HKSAR v. Lee Vernon

CACC 230/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 230 OF 2011

(ON APPEAL FROM DCCC 903 OF 2010)

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BETWEEN

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Before : Hon Yuen, Hartmann JJA and Beeson J in Court

Date of Hearing : 7 June 2012

Date of Handing Down Judgment : 29 June 2012

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J U D G M E N T

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Hon Hartmann JA (giving the judgment of the court):

Introduction.

1.The applicant and a co-accused were jointly charged with the offence of conspiracy to defraud.  The co-accused pleaded guilty to the charge, the applicant pleaded not guilty.  On 9 May 2011, after a trial in the District Court before Deputy District Judge Chainrai, the applicant was convicted and sentenced to a term of imprisonment of three years and six months.

2.The applicant originally sought leave to appeal both conviction and sentence but abandoned the appeal in respect of sentence. Before us, therefore, only the application for leave to appeal conviction was argued.

Background.

3.The conspiracy of which the applicant was convicted was one in which he and his co-accused participated in a scheme to defraud the applicant’s employer, a finance house.  In terms of the scheme, individuals were recruited to apply to the finance house to purchase karaoke equipment by way of hire purchase.  The purchases, however, were bogus and all supporting documentation supplied to the finance house was false.

4.After his arrest, the applicant was interviewed under caution on three occasions, each interview being video-recorded; two interviews were conducted on 21 November 2009 and one on the following day.  During the course of the interviews, the applicant made a number of admissions against interest.

5.The prosecution case was founded on the admissions made by the applicant during the course of these three interviews, his admissions being given context by an extended schedule of admitted facts.

6.Before us, it was conceded by the applicant’s counsel, Mr Egan, that, if correctly admitted into evidence, the contents of the three video recorded interviews (read together with the admitted facts) would be sufficient to prove the applicant’s guilt.

7.The principal issue at trial was whether the prosecution was able to establish that the statements made by the applicant in the course of the interviews had been voluntary in that they had not been obtained from him by fear of prejudice or hope of advantage, exercised or held out by a person in authority, or by oppression.  Procedurally, the issue was determined by means of a voir dire.

8.The applicant’s principal grounds of objection to the admissibility into evidence of the three records of interview may be summarized as follows -

i.  The applicant was induced to say what he did by being assured before each interview that his co-accused at trial was the true target of the investigation being conducted by the Independent Commission Against Corruption (‘the ICAC’) and that, if the applicant co-operated, he would not himself be charged and would be able to rejoin his family.

ii.  The officers who arrested the applicant on the morning of 21 November 2009 and later interviewed him, forbade him from carrying medication that had been prescribed for his mood disorders, namely, for symptoms of anxiety, stress and depression.  In the result, under the stress of arrest and interview, the applicant’s will was sapped; he became tired and anxious and easily swayed.

9.Three witnesses were called by the prosecution in the voir dire.  They were, first, the two ICAC officers who arrested the applicant at his home and later interviewed him and, second, one of the officers who had dealt with the applicant while on duty at the ICAC detention cells.  The applicant himself gave evidence in the voir dire and called his psychiatrist, Dr Karen Shum, who had prescribed medication for him.

10.Having considered the evidence, the judge admitted all three records of interview into evidence.

The grounds of appeal.

11.On behalf of the applicant, Mr Egan advanced three grounds of appeal.  He emphasised that they were to be read as a continuing complaint concerning, first, the manner in which the judge conducted the voir dire proceedings and, second, the manner in which she came to her determination that the records of interview had been made voluntarily.  The three grounds of appeal may be summarised as follows.

12.First, there was a material irregularity in that the judge failed to view the entirety of each record of interview, looking instead to selected parts only.  It was the defence case that, by being deprived of his medication, the applicant’s will was sapped and he was rendered tired, anxious and easily swayed.  By failing to view the entirety of each record of interview the judge was prevented from fully exploring the applicant's defence in this regard.

13.Second, there was a further material irregularity occasioned by the frequency and nature of the judge’s interventions during the course of the applicant’s testimony and that of the psychiatrist.  Such interventions rendered the conduct of the voir dire unfair in that it created an impression of partiality on the part of the judge and prevented the full and fair development of the defence case.

14.Third, in coming to her determination that the three video-recorded interviews were voluntarily made, the judge failed to give any, or sufficient, weight to the defence evidence and/or placed too great a reliance on the prosecution evidence.  In the result, her determination was unsafe and unsatisfactory.

