R. v. WU CHI WAI

IN THE COURT OF APPEAL

1996, No. 230
(Criminal)

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J U D G M E N T

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Bokhary, J.A.:

1. This applicant is a man of previous good character in his late 20's.

2. He stood trial before Keith J and a jury on two counts. The first was of rape. And the second was of misconduct in a public office.

3. On April 19 last year - after 8 1/2 hours' deliberation - the jury unanimously convicted the applicant on both counts.

4. He now seeks leave to appeal against those convictions.

5. Both counts arose out of what the prosecution said the applicant had done on May 24, 1995.

6. At that time, the applicant was a postman but also served part-time as an auxiliary police constable.

7. A Miss Lau, who was then aged 16, was the victim named in each count.

8. The prosecution's case depended on her uncorroborated evidence.

9. Shortly stated, that case was as follows.

10. On the afternoon of May 24, 1995, Miss Lau left her boyfriend's flat and returned to the flat where she lived with her mother and elder brother.

11. The applicant followed her into the lift up to her flat. At first, there was a woman in the lift. But then the woman got out. And the applicant then spoke to Miss Lau: saying that he was a police officer; showing her his warrant card; and saying that he suspected her of having drugs on her.

12. When she got to her flat, the telephone was ringing. She ran to answer it, leaving the front door open. And the applicant followed her into the flat.

13. Nobody else was in the flat. And then what happened was this.

14. The applicant forced Miss Lau to have sexual intercourse with him even though she did not want to do so. That was rape.

15. Moreover, the applicant committed the offence of misconduct in a public office. And that was because of the means which he used to force her to have sexual intercourse with him. It was by a threat. And he had abused his position as a police officer to make that threat. For the threat was this. If she refused to have sexual intercourse with him, he would use his position as a police officer to make a report of the fact of her having had sexual intercourse with her boyfriend. That would, he said, get her and her boyfriend into trouble. And she would, he said, be sent to a girls' home.

16. That was the prosecution's case based on Miss Lau's evidence.

17. All of it was challenged in cross-examination by defence counsel. And it was contradicted by the applicant when he gave evidence.

18. He said that he had a short affair with Miss Lau, whom he had met in a video games centre.

19. In the course of that affair, they did have sexual intercourse. But it was with her consent. And he had lent her quite a lot of money.

20. Either the applicant or Miss Lau, the judge said to the jury, must have been lying. So the jury had to decide whether they felt sure that the truth lay in what Miss Lau said and not what the applicant said.

21. And of course it was necessary that they be given the opportunity of deciding that on admissible evidence, upon proper directions and in a trial free from material irregularity.

22. Turning to the grounds of appeal, there are seven of them.

23. At the end of the submission made by Mr Lawrence Lok QC on behalf of the applicant on the first ground, we called upon Mr Veltro for the prosecution. The first ground is that there was material irregularity at the trial.

24. Here the complaint is based on a series of questions which the judge asked the applicant after he had been cross-examined and after his counsel had indicated that there would be no re-examination.

25. Although none of the counsel at the trial are open to any criticism whatsoever, we might just mention that none of the counsel who appeared before us had appeared in the court below.

26. Mr Lok complains that what the judge did amounted to cross-examining the applicant so that the judge had, as the expression goes, descended into the arena. The expression is useful one. For the word "descended" serves as a reminder that there is much, even of a highly interventional nature sometimes, which a trial judge may legitimately do from his proper place above the arena. The thing is for him to remain there.

27. The questioning of the applicant by the judge began thus:

"Q. Mr Wu, you gave Miss Lau money on 3 occasions.

A. Yes.

Q. $150 on the first occasion?

A. Yes.

Q. $700 on the second?

A. Yes.

Q. And $2,000 on the third?

A. Yes.

Q. Are you telling the jury that on each occasion, you happened to have on you the amount of cash that she was asking to borrow?

A. Yes.

Q. And therefore on the occasion when she asked to borrow $2,000 from you, you happened to have $2,000 on you on that occasion?

A. Yes.

Q. Do you normally carry that amount of cash on you?

A. Between $1,000 to $2,000 on me.

Q. For example, how much cash have you got on you at the moment?

A. I haven't looked.

Q. Do you want to?

A. $1,110.

Q. It's lucky she hasn't asked to borrow $2,000 from you today because you couldn't lend it to her, could you? Now there is something else that I would like to help the jury about if you would. You told us that on the 3rd occasion when you saw her, she had paged you."

