HKSAR v. CHEN KEEN (alias JACK CHEN) AND OTHERS

HCCC 309/2019

[2020] HKCFI 3013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 309 OF 2019

__________________

BETWEEN

__________________

_______________________________________________

APPLICATION FOR RECUSAL: RULING

_______________________________________________

INTRODUCTION

1.  Chen Keen, Hao May and Yee Wenjye, D1, D2 and D3 respectively, face charges of conspiracy and money laundering.

2.  A trial is scheduled to commence in mid-January 2021 and is expected to last something of the order of 6 months.  I have been assigned to be the trial judge of this proceeding.

3.  On 17 August, 2020, the prosecution applied for me to recuse myself.  The grounds upon which that application was made are articulated in a little more detail later on in these reasons, but essentially it is that I represented Wu Wing Kit on a charge of what is colloquially called money laundering in the District Court.  He was, at material times, the solicitor of D1 and D2 and, so the prosecution contends, must have been aware of their dishonest dealing in pursuance of the conspiracy. 

4.  Counsel for each of the accused in the present case submitted that the prosecution has not made out its case and that the application for recusal be dismissed.

5.  Both sides agree that as the trial is a large one and involves, on both sides, the deployment of considerable resources, a decision on this application is needed quickly.

PROCEDURAL HISTORY

The trial of Wu Wing Kit

6.  Wu Wing Kit faced a charge of what is colloquially called money laundering, contrary to section 25 of the Organised and Serious Crimes Ordinance, Cap. 455.  He was tried before a judge of the District Court and convicted.  I represented him at that trial.[1]  I had no part in his representation prior to the commencement of the trial before the District Court and, following his conviction. Other counsel represented him on appeal to the Court of Appeal and the retrial that was ordered.  The charge faced by Wu Wing Kit was that:

“…between 11th day of March 2010 and the 12th day of March 2010 … knowing or having reasonable grounds to believe that property, namely a chose in action in the sum of $68,950,000 Hong Kong currency, being a credit balance in the account numbered … maintained with the Hongkong and Shanghai Banking Corporation Ltