THE QUEEN v. CHEUNG PING KEI

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JUDGMENT

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Silke, J. A.:

1. On the 11th October we announced our decision in this application, granted the application, allowed the appeal and stated that we would deliver our reasons later when all the members of the Court were present in Hong Kong. This we now do.

2. The applicant, CHEUNG Ping-kei, was convicted after trial of the offence of murder.

3. The particulars of the charge stated that he did, on the 27th day of July 1981, at Tung Tau Estate, Kowloon, in this Colony, together with persons known as Ah Lung, Ming Tsai, Hing Tsai and Ah Hung, murder NG Chi.

4. It was the case for the Crown that an incident had taken place some ten days earlier, on the 17th July, which had involved the applicant and the deceased. This incident had arisen when the applicant and his wife and some friends were eating at a noodle stall and a bottle thrown from a room of the higher floors of the estate shattered upon the ground. One of the glass shards cut the lip of the applicant. It was alleged that he then proceeded upstairs in the building to locate the perpetrator; that he found him and that he started to beat him up; that the deceased and a brother of his then intervened; that there were questions asked as to triad membership; that there was a scuffle between the deceased and the applicant that the applicant and his friends left, the applicant uttering threats to the deceased.

5. On the 27th July, the deceased was eating in a restaurant. He was set upon by a gang, dragged from the restaurant, severely chopped and died later from his wounds. To this incident there were no eyewitnesses and none of the members of the gang have been apprehended.

6. The applicant was arrested in another restaurant on the 29th July, his wife and others being present. He "requested" to be taken to a police station to clear the matter up. Upon arrival at Kowloon Police Headquarters Sergeant 6970 entered into his notebook a post-recording of a caution administered to the accused upon his arrest, the details of that arrest and read the entry over to the applicant. The applicant, having himself read over that which had been recorded, was then noted as saying:

"Sir, you have also arrested my wife and her friend(s). This case has nothing to do with them. It's I (who) got the henchman/henchmen to do this case."

7. On that point it was the evidence of the Sergeant that he again cautioned the applicant and that the applicant then wrote a full statement. This, at its start, referred to his having had a fight with the deceased and went on that he had arranged an ambush, having given money to one Ah Lung to buy knives; that he had seen the deceased the day before the killing having tea in a restaurant; that he arranged for his henchmen to come to the restaurant on the day of the killing; that there he pointed out the deceased to them and that they entered the restaurant and "pushed out the deceased to chop". He gave a series of nicknames said to be of those who did the chopping. He stated that he himself walked aside to watch and did not take part in the chopping. He made a payment - $3,000 - to Ah Lung "for them to escape".

8. On the following day, that is the 30th July also at the Kowloon Police Headquarters, certain questions were put to the applicant relating to the identities of the persons named in his statement of the 29th. The only person whose name and address he could give was that of "Ah Lung" or "MA Chun-lung". The address he gave was simply Block 26, Wong Tai Sin Estate. He did not know the floor and there was no mention of whether the estate was the Upper or Lower Wong Tai Sin.

9. The confessional statements were the only direct evidence implicating the applicant in the killing. It is conceded that without them there could have been no conviction. Before embarking upon a discussion of the numerous grounds of appeal which have been argued before us by Mr. Martin Lee, Q. C., who appeared for the applicant both here and below, there might usefully be made pome general observations upon this trial in particular and generally upon the duties of a Judge in relation to the content of his summing-up.

10. This was a re-trial, a factor known to the jury by reason of the nature of the cross-examination of certain of the witnesses. Close to the end of the case for the prosecution, the trial having then lasted thirteen working days, there was a gap of twelve days before it resumed. This was occasioned by the illness of the witness under examination and who concluded his evidence very shortly after the resumption. The defence case then opened.

11. The jury consisted of "seven literate Chinese" - I make reference to this because of the nature of the complaints relating to the writing of Chinese characters in the full statement.

12. On the day prior to the summing-up, the jury had been addressed by Mr. Lee for some five hours. He went, in detail, into all the aspects of the defence case and commented exhaustively upon the evidence for the prosecu-tion. He told the jury that:

"You are the most attentive jury I have ever had the privilege of addressing. Now I say this now and do not at the end because I have never seen so many members of the jury taking notes as you have."

