THE QUEEN v. WAI HIN KEUNG

IN THE COURT OF APPEAL

1986, No. 133
(Criminal)

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Dates of hearing: 9th and 11th December, 1986.

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JUDGMENT

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Cons, V.-P. delivered the judgment of the Court:

1. This is an application for leave to appeal against convictions recorded in the Victoria District Court by His Honour Judge Cameron. The Applicant ("Defendant") was arraigned before the judge on 10 charges. Following a submission of no case to answer by his counsel he was acquitted on 7 of those charges, which included various allegations of inviting persons to become members of an unlawful society, blackmail and attempting to pervert the course of justice. He was subsequently convicted of the remaining three, namely Charge 1, claiming to be an office bearer of an unlawful society, Charge 2, membership of a triad society and Charge 10, possession of writing relating to a triad society, contrary to Sections 19 and 20(2) respectively of the Societies Ordinance, Cap. 151. He gave evidence himself.

2. So far as the 1st Charge was concerned the evidence against the Defendant came from two witnesses. One was a fourteen year old girl, Ng Ioc Lon, who had been charged together with the Defendant with several offences of blackmail, membership of a triad society and attempting to pervert the course of justice. She had pleaded guilty to one charge of blackmail and the Crown had offered no evidence on the rest. The other witness was a girl of sixteen years, Lee Pui Yee, who had been granted immunity from prosecution by the Crown in return for giving evidence.

3. So far as the 10th Charge was concerned the evidence came from a Detective Sergeant, an expert in triad matters. His evidence in that regard was to some extent relevant to the 1st Charge. The conviction on the 2nd Charge resulted from a presumption contained in Section 28 of the Ordinance.

4. Lee Pui Yee gave evidence inter alia that she had been introduced to the Defendant specifically for the purpose of joining a triad society, that subsequently he had told her that he was an officer of the Sun Yee On Triad Society, she thought he had said a 426, and that on one particular occasion, at a barbecue attended by the Defendant and many young persons, he had used a barbecue fork to write triad poems on the wall of an old hut nearby. The Detective Sergeant, who was later taken by Miss Lee to the hut, testified that the poems included one which indicated the writer to be an office. bearer of red pole rank.

5. In addition the Crown called two fourteen year old girls. They had earlier given statements to the police along lines apparently similar to the evidence of Miss Lee and each had been granted a similar immunity from prosecution. However when they came to give evidence in court each declined to implicate the Defendant. Ultimately the Crown was given leave to treat them as hostile and, under cross-examination by counsel for the Crown, one did to some extent confirm the truth of her earlier statements.

6. In both the reasons he gave at the time for his decision and in those which he subsequently recorded the judge noted that he had paid no regard to the evidence of those two witnesses. As to that of course the Defendant has no complaint. It is on the judge's treatment of the two witnesses during the course of the trial that Mr. Buchanan, who now appears for the Defendant, founds his first line of argument in support of the application. He suggests that by reason of the judge's conduct the Defendant was denied a fair trial.

7. Where the conduct of a judge is called in question to support an appeal against conviction the approach of this Court is well settled. It may be found conveniently set out in the judgment of this Court in R. v. Tam Chi Ping & Others[1] where the Chief Justice, giving the judgment of the Court, said -

"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."

The first of the two young girls was one Tsui Sau Lan. She gave evidence on the second day of the trial as the second witness immediately 'following Miss Lee. It was apparent very soon in her examination in chief that she was reluctant to implicate the Defendant. An intimation by counsel for the Crown that Miss Tsui be treated as hostile was rejected by the judge as being premature. However when the luncheon adjournment arrived the judge took matters into his own hands. He asked the Correctional Services Officers to show Miss Tsui to the interview room in the cell reception area of the Court so that she could spend the lunch time there in reading in peace and quiet, and without the risk of being approached by anyone connected with the case, the statements she had earlier given to the police. He thought fit to take this course as in answer to one question about the writings on the wall of the hut she had replied that she could not remember. The judge says that he made it perfectly clear to her that she was not being "locked up" and she was provided with lunch.