28. Mr Lok submits that those questions were clearly designed to discredit the applicant.

29. For the prosecution, Mr Veltro says that if that had appeared to be so at the time, one would have expected defence counsel to object or even to apply for the jury to be discharged.

30. That does not seem to us to be realistic. Counsel are naturally reluctant to interrupt a trial judge or to ask for a trial to be aborted. Such reluctance is natural and proper.

31. Mr Veltro also says that, whatever those questions by the judge were designed to do, their result was to establish that the applicant normally carried between $1,000 and $2,000 in cash. So, Mr Veltro says, they could on one view be said to enhance rather than destroy the applicant's credibility.

32. As to that, it is to be noted that the judge did not seem to see it in that way, and made his view clear in front of the jury by his comment at the end of that line of questioning. As we have seen, the judge said: "It's lucky she hasn't asked to borrow $2,000 from you today because you couldn't lend it to her, could you?"

33. It is also to be noted that the judge did not even wait for an answer, because he immediately turned to something else.

34. In our judgment, Mr Lok is right when he said in effect this. It was comment. It was adverse comment. It was adverse comment by the judge. And the applicant was not given an opportunity to respond to it.

35. The next series of questions by the judge of which Mr Lok makes specific complaint ran thus:

"Q. There are different ways in which men can be friendly with women. They can be friendly in a non-physical way but they can be friends in a sexual way. When you told the jury that you wanted to make friends with her, what did you have in mind?

A. Just merely friends, no physical contact.

Q. But you have told the jury that eventually your relationship did become a sexual one.

A. Yes.

Q. And so when was it that your intentions as to the nature of your friendship should change?

A. Eventually.

Q. When in the relationship?

A. On the day I had fun with her, that is on the day we had fun together, I found myself very happy being with her.

Q. Do you mean the day when you found yourself on the sofa in her flat for the first time kissing her, or do you mean the day when you had funs together and eventually went to bed with each other?

A. Oh, not on the day I kissed her.

Q. I see. That probably gave you the idea of what might be installed for you if you saw her again.

A. Disagree.

Q. So are you telling the jury that even though on the first occasion you went to her flat you and she had kissed each other, you still didn't have in mind a sexual relationship with her?

A. Correct, No.

Q. Well, I think in that case you'd better tell us what kind of kissing it was. Was it the friendly kiss on the cheek or the more passionate sort of kiss on the lips?

A. On the lip."

36. That last question, Mr Lok submits, contained a comment designed to ridicule and discredit the applicant.

37. Mr Veltro submits that the questions were logical and neutral, and that the applicant's problem lay not in the questions themselves but in his answers to them.

38. That we do not find convincing. There was more than questioning. It was questioning by the judge accompanied by an implied comment. And that comment, we agree with Mr Lok, was adverse to the applicant's credibility.

39. There are other questions of the applicant by the judge of which Mr Lok makes complaint. But we have seen enough and propose to pass over those and consider now what the judge said to the jury at the end of his questioning of the applicant. The judge said this:

" Members of the jury, it's not unusual for a judge at the end of the evidence and an important witness in a case to ask a number of questions. I have asked more questions than I normally would because it struck me there were a number of loose ends which you, because you have got to decide the case eventually, might want to have answers to, and the questions that I have asked are all those questions which, if I had to decide guilt or innocence and I don't, it's you who have to, are all the questions which, if I had to decide guilt or innocence, I would want to know the answers to and therefore I try to put myself in your shoes and ask myself the sort of questions that you would have liked to have asked Mr Wu if you had had the opportunity unlike the lawyers and me who ask questions."

40. Those remarks, no doubt well-intentioned as indeed everything the judge did must have been well-intentioned, unfortunately would tend only to enhance in the jury's mind the things which the judge had done in questioning the applicant and commenting upon his answers. The questioning of an accused by a judge should, on the rare occasions when it is necessary, be conducted with great circumspection. That unfortunately has not been the case here.

41. All things considered, we are driven to the conclusion that the first ground of appeal is made out. The accused's complaints are justified and, in all the circumstances of the present case which was one of one person's word against another's, there is here a real danger that the matters complained of ultimately tipped the scales against the applicant. There is no need to consider the other grounds.

42. Treating the hearing of the application for leave to appeal as that of the appeal itself, we allow the appeal, quash the convictions and set aside the sentences.

[The prosecution applied for a retrial. The applicant opposed. Not considering it just to do so in all the circumstances, the Court refused to order a retrial.

The applicant asked for the costs of the appeal. The prosecution did not oppose that. And the Court awarded the applicant the costs of the appeal.]