13. Juries generally must be given credit for a modicum of common sense and a capability of listening to and understanding the evidence. The jury in this case is no different.

14. This Court has on a number of occasions in the recent past, found it necessary to consider attacks upon summings up with reference to their lack of balance and lack of fairness to the defence. The line started with HON Hoi-way and another v. The Queen⁽¹⁾ in which my Lord the Vice-President considered at length the authorities on the subject. The latest in the line is The Queen v. Siu Cheung⁽²⁾ in which the judgment was delivered on the 29th May of this year. In Siu Cheung⁽²⁾, we said:

"As this court noted in HON Hoi-way and another v. The Queen, Cr. App. 663 of 1981, strong facts may justify strong comment by a trial judge, but ultimately the question is one of balance and fairness. In the same case, we invoked the useful principle suggested by Woodward, C. J. in the West Indies ease of Mills v. Gomes [1963] 6 W. I. R. 418, viz:

 

'	Was the verdict the result of persuasion by the Judge rather than 'persuasion by the facts?'

       The very few cases on record in which a Court of Appeal has upset a conviction by a jury on the ground of excessive comment by the Judge show how strong such comment must be before an Appellate Court will feel obliged to interfere."

 

We added later:

"..... it is not necessarily wrong for a Judge to venture into advocacy where strong facts supported it and where he deems it necessary to repair some want in the performance of counsel. But he must be careful to be as zealous in this regard for the defence as for the prosecution and he must not lose sight of the fact that, however firm and full his disclaimer in relation to expressions of his opinion on questions of fact, his special position and the finality of his address are nevertheless likely to leave a strong impression in the minds of the jury."

15. In addition to the Mills v. Gomes⁽³⁾ test we adopted, as the touchstone for appellate interference, that test suggested in R. v. Blackley⁽⁴⁾: does the summing up viewed as a whole amount to "a whole speech for the prosecution". These are principles from which we do not resile and which we have in mind in giving consideration to the submissions of Mr. Lee.

16. Mr. Lee's grounds of appeal, of which there were twenty three, plus a further ground added at the end of the hearing and without objection, attack first: the alibi directions; second: the directions as to the burden of proof of confessional statements; third: that particular aspect of the confession and the directions relating to the "formation of characters" point and, fourth: and intermingled with all these other points, a lack of balance and lack of fairness general throughout the summing-up.

17. There is one further point with which I shall deal later, having considered those other grounds, and that is the visit by Counsel concerned in the case to the Chambers of the Judge, at the Judge's invitation, for matters unconnected with the trial itself at a time during which the jury were considering their verdict and before that verdict had been rendered and the trial concluded.

18. We are not concerned with the fact of the visit but with the conversation which took place in those Chambers. It is unfortunate that Counsel found it necessary to take such a point, for it impinges upon the confidentiality which exists and must continue to exist, between Bench and Bar, but we understand his reasons for so doing.

The alibi point

19. The applicant in the course of his defence called two persons, his wife and an elderly inhabitant of the premises in which they lived, as alibi witnesses. He had given notice of alibi within the time prescribed. It was the evidence of his wife that she went to her bed in the early hours of the 27th - the applicant being already asleep in that bed - and that she did not wake again until about 11 a. m. on that day. When she did awake her husband was still in bed beside her. She stated herself to be a light sleeper.

20. The elderly man, Mr. Chan, who was a form of grace and favour tenant of the wife's family, stated that he had entered the room at about 8:30 to 9 O'clock on the morning of the 27th in order to rescue some clothes, which were on a balcony, from being rained upon and that he had seen the husband and wife asleep in bed.

21. Had that evidence been believed by the jury then the applicant could not have been at the scene of the attack upon the deceased. Further that which he said in his confessional statement could not have been true.

22. In relation to the incident on the 17th July the wife said that she had been seated at the table at which her husband sat, that she had gone away to the toilet and, upon her return, she had found her husband with an injured lip. She was somewhat vague as to the exact period during which her husband was out of her sight but thought it to be about five minutes. It was her evidence that even if that time was not precise the period she spent away was insufficient for the husband to have gone up to the sixth or seventh floor of the building, have the altercation with the deceased and return to the ground floor. Had this evidence been accepted in full by the jury then the opening remarks in the confessional statement by the applicant as to having "fought with" the deceased could well have been thrown into doubt as being his own words.

