HKSAR v. CHAN KWAN KAN

IN THE COURT OF APPEAL

1996, No. 530
(Criminal)

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J U D G M E N T

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Mayo, J.A. (giving the judgment of the Court):

1. The Applicant seeks leave to appeal against his conviction for robbery and the sentence of 5 years' imprisonment imposed upon him for it. The victim Mr. Chung Lee was in the Central Park at Tai Po at noon on 17th September 1995. He had gone there with his uncle to gamble.

2. According to the prosecution case after he had been there some time one of the other men produced HK$500 as a wager and asked him to gamble with him. He refused to do so. The man then accused him of cheating.

3. He left the scene and went to sit down some distance from the pavilion where they had been gambling.

4. After about 10 to 15 minutes, the man who had accused him of cheating, returned together with three other men and repeated his accusation of cheating and demanded money. The victim said that he had HK$3,200 on him and asked if he had to pay it. The men then set upon him. His accuser belaboured him with a hammer. The other men hit him with their fists. They took the HK$3,200 from his wallet and left.

5. The victim went to the Jockey Club Clinic where he received medical treatment for the injuries he sustained.

6. Some time later he made a report to the police. As he did not know his assailants he was invited to examine a photograph album. He recognised one of the men involved in the incident in the album.

7. The police arranged an identification parade at which the victim picked out the Applicant as one of the men who had attacked him.

8. The Applicant gave evidence at his trial. He admitted being present at the scene. He said that he had been approached by his friend So Man who complained that he had been cheated at gambling. So Man had asked him to assist him to fix the matter up.

9. He had not realised that So Man intended to assault the man who had cheated him. When this had occurred he had attempted to restrain him. He also claimed that he had no knowledge of any moneys being obtained by So Man from the victim.

10. After hearing all of the evidence H.H. Judge Wong was satisfied at the appropriate level that the victim was a truthful and reliable witness and he rejected the Applicant's testimony.

11. At the hearing before us on 19th March, the Applicant was unrepresented.

12. He repeated before us a number of the matters which he had raised at his trial. We attempted to relate what he was saying to the transcript which was available to us. This consisted of the transcript of the evidence of the victim Mr. Chung Lee.

13. The examination of the record did indicate that the Judge had on a number of occasions intervened while Mr. Chung Lee was giving his evidence.

14. Our concern was such that we ordered that legal aid should be granted to the Applicant so that he could be legally represented at an adjourned hearing.

15. Mr. Stirling now represents him. He has lodged perfected grounds of appeal where the main complaint which is made is that the interruptions which were made by the Judge during the cross examination of the victim were such that counsel representing the Applicant was prevented from effectively performing his duties and ensuring that justice was done.

16. At the same time there is a complaint that the Judge had entered the arena in such a manner as might give the impression that he had prejudged the issues before him.

17. The law on this subject is conveniently encapsulated in paragraph 7 - 81 of the 1997 Edition of Archbold, Sweet & Maxwell.

"(i) Conduct of trial judge

Interventions by the judge during a trial will lead to the quashing of a conviction: (a) when they have invited the jury to disbelieve the evidence for the defence in such strong terms that the mischief cannot be cured by the common formula in the summing up that the facts are for the jury, and that they may disregard anything said on the facts by the judge with which they do not agree; (b) when they have made it impossible for defending counsel to do his duty; (c) when they have effectively prevented the defendant or a witness for the defence from telling his story in his own way: R. v. Hulusi and Purvis, 58 Cr.App.R. 378. In R. v. Barnes, 55 Cr.App.R. 100, Lord Parker C.J. said: "Just as interruptions by a trial judge, making it impossible for defending counsel to do justice to the defence, will result in a conviction being quashed so also conduct producing the same impossibility must have the same result" (at p. 107). In Barnes, the judge had put such pressure on the defendant to plead guilty that the relationship of confidence between counsel and defendant was destroyed, thereby gravely handicapping counsel in the presentation of the defence. In R. v. Mathews and Mathews, 78 Cr.App.R. 23, the Court of Appeal said that in considering the effect of interventions made by the trial judge the critical aspect of the investigation was the quality of the interventions as they related to the attitude of the judge as might be observed by the jury and the effect that the interventions had either on the orderly, proper and lucid deployment of the defendant's case by his advocate or on the efficiency of the attack to be made on the defendant's behalf on vital prosecution witnesses by cross-examination administered by his advocate on his behalf. Ultimately the question was: might the case for the defendant as presented to the jury over the trial as a whole, including the adducing and testing of evidence, the submissions of counsel and the summing up of the judge, be such that the jury's verdict might be unsafe?"