The first ground of appeal: the failure to view the entirety of the video-recorded interviews.

15.It is correct that the judge did not view every minute of every interview, the interviews (in total) apparently lasting about five hours.  The transcript shows that the judge concentrated on the beginning and ending of the interviews: some 16 minutes of the first interview was viewed, 27 minutes of the second and 13 minutes of the third.  In all therefore the judge viewed some 56 minutes.

16.The decision to conduct a selective viewing was not a unilateral decision on the part of the judge.  In paragraph 19 of her Reasons for Verdict, the judge said:

“ Although the defence did not require any of the video interviews to be played, parts of all three video interviews under caution were played in court. [The applicant] appeared alert and responded to questions when asked - the interviews radiate spontaneity. [The applicant] appears alert and answers questions put to him as they are put to him.”

17.As to how the decision to conduct a selective viewing came about, the transcript of the voir dire proceedings reveals that immediately after defence counsel had given the grounds of objection to the admissibility of the three video-recorded interviews, he was asked by the judge whether he wished to have the recordings played.  Defence counsel replied that he had “no special application” in that regard.

18.This response was taken by prosecuting counsel to mean that the defence did not require the recordings to be played, his intervention being in the following terms:

“ Then how is it that the court is going to be able to make a finding on this matter without them played whatsoever?”

19.Defence counsel explained his position by informing the court that the defence intended to call the applicant’s psychiatrist who would give evidence as to the applicant’s emotional disabilities and the medication prescribed to keep those disabilities in check. The psychiatrist would further give evidence as to the consequences if, while in a situation of stress, the applicant was deprived of his medication.

20.It is apparent therefore that the defence did not intend to rely on a viewing of the interviews to reveal the nature and extent of any disadvantage suffered by the applicant by being deprived of his medication but intended instead to rely on the expert evidence of the psychiatrist.

21.The rationality of this decision is illustrated when the transcript of the psychiatrist’s testimony is considered.  In the course of her testimony, Dr Shum was asked if the applicant’s emotional state, once deprived of his medication and placed under stress, would be apparent.  The doctor answered to the effect that it may not be apparent, that is, that it may not be “easily observable”.  This was because, in the case of the applicant, anxiety and its associated emotions constituted essentially an “internal process”.

22.As it was, when it came to the point of producing the first record of interview, prosecuting counsel informed the court that, on the basis that it was incumbent on the prosecution to prove the voluntariness of each record of interview, he proposed to play a portion of each recording.  This intended course, he said, had been agreed with the defence.  In answer, defence counsel said:

“ Your Honour, the defence is really neutral to the playing of the tapes.”

23.It was on this basis that the process of selective viewing took place.  A study of the transcript shows that throughout the voir dire defence counsel took a “neutral” view of the process or, put another way, he raised no objection to it.

24.Further light is shed on the defence approach when the transcript of the cross-examination of the applicant is considered.  On more than one occasion, the applicant was asked by prosecuting counsel if he wished to point to any portion of the interviews to show that he was at that time under an emotional disability brought about by the refusal to let him have his medication.  On each occasion the applicant declined the opportunity.

25.In respect of the first recorded interview, the exchange was as follows:

“ Q: In preparing for the trial you had an opportunity, I’m sure, to look at the video interview, isn’t that right?

A: Well, yes.

Q: At any stage of this interview which lasted about one hour and nine minutes, is there any time during the interview that you say that you appeared ill?

A: Well, no.”

26.In respect of the second recorded interview, the exchange was to the following effect:

“ Q: Is there anywhere on this video recorded interview that took two hours and 40 minutes that you wish the court to see that shows that you felt either ill or unwell?

A: Well, no.  No need.”

27.In respect of the third recorded interview, the following was said:

“ Q: You testified that you didn’t sleep on the 21^st and that you were very nervous. Is there any area of the third video recorded interview that you wish to show the court that shows that you were either unwell or very nervous or agitated in any way?

A: No need because in the third [interview] I already knew that I could leave after having finished it.  I was so excited, I was very happy because finally he could help me, therefore, I tried to carry on, though I was very sleepy.”