23. Mr. Lee attacks the summing-up on the basis that first: that the jury was misdirected by the trial judge when he said:

"..... if you believe the police evidence as to the confession made by the accused, then it follows that you do not believe the evidence of the accused, his wife and Mr. CHAN Hang as to the alibi."

24. Further to this he adds that the Judge failed to specifically direct the jury that it was not for the accused to prove the particular defence of alibi but that it was for the prosecution to negative it.

25. Second: that the trial judge should not have given the particular directions he did on the relationship between the wife as a witness and the applicant. He should have based his directions, in this context, on that which was said in Turnbull⁽⁵⁾- for once not relating to the issue of identification:

"They should, however, be warned in most, if not all, similar cases that they should not necessarily regard the fact that the witness is the defendant's wife as derogating from the worth of her evidence when the nature and content of the defence is such that anyone would expect her to be called as a witness in any event."

26. Third: he takes issue with the manner of cross-examination of the two alibi witnesses - but not of the applicant - and the references to it in the summing-up.

27. Mr. Egan, who appeared for the Crown both here and below, had questioned both witnesses as to why they had not come forward for a period of approximately four and a half months after the arrest of the applicant. By "come forward" I mean draw to the attention of applicant's legal advisers - and he was represented immediately after arrest at two appearances in the Magistrate's Court - the facts of the alibi. Mr. Lee has referred us to R. v. Lewis⁽⁶⁾ which makes reference to section 11(6)of the Criminal Justice Act which is in pari materia with section 65D of the Criminal Procedure Ordinanbe.

28. On the first complaint the trial judge had, at the commencement of his summing-up, given a specific and correct direction as to the party upon whom the onus rested and there can be no criticism of the framework used by the trial judge in the giving of that direction.

29. Very close to the end of his summing-up the trial judge said the following:

"You will of course, I repeat it, give full consideration to all of the matters that were raised by Mr. Lee, matters which he went into at very great length yesterday, matters which he explored very fully during the course of the trial. You will bear in mind that it is incumbent upon the Crown to prove the guilt of the accused so that you are sure that he committed this offence. If you think that the Crown has not proved its case so that you are sure, or you think that the accounts given by the accused and his witnesses might reasonably be true, then you will find the accused not guilty."

30. While it might have been preferable, alibi being a defence peculiar to itself, had the Judge specifically directed on the lines suggested by Mr. Lee this is, however, a direction which is required only if there is a danger that the jury may think that, because the alibi has been put forward by the defence, the burden lies on the defence to prove it. There is no general rule of law requiring such direction- Wood⁽⁷⁾. We do not think such danger to have existed here. Nor do we think that, in the light of the opening and closing directions on the burden, the jury could have been under any illusion as to who had to prove what. The specific direction criticized might have been improved by the addition of the words "and that it is true" after the reference to the "belief in the police evidence as to the confession". We do not however think that the jury could have been misled by that direction as it stood.

31. Of greater moment is the trial judge's directions on the evidence of a wife given in defence of her husband and the effect which it might have had on the minds of the jury with particular relevance to the incident on the 27th July.

32. I would interpolate here that complaint is also made of a non direction on fact concerning her evidence of the incident on the 17th July. Her evidence as to that incident was, as I have indicated, vague. It may well be that the trial judge considered it to be of too slight an import to make specific reference to it. The jury had heard her evidence and had had their attention directed to it by Mr. Lee in his closing address. It was of its nature ambivalent. It was certainly to be considered by the jury but we do not think that the trial judge's failure to refer specifically to it was a material irregularity.

33. The direction on the wife as witness was this:

34. It was a factor for the consideration of the jury that the witness was the wife of the applicant and they were entitled to consider what, if any, effect that would have in their considerations as to her credibility. The trial judge did make reference to Mr. Lee's submission on the issue. He could have used more explicit terms in line with Turnbull⁽⁵⁾ but we would not be prepared to criticize the direction further.

35. The jury were correctly and concisely directed that even if they thought the alibi witnesses were untruthful that this would not of itself be indicative of the guilt of the accused.

36. Then comes the "delay" cross-examination point and the direction upon it.

37. The statutory time limit for the giving of an alibi notice is now ten days prior to trial. In Lewis⁽⁶⁾, Roskill, L. J., in giving the judgment of the English Court of Appeal, made it clear that the only issue argued before that Court was that which was said to have been an improper comment by the Recorder.