18. It is also clear that the observations which are made are fully applicable to situations where a Judge is also the fact finder. This can be seen from a passage in the judgment of Cons VP at p90 of R v Lau Hing On [1987] 1HKC89:

"Unfortunately, a complaint of this nature is not unique. We have been referred to several cases in which others have been made to this court or Courts of Appeal in other jurisdictions. For our part we are content to rely upon the judgment of this Court R v Tam Chi Ping & Ors (Crm App 119/85 unreported) where the Chief Justice, giving the judgment of the court, said:

'It must be made clear that there is nothing improper in interventions as such by a judge, even if they are frequent and lengthy, provided that the judge follows the principles set out in Jones v National Coal Board [1957] 2 QB 55 by Denning LJ in the following terms -

The judges' part in all this is to hearken to the evidence, only himself asking questions of witnesses when it is necessary to clear up any point that has been overlooked or left obscure: to see that advocates behave themselves seemly and keep to the rules laid down by the law; to exclude irrelevance and discourage repetition; to make sure by wise intervention that he follows the points that the advocates are making and can assess their worth and at the end to make up his mind where the truth lies. If he goes beyond this he drops the mantle of a judge and assumes the robe of an advocate and the change does not become him well. Lord Chancellor Bacon spoke right when he said that 'Patience and gravity of hearing is an essential part of justice; and an overspeaking judge is no well tuned cymbal.' '

The case before that court related to a jury trial and the court went on to quote, and rely upon, three principles that had been formulated by Lord Parker in R v Hamilton [1969] Crim LR 486. The first two of those principles are not appropriate to trial by a single judge and no reliance has been placed upon the third in the present instance. We find assistance however in a later passage of the judgment:

'Nevertheless, we administer an adversarial and not an inquisitorial system. Until the law is changed, as we hope it will not be, we must seek to preserve it. One of its most important rules is that the judge must continue to preserve an appearance of neutrality throughout a trial. Whatever he may think, he must not seek to impose his views on the jury, during the course of a trial, by interventions of a volume or nature which put pressure on a jury to find as the judge has shown he wishes them to do.

It would, of course, be naive to expect that every convicted defendant would acknowledge that his trial had been fair. But the judge must strive to so conduct himself during a trial that a neutral observer would be left in no doubt that the trial was conducted fairly before a judge who stood above the conflict and retained his air of impartiality throughout.'

Those remarks must apply even more strongly to trial by a single judge, for should the judge assume the robe of an advocate, as Lord Denning put it, not only is the appearance of neutrality lost, but the judge being a judge of fact as well as law, there is a very real possibility that his judgment will be influenced by his conduct and the defendant genuinely deprived of a fair and impartial trial."

19. Complaint is made of three series of interventions by the judge during cross-examination of the victim upon whose evidence the case against the defendant depended. Although these have a cumulative effect, the nature of the intervention on each occasion was different and therefore it seems to us that initially each must be considered separately.

20. The 1st passage complained of appears at p.24 of the transcript. Counsel was attempting to elicit from the victim whether three or four men had been involved in the attack and the respective roles which had been assumed by them. This was important as it was agreed by the Applicant that he had been present. It was his case that initially he had only been an onlooker and had not participated in the attack. The following exchange took place.

"COURT: Out of four, three hit you, is that what you're saying?

A: Yes.

Q. Now, you told us that the one struck you with a hammer, that was one person right? Apart from that strike on your head, did not receive any other violence in any form?

A. With fist.

Q. That was after your head had been struck, right?

A. Not so. When he was striking me with the hammer, I tried to ward him off and the other two persons kept on hitting me with fist on my both sides.

Q. Now, Mr CHUNG, my question was your head received blow from the hammer first before other punches landed on you.

A. Yes.

Q. Where did the hammer land on you?

A. Here.

Q. The back of the head.

A. Yes.

Q. When your head was being struck, were you standing up or sitting down?

A. Standing, struggling.

Q. And...

COURT: Yes. Are you trying to defend on the basis of identification?

MR CHAN: This is part of the defence. They -- according to ...

