HKSAR v. CHOI KWAI KUN

CACC263/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO.263 OF 2005

(ON APPEAL FROM DCCC 1088 OF 2004)

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REASONS  FOR  JUDGMENT

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Burrell J (giving the reasons for judgment of the Court) :

1. On 6 May 2005 the applicant was convicted after a 12-day trial before Deputy Judge W.C. Li of two offences.  The first was an offence of using a copy of a false instrument, contrary to section 74 of the Crimes Ordinance, Cap.200.  The second was of causing wasteful employment of the police, contrary to section 91(2) of the Criminal Procedure Ordinance, Cap.221.  He was sentenced to 12 months’ imprisonment on the first charge and 1 month concurrent on the second.  He seeks leave to appeal his conviction only.  At the conclusion of the hearing we dismissed the application.  Our brief reasons for so doing now follow.

Background

2. Although the trial lasted 12 days the background of the case, for the purposes of this appeal, can be stated quite simply.  The prosecution case, which the judge found to be proved, was that the applicant had forged a Deed of Assignment.  In the true original deed the applicant had assigned 80% of an inheritance due to him to his wife and children.  The inheritance was from his late father who had died in 1993.  By the will the applicant would have come into the money 10 years after the death, in August 2003.

3. The assignment took place in 1998.  It was done through solicitors.  Both parties executed the Deed in the presence of their respective solicitors.  Each retained a copy of the assignment.

4. The applicant and his wife were divorced in 2002.

5. In August 2003, when the inheritance was about to fall due to the beneficiaries, the wife sent her copy to the independent trustee.  The independent trustee, in turn, called for the applicant’s copy.  When he had received them both it was plain that the two “copies” were very different.

6. By the wife’s copy 40% of the inheritance had been assigned to her and 20% to each of the two children of the marriage.  By the applicant’s copy, however, only 10% was assigned to the wife and 10% to the children jointly.  There were other differences.  One such difference was that the applicant’s copy contained a clause that the assignment was null and void if the parties were divorced at the time of vesting, namely August 2003.  The wife’s copy contained no such condition.

7. There were many factual issues in the course of the trial.  The judge found that the evidence demonstrating that the wife’s copy of the assignment was the genuine one was overwhelming.  Not only was there contemporaneous documentary evidence in support of that finding but also, if the applicant’s case was true and that it was his copy that was the true version, there would have had to have been a conspiracy between the wife, the solicitor who took the original instructions to draft the assignment, his assistant solicitor, the solicitor’s secretary, the wife’s independent solicitor and the wife’s brother.

8. All the above witnesses, except the wife’s brother, gave evidence at trial.  The judge found them all to be honest and reliable.  He also felt able to rely on the evidence of the independent trustee and the applicant’s own solicitor.  The only other feature of the case which is worthy of special mention before considering the three grounds of appeal concerns the whereabouts of the original of the Deed.  The only versions before the court at trial were the two copies.  The original had been given to the applicant in 2001, before the divorce.  He said in evidence that he never read it and that he took it to Singapore and from there posted it back to his own solicitor.  His own solicitor never received it.  It must have been lost in the post.  It is, to say the least, regrettable that the one document which would have answered all the questions in this case went missing, according to the applicant when he entrusted it to the postal services in Singapore.

The application

9. Mr Lawrence Lok S.C. advances three discrete grounds of appeal.  Each is self contained and turns on a relatively narrow point.  It is for this reason that there is no need for this court to consider the many factual issues, some curious, which were canvassed at trial and which contributed to the length of the case before the deputy judge.

Ground 1

10. The applicant’s former wife was a prosecution witness.  Before giving evidence she was not advised by the judge that she was not a compellable witness.  Mr Lok submits that if she had been so informed she might have chosen not to give evidence and thus, the prosecution case against the applicant would have been less strong.

11. Mr Eddie Sean, counsel for the respondent, concedes that the applicant’s wife was not so advised and that, in law, she was not compellable as a witness against her former spouse.  Section 57(10) of the Criminal Procedure Ordinance, Cap.221 provides that :

“(10) A former husband or wife of an accused shall not, as regards matters that occurred during his or her marriage to the accused, be compellable to give evidence for the prosecution, or on behalf of a co-accused, unless the former husband or wife would be so compellable under subsection (3) if he or she were still married to the accused.”

12. In passing, it is worthy of note that the position in Hong Kong and England is different.  By statute in England former spouses have been both competent and compellable witnesses since 1986.

13. Mr Lok, correctly, does not submit that it is a mandatory requirement for a judge to explain to a former spouse that she may choose not to testify in every case and that a failure to so explain would be a fatal irregularity.  He submits that a judge should explain the position to a former spouse and that the failure to do so in this case should be treated as a material irregularity.  He relied on HKSAR v. Bibi Nusrat, HCMA352/2000 which held that :

“… Where a person was competent to give evidence for the prosecution against his or her spouse, and was called to do so, the court must satisfy itself before that evidence was given that the witness had been made aware that he or she was not compellable to do so.  If necessary, the matter might be resolved by voire dire proceedings before the witness gave evidence.  Failure to adopt such a course might be an irregularity that entitled the accused to have his conviction quashed.”

14. With respect, we think a better statement of the law and practice is found in R. v. Pitt [1982] 75 Cr.App.R., at page 258 :

“It seems to us to be desirable that where a wife is called as a witness for the prosecution of her husband, the judge should explain to her, in the absence of the jury, that before she takes the oath she has the right to refuse to give evidence, but that if she chooses to give evidence she may be treated like any other witness.”

15. The court in R. v. Pitt also stated that it was not a rule of law that the judge should adopt such a course and further added “nor do we seek to lay down any rule of practice for the future”.