38. The Recorder had dealt, in the course of his summing - up, with the issue, raised in cross-examination, that neither of the defendants had made any statement after caution nor then or later made reference to an alibi. He warned the jury that they should not entertain the idea that an innocent man would have made a statement. The Recorder went on:

"Shall we now look a little more closely at the defendants' evidence as to their alibi, ....... When they were at the police station - and they were there for twelve hours because you will probably know from reading the newspapers you cannot keep a man in custody for more than twenty-four hours without charging him - but initially they were arrested on suspicion. The police have a duty not only to fight crime and to find criminals but also to establish people's innocence, and if any police officer was told by somebody he has arrested: 'Look, I have got a perfectly good alibi for this, people who know exactly where I was, you can go round and ask them, 'if that officer did not follow that up in order to establish not a man's guilt but his innocence, that officer would be in serious trouble indeed because that would be a most improper way for the police to behave and you would not last long as a policeman if you did not follow it up."

and further:

"     Now leave aside that no statement was made, but afterwards both men were asked if they wanted to tell the police anything, but neither of them while at the police station gave the information which they have gone into the witness-box to give you in this trial. It is a matter for you entirely, but you might think that if you have a real alibi, the sensible thing to do would be at some stage to say to the police: 'Look, go round and see so-and-so and ask where I was last night.' "

39. Of these directions Roskill, L. J., said that the comment was capable of one interpretation only, and it was this:

"Well, members of the jury, you might have thought that if this alibi be true, he would have mentioned straightaway when he was at the police station that he was at the place where he subsequently said in his notice of alibi that he was at the time."

40. The Court of Appeal thought that if the Recorder's comments were well founded then they would negative the effect of that which is our section 65D of the Criminal Procedure Ordinance. It would allow a Judge to make a comment which amounted to criticism of the defendant for not having given notice of alibi earlier than the time which, by statute, he is required to and the Court of Appeal thought that to be entirely wrong.

41. Here, of course, the situation is somewhat different. There was no criticism leveled directly at the applicant for not bringing his alibi forward at an earlier stage. The question is: Was the criticism leveled at the wife and at Mr. Chan in the course of the cross-examination and referred to by the trial judge in his summing-up, of the same nature as a comment upon a failure by the applicant?

42. We do not think it was. To the questions put by Counsel put to test credibility - explanations were given. What view the jury took of those explanations was a matter for themselves. None of the questions were directed in any way so as to criticise the applicant himself. We think Counsel to be entitled to test the credibility of witness such as the wife and Mr. Chan in the manner as was done here though a trial judge must be careful to ensure that an attack of this nature upon their credibility is not permitted to amount to an attack upon the bona fides of an accused. This did not happen here.

43. Another issue on examination in the course of the trial arose thus. In his re-examination of Inspector CHENG Tak-wah, the following question was put by Counsel over objections by Mr. Lee:

44. The background to that question and the answer it received was that the defence had suggested in cross-examination that the applicant had been "handed over" by one Cheung Kuen - referred to as "Gold Teeth" Kuen. There was evidence that "handed over" meant that a triad society, in order to avoid further harassment by the police of its members, would surrender a scapegoat to the police as the culprit in an offence and thus terminate a troublesome investigation leaving them to pursue their activities unmolested. The inspector had also described it as "putting someone on the table".

45. He had said that there had been an arrest of a person whom he believed to be a lower ranking member of the King Yee Triad Society and this on information received. The question was then put. Mr. Lee objected to it. The trial judge said to Mr. Egan that he failed to see the relevance of it. Mr. Egan then said:

"The reason I was pursuing, my Lord, was that it did appear from my learned friend's earlier questions that he was trying to suggest that in this case somebody had incorrectly nominated this accused to take the blame for something he didn't do, and all I am trying to dispell is any suggestion that the police were prepared to go along with something like this just for the sake of having someone that they could write off the case against. That seems to be implicit from my learned friend's cross-examination earlier although of course, it is denied by the police."