COURT: With the statement...

MR CHAN: Yes.

COURT: ...it's been admitted...

MR CHAN: Yes. He said he was...

COURT: There's no doubt that he was there.

MR CHAN: He was there. I mean, he was the fourth one who didn't assault him. He remembered he...

COURT: Well, be that as it may, the Crown's case is a concerted effort, isn't it?

MR CHAN: Your Honour, if the fourth one merely came along with all the other people and didn't do anything or didn't say anything, in my submission, that may not be sufficient to prove the charge of robbery.

COURT: Someone can always -- if someone is standing there as lookout, you say, "He's done nothing."

MR CHAN: Your Honour, this is of course always an inference open to your Honour to draw from the facts or from the evidence. But so far, all that this witness can say was he was beaten up by three persons...

COURT: Yes.

MR CHAN: ...although he came along with three, altogether four.

COURT: Yes.

MR CHAN: That's why I labour on this line of cross-examination trying to establish that, in fact, he mistook the defendant which - who we say is the fourth one, being the one who punched him together with the one who hit him.

COURT: Yes, go on."

21. The background of this intervention (as well as the second) was the admitted facts. It is to be noted that these were of a limited nature. The facts admitted were simply that on being interviewed, the defendant had made a statement in the terms agreed. There was no admission as to the truth of the statement nor was there any explanation of it until the applicant gave evidence.

22. The admitted facts were:-

"At about 1550 hours on 20.9.95, when being interviewed by WDPC 15095 inside Room 211, Tai Po Police Station, the Defendant said, inter alia, the followings:

At about 12:00 noon of that day, i.e. 17.9.1995, when I had just alighted from a taxi near Tat Shing Store from Tai Po Market, I saw 'Man Tsai' and two Chinese males whom I was not acquainted with approaching me. 'Man Tsai' said to me that he had trouble and asked me to help him. I then asked him what the trouble was. He said that he was cheated by others while gambling in the garden and asked me to go over there to fix it up for him. Following that, I, together with 'Man Tsai and the two males, walked over to the garden. A large group of people was seen in the garden and one of them suddenly walked away. 'Man Tsai' immediately chased the person and they started a fight. Afterwards, I saw 'Man Tsai' take out a hammer from his back and hit it against the male's head. At that time, I intended to walk ahead to persuade them and separate them. However, somebody stopped me from doing so but I did not know who he was. (end of page two)"

23. Mr. McWalters for the respondent submitted that all the Judge was attempting to do was to seek clarification on this subject. If this has been the case no criticism could justifiably have been made of the Judge. It is important that a Judge should not in any way be inhibited from seeking clarification where this may be required.

24. In this first exchange, the judge was seeking clarification on the defence because in the statement the applicant admitted presence at the time of the robbery. In these circumstances the judge's question whether this was an identification case seems to me to have been proper clarification so that he could better understand the direction which the cross-examination would take. It is however necessary to consider this 1st intervention in the context of what was to follow as it does give a clear indication of the attitude which was being adopted by the Judge.

25. The second intervention.

26. Mr. Chan then attempted to cross-examine the witness on the role assumed by the witness's uncle and whether it had been the uncle who had pulled the Applicant aside thus causing him to upset the cart of a hawker who was nearby. It is necessary to consider the transcript at some length to obtain the full flavour of the complaints which are being made.

"Q. Now, on 20 September -- I beg your pardon, may I ask you this question first? I further suggest to you at the scene, after the defendant was pulled away by your uncle, he lost his balance and knocked the hawker's cart over.

A. I didn't see it.

Q. Defendant also fell onto the ground.

A. I didn't see it.

Q. And the defendant was then accused by the lady hawker of having knocked over all her goods and cart.

A. I didn't pay attention to it.

Q. And the defendant then engaged in a verbal argument with that lady hawker.

COURT: What has that to do with the present case whether he had knocked over the cart and had an argument with the hawker? What has that to do with the present case?

MR CHAN: Your Honour, just to complete my instructions in the defence case, just in case when the defendant gives his evidence in due course. Your Honour, of course, if you accept that he was having a argument with the lady hawker when he was being attacked, there was no way he could come up to attack him as well.

COURT: If he wasn't there having a struggle, how could he have knocked the cart over?

MR CHAN: If he was not having..?