8. A judge is of course, within the normal rules, master of his own procedures and if he genuinely thinks that a witness is likely to be interfered with during the course of an adjournment he is entitled, and perhaps duty bound, to take such steps as he thinks necessary to prevent that. To that end he may well set aside a room in the building for the use of the witness and prohibit any except particular persons from entering. But we would, with respect, have thought that the judge could have found a room more appropriate than one in the cells, particularly in the case of a very young girl. It is not difficult to imagine the thoughts that must have passed through her mind during that luncheon adjournment.

9. Miss Tsui resumed her examination in chief in the afternoon. Despite having refreshed her memory from her earlier statements she still declined to give evidence in conformity with them. Eventually she was declared hostile. Under cross-examination by counsel for the Crown she did confirm that she had in fact earlier told the police that it was the Defendant who had written the poems on the wall and that he had told her to memorise them and that these matters were in fact the truth. At that stage she broke down in tears and, being unable to give an answer to the judge as to why she was crying, he adjourned proceedings for 10 minutes to enable her to regain her composure. Again he ordered the Correctional Services Officers to take her to the same room in the cell reception area, because he felt it important that no one connected with either the prosecution or the defence should have contact with her. Again with respect we would think that this could have been achieved by means less intimidating to a girl already in a highly emotional state.

10. On her return to the witness box Miss Tsui was immediately subjected to cross-examination by the judge as to the reason for her breakdown and for her earlier refusal to tell the truth. It is not readily apparent why the judge thought it necessary to intervene in this way and Mr. Buchanan advances the cross-examination now as a further indication of the judge's apparent hostility to his client.

11. At the close of Miss Tsui's evidence, following cross-examination on behalf of the Defendant, the judge ordered her to be detained, presumably this time in the cells proper, until he decided what to do with her for not telling the truth in court. He advised her that she might be detained overnight or longer. He tells us that he was considering whether he could and should take action under Section 20 or Section 21 of the District Court Ordinance Cap. 336. However, on the rising of the court about one and a half hours later he recalled Miss Tsui and ordered her to be released.

12. It may be convenient here to set out the sections in question -

"20. If any person -

(a) wilfully insults a judge or a witness or any officer of the Court during his sitting or attendance in court, or in going to or returning from the Court; or

(b) wilfully interrupts the proceedings of the Court or commits contempt of the Court or otherwise misbehaves in court,

any officer of the Court, with or without the assistance of any other person may, by order of the judge, take the offender into custody and detain him until the rising of the Court and the judge may if he thinks fit -

(i) by a warrant under his hand commit the offender to prison for a specified period not exceeding 2 years; or

(ii) impose upon the offender a fine not exceeding $5,000 for every such offence.

21. If it appears to a judge that any witness (which shall include a party who gives evidence on his own behalf) has wilfully given false testimony, the judge may -

(a) by warrant under his hand commit the offender to prison for a specified period not exceeding 14 days; or.

(b) impose upon the offender a fine not exceeding $1,000 for every such offence:

Provided that before making any order under this section, the judge shall first clearly inform the witness of the specific words which appear to the judge to constitute a false testimony and shall give the witness an opportunity of showing cause why the order should not be made and shall, if so requested by the said witness, adjourn the proceedings in order to enable the said witness to instruct solicitor or counsel on his behalf."

13. The following day the judge likewise detained the second of the two young girls, one Lam Wai Hing, and again subsequently released her an hour or so later. We may assume therefore that in his deliberations the day before he had concluded that either Section 20 or Section 21 gave him the appropriate authority.

14. With every respect to his judgment we are unable for ourselves to perceive that authority. Section 21 certainly empowers the judge to commit for perjury, but we find no warrant in that section to detain a witness in custody while the judge considers whether he will put in motion the strict procedures demanded by the proviso.

15. Section 20 deals with situations commonly called contempt in the face of the Court. Mr. Hartmann, who now appears for the Crown, suggests that this may include perjury "where it is of such a nature and goes so to the root of the matter that it amounts to an obstruction of justice". He refers us to the Law of Contempt by Arlidge and Eady where we find the short passage -

“A witness may commit contempt in the course of proceedings. Perjury is a form of contempt though it is better left to be prosecuted on indictment."