28.In advancing his argument, Mr Egan did not suggest the existence of any rule or principle directing that, in determining the voluntariness of an electronically recorded statement, a judge must, no matter what the nature of the objection to admissibility, view, or listen to, the entirety of the recording.  It was instead his submission that in the present case, whether the defence requested it or not, the judge was obliged to view the entirety of the recordings.  This obligation, he submitted, arose out of the nature of one of the principal objections raised, namely, the asserted denial to the applicant of his mood-stabilising medication.  Without viewing each recording in its entirety, said Mr Egan, the judge denied herself the opportunity of fully exploring the applicant’s defence in this regard; put another way, she denied herself the opportunity of seeing whether, in her view, the recordings did reveal evidence of a state of emerging anxiety or fatigue or a lapse of independent will.

29.We do not agree that the judge was under any such obligation.  The defence case was clear.  It was to the effect that a viewing of the recordings of the interviews would not reveal any external manifestation of the suggested emotional trauma being suffered by the applicant.  In this regard, it is to be remembered that the defence had viewed the recordings prior to trial.  The defence case did not rest on a viewing of the recordings but on the expert testimony of the psychiatrist who could speak to the traumatic effect on the applicant of being denied his medication even if the effect was not observable. 

30.The applicant, who himself admitted having viewed the recordings of the interviews in preparation for trial, was given the opportunity to point to any portion of the recordings which would assist the court in respect of his assertion that he was in difficulties as a result of the refusal to allow him his medication.  By his answers, he made it clear that, in his view, there were no such portions.

31.The fact that there was a selective viewing of the interviews came about at the insistence of the prosecutor.  The court therefore viewed some 56 minutes of the interviews.  The findings of the judge in respect of that viewing were to the effect that the applicant appeared alert and willing to answer questions as they were put to him.

32.These were, of course, findings that the defence had anticipated by not seeking the viewing in the first place.  To state it again, it was the defence case that the true consequence of the applicant being denied his medication was not to be found by looking to external appearances but by giving credence to the evidence of the expert in the matter: the applicant’s psychiatrist.

33.In these circumstances, we do not see that there was any obligation placed on the judge, having in any event viewed a substantial portion of the recorded interviews, to take up some four extra hours of court time to view the recordings in their entirety when it was the defence case that it would be a sterile exercise.

The second ground of appeal: unwarranted interventions by the judge.

34.It was Mr. Egan’s submission that, when the applicant and his psychiatrist, Dr Karen Shum, gave evidence in the voir dire, the judge took over their questioning and intervened in their cross-examination to such an extent that she ‘entered the arena’.  To the informed observer, the constant interventions would have created an impression of partiality on the part of the judge, one that prevented the full and fair development of the defence case.

35.According to Mr Egan, during the course of the voir dire the judge made a total of 963 interventions.  He accepted, however, that most of these interventions were momentary and entirely inconsequential.  On our reading of the transcript, that is clearly the case.  Many of the so-called interventions appearing in the overall tally were not in truth interventions at all, many consisting for example of the judge saying no more than “yes” in order to indicate that she understood what was being said and had recorded it.  

36.We would add that, in our view, the great majority of what can accurately be described as interventions were entirely uncontentious, consisting in the main of brief requests for clarification of what the witness had said or for confirmation that the judge herself had understood the true meaning of the witness’s testimony.  Interventions of this kind showed no more than that the judge was intent on keeping abreast of the evidence and understanding its true import.

37.In addition, it is to be noted that Mr Egan made no complaint of improper intervention during the course of the examinations-in-chief of the applicant and his witness, the psychiatrist.  Mr Egan’s complaint was restricted to the interventions that took place during their cross-examinations.

38.In this regard, Mr Egan placed particular emphasis on words of Mayo JA in HKSAR v Chan Kwan Kan [1998] 1 HKLRD 495, at 506:

“ There is of course no prohibition upon an intervention by a judge even during cross-examination. Leaving aside interventions where admissibility is in issue, such interventions should nearly always be for the purposes of clarification. Usually, it will be the clarification of a witness’s answer or counsel’s question. Sometimes the judge may intervene to enquire of counsel the nature of the defence so that he may better understand the cross-examination but this will be unusual. If the judge has a point to make usually it should be made at the end of cross-examination so as not to interfere with the way in which counsel wishes to develop his case. There is no absolute rule save that he must always remain impartial and fair.

When the judge is both judge of fact and of law, it is particularly important that he should retain his air of impartiality. A person being tried has the right to feel confident that during his trial his defence is being given fair and balanced consideration however implausible it may be. Further, counsel for the defence must be permitted to present the accused’s defence fairly and in its best light.