COURT: If he was not struggling with -- or struggling with this witness, how could he have knocked over the cart?

MR CHAN: Your Honour, according -- I think -- I hope I have put my case clear enough: that whilst he was coming over trying to help and during this time he might have touched the defendant -- the witness accidentally, he was grabbed away by his uncle and that was the time when he lost his balance, knocked over the hand cart and the goods on it, which led to the subsequent argument.

COURT: If he was merely standing there in the first place, his uncle would not have pulled him. Would anyone -- would anyone seeing there's a fight in which three men were involved, would pull the one who is not involved away and let the other three fight?

MR CHAN: Your Honour...

COURT: It's beyond me.

MR CHAN ...that is certainly something understandable but on the part of the uncle...

COURT: And it's not understandable -- that's not understandable because if anyone tries to intervene, he would naturally have grabbed away those who are trying to assault this victim. He wouldn't have pulled someone who is just standing by doing nothing. What for?

MR CHAN: Your Honour, the line of my examination was not that he was merely standing there. If I put my case clearly, when, he was...

COURT: Did he want to stop -- yes.

MR CHAN: He was going over and as he was going over, he was stretching out his hands and when he was stretching out his hands trying to pull this man with the hammer away, he might have accidentally...

COURT: Yes.

MR CHAN: ...touched the -- this witness...

COURT: He was asked this...

MR CHAN: ...and in the course...

COURT: He was asked by that man, Man Chai, to fix it up.

MR CHAN: He...

COURT: Standing there, that means to fix it up, is that true?

MR CHAN: To help him to sort out the cheating. Your Honour, the complaint...

COURT: "He said that he was cheated by others who are gambling in the garden and asked me to go over there to fix it up for him."

MR CHAN: Your Honour, in Chinese it means a lot of things. It can mean a lot of things, 'fixing it up'. It's not in the English strict sense that to 'fix someone up' was to do something harmful to him.

COURT: 'Fix it up'. Are you -- are you telling me that fixing it up means separating the two of them?

MR CHAN: Your Honour, you can then go on to read the rest of the admitted facts that he was actually saying that he was going up to help trying to separate them. That was all along in accordance with my instructions. He was trying to go over to separate them, he was then grabbed away.

COURT: Yes, right. Yes, I see. What your client meant by 'fixing it up' is to separate them, is that...

MR CHAN: Well, 'fixing up' has nothing to do with the pulling away or the separation.

COURT: What was his intention when he went up -- he went there to fix it up.

MR CHAN: Yes. 'Fixing it up' is...

COURT: So what was his intention then...

MR CHAN: To complain...

COURT: ...by going up?

MR CHAN: To ask the man who cheated him at gambling...

COURT: To fix it up.

MR CHAN: ...to surrender his money.

COURT: So what -- now, what you are now saying is different from what you said earlier. You said he was merely a bystander. Now, you said that he is going there to...

MR CHAN: No, your Honour, I -- my memory certainly is -- will not be as good as your Honour's but I have stated quite clearly just now that we were not - - we are not...

COURT: You said that were merely standing by, did not participate doesn't mean that is a concerted -- concerted design. That's what you said. But...

MR CHAN: Your Honour that was when -- the time when your Honour asked me what's the difference...

COURT: Yes.

MR CHAN: ...when three or four persons went along and one was standing aside, that was...

COURT: Yes, yes...

MR CHAN: ...acting in concert. Your Honour...

COURT: But what he said was he went there to fix it up. So it's not merely standing by.

MR CHAN: Your Honour, my case was never -- has never been that he was there standing by. The remark that I made was in response to your Honour's remark that, "Well, when four came together, what's the difference when three were hitting and one was standing by."

COURT: Yes. But we are talking about this case.

MR CHAN: Your Honour, I certainly did not mention the acting in concert part in relation to my present case. My case has always been that he was trying to help.

COURT: Well, get on with the case."

27. This intervention is much more difficult to justify or understand. When counsel was cross-examining the victim about the events surrounding the offence, the judge challenged counsel on the likelihood or credibility of the version of events counsel was advancing. There followed a lengthy discussion - or even argument - with counsel in which the judge introduced the applicant's statement in the admitted facts suggesting that the version being put by counsel was inconsistent with the applicant's statement that he was present "to fix it up".

