HKSAR v. Kan Hing Chau
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CACC000739/1997 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL 1997, No.739
------------------------------- Coram: Power, V.-P., Stuart-Moore, J.A. and Saied, J. Date of Hearing: 15 May 1998 Date of Judgment: 15 May 1998 ---------------------- J U D G M E N T ---------------------- Stuart-Moore, J.A. (giving the judgment of the Court): 1. On 28th October 1997, this Applicant was convicted in the District Court, following a 3-day trial before Judge Chua, upon eight charges of accepting an advantage as an agent, contrary to s.9(1)(b) of the Prevention of Bribery Ordinance, Cap.201. The Applicant was acquitted on 17 other similar offences and a co-defendant was found not guilty on charges that he faced. 2. The Applicant, who was sentenced to 15 months' imprisonment, now seeks leave to appeal against conviction and sentence. 3. The first charge against the Applicant alleged that he, being an agent, namely an employee of China Travel Service (HK) Ltd., on a date unknown in or about September 1991, in Hong Kong, without lawful authority or reasonable excuse, accepted an advantage, in that he agreed to receive an advantage, namely a reward or commission of an unknown amount being 10% of the total sum of jewellery settings and 5% of the total sum of gold that were sold by Tse Sui Luen Jewellery Co. Ltd. to tourists of China Travel Service (HK) Ltd. from "Tse Sui Luen", as an inducement to or reward for or otherwise on account of his showing or having shown favour to Tse Sui Luen in relation to his principal's affairs or business, namely arranging tourists of China Travel Service (HK) Ltd. to shop at the showrooms of Tse Sui Luen. 4. The remaining charges related to examples where the prosecution alleged that the Applicant had accepted specific "commissions" from Tse Sui Luen between 1st March 1992 and 31st October 1995. 5. In these circumstances, it is necessary only to refer to charge 2 as illustrating the nature of the allegation. That alleged that the Applicant, being an agent, namely an employee of China Travel Service (HK) Limited, on a date unknown between 1st March 1992 and 31st May 1992, in Hong Kong, without lawful authority or reasonable excuse, accepted an advantage, namely a reward or commission of an unknown amount, being part of the sum of $2,984 Hong Kong currency, from Tse Sui Luen Jewellery Company Limited, as an inducement to or reward for or otherwise on account of his showing or having shown favour to Tse Sui Luen in relation to his principal's affairs or business, namely arranging tourists of China Travel Service (HK) Ltd. to shop at the showrooms of Tse Sui Luen. 6. The wording of these charges is sufficient on its own to describe the nature of the prosecution's allegation for the purposes of the first ground of appeal, which is the only ground that Mr. Egan, on behalf of the Applicant, has been invited to argue. This ground reads that:
7. On any view, even a superficial glance at the transcript, reveals an inordinate number of interruptions of counsel and witnesses. On closer examination, some of these were justifiable as Mr. Egan, for the Applicant, concedes. However, he submits that there were many other interruptions that give an impression, however unintentional, of bias in favour of the prosecution. In a transcript of about 170 pages relating to the trial itself, Mr. Egan points out that the judge was, as he puts it, "heard from" on 566 occasions, and that the interruptions became increasingly frequent as the trial progressed. 8. We do not have to cite again the numerous authorities on this topic. The courts have been confronted with this ground of appeal before, and in HKSAR v. Mohammed Jahangir and Others (1998) 1 H.K.C. 455, this court reviewed a number of the authorities which set out the relevant criteria to be borne in mind by judges when presiding over trials, whether sitting alone or with a jury. 9. We have not, of course, merely looked at the number of interruptions, however irritating or disruptive to the experienced counsel representing both sides these must have been. Often a judge will need, for example, to intervene to prevent irrelevant or prejudicial material being introduced and to discourage the repetition of questions where the matter has already been adequately canvassed. 10. We have no doubt in this case that the judge's questions went far beyond this. It is unnecessary to read extensively from the transcript any of the passages about which complaint is made. It will suffice to say that on occasions the judge took upon herself the role which is performed by an advocate which, in the circumstances of this case, inevitably led to the impression being created that she had "entered the arena". 11. Many of the questions which the judge asked unfortunately took out of counsel's hands the whole line of questioning which was perfectly properly being developed, both in chief and in cross-examination. This had, Mr. Egan submits, a cumulative effect which can only be seen as adverse to the defence, because the judge practically took over the running of the case. The damage done by these interruptions may have been magnified because on occasions the judge seems to have missed some of the evidence that was given which, but for the interruptions, should have been straightforward to follow. Sometimes, where the witnesses were unable fully to cover the matters about which questions were being asked, the judge made inquiries, in the middle of the evidence, to see whether the prosecution intended to fill the gaps that were sometimes left in the evidence, and often there were inquiries as to whether evidence could be reduced into written agreed facts. 