This is far from saying that the judge should relinquish control of his court.  He is entitled to control his court firmly.  He must stop irrelevant, inadmissible, repetitive or unnecessarily prolix cross-examination but he can do this fairly and without stopping legitimate cross-examination and without being openly dismissive of the defence.”

39.We turn first to consider the testimony of the applicant.

40.There is no doubt that throughout the hearing of the voir dire the judge sought direct answers to direct questions; in short, that the evidence be elicited efficiently.  A number of examples appear during the cross-examination of the applicant.

41.In respect of the defence assertion that the arresting officers did not permit the applicant’s wife to give the applicant his medication before he was taken from his home, there was the following exchange:

“ Q: Did you get the three bags out and show it to be officers?

A: I believe my wife did.

Court: Just a moment, please. Don’t tell us what you believe. Did you see your wife show it to the officers, yes or no?

A: My wife showed them to the officers but they ignored her.

Court: Yes.”

42.On the subject of whether the applicant was duly cautioned, a similar exchange took place:

“ Q: Is that what you say, that neither of the officers cautioned you?

A: I couldn’t hear any caution.

Court: Well, they were talking to you. If they cautioned you, you would hear it, and you didn't hear it. That means they didn't caution you. Is that the position?

A: That’s correct, no caution.”

43.To similar effect, there were a number of occasions when the judge rephrased counsel’s questions in order to avoid any ambiguity.  The following is an example :

“ Q: After the reasons for your arrest were outlined to you, you agreed that you were cautioned by PW1.

A: You mean in the morning at home?

Court: During the second video interview. At the outset, after telling you the reasons for your arrest, you were cautioned again. Do you agree?

A: Yes, in the first disk, agree. Yes.

Court: We’re talking about the second disc. The same thing happened, the outline of the reasons for your arrest followed by caution. Do you agree?

A: I believe so.

Court: Well, if you wish, it can be played to you.

A: No need, I believe, I agree.”

44.To ensure that evidence is elicited efficiently, avoiding equivocation and misunderstanding is part of the duty of a judge in the management of a trial.  Interventions of the kind cited above were designed to that purpose and in our view cannot have given the appearance of bias.

45.There were other occasions, albeit limited, when the judge sought answers to matters raised by herself.  For example, when the issue of the signing of documents by the applicant was being considered during cross-examination, the following exchange took place:

“ Q: At any time when this notice was being shown to you did you tell PW1 or PW2 that you didn't understand what was written on the paper?

A: Well, no. Well, because I did not have time to read it. They did not give me time to read it.

Court: You know that by signing a document you are acknowledging its content. You know that, don’t you? I’m not talking about this particular document but in general do you know that when you sign a document you are acknowledging its contents? You know that don’t you, especially in your work in a bank?

A: Well, I usually - save for example, concerning other bank stuff, for example credit cards, say for example investment, there are many regulations, they were not explained to me. A staff member told me to sign, then I signed.

Court: Just a moment please. Do you know that by signing the document you are acknowledging the content, yes or no?

A: No.”

46.As we have said, exchanges of this kind were limited.  They were phrased in direct, robust language but that of itself does not suggest bias.  Occasions will arise during a trial when, even though the matter has not been raised by counsel, the judge will find it necessary to ask questions to satisfy himself or herself of some particular matter that may be material in the assessment of the evidence.  In this regard, we can do no better than refer to the observations of McMahon J in giving the judgment of this Court in HKSAR v Sin Wing Yi [2008] 3 HKLRD 352, at 371:

“ Judges are not there to flow with whatever tide is created by the approach adopted by counsel.”

47.In respect of the cross-examination and re-examination of the applicant, we are satisfied that a fair-minded and informed observer would not have concluded that there was any real possibility that the court was biased for the prosecution or that, by the interventions made, the applicant was prevented from stating his defence.

48.Mr Egan’s criticisms are on somewhat firmer ground in respect of the cross-examination and re-examination of Dr Shum, the psychiatrist.  There is no doubt that in respect of this witness the judge did adopt a more interventionist role.  Indeed, Mr Egan went so far as to complain that the judge set about ‘dismantling’ the evidence of this witness.

49.In her written report which was placed into evidence, Dr Shum spoke of the consequences to the applicant of being denied his medication.  It would lead to increased anxiety, she said, and in a state of high anxiety it was likely that “suggestibility” would be heightened.  In looking to the meaning of the word, the following exchange took place:

“ Q: Going back to the previous bullet point about the word suggestibility…

A: Yes.