46. The trial judge then permitted the question "for what it is worth "and the answer complained of was received.

47. One can understand Mr. Egan's reason for the asking of this question and that he felt it to be a proper question. It was however important that the trial judge, having permitted it to be asked in this context, should there and then, or at least in the course of his summing-up, have explained to the jury that this was not nor should it be treated as the opinion of the Inspector as to the guilt of the accused. They should have been told that they should ignore any such apparent opinion evidence for it was solely for them to find upon the evidence the guilt or innocence. Unfortunately this was not done. That it was not done in this case is a matter of` materiality though the dilemma in which a trial judge is placed when he has to decide between the placing of emphasis upon matters which have unfortunately arisen and brushing lightly or not at all upon them is not the easiest of resolution.

48. Further criticisms leveled by Mr. Lee against this portion of the summing-up are really matters of "balance and fairness" and we think it convenient at this point to consider that particular issue in respect of the summing-up as a whole while dealing separately with the directions concerning the statements allied to the "formation of character" point.

Balance and Fairness

49. At the outset of the summing-up the trial judge had given explicit directions to the jury that the facts were for them and that they should not let themselves be influenced by any opinion expressed upon them by himself merely because he was the Judge. While we must accept that a jury does follow a direction of this kind from a trial judge, it is equally necessary for the Judge to see that he does not make such comments as amount, in reality, to a second speech for the prosecution or, as Mr. Lee would have it here, a prosecution reply to his final address. We have, as urged by Mr. Egan to do, re-read the entirety of the summing-up in considering the strictures leveled by Mr. Lee as to its tenor and also his strictures on that which he submits is the failure of the trial judge to adequately put the defence. The allegations are contained in Grounds 5 to 19 and are really particulars of the main ground.

50. There was, we accept, a factual misdirection by the trial judge, in relation to the incident on the 17th July, when he said to the jury concerning the deceased's wife, his brother and LEE po-yeung:

"They were never asked whether or not the person who had confronted them had an injury to his face and if so, where it was and of what nature it was. They were asked to describe the man."

51. The background to this was that the applicant did, on the 17th July, have a cut upon his lip which needed sutures and which bled. He had been given and made use of apiece of tissue to stem the blood. Therefore it might well have been expected of the identifying witnesses that they would make reference to this in their descriptions of the man, if he were the applicant, who had had the scuffle. with the deceased upon that day. Mr. Lee (P. W. 3) was asked specifically in cross-examination about an injury. The effect of the judge's direction might well have been to water down a legitimate point made by the defence by suggesting that they had let that slip. In the circumstances that misdirection was an unfortunate one.

52. Criticism was made of the terms of the direction by the trial judge as to discrepancies and inconsistencies Which appeared in the evidence of those three witnesses.

53. It is correct that the fact of the existence of these discrepancies, inconsistencies and contradictions had been drawn to the attention of the jury by the trial judge but he did not then go on to delineate precisely what they were. Mr. Lee in his final address had set out these matters in great detail for the consideration of the jury. The evidence of Mr. Lee (p W. 3), who had known the applicant prior to the 17th July was, if accepted by the jury, cogent evidence of the applicant's participation in the incident on that day - a participation the applicant denied. In those circumstances, it would have been preferable had the trial judge, in particular because of the period of time between the giving of the evidence by these witnesses and the consideration of it by the jury, made specific references even without going into great detail.

54. Having considered those particulars and the submissions advanced in respect of them we are not prepared to say, having given them the most earnest consideration, that the summing-up as a whole amounted to "another speech for the prosecution" though the trial judge did little to hide his views as to the guilt of the applicant.

Confessional Statements

55. This issue includes the weight which the jury could properly attach to the confessional statements.

56. It was the applicant's case that that which appeared on the first statement taken immediately after his arrest on the 29th were not his words, that it was not true and that he had merely written out that which appeared on a piece of paper presented to him by Sergeant 6970.

57. The first statement commenced with a reference to the applicant's having "fought" with the deceased on the 17th. It made reference to one "Ah Lung" as being one of the persons whom the applicant had employed to carry out the attack on the 26th upon the deceased. It stated that the applicant, having indicated the deceased to his henchmen, watched while they carried out that attack.

58. On the day following that statement questions were put under caution to the applicant concerning the identity of the persons he had named, by nickname, as his employed attackers. Of these he could give particulars of but the one "Ah Lung" whose name he gave as MA Chun-lung with an address in Wong Tai Sin.

59. It was the evidence of Sergeant 7755 at trial that on the evening of the applicant's arrest he had gone to Wong Tai Sin Estate and there had interviewed one MA Chun Lung.