28. Why the judge involved himself in this exchange is a mystery. It had no legitimate purpose. The effect of the intervention was to pour cold water onto the defence when the judge's role was to listen to the cross-examination of the victim and to give the points balanced treatment and consideration. Only in this way could the judge assess its worth. This unnecessary diminution of the defence in the middle of cross-examination is to be deplored. It is clear even from a reading of the transcript that the judge failed to retain an air of impartiality - so important when he was the judge of both fact and law.

29. The effect on the applicant was that the judge gave no credence to his defence and was even reluctant to allow his counsel to develop his defence in the best light in cross-examination. The applicant took this point of his own motion - not a decisive point but it indicates the memorable effect of the intervention upon him at trial.

30. The ultimate test however is whether there was a real possibility that by his conduct the judge deprived the applicant of a fair and impartial trial throughout and he pre-judged the case before the evidence was complete.

31. To be fair there is no indication that after this exchange counsel was not allowed to develop his cross-examination on this point as he wished. Further, in the reasons for verdict the judge appears to give balanced treatment and consideration to the defence case and the defendant's evidence but he maintained his initial view that the reference in the police statement to the applicant being present at the offence "to fix it up" contradicted his evidence.

32. The judge intervened in such a way that he indicated that he had taken an unfavourable view of the defence case before he had heard the evidence. In other words he pre-judged the case. He certainly abandoned any air of impartiality.

33. The Third Intervention.

34. It is also necessary to consider the way in which the cross examination concluded.

"MR CHAN: I would be grateful if the Crown can show this witness his statement.

(Pause)

Q. Now this is -- this is your statement you gave, right?

A. Yes.

Q. Dated 17 September '95.

A. Yes.

Q. You see your signatures there, right?

A. Yes.

Q. All over these pages.

A. Yes.

Q And before you signed, you -- the police officer had read it over to you and explained to you contents of this statement.

A. Yes.

Q. You also had a chance to read it before you signed.

A. Yes.

Q. And you were satisfied that this statement contained the truth.

A. Yes.

Q. And a complete account of what happened.

A. Yes.

COURT: Does it necessarily mean that it's a complete detail of what happened? How can someone make a statement to police and say that this is a complete statement of everything?

MR CHAN: Well, if that's your Honour's will, I will not pursue that.

Q. Now, Mr CHUNG, do you agree with me that in your statement you only talked about two other persons coming with the one with the hammer?

A. Three.

Q. Now, please take a look at your statement.

(Pause)

A. Here it mentioned two.

Q. Do you agree with me that you in your -- in this statement, you did not mention the defendant hit your eye?

A. Please repeat.

Q. Yes. In your statement, you did not say this defendant, or the one whom you identified later to be the defendant, hit you in the eye.

A. That's right.

Q. You did not mention in your statement that this defendant hit you on the back.

A. All over my body meant he did.

COURT: That include the eye as well, isn't it?

A. Certainly.

Q. No. Mr CHUNG, please read it carefully. You did not mention in your statement that the defendant hit you all over your body. You did not say that.

A. I said, "Everywhere, all over."

Q. No, you did not say that, Mr CHUNG. Please take a look at your statement. You did not say that.

A. I am quite an illiterate. I cannot read.

Q. Did you tell the policeman who took your statement that you cannot read?

A. Yes.

Q. Now, just try to assist me, Mr CHUNG. Page 2 of this statement, the latter part of that page, you did not say the defendant hit you all over your body, or everywhere.

A. Well, when the one shook me with the hammer in front, the other two hit me all over my body at the two sides and I got injuries all over my body anyway.

MR CHAN: Your Honour, I wonder if your Honour is prepared to allow me to ask your learned interpreter to read out the statement to this witness during the morning break?

COURT: How much longer do you still want to go on with this statement?

MR CHAN: Well, I think I will be another 15 minutes with this witness.

COURT: Get on with it.

MR CHAN: The problem is, your Honour, he said now, "I can't read".

COURT: Yes. So you read it and see if he agreed.

Q. Now, Mr CHUNG, in your statement you said the other two persons surrounded you, at the same time hit you with fist.

A. Yes.

Q. Mostly, they hit you on the upper body and your forehead, agree?

A. On front and the back. A small part of my eye had been hit.

Q. That's all you talked about the other two assailants, hit -- they hit you over your upper body and your forehead, that's it.

