defence witness affected the issues he had to decide. It does not appear that he had in mind the judgment of Lord Lane in Attorney-General's Reference (No. 1 of 1990), at page 644A (supra). There should be some indication in his Reasons which referred to the absence of Pauline and its possible effect on the case - but "Here there was not one": per Lord Taylor in R. v. John E. at page 92E (supra). 31. The case for the applicant is however stronger than that as there are indications that he ignored the possible effect of her absence. From the evidence, he built up a profile of her and formed a very adverse view of both her and her activities. Leaving aside the question whether it is useful or even fair to build up a profile of a person not called as a witness and then to evaluate another witness' evidence against the profile, it was incumbent upon him to evaluate the possible effect of her absence upon the applicant's case and take this fully into account. In fact, the absence of this witness, which was wholly outside the applicant's control, was dealt with by the judge as if she had been available but not called. This can be demonstrated from the following passage in the reasons for verdict at 50M to 51L.
32. In other places, it seems that the judge tended to reject the applicant's explanation that the money came from his wife, at least in part, because there was no support for it in circumstances where the main supporting evidence, if available, would have come from his wife. For example:
33. The judge's failure to consider the possible effect of her evidence is further manifest by the following passage in his ruling when refusing the stay which, it will be remembered, was delivered after the close of evidence. He said:
This was not correct. There were "indications" and these should have been dealt with. 34. Having reached the conclusion which follows, it is better that we say little more. We are far from saying that it was incumbent upon the judge to accept the applicant's explanation. But, at the time he was a man of unblemished character, upon whom rested the burden of establishing his innocence in the absence of a potentially important witness. It was necessary for the judge to demonstrate the applicant's evidence was fairly evaluated with these matters in mind and that his trial was fair. 35. The learned judge having failed to address the considerations alluded to above, we are of the view that the conviction is unsafe and unsatisfactory. 36. For the reasons give above, we allow the application, treat the hearing of the application as the hearing of the appeal and allow the appeal on ground 2. 37. Conviction quashed. Sentence set aside.
Representation: Mr G J X McCoy and Mr Alexander King (Messrs Robertson Double & Lee) for Applicant Mr B M Ryan of the Attorney General's Chambers for Crown/Respondent |