Q: … is that a common symptom for people diagnosed with depressive disorder?

A: It happens commonly in people with anxiety or depression.

Court: But not in every case?

A: It is common when they are in a high anxiety situation, because their thinking process will be affected, memories may become blurred.

Court: Just a moment please. So their thinking process may be affected, memories blurred.

A: and thus the behaviour or answers will be easily affected by the environment.

Court: This state would be very apparent, would it not?

A: It may not be.  Because it is an internal process, it may not be easily observable.”

50.In our opinion, no complaint can be made of this intervention by the judge who was clearly doing no more than seeking to clarify matters.

51.Later, however, there were a number of exchanges related to the medication prescribed for the applicant and it is in respect of these exchanges that Mr Egan appears to have placed most reliance.  An early exchange in this regard - a question put by the judge by way of clarification following a series of questions by prosecuting counsel in cross-examination - was as follows:

“ Court: The question that is being asked is a general question. If he takes his medication, as he is supposed to, in the night, the next day he should be able to operate normally and be able to read and understand documents, is that correct?

A: On a normal day, yes.”

52.The judge put the further following questions:

“ Court: This dosage that you’re giving him, it’s quite a mild dosage isn’t it?

A: You may say so, but we have to keep in mind that usually Orientals need a lower dosage than Westerners due to our metabolism.

Court: but even for an Oriental this is a low dosage, isn’t it?

A: I wouldn’t - no.  No, this is a normal dose.”

53.The issue of medication was pursued further, particularly the degree to which the applicant at the time of his arrest had been under an obligatory regime as opposed to a looser regime, one that enabled the applicant to take his medication on an ‘as needs’ basis.  The issue was of course central to the question of whether the applicant was able to function without having to take his medication at prescribed times.

“ Court: So when you prescribed the diazepam, the day one is on an ‘as needs’ basis, the night one is a ‘must take’ basis.

A: Generally, yes.

Court: No, let’s not be general. When you prescribed it to him in August when you last saw him, what was the instruction you gave him in respect of that?

A: Yes, the August one, 17 August 2009, I only gave him the night-time diazepam, and the instruction would be on an ‘as needed’ basis.

Court: For the day-time one.

A: For the night-time one on that occasion.

Court: So let me just be clear. So on 17 August when you saw him, the prescription for diazepam was only a night dosage.

A: Yes.

Court: And even the night dosage was an ‘as needs’ basis.

A: Yes.

Court: So you did not prescribe him diazepam to be taken in the day time?

A: No, there was no prescription for that. But he has a lot of spare medication from the previous prescriptions, and he would know…

Court: Just a moment please.  Yes, thank you doctor.”

54.The matter was further explored by the judge during re-examination of the psychiatrist by defence counsel, the focus of the judge’s enquiry moving to a consideration of the doctor’s records.  This was essentially a collateral issue.

“ Q: So you did not prescribe the D drug [diazepam] on the 17^th for use in the day-time, is that correct doctor?

A: No, I did not give him any diazepam on the 17^th for use in the day-time but I do know that he has previous drugs, the left-over medication that he can still use.

Court: Well, did you tell him doctor: “You need the diazepam in the day, use your old stock.” Any record of that?

A: Okay, let me check. It was ... I did not write it down but it's a general instruction that I usually give to my patients.

Court: But you don’t have a record of having given it?

A: No, no.

Q: So let me clarify one thing. So was – so diazepam was prescribed on 17 August 2009 or was not?

Court: It was but only for use on an ‘as needed’ basis at night.

Counsel: At night, correct.”

55.This exchange continued to the following effect:

“ A: He has been on this medication, both day and night, for over a year, and on some of the - on the consultation just before the August he was instructed that he can use the day-time medication on hand on an ‘as needed’ basis. Well, this is meant to be something that he can do on an ‘on-going’ basis. And I won't usually give out a new prescription until they have finished all the old drugs that they have.

Court: But you did give him diazepam on 17 August, didn’t you?

A: Yes.

Court: Even though you knew he had old medication?

A: It wouldn’t be enough for - to be taken both at night and in the day-time if he needs, so I still need to give him some.

Court: Did you check how much he had left?

A: No, I didn’t write ... well, usually I would ask. I didn’t write it down and I usually make sure they don’t have too much of it.

Court: Well, if you didn’t check what he had, how would you know how much to prescribe?

