LEUNG CHI SING BENSON v. R.

1992, No. 37
(Criminal)

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

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J U D G M E N T

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Mortimer J.:

1. The Applicant was convicted in the District Court by Judge Yeung on 29th January 1992 of two charges (5 and 6) of obtaining diamonds by deception, contrary to S.17(1) of the Theft Ordinance and was sentenced to 12 months imprisonment on each charge concurrent. He seeks leave to appeal against these convictions.

2. The indictment initially contained six charges of obtaining diamonds by deception and one of evasion of liability to pay by deception. At the outset of the trial, no evidence was offered on this last charge. On four charges of obtaining by deception, the judge ruled that there was no case to answer at the end of the prosecution case.

The Facts

3. The Applicant was the sole proprietor and signatory of the bank account of Crown Jewellery Co. which began business on the 28th April 1988. The account was opened with the Hongkong bank on the 8th May 1988. There were four employees: Yu Ming Ko, the manager with experience in the diamond trade; Cora Fang, his then girlfriend responsible for the accounts; the Applicant's brother who did clerical work and deposited money and cheques with the bank; and one secretary.

4. The judge found that the Applicant obtained diamonds on the 16th August 1988 (Charge 5) and the 6th September 1988 (Charge 6) by deceiving the proprietor of Amy Gems that post-dated cheques given in payment would be met on presentation after the due date when the Applicant never intended the cheques to be met and knew that they would not be met. The cheque handed over on 16th August 1988 was for $185,562.20 post- dated to 1st November 1988 and the cheque provided on the 6th September 1988 was for $117,084.00 post-dated to the 21st November 1988.

5. The evidence demonstrated that the Applicant personally stopped or attempted to stop all the post-dated cheques alleged in the indictment save for one which was eventually dishonoured and that the account never had sufficient in it to cover the cheques at the relevant times. Where they could be identified the diamonds were sold at a loss. About $500,000.00 was received but not paid into the bank account. This sum was approximately balanced by the Applicant's drawings in cash. By a letter dated 1st November 1988, the Applicant's solicitors informed his customers that the business was closed because of financial difficulty.

6. The evidence also showed that no bargains for the purchase of diamonds were concluded by Yu or Cora Fang without the Applicant's approval and consent, and that cheques for such deals were only issued after his agreement as to price.

7. At the trial it was suggested by the Applicant's counsel in cross- examination that the financial difficulties could have been caused by Yu selling diamonds for cash behind the Applicant's back with Cora Fang's assistance as the book keeper. Cora Fang insisted that all cash deals were recorded. As there was no evidence to support the allegation, the judge had little difficulty in rejecting it. The Applicant chose not to give evidence.

8. The judge carefully reviewed the salient parts of the evidence in the case and found himself driven to infer the Applicant's guilt on the relevant two counts.

This Application

9. Leave is sought to argue substantive grounds of appeal which can be summarised as follows:

1. That in allowing the trial to proceed in the absence of the prosecution witness Yu Ming Ko, the judge failed to exercise his discretion properly and failed to hold a proper enquiry. (Ground 1)

2. That by questioning the prosecution witness Cora Fang for 45 minutes, the judge abandoned his impartial role and deprived the Applicant of a fair trial. (Ground 2)

3. That insofar as the judge relied upon the evidence of Cora Fang in inferring the Applicant's guilt on Charges 5 and 6, he failed to consider and give sufficient weight to other inconsistent evidence, so that the inferences were unreasonable and the verdicts unsafe and unsatisfactory. (Grounds 3, 4 and 5)

Ground 1

10. When it became known that the prosecution witness was not available, Mr. Grounds for the Applicant submitted that the judge should stay the trial as it would be unfair to proceed without the witness. He refrained from showing the judge the witness's statement, but informed him that in one passage, the witness supported a defence contention that blank cheques had been signed by the Applicant for use by the witness. Counsel indicated to the judge that he wished to cross-examine the witness to show that the witness was responsible for the shortage of money in the Applicant's business in a manner which was concealed from the Applicant with the cooperation of Cora Fang - the book keeper and the witness's then girlfriend.

11. Before hearing the application the judge allowed defence counsel a short adjournment to consider his position. He then heard such submissions as each counsel wished to make. At the end he announced his decision that the trial was to proceed without giving reasons.

12. Mr. Grounds contends that the judge ought to have adjourned the application so as to hold a "proper enquiry" supported by affidavits and documents, and secondly, he contends that it was incumbent upon the judge to give reasons, because it is not known on what basis the judge exercised his discretion to allow the trial to proceed.

13. He relies upon R. v. Takeshi Machiya Cr. App. No. 332 of 1989 (unreported). When considering the earlier decision in Attorney General v. Ma Chi-keung (1988) 2 HKLR 64 - in which a similar situation had arisen - Silke V.P. said:

"It held that what the trial judge should there have done was to hold a form of preliminary enquiry, considered the victim's statement, the contents of a cautioned statement made by the Accused which the prosecution wished to adduce and any other evidence relevant to the issue before coming to a decision."

14. Mr. Grounds informed the Court that these words have been interpreted to support his submission upon the type of enquiry the judge ought to hold in these circumstances. He produces unreported decisions of the District Court in confirmation. He further contends that affidavits may be necessary because "some judges in Hong Kong do not accept what is asserted from the Bar table".

15. It is significant that the judge allowed defence counsel such adjournment as he requested, he did not proceed with the application before counsel was ready, and no application was made for any further adjournment to produce documents or evidence or for any other purpose. The judge was informed of the contents of the missing witnesses' statement insofar as defence counsel wished him to know them.