60. It is the defence contention that the questions put as to identity were put for the sole purpose of lending versimilitude to the first false statement.

61. It does seem odd that these questions were not asked immediately upon the giving of that first statement, a course which one would have thought to have been the natural one. This was not satisfactorily explained.

62. It had been the evidence of Inspector Cheng, the officer-in-charge of the case, whose admitted oversights in his conduct of the investigation came under strong criticism in the course of the trial, that the police knew nothing of MA until the applicant had given his details in the second statement. If this be so then it seems somewhat extraordinary that an experienced sergeant, who had interviewed MA on the evening of the 28th July in the apparent course of his general investigation into this case, would have neglected to inform his Inspector of his actions and their result.

63. The versimilitude point was one of some importance to the defence and the jury should have been directed upon it so that the case for the defence was clearly before them on the vital issue which lay for their decision - the truth of the statement. They were not.

64. In connection with the alleged assault upon the applicant by Sergeant 6970, which it is said induced the applicant to copy that which the Sergeant had written out, the trial judge said this:

"Do you think that a police officer who wanted to extract a confession from a suspect would knee him in the private parts, and then when he dropped in agony, would haul him to his feet and then kick him in the private parts? You may think that to do so would not only almost certainly produce bruising of that very tender area of the male anatomy, but would be likely to cause bleeding and other severe injuries. If. so, then the traces of the assault would be there for all to see - by anyone to whom the accused might complain as well as by the prison doctor who would perform the automatic and routine medical examination on the accused when he was remanded into prison custody one or two days later."

65. No medical evidence had been called at the trial. It was certainly the evidence of the applicant that he had been assaulted on that part of his anatomy. In the absence of medical evidence and of actual evidence that there was an inspection by the prison doctor of the body of the applicant, these comments have been criticised as assuming an air of advocacy which tended to discredit the applicant's evidence. The criticism has some point.

The six and one half characters

66. But the most important criticism of this aspect of the summing-up, in particular in the light of that which later occurred in Chambers, concerns the six and one half characters point. The issue as to these arose, not in the voir dire, but in the trial of the general issue. The point had quite simply not occurred to Counsel before this. It was, it will be remembered, the defence case that the applicant had copied out character for character that which appeared on the piece of paper presented to him by Sergeant 6970.

67. There was contained in the sergeant's own writing in the body of the statement itself - that is in the preamble - the abbreviated form of six Chinese characters and the half abbreviated form of one other. All of which abbreviated characters, coincidentally, appeared in that portion of the statement written by the applicant in his own hand. There were other abbreviated characters appearing in the sergeant's portion which did not appear in that of the applicant.

68. These abbreviated characters are a form of personal shorthand and it was established in cross-examination that people have their own idiosyncratic way of using abbreviated characters to speed their writing. It is a question of habit. The object of the cross-examination, and indeed this was referred to in Mr. Lee's closing address, was to underline to the jury that it was unlikely chat two persons of such disparate backgrounds as the sergeant and the applicant would, by personal habit, use precisely the same abbreviations while at the same time other attenuated forms of character were not used. The evidence and the submission based upon it was another strand in the applicant's defence that the statement was false and one to which no weight should be attached.

69. No doubt Mr. Lee in his emphasis upon this aspect of the evidence had hoped that his "seven literate Chinese" jury would appreciate and adopt his point. It is his complaint that by the way he approached. this in his summing-up the trial judge clearly did not appreciate the point that was being made and had put the matter on a wrong footing to the jury. An indication of non-appreciation was his reference to one of the characters being written in scribbled form which, Mr. Lee says, was an entirely different issue from his point as to identical abbreviations being used by both the sergeant and the applicant.

70. The trial judge was fully aware of the difficulties of addressing this jury on this aspect of the case for he said:

"In resolving this matter, members of the jury, it may, and again I repeat, I say this with the utmost trepidation and diffidence, it may be helpful to you to consider several other aspects of the matter."