12. There came a point at page 120 in the transcript where Mr. Egan, who also defended in the court below, found it necessary to express his concern at the way the trial was developing in parts into a dialogue between witnesses and the judge. 13. At this particular point, the judge had inquired of Mr. Cahill, who was prosecuting, whether he would be able to find evidence to fill a particular gap in the case, namely some missing receipts. Mr. Egan, not unnaturally, got up to protest and he said this:
He was then interrupted by the court:
14. Mr. Egan submitted this morning that this is illustrative of open hostility from the bench which could only have worsened the defendant's position in the trial. Mr. Egan replied in court:
15. Unfortunately, following this exchange, the trial proceeded as it had done before with numerous questions being asked by the judge on topics about which counsel were capably dealing. 16. The matters of complaint, which are the subject of this application, are not really disputed so far as the second half of the transcript is concerned. Mr. Saw, S.C. for the Respondent, has realistically not sought to argue that many of the passages where the trial judge interfered in the questioning of witnesses may well have gone beyond the proper bounds of proper judicial behaviour. He has reminded us, however, of the relevant authorities in inviting us to apply those authorities to the situation in this case. 17. In our minds, there is no indication of any intended bias on the part of the judge, but the impression created by so many unnecessary questions must almost inevitably have created an impression of bias in favour of the prosecution, especially in the light of the verdicts of guilty. 18. It is true that there were a large number of interruptions on the part of the judge which were to clarify the evidential position for her own benefit. However, the proper time to have done this, bearing in mind the scale of the interruptions, would have been at the end of the evidence of each witness. Sometimes an isolated inquiry in the middle of the evidence, such as when a judge fails to hear an answer properly, or believes that the answer is at cross- purposes with the question, may be perfectly unobjectionable and indeed it is only sensible that the matter is clarified at that stage. However, the scale of interruptions in this case is likely to have led to confusion, distraction and muddle as, indeed, it frequently seems to have done. 19. We also note with dismay that there are frequent passages where the questioning of witnesses was taken over almost completely by the judge on crucial aspects of the case. Quite apart from any other consideration, a matter which may seem unclear at some point during the evidence of a witness will often be resolved by counsel if they are left to their examination of the witness without interruption. A judge frequently requires great patience, and this is vital if the adversarial system is to operate in the way it was intended. 20. That defending counsel was understandably frustrated by the constant interruptions to the normal flow of evidence becomes apparent once more towards the end of the trial. At page 194 in the transcript, Mr. Egan had raised a perfectly reasonable objection to a question which he considered to be in leading form asked by prosecuting counsel. Mr. Egan reinforced his objection, when he was not immediately upheld, by reference to what he had read in the statement of the witness who was giving evidence. He went on to say this:
21. Pausing there, as Mr. Egan says, that was hardly the situation because the earlier passage which I read at page 120 of transcript had involved a complaint to the judge that she was involving herself too much in these proceedings. 22. At this point in the transcript, at page 195, Mr. Egan went on:
At that point he was interrupted by the judge:
Again, the court interrupted and said:
Perhaps I should earlier have said that this was a witness who had been asked a number of questions in chief. Mr. Cahill had stopped asking questions until something said by the judge forced him to re-open evidence-in-chief which led to the question to which there was objection on the ground that it was leading. 23. In the light of all the matters which we have had brought to our attention in this application, we take the view that the number of interruptions which the judge felt it necessary to make in this trial amounts to a material irregularity. In these circumstances, there is no need for us to consider the other grounds that were to have been raised in this application. 24. We shall allow the application for leave and, treating this hearing as the appeal, we allow the appeal. The convictions are quashed and the sentence is set aside.
Representation: Mr. D.G. Saw, S.C. & Ms. Catherine Ko, G.C. for D.P.P./Respondent Mr. Kevin B. Egan instructed by Messrs. Wong & Partners for the Applicant. |