16. If decisions of this Court are being interpreted as requiring, in each case when a prosecution witness is unavailable, an enquiry following an adjournment and the production of affidavits, documents and other evidence before the judge exercises his discretion, such interpretation is plainly wrong. The manner in which a judge hears an application of this nature is unfettered save by his obligation to act judicially in the circumstances of the particular case. It is worth noting that a judge's duty is to facilitate the expeditious hearing and determination of trials. Adjournments for lengthy hearings and evidence on preliminary matters of this nature are rarely justified. In most cases, the absence of a prosecution witness assists the defence and hinders the prosecution and the implications are easily explained to the judge who normally will hear the application in a summary manner and will announce his decision. Often he may give short reasons but it is not incumbent upon him to do so.

17. We firmly reject the criticisms sought to be made of the manner in which the judge dealt with this application. He dealt with it impeccably and expeditiously. All the matters which counsel wished him to hear were submitted including the principles upon which he ought to exercise his discretion. There is no basis upon which it can be suggested that he did not exercise his discretion properly.

18. Submissions under the Bill of Rights raised in the amended Grounds of Appeal were not pursued.

19. We refuse leave to argue the 1st ground of Appeal.

Ground 2

20. Cora Fang was a principal prosecution witness. At the end of cross-examination, the judge questioned her for about 45 minutes. This questioning was characterised by counsel for the Applicant as a second examination-in-chief. No leading questions were asked, the questions were not hostile and counsel were invited to cross-examine further and to re- examine afterwards. Some of the answers were used by the judge in his Reasons for Verdict. Counsel submits that the judge "dropped the mantle of a judge and assumed the robe of an advocate" so that he failed to remain, and to be seen to remain, impartial and deprived the Applicant of a fair trial. The well-known passage in Denning L.J.'s judgment in Jones v. National Coal Board [1957] 2 WLR 760 at 766-7 is relied upon.

21. Here, the judge's questions went further than simply clarifying evidence that had previously been given. But a judge may properly seek to clarify matters relevant to the issues he has to decide which have not been raised by counsel. The matter is one of degree and effect. He may seek to clarify matters which trouble him, indeed it is often his duty to do so. Normally this is better done at the end of cross-examination - the time the judge chose in this case. When he does intervene he must remain judicial and impartial and he must not prevent the parties from properly presenting their cases. In the above case although the Court held that the judge's interventions were "far more than they should have been" it was not suggested that judges should never intervene. Denning L.J. pointed out that there are worthy motives "'on which judges daily intervene in the conduct of cases and have done so for centuries' and 'a judge is not a mere umpire to answer the question' how's that?'" (P.766)

22. In the Court below the judge's intervention, as described by counsel and as can be seen from the record, was never unjudicial or biassed or other than impartial. His questioning was polite, it was not leading and it never became hostile cross-examination. Nor can it be suggested that he prevented either side from fully presenting its case.

23. There is no basis upon which the Applicant ought to have leave to argue this ground of appeal.

Ground 3

24. The Applicant seeks leave to argue that the judge ought not to have accepted Cora Fang's evidence in the light of other evidence - the details of which appear in the Notice. Further, he seeks to submit that those details are evidence of underhand behaviour of Cora Fang and Yu Ming Ko "behind the back" of the Applicant so that it was unreasonable of the judge to draw inferences of guilt.

25. As to the first submission, Cora Fang was an important witness for the prosecution in the two charges upon which the Applicant was convicted. Her evidence was accepted by the judge to prove that the Applicant was a party to the use of the cheques by which the goods were obtained. However, this was not its only importance. This evidence was relevant also to the proof of the false representation alleged and to the Applicant's state of mind and dishonesty at the time.

26. The Applicant seeks to argue matters which were no doubt urged before the judge. In his reasons, the judge said "The Court has considered all the evidence as well as counsel's submissions carefully." (p.30) That he had done so is clear from his reasons. He carefully reviewed the evidence and he showed either directly or indirectly that the important matters relied upon were well in his mind. He did not deal with every argument urged upon him. It is not incumbent upon him so to do. For example, he made no reference to the witness's inconsistent evidence upon her date of leaving her employment, nor to the fact that the Applicant spoke no English. There is no reason to think that these matters were not considered by him or that they were so material that they would have shaken his acceptance of the witness.

27. As to the second matter, the Applicant faces an insurmountable difficulty. In spite of the cross-examination, the allegation was unsupported by evidence and the Applicant - as was his right - chose not to give evidence himself. In his reasons at p.27, the judge said:

"The allegation that Mr. Yu and/or Cora Fang had defrauded the Defendant and pocketed the proceed of sale was unsupported by any evidence. If Mr. Yu had as suggested dishonestly pocketed the proceed of the sale to Conquer Deals, it was very surprising that proper invoices were issued and filed with the company's records.

In any event the allegation against Mr. Yu had to be based on the assumption that he was able to deceive the Defendant by concluding deals without the Defendant knowing about them. That assumption in the evidence before the Court simply could not stand."

28. The judge did not go on to set out explicitly each ingredient of the offence followed by his finding upon it. As this Court has said elsewhere it is preferable that this is done. It gives logical structure to the reasons and it demonstrates that no matter has been inadvertently omitted. But here the judge made all the necessary findings for the proof of the 5th and 6th Charges including the inferences as to the Applicant's state of mind and dishonesty. In the absence of evidence from the Applicant, these were plainly the only reasonable inferences he could draw.

29. Again, there is no basis upon which this Court should give leave to argue this ground.

Conclusion

30. For the reasons we have given, this application for leave to appeal is refused and the appeal is dismissed.