16. If, as in the present case, the judge fails to say anything to a former spouse before he or she gives evidence, it is important to place the matter in context and consider the nature of the proceedings before concluding that the failure to inform her should constitute a material irregularity.

17. A number of questions could be asked.  Was the spouse a vital witness?  Was the evidence of the wife and husband diametrically opposed?  Was the former spouse the complainant to the police?  Did the former spouse ever indicate any reluctance to testify during the trial preparation stage?  Was the allegation that the ex-spouse had been cheated out of money or property?  Was it the sort of case in which common sense and logic would suggest that the former spouse would be enthusiastic rather than coy about giving evidence?

18. In the present case we note the following factors.  The applicant’s wife’s case was that she had been cheated out of a substantial sum of money by her former husband.  She never indicated any reluctance to testify.  It was the independent trustee who first brought the matter to the attention of the police.  In such circumstances, in our opinion, the overwhelming probability was that she was both keen and willing to testify.  It follows that no irregularity occurred when the judge omitted to explain to her that it was not compulsory for her to give evidence.

Ground 2

19. Mr Lok’s second ground is that the judge intervened and interrupted too much during the trial.  It is submitted that an informed bystander would have said that the judge had “descended into the arena” to the extent that he gave at least a perception of bias so that the applicant was not seen to have been given a fair trial.

20. The legal principles are not controversial.  They were laid down in R. v. Yeung Mau Lam [1991] 2 HKLR 468 :

“(1) Interruptions by their number alone are not decisive;

(2) The quantity and quality of the interruptions must be looked at as factors which react upon each other;

(3) Actual bias on the part of the judge need not be established, it being enough if by his conduct he would be thought by the informed bystander to be taking over the conduct of the case from the prosecution;

(4) Where a judge sits without a jury, the appeal court must ask itself whether a person listening to the case would justifiably have had the impression that the judge had by his questions entered the arena;

(5) The ultimate question for the consideration of an appellate court is whether the judge’s conduct was such that it would have caused the informed bystander listening to the case to say that the defendant had not had a fair trial.

We think it appropriate also to emphasize that a court, when considering the propriety of interventions by a judge, must bear in mind that it is the judge’s duty throughout to ensure that a trial is properly and coherently conducted.”

21. Mr Lok has invited us to examine over 100 instances in the transcript when the judge intervened.  He conceded that some of these were two or more instances on the same page or pages where a dialogue took place between the judge and trial counsel.

22. We have also borne in mind that these interventions were in the context of a 12-day trial.  This court has not had sight of the entire transcript but has been provided with about 500 pages of it.  It is clear that the judge considered the cross-examination of prosecution witnesses to be, at times, prolix.  He frequently questioned the relevance of some of the questioning.  This case, not by any means for the first time, provides an illustration of defence counsel wanting to pursue a course which would leave no stone unturned without giving sufficient prior consideration to the relevance and materiality of his cross-examination.  This resulted in comments and enquiries from the judge who expected a higher degree of efficiency and expedition from counsel.  We have looked at all the interventions relied on and have concluded that the judge did not take over the proceedings to the extent that there would have been a perception of bias.  Many of the interventions were about lack of relevance and being repetitious.  Others were complaints about asking vague questions.

23. Mr Lok was invited to select what he regarded as an example of the worst type of intervention.  The example chosen was when the judge questioned the relevance of questions to the solicitor’s secretary about her desk being “messy”.  We did not think this intervention was unwarranted.  Neither did we think that the judge’s adverse comments about the counsel’s conduct at this stage (he temporarily sat down and declined to ask any further questions) was unjustified.

24. In his usual realistic way, Mr Lok summarized his argument on this ground as being a case where the judge “should have been gentler”, “used unfortunately strong language” and, looked at overall, the interventions “were excessive in the circumstances”.

25. Whilst it may be said that the judge was not a model of patience and very occasionally used words that may have overstated the true criticism which he was entitled to make, such as the use of words “unethical” or “deplorable conduct”, we can find no instance of the defendant’s case being stifled in any way nor any examples of the basic standard of requirement of fairness to the defendant being compromised.

26. Ground 2 is rejected.

Ground 3

27. In our judgment this ground comes third both in number and in merit.  The complaint is that the prosecution failed to take a formal witness statement from a potential witness, namely Patrick Luk Ka Yee, the applicant’s brother-in-law, i.e. his wife’s brother.

28. When the applicant had made his false report to the police (the subject matter of the second charge), he named Patrick Luk as a person involved in the making of the false Deed of Assignment.  The complaint was made in October 2003 but the police did not try to contact him until January 2004, by which time he had gone to England and it was not known when he would return.

29. The police did however contact him by e-mail in England.  They asked him to assist in their enquiries by answering a number of questions which he did by means of a detailed 6-page e-mail in response.  The police then presumably decided he could be safely eliminated as a suspect and was not required as a prosecution witness.

30. The 6-page e-mail was provided to the defence before the trial.  They were at liberty to make such use of it as they saw fit.  They could have applied for an adjournment if it had been their case that Mr Luk should have either given a witness statement or given evidence or both.  They made no such application, nor did they make any use of the e-mail at trial.

31. On the face of it, Mr Luk’s evidence would have been consistent with the evidence of the solicitor who took instructions for the original deed (PW1), his assistant (PW2) and the applicant’s wife (PW5).  The apparent decision that a formal statement would have added nothing to the prosecution case cannot be criticized.  To send a group of policemen to England merely to formalise the contents of his e-mail into a witness statement would not have been a proper use of resources.

32. We are satisfied that there could have been no realistic risk of prejudice to the defence case as a result of the absence of such a formal statement.