71. It is a passage immediately preceding the one we have just quoted against which Mr. Lee levels his major criticism. This passage reads:

"Do you think that the fact that the accused wrote six characters in the identical abbreviated form used by Sergeant 6970 in the passages written by him establishes conclusively, as Mr. Lee contends, that the accused was forced to copy what the sergeant had written on a sheet of paper? I Cannot think of a jury better equipped to answer such a question than a jury composed of seven literate Chinese."

and further:

"Do you find that the use by both of these men of the same six abbreviated characters to be an understandable coincidence, or does it suggest to you that what the accused maintains is in fact true?"

72. In his final address Mr. Egan found it necessary, in order to answer the point that was being made, to suggest to the jury that perhaps the sergeant might have given the applicant a little assistance though there was no evidence of this.

73. Apart from the general lack of appreciation as suggested by Mr. Lee, exception is taken to the use of the word "conclusively". I do not think that Mr. Lee has on this any valid cause for complaint. He made his attack upon the statement in very strong terms indeed and it was certainly open to the Judge to make such comment.

74. It appears from the wording of the summing-up that Mr. Lee's submission on non-appreciation has substance. There can be little doubt that the jury in this case were fully apprised of the character issue by Counsel and they might have appreciated that, when giving the directions he did, the trial judge was under a misapprehension.

Visit to Chambers

75. What happened in Chambers has considerable bearing upon the six character directions. It was this. After the retirement of the jury to consider their verdict, Counsel, at the invitation of the trial judge, joined him in his Chambers for coffee. There is no controversy about that which took place. Because of the nature of the ground we thought it proper in the course of an earlier hearing of this application to have the trial judge informed of Counsel's recollection of the conversation as between Counsel and himself and to invite his comments thereon. Those comments were received with commendable promptitude and were in turn passed to Counsel. Mr. Lee was hesitant in pursuing the ground, a hesitancy we can fully understand, and asked for an adjournment so that he could consider his position. That was granted. The ground is now being pursued and it is, unfortunate though it may be, fairly and squarely before us.

76. The recollection of the trial judge which very largely accords with that of Counsel, of the way the conversation went was this:

77. This passage covers, I think, the salient issues. The conversation did continue with Mr. Egan saying he had taken the advice of a retired Court Interpreter and Mr. Lee interjected to make the point that his submissions were not directed exclusively to coincidence but covered the wider aspect of "habit".

78. We accept without reservation that the reason for the social visit to the Judge's Chambers was a perfectly innocent one. Care should, however, be taken that Chambers meetings between Counsel and the Judge during a continuing trial should be kept to the bare minimum and it is advisable that social contacts, if they occur at all, should be conducted with circumspection.

79. The issue which gives concern is that of the speaking by the Judge to his friends outside the confines of the courtroom and, of necessity, in the absence of Counsel and of the accused: the effect, if any, this had or appeared to have on the directions given in the summing-up, the effect upon a reconsideration of the value of the statement by the Judge and the effect generally upon the trial. Was it so material an irregularity that it is sufficient to vitiate the conviction?

80. Mr. Egan has impressed upon us that it is clear from the comments by the trial judge that he was not influenced by anything the friends he consulted may have said, that he had no doubt as to the truth of the sergeant's evidence and that he did not feel it incumbent upon him to, on his own motion, re-open the voir dire proceedings. Further had Mr. Lee made application, which he did not, to re-open the voir dire the Judge would have been prepared to do so.

81. There is a difference of opinion as to whether once evidence has been admitted before the jury it can later be rendered inadmissible. The answer may well be that that evidence must remain before them but that they should be directed to give it no weight. But that is by the way. We, again, have no reservations in accepting the Judge's comments nor do we question his sincerity in the making of them.

82. The observations of Lord Hewart, C. J. in Rex v. Sussex Justices⁽⁸⁾ at page 259:

".......... a long line of cases shows that it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly been seem to be done......."

have been hallowed by time. There the deputy clerk to the Justices was a member of the firm of solicitors who were engaged in the conduct of proceedings for damages against the applicant in respect of the same collision as the one which had given rise to the charge that the Justices were considering. He retired in the usual way with the Justices. The Justices came to their conclusion without consulting him and he scrupulously avoided any reference to the case. Lord Hewart, having made the observations to which we have referred, said the question was:

"....... not whether in this case the deputy clerk made any observation or offered any criticism which he might not properly have made or offered; the question is whether he was so related to the case in its civil aspect as to be unfit to act as clerk to the justices in the criminal matter. The answer to that question depends not u on what actually was done but upon what might appear to be done."(Emphasis supplied)

The conviction was quashed.

