ASIA WIDE PROPERTIES LTD. AND ANOTHER v. TSANG YUK KIU

HCA 6631/1991 & 9500/1994

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 6631 OF 1991

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R U L I N G

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1. This is the ruling on the Plaintiffs' objection to a question asked of PW1 by Mr Tong in cross-examination. The question was in essence whether PW1 is saying that the accounting documents shown to him earlier were fabricated in order to "frame" him.

2. The factual context in which this question was asked is as follows. Certain properties (located at Bulkerly Street) of the joint venture involving PW1 and the 2 Defendants were sold to a company called Jade Lion (admittedly belonging to PW1). One issue relating to this sale is whether PW1 concealed the true identity of Jade Lion from the 2 Defendants. The defence says he did and one matter in support of the alleged concealment was PW1's receipt of $24,000 purportedly as commission for introducing Jade Lion to the joint venture. PW1 accepts he received $24,000 but says that the sum was not received by him by way of commission.

3. The line of cross-examination leading to the question now in dispute involved Mr Tong showing to PW1 various accounting documents with the intention of establishing that the sum was in fact paid by way of commission and PW1 knew that it was so paid.

4. Mr Huggins for the Plaintiffs objects to the question on the ground that it is, according to Archbold : Criminal Pleading Evidence & Practice 2000 Ed.:

"[A question] ... put in a manner as to be in the nature of invitation to argument rather than to elicit answers to matters of fact ....R v. Baldwin 18 Cr. App. R. 175." (para. 8-116 thereof).

The learned editors of Archbold said further:-

"Lord Hewart CJ deprecated questions in cross-examination such as 'I suggest to you that....' 'Is your evidence to be taken as suggesting that....?' 'Do you ask the jury to believe that ....' (at pp. 178, 179 [of Baldwin])" (see above).

5. It is necessary to look at the facts of the Baldwin case to understand why the form of questions assumed significance in that appeal. The appellant was tried before a jury for having unlawful carnal knowledge with a young girl. When the appellant was cross-examined by prosecuting counsel, questions were put to him to elicit answers which resulted in the trial Judge concluding that the appellant had put his character in issue. The trial Judge therefore allowed the prosecution to cross-examine the appellant on his character. The Court of Criminal Appeal disapproved this and said (at p. 178):-

"It cannot be right for counsel for the Crown to ask questions for the purpose of eliciting answers which may be of such a kind as to involve the accused person inadvertently in the mischief provided for in this part of the statute [referring to S.1(f) of the Criminal Evidence Act 1898 which allows the prosecution to cross-examine an accused about his pervious convictions]".

After expressing such disapproval, the Court of Criminal Appeal went on to disapprove the forms of questions set out in Archbold above on the ground that:

"...it might very well prejudice the witness with the jury, because the jury, not being aware of the consequences to which such questions might lead, might easily come to the conclusion ... that the witness had something to conceal... it is not right that the wits of the [witness] should be pitted against the wits of [counsel] in the field of suggestion and controversy. What is wanted from the witness is answers to questions of fact." (at p. 179 of Baldwin).

6. I shall deal with the matter of principle regarding this objection first before I deal with its practicality.

7. As a matter of principle I entirely agree with everything said by the Lord Chief Justice in Baldwin and by Mr Huggins in this action. Witnesses of fact no doubt should only be asked to testify as to relevant facts, whether in examination in chief or in cross-examination. I should also say at the same time, it does not, however, follow that every time a question commences in the forms set out in Archbold, it must be one inviting arguments. Everything depends on the circumstances of the case in point.

8. I now turn to the question being objected to. PW1's testimony in cross-examination regarding the accounting documents relevant to the sum of $24,000 is in effect that they are inaccurate or incorrect because, as a matter of practice, accounting documents of the joint venture companies were "tailored" to achieve certain results before they were shown to the Inland Revenue Department. To this extent, there is no "dispute" between Mr Tong's said question and PW1 over the point that the relevant entries were "fabricated". In other words, there should be no need for Mr Tong to clarify from PW1 if PW1 is saying the relevant entries were false. Mr Tong argues that he is entitled to ask this question in order to ascertain from PW1 whether PW1 is alleging that the entries were fabricated in order to put together a false case against him. From the way in which the Plaintiffs' case has been conducted up to now, I find that that must have been the conclusion which the Plaintiffs are asking this court to draw at the end of the trial. There can therefore be no ambiguity regarding this point. The matter of conclusion is, however, not one for PW1 to testify to because, if indeed a false case is put forward against him, he would not know how that was done as a matter of fact.

9. For the above reasons, I agree with Mr Huggins that this question should be disallowed.

10. Mr Tong has referred me to passages in Phipson on Evidence (2000) 15th Ed., at paras 11-14 and 11-24. With respect, I do not consider that those passages can assist Mr Tong in this matter. What Mr Tong is trying to elicit from PW1 goes beyond "stating the result" of documents. He is asking PW1 if he is accusing the maker(s) of the accounting documents of putting forward a false case against him. This is very different from what was said to be permissible in Phipson, paras 11-14 and 11-24.

11. Having decided on the objection on principle, I wish to say something about the practical side of the matter. I start by saying that this is entirely without disrespect to counsel. It is quite understandable that trial advocates are anxious to present their respective client's case in the best light and to closely safeguard the interests of their clients. However, it is also important to have regard to how crucial a point is in the context of a case like this. This action was set down for trial for 3 weeks. Shortly before its commencement, the parties have revised the estimate of its length to 6 weeks. The documents involved fill up about 20 to 30 box files. The witnesses are either a professional man with vast experience in his own profession as well as in the business world or, as Mr Huggins described them, people who are "hard-nosed businessmen". The trial is heard by a professional Judge who, I hope the parties will agree, will be able to distinguish what is relevant from what is not. In these circumstances, one doubts the significance of one single question being allowed to be put to a witness as to whether he is alleging that there is a conspiracy against him. Even if such a question were allowed and an answer given, I doubt how this per se would affect the outcome of this trial. The time taken up by the objection to this question up to now is about 2 hours. It seems to me that that time could have been more fruitfully employed for other purposes.

12. If there had been any suggestion that the question was asked with the intention of intimidating, provoking or irritating the witness, I certainly see the need to put a stop to that. But there is no suggestion (or indication) up to now that such kind of tactic has been employed.