16. A footnote refers us to Apted v. Apted and Bliss[2].

17. We accept the authors' proposition - and agree with their comments - so far as it concerns, as in the case referred to, the inherent power of a superior court. But we are concerned with the District Court, whose powers are derived from statute: Sec. 3(2) District Court Ordinance. So far as we are aware they are, in this respect, only to be found in Sections 20 and 21. The fact that perjury is dealt with specifically as a separate item in the latter section and made subject to different penalties, themselves subject to severe procedural restrictions, persuades us that, contrary to Mr. Hartmann’s suggestion, the two sections are exclusive and that Section 20 does not extend to contempt committed by way of false testimony. We have no doubt that in detaining the two girls at the close of their evidence the learned judge was indeed activated by what Mr. Hartmann termed "a laudable desire to preserve the integrity of the court process". Nevertheless, and with respect to the learned judge, we do not think he was entitled to do what he did.

18. What impression then would such detentions, together with the earlier matters we have recounted, have made upon the mind of the neutral observer? Would he have thought that the judge had lost his impartiality with respect to the Defendant? In our view he would not. Whatever he may have thought of the judge's treatment of the girls he could not reasonably have read into it an attitude adverse to the Defendant. Mr. Buchanan observes that the judge's first intervention was at a time when the witness was giving evidence favourable to the Defendant. That is so, in the sense that she was in no way incriminating him. But we are not persuaded that that in itself carried any further implication. In our judgment this line of appeal fails.

19. We cannot leave it however without referring to a matter which has given us grave cause for concern, which is that virtually nothing of the incidents in question appears in the judge's record of the trial. His note as to the first merely reads -

"Adjourned to 2.30 p.m. Witness asked to read statements she had given to police during adjournment."

and as to the second -

“Witness crying and asked why she was upset and what is making her cry. - no answer.
Adjourn."

There is no mention at all of detaining the two girls after the conclusions of their evidence. The details we have recounted have become apparent only from comments which the judge has subsequently made in response to amendments to the record suggested by counsel for the defence who appeared below.

20. In those comments the judge says that he did not consider it necessary to enter any of these matters on the record. With respect we would firmly disagree. The liberty of the subject, in the face of the court or otherwise, is a matter of prime importance. Any encroachment thereon, and the reasons for such encroachment, should be meticulously recorded. In our view the judge's record in this instance was less than satisfactory.

21. The second line of appeal is that "the judge failed to warn himself properly or at all as to the dangers of uncorroborated evidence."

22. We have already referred to the positions of the two witnesses upon whose evidence the conviction on the 1st Charge was founded and it is observed, quite correctly, that these witnesses could not corroborate each other. We have been referred to comments in Chiu Nang Hong v. Public Prosecutor[3] and Chan Shu Ming v. R.[4] which confirm the duty of a judge sitting alone to make it clear in his reasons that he has had the dangers in mind. In his written Reasons for Verdict the judge makes no mention of warning himself in any way. However the note in his record made at the time he delivered his oral decision commences with the words -

“Having considered carefully the evidence in this case and having warned myself where it was necessary to do so, I am satisfied …..”

23. Immediately prior to that is the note of Crown counsel's submissions which include the sentence -

"Accomplice in 4th Charge might affect other evidence bear warning in mind."

And that of defence counsel in relation to Miss Lee -

"….. ask yourselves could you be sure that her evidence in relation to D1 claiming to be office bearer is true bearing in mind accomplice bearing in mind granted immunity."

And then in relation to Miss Ng -

"Warn yourself accomplice pleaded Guilty - knows what he is required to say."

24. We do not enter into the question of whether either witness was an accomplice in the strict sense. We are satisfied that in any event the judge correctly appreciated the dangers inherent in their evidence and that he warned himself appropriately.

25. Mr. Buchanan's final argument relates to Section 28 of the Societies Ordinance which provides inter alia that where writings of or relating to a society are found in the possession of any person, such person shall be presumed, until the contrary is proved, to be a member of that society. There was evidence below, which the judge accepted, that the Defendant was in possession of writings relating to the Sun Yee On Triad Society. The judge did not accept the Defendant's explanation and convicted him, not only of possession of the writings, but, by virtue of the presumption, of membership of the Society as well. The argument in this respect is based upon what we conceive to be a misunderstanding by counsel of the judge's note of his decision and it is thus with respect misconceived.

26. For these reasons we find no merit in the application for leave to appeal against conviction and it is refused. We shall be pleased to hear counsel on the application with regard to sentence.