83. We have also been referred to Rex v. Justices of Bodmin⁽⁹⁾. There the accused had stabbed a man. The man was not expected to recover but in fact did and at the trial both the prosecution and the defence asked the Justices to deal with the case summarily as one of unlawful wounding. The Justices agreed and the accused pleaded guilty. An officer of the accused's unit was called as a character witness. He said:

"The accused is a very good worker when he is not under the influence of drink.. Since this stabbing affair we have not had any trouble with him. I could say a lot more but I think I had better not."

84. The Justices retired to their room to consider sentence. While there they summoned the officer to an interview at which neither the accused nor his legal representatives were present. They then returned to Court and passed sentence.

85. Of this Lord Goddard, C. J., in delivering the judgment of the Court, said that it could not be justified. He went on to make it clear that he was not implying any sinister or improper motive to the Justices. It mattered not that they may have sent for the officer in the interests of the accused and it mattered not that the information might have been in the interest of the accused. He reiterated in his own words that which Lord Hewart had said in the Sussex Justices ⁽⁸⁾. The conviction was quashed, but probably not for these reasons, the Lord Chief Justice making it clear that he thought the matter should never have been tried summarily. We cite it for its general proposition.

86. Mr. Egan has, as we have said, forcefully argued that that which took place between the trial judge and his friends had no bearing on the result of the trial. Indeed, again as we have said: we do not doubt that was what the trial judge thought. But the accused does not know what transpired in his absence.

87. It is unremarkable, unexceptional and probably helpful, for Judges to canvass with their colleagues and with senior members of the Bar, in circumstances where confidentiality is assumed as a matter of course, points of civil and criminal law and practice which have arisen in continuing trials.

88. A Judge sitting alone, just as a jury in a criminal trial, is obliged to bring in his verdict on and only on the evidence adduced at trial. A Judge, just as a jury, must not discuss and by discussion render himself liable to being influenced by extraneous evidence or opinion on non-legal issues.

89. A Judge sitting with a jury is in a somewhat different position. It is not for him but for the jury to render a verdict. He does, and is permitted, to express his own opinions on matters of fact while at the same time reminding the jury that the facts are solely within their province. His opinions, coming from the source which they do, undoubtedly carry great weight. It is assumed that any opinion so expressed by the Judge is, as must be the opinion formed by the individual jurors, based solely upon the evidence adduced in the course of the trial. This assumption must not be displaced.

90. English is the language of the Courts. It is necessary that when the Chinese language, or its written characters, is called into issue that expert evidence be called. It is trite to say that opinions given by persons outside the confines of the courtroom made in the absence of an accused and of his legal advisers, and without being capable of being cross-examined upon, are not evidence and cannot be treated as such.

91. Counsel, having heard the remarks of the Judge made in Chambers - it would have been preferable had both Counsel the moment the case at hearing was mentioned left those Chambers - was permitted, if not required, to report them to his client. The effect must have been, whether or not the Judge posed the correct question to his friends, to give the accused reason to think that any views expressed by the Judge in the course of his summing-up on the six characters point were not based solely on the evidence of witnesses at the trial. Further he would have had reason to think that the Judge deprived himself of an opportunity to reconsider the effect of the statement.

92. He would be left with a sense of grievance which he might so communicate to others as to raise in their minds a doubt as to the impartiality of our system of justice.

93. In our judgment, however innocent the Chambers visit may have been and however much the Judge may genuinely feel that he was not influenced by the opinion of his friends - and we do not for a moment doubt the genuineness of that feeling - justice has not manifestly and undoubtedly been seen to be done.

94. The final submission on this application was unusual and caused us anxiety. The views which we have expressed were not arrived at without consultation with other members of the Court of Appeal.

95. The irregularity was material and was, alone, of sufficient gravity to vitiate the conviction.

(1)    Criminal Appeal 663 of 1981

(2)    Criminal Appeal 993 of 1983

(3)    [1963] 6 W. I. R. 418

(4)    [1963] C. L. R. 443

(5)    (1976) 63 Cr. App. R. 132 at 143

(6)    (1973) 57 Cr. App. R. 860

(7)    (1968) 52 Cr. App. R. 74

(8)    [1924] 1 K. B. 256

(9)    [1947] 1 K. B. 321