A. You mean my head and upper body on both sides?

Q. I don't know what you meant in your statement but anyway, I'll drop that. And in your statement, you did not mention your uncle pulling away the defendant while he was hitting you.

A. That's right.

Q. You did not mention the defendant came back again to hit you.

A. That's right. What do you mean by came back and hit me again?

COURT: Well, you said earlier that your uncle did pull him away and then he set himself free and then he came back to hit you.

A. That's right.

Q. You did not mention in your statement that after you refused to pay these people money, they started to hit you again. You did not say that.

A. This I don't know.

Q. Do you agree?

A. Do I agree? You mean, well...

Q. In your statement you only said after you had been asked by the man with a hammer to give him money, you surrender your money.

COURT: Mr CHAN, the purpose of making a statement is to assist the police in its investigation. It cannot include every minute detail. If it is then the police would have very difficult time. How can the police, when taking a statement, ask minute-by-minute what's happening this minute and the next minute and all these things?

MR CHAN: No, no, your Honour. I'm not that tedious. We are not trying to establish here that the police should ask every single detail from the witness. But your Honour, the matters that I have put to this witness are material matters, such as that there was a civilian at the scene trying to assist.

COURT: How is the police to know and how is this witness to know that these are relevant matters...

MR CHAN: But if they had...

COURT: ...at the time of taking the statement?

MR CHAN: Your Honour, these -- with respect, I must say that if all that he had described in the court actually happened, that must be something that he would tell the police about.

COURT: That's something you asked him and then he told you. How does the police know what facts are relevant? How does he know what kind of relevant facts to tell the police?

MR CHAN: Well, if that's the view taken by your Honour, I don't propose to go any further with this witness with his witness statement. Simply put my case to this witness."

35. The third intervention complained of is of a different nature. This intervention more directly concerned the detail of cross-examination. Counsel wished to cross-examine the victim about a statement he had made to the police shortly after the offence. The judge started to interfere with the cross-examination by making comments about the detail which could be expected in a statement and whether the police could know the relevance of any evidence the witness could give. Later, when the witness said that he was illiterate and therefore could not read the statement, the judge declined counsel's reasonable request that the whole statement should be translated to the witness by the interpreter so that he could be reminded of the full account that he had given. No doubt this was unfair to the witness and, worse, the effect upon the applicant's counsel was to stop relevant and admissible cross-examination. Where there is an issue of fact the cross-examination of a witness who has made an inconsistent contemporaneous statement is of unique importance. In order to find the facts it was necessary for the judge to know not only the inconsistencies but to hear the witness's explanation of them. Fairness required that the applicant's counsel here should have been allowed to develop the cross-examination on this important aspect of the defence. The effect of the judge's intervention in preventing this cross-examination was a material irregularity.

Conclusion

36. 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 for the clarification of a witness's answer or counsel's question. Sometimes the judge may intervene to inquire 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.

37. 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 fully, fairly and in its best light.

38. This is far from saying that a 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. All these principles apply with equal force whether the defence is credible or whether it is ridiculous and laughable. As Lane LCJ said in R v Frazer Marr (1990) 90 CrAppR 154 AT 156:

"... the nature of the defence was, to say the very least, most unimpressive. It is however an inherent principle of our system of trial that however distasteful the offence, however repulsive the defendant, however laughable his defence, he is nevertheless entitled to have his case fairly presented to the jury both by counsel and by the judge. Indeed it is probably true to say that it is just in those cases where the cards seem to be stacked most heavily against the defendant that the judge should be most scrupulous to ensure that nothing untoward takes place which might exacerbate the defendant's difficulties."

On p. 158 he concluded:

"We do not consider that the appellant's case, however unattractive it may have been, was given the balanced treatment and consideration, which is the due of every criminal defence."

Those passages express our views precisely.

40. In this case the judge ought to have allowed counsel to develop his defence in the best light. He ought to have demonstrated throughout that the defence was being given balanced treatment and consideration whatever his initial views. Further, he ought to have given the defence the opportunity to fully and fairly develop the defence so that he was fully equipped to properly try the case. He ought to have remained obviously fair and impartial throughout and should not have indicated any pre-judgment of the defence. In the last two passages he failed to fulfil any of those simple basic requirements.

41. For these reasons we are satisfied that the trial was unfair, the conviction is unsafe and must be quashed.

42. Treating the application as the appeal we allow the appeal and quash the conviction.