Or Chung-yan v. The Queen
|
CACC000964/1973 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 964 OF 1973 -----------------
Coram: Briggs, C.J., Huggins & McMullin, JJ. Date of Judgment: 14th March 1975. ----------------- JUDGMENT ----------------- 1. The appellant was convicted of three charges of uttering forged documents and three charges of endeavouring to obtain money on forged documents. The charges are in pairs; on three separate occasions the appellant or another person on his behalf took a large parcel of share certificates to a firm of stockbrokers for sale. Three firms of stockbrokers were approached all on the same day. All the share certificates were forgeries. If they had been genuine they would have been worth over one million dollars. 2. At the close of the case for the prosecution no submission was made to the court that there was no case to answer. It was, indeed, conceded before us that there was a case to answer though it was not a strong case. It is unnecessary for the purpose of this judgment to set out the facts in any more detail. 3. At the trial, the appellant, who was represented by counsel, elected to give evidence himself and he was in the witness box for more than 3 ½ days. 4. Various grounds of appeal were filed but it is only necessary to deal with one. That is that the judge who tried the case "unduly interrupted the evidence of the appellant to the extent that it was impossible to present the defence fairly." 5. The leading case on this point in Hong Kong is CHENG Pak Hei and Others v. The Queen(1). In that case the court said this:-
6. Various other cases were cited to us such as Cain(2), Gilson(3), Bateman(4) Clewer(5) etc. 7. 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 bias, for it is not alleged here that counsel was unable to present the defence adequately. 8. It was not denied that the share certificates were forgeries. The defence was that the appellant had no mens rea, he was unaware that the share certificates were forged. He was the innocent dupe of another man for whom he was acting innocently, and from whom he had accepted the share certificates believing them to be genuine. 9. The appellant filed with the grounds of appeal, a transcript, made up of the notes taken at the trial and a shorthand note of part, indeed of most of the evidence made by a stenographer, who was employed by the defence for this purpose. The transcript also included the final address of counsel for the appellant. It has been estimated that this transcript shows that the judge asked 291 questions and, in addition, there is a part of the transcript which is in narrative form which shows that the judge asked even more questions than that. 10. At the hearing of the appeal, counsel for the appellant drew the attention of the court to the various parts of the transcript of which he complains: some of the interruptions are admitted to be of more importance than others. 11. The first interruption from the Bench occurred during his examination-in-chief; that part of the transcript of the evidence is in narrative form. The fact was itself made the subject of criticism but such criticism was ill-founded. The duty of a district judge in recording the evidence does not differ from that of a magistrate and Russell in his estimable handbook "The Magistrate", gives this advice:-
The words "in full" should be noted, for where the evidence is recorded in question and answer form the record should be verbatim, otherwise it may be misleading. In addition, the record must show (as this record generally did not) which parts, if any, of the evidence have been elicited by the judge or magistrate. 12. The appellant was being asked questions by the counsel for the defence about conversations between the appellant and one Sze, the person who it was alleged by the appellant had handed the share certificates to him. The trial judge took over the examination-in-chief and the record shows that he must have asked the appellant very many questions not only about these conversations but a also about other matters connected therewith. The record shows that the judge dealt with the whole relationship between the appellant and Mr. Sze, and in addition asked certain other questions as to the business experience and age of the appellant. 13. 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. On this occasion, however, the judge went much further than that. His questions were in the nature of cross-examination. 14. The cross-examination of the appellant started on the morning of December 6th, soon after the opening of the court and proceeded during the rest of the day and for the whole of December 7th. 15. At first, the judge asked occasional questions of an unobjectionable nature, questions which were necessary for him to understand the evidence of the appellant aright. However, on the 7th December, the last day of the trial, the transcript shows that the judge had practically taken over the cross-examination himself. He asked very many questions. And those questions are undoubtedly of the nature of questions in cross-examination. Reading the transcript, there can be no doubt that a person listening to the conduct of the case would have the impression that the judge had "entered the arena", as that phrase was used in the judgment of the Full Court in the Cheng case(1). 16. It must be made clear that the trial judge in this case did not interrupt the addresses of counsel for the defence. And there was only one interruption of any substance during the examination-in-chief of the appellant with which we have dealt above. 17. 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 or 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 may 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 may 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. 18. There is one other matter. At the very end of the cross-examination the judge asked some forty-odd questions. He then invited both counsel to ask questions arising out of the answers given by the appellant. We cannot fault the judge for this. If a judge considers it necessary to interfere to this extent it should be done after counsel has finished with the witness and the judge should always consider the desirability of inviting counsel to put further questions concerning any new matter brought out by his questions. 19. However, looking at the case as a whole, the overall picture is that the judge entered the lists on the side of the prosecution during a lengthy cross-examination of the appellant. He took over the cross-examination from counsel on several separate occasions and for considerable periods of time. This, together with the not unimportant interruptions in the examination-in-chief of the appellant show, in our view, that the trial was not conducted with the manifest impartiality that is required of a judge. An unbiassed spectator of the trial might have reached the conclusion that the judge favoured the case for the prosecution. 20. We have given this case the most anxious consideration and with some reluctance have reached the conclusion that the appeal must be allowed. 21. This is not a case for the use of the proviso. There was a case to answer but it was not a strong case. There was not an overwhelming case as was the case in Williams v. R.(6). The appeal must be allowed and the sentence set aside. Representation: C. Ching Q.C. & F. Eddis (Gunston & Chow) for Appellant. Stapp, c.c. for Crown/Respondent. (6) The Times dated 26.4.55. (1) Cr. App. 42 of 1973. (2) 25 Cr.App.R. 204. (3) 29 Cr.App.R. 174. (4) 31 Cr.App.R. 106. (5) 37 Cr.App.R. 37. (1) Cr. App. NO. 42 of 1973. |
Other judgments that cite this case