A: I’m sorry, that’s a difficult calculation…”

56.The exchange continued with Dr Shum saying that at the consultation on 17 August, she prescribed the applicant 10 tablets of diazepam, this prescription being made in light of the fact that, as the doctor calculated it, the applicant would have had a substantial stock of tablets in his possession already, something in the region of 80 tablets.  This prompted the judge to ask more questions related to the doctor’s records.

“ Court: Just one moment, please. Any records of any of this?

A: Of how many tablets he…

Court: Well, any records of why you gave him only 10?

A: It’s not written down.

Court: Aren’t these matters that you should keep records of doctor?

A: Well, now, what I should record is what the patient needed to take and that is usually what I write as my prescription and, okay, my instruction is to take one…

Court: Well then, why did you give him only 10 tablets? What was the instruction that you gave him in respect of just those 10 tablets?

A: To take it as needed.

Court: So you thought he would only need 10 tablets over a period of three months?

A: Now I’m sure… but can I explain? Diazepam is a regulated drug and we do not want a patient to keep more than what is needed and whenever I know that they have spares, I would deduct it.

Court: Well, there should be a record of why you are giving him 10 tablets, shouldn't there be?

A: I’ll tell you the usual reason is because they have spare…

Court: That’s not what I’m asking you.  Should there not be proper records kept?  You don’t have to answer that question, thank you, doctor.”

57.The following exchange concluded matters when defence counsel asked the doctor to confirm what had been stated in her report as to medication, his question arising out of the doctor’s testimony that relatively low dosages had been prescribed in order to prevent the applicant building up a tolerance to the medication.  The judge then took issue with the fact that the report appeared to be inaccurate on the question of medication, a matter which the doctor conceded.

“ Q: Because according to your report, page 2, the third bullet point, you expected the defendant to take diazepam, 1 mg morning and noon, and 2 mg at night, correct?

A: Yes.

Court: Sorry, but this paragraph is incorrect isn’t it - this what you say here about his dosage of diazepam, that he has to take 1 mg morning and noon, 2 mg at night, this is not correct because your evidence today has been that as of August 2009 you had prescribed 2 mg at night on an ‘as needed’ basis and you did not prescribe it for the day. So this paragraph of your report is incorrect. Yes or no?

A: Yes.”

58.Mr Egan described this last exchange as a piece of ‘savage cross-examination’ by the judge.  We reject that description as hyperbole.  We also reject the suggestion that the judge set out to ‘dismantle’ the testimony of the doctor.

59.It is to be noted that the main exchanges between the judge and the doctor related to the exact nature of the medication regime prescribed for the applicant.  This was a crucial issue.  The stricter the regime, the graver the likely consequences if the regime, for whatever reason, was not followed.  

60.In her report, the doctor had stated that the applicant was prescribed 1 mg of diazepam (an anti-anxiety medication) in the morning with a further 1 mg at about noon and 2 mg to be taken at night.  Together with the other two drugs that were prescribed to be taken at night time (quetiapine and risperidone), this made for a fairly rigorous regime.  However, during the course of the doctor’s testimony, it transpired that the report was inaccurate and that, just a matter of weeks before his arrest, the applicant had been put on a materially reduced dosage of diazepam: 2 mg to be taken at night but only when needed.  There was also the issue of why it was that the applicant had been prescribed just 10 tablets of diazepam the last time he had seen the doctor.

61.Clearly, the judge was unimpressed by the doctor’s failure to maintain accurate records and to ensure that the report itself was accurate.  It is to be remembered that the judge was exploring a line of enquiry with an expert witness who was called to testify as such.  While obviously a judge may not bully or brow-beat a witness, whether a lay person or an expert, exchanges between a judge and an expert witness may often be more direct, more incisive, more demanding of explanation without the fair-minded and informed observer concluding that the judge is guilty of bias or has taken up the sword of a gladiator and stepped into the arena.

62.Mr Egan argued that there was no need for the judge to intervene at all, that there was an experienced prosecutor before her who was quite capable of eliciting the same information that the judge obtained by way of her interventions.  Just as a judge should not take over the prosecution, equally a judge is not bound to remain mute when, in his view, matters requiring of an answer to ensure a fair disposal of the case have not been explored, or adequately explored, by the prosecutor.  It is always a question of balance and degree.  In the circumstances of this particular case, viewing matters in context, we believe that the judge was entitled to pursue the line of enquiry with the expert witness that she did.  In HKSAR v Sin Wing Yi (cited above), at page 369, para. 38, this Court adopted the comments of the English Court of Appeal in R v Saville (unrep., English Court of Appeal (Criminal) No 4181/1991), comments which are apt in the present case:

“ Litigation, as the Lord Chief Justice pointed out during the course of argument, is not a game, although too many believe it to be. 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 upon 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 a judge to ensure that criminal proceedings are tried fairly and efficiently, and to intervene as necessary to ensure that that goal is achieved.”

63.For the reasons given, while there were a significant number of interventions by the judge during the testimony of the applicant’s doctor, we are again satisfied that a fair-minded and informed observer would not have concluded that there was any real possibility that the court was biased for the prosecution or that, by reason of those interventions, the doctor’s ability to explain herself as an expert was undermined.

The third ground of appeal: faults in the judge’s reasoning.

64.Expressed broadly, it was Mr Egan’s submission that no reasonable court, properly instructed as to law, and upon a balanced and impartial appraisal of the evidence, could have concluded that the video-recorded interviews had been made voluntarily.  In this regard, he said, the judge had failed to give any, or sufficient, weight to the defence evidence and/or had placed too great a reliance on the prosecution evidence.

65.A number of grounds were raised in support of this contention.

66.It was submitted that the Reasons for Verdict, in so far as it dealt with the admissibility into evidence of the records of interviews, was fundamentally unbalanced: 14 pages [in fact, it was 13 pages] being devoted to setting out and accepting the prosecution evidence but only six pages to setting out and rejecting the defence evidence.

67.There is nothing to this point.  The evidence of the three prosecution witnesses and the evidence of the applicant were set out in similar detail.  The prosecution witnesses, however, in addition to accounting in detail for their movements, had (each of them) to answer the various allegations of misconduct levelled against them.  It was inevitable that their combined evidence was going to be considerably longer than that of the applicant.  Concerning the applicant’s doctor, Dr Shum, the judge was able to deal with her evidence more concisely but there is nothing to suggest that, in doing so, she failed to give it the necessary consideration.

68.It was submitted that the final assessment of the evidence of both the prosecution and the defence took ‘a mere page’ and consisted of a series of conclusions as opposed to proper reasons.

69.This criticism distorts the true structure of the Reasons for Verdict.  The assessment of the evidence was a continuing process.  Nor can it be said that the judge failed to give proper reasons.

70.For example, in considering the evidence of the applicant, the judge had this to say concerning the central issue of his asserted dependency on medication:

“ He had been seeing [Dr Shum] since May 2006. He could not remember the name of the medication he had to take. He was asked how many pills he took - he said 3 to 4, and then said 3 at the time of his arrest and now he was taking 4. Before he had gone to bed on the night of 20 December 2009, he had taken 3 pills – all different. He was asked when he had last seen Dr Shum prior to his arrest - he said he believed it was a week before his arrest but he could not actually remember. He had to take three pills at night before sleep and half a tablet in the morning. He then said he only had medication during the day, which he took in the afternoon, and he could elect whether to take it or not…”

71.The judge went on to note that there were similar contradictions and inconsistencies elsewhere.  For example, although the applicant protested that he was under severe disadvantage because of the denial of his medication -

“ … he agreed with counsel that he appeared well during the first interview, and agreed he never said he felt unwell and unfit to the interview to continue. Nor did he refuse to answer the questions that he was asked. At the outset of each interview, he was shown the notice to persons in custody during the interview. He said he did not know he had the right to remain silent, that he had not been cautioned. When he was asked if he would like to have the interviews played to him, wherein he was cautioned, he agreed he had been cautioned during the interview, but said he had been told by PW1 before the interview to speak more in order to help PW1 in the investigation and PW1 believed that he had been cheated by D1. He therefore ignored what was said about the caution, because they had made a promise to each other.”

72.In respect of the applicant’s asserted reliance on mood-stabilising medication, the judge noted that his doctor –

“ …agreed that what was in her report was incorrect, that he did not need to take diazepam daily, but had been prescribed this on an ‘as needs’ basis, as his condition was improved. So he only needed to take diazepam when it was needed, and not regularly as she wrote in her report. He did not need to take it or any other medication in the daytime regularly.”

73.It was from these (and other) observations that the judge was able to draw conclusions; they were not therefore without rational foundation.

74.It was further submitted that the judge gave insufficient weight to the fact that the applicant was suffering from a psychiatric disorder at the time of his arrest and that he was deprived of his medication when he participated in the three video-recorded interviews.

75.We do not agree.  The citations from the Reasons for Verdict set out above make it plain that the judge did consider the issue of the applicant’s psychiatric problems.  In this regard, among other matters, the judge took into account that, at the time of the applicant’s arrest, he was no longer on a strict regime of medication but was taking his prescribed medication only as and when he thought it necessary.  As the judge noted, he did not - during the course of his video-recorded interviews (when there would have been a record of his statement) - say that he was feeling unwell or that he now needed his medication.

76.It is also to be noted that, while in custody, the applicant was visited by justices of the peace who asked if he had any complaints.  He said he had none.  In this regard, in considering the testimony of the third prosecution witness, an ICAC officer posted to the detention centre, the judge observed:

“ [He said] that two JPs had visited [the applicant], and he had also recorded that no complaint was lodged by him. In response to a question from the court whether he would record ‘no complaint’ if the detainees remain silent, he replied that he had never come across that - when asked, detainees would either say they had a complaint or that they had no complaints, and he would so record.”

77.In the course of his evidence, the applicant accepted that he had been visited by two justices of the peace.  He accepted that he had made no request of them nor had he lodged any complaint.  He explained this on the basis that he had only been asked if he had a complaint about the food.  Here again, on a consideration of all the evidence, if the applicant was feeling as unwell as he protested, was an opportunity for him to at least ask if he could be given medication.

78.Concerning the evidence of the psychiatrist, even though she testified as an expert, it did not follow that the judge was obliged to accept everything put forward by that witness.  It was for the judge to weigh the doctor’s evidence, to determine the degree to which it was, as expert evidence should be, accurate, reliable and neutral.  Clearly the judge had concerns in all three respects.  On our reading of the transcript of the proceedings, we are satisfied that the judge had a sound basis for those concerns.

79.We accept that the judge may perhaps have explained her analysis of the doctor’s evidence in greater detail but it does not follow that, in our view, there was a failure by the judge to give sound reasons for her determination.

80.Although it did not form part of his written submissions, Mr Egan, during his oral submissions, placed considerable emphasis on the applicant’s evidence that, when he was arrested at his apartment, his wife was stopped from handing him his medication by one of the arresting officers who said he could only take medication prescribed by a doctor to whom he was referred by the ICAC.

81.It was the evidence of the officer that there had been no request made at any time by the applicant for him to possess or to take medication.

82.The judge accepted the evidence of the arresting officers, finding them to be honest and credible witnesses who gave their answers in a sensible and straight-forward manner.

83.It was in this context that Mr Egan asked the rhetorical question: if, at the time of his arrest, there had been no conversation about medication, how could the applicant have known that it was ICAC policy to refuse to permit an arrested person to bring his medication with him?  That single piece of evidence, said Mr Egan, pointed to the inherent probability that the applicant was telling the truth and that the arresting officers were not.

84.There was however, as Mr Egan conceded, no evidence before the trial court of what was the ICAC policy at the time concerning the matter.  Nor was the issue pursued by way of cross-examination by defence counsel.

85.Nor, we would add, did Mr Egan himself seek to put any evidence before us concerning the matter.  Mr Egan seemed to suggest that the practice was so notorious that no evidence was required.  We do not accept that to be the case.  While common sense dictates that it may be unwise to leave a person in custody in possession of medication in case there is an attempt to overdose, it does not follow that an arrested person will not be permitted to bring his medication with him, the arresting officers ensuring that it is put into some safe place so that, if required, it can be made readily available.  What happens if an arrested person is on a strict regime of medication for a serious heart problem?  Is he, by way of some general rule, required to leave that medication at his home even though that act of dispossession may put his life at risk?  Leaving aside the fact that the matter was never pursued at trial, even acting of its own volition, it was not possible for the trial court, nor for us, to determine what was the ICAC practice at the time of the applicant’s arrest and the degree to which, if at all, that practice was a flexible one.

Conclusion.

86.For the reasons given, viewing the grounds of appeal individually and together, we are satisfied that the admission into evidence of the records of interview was neither unsafe nor unsatisfactory.  The application for leave to appeal against conviction is dismissed.

Mr Kevin Egan, instructed by Robertsons, for the Applicant

Ms Olivia Tsang, SPP, for Department of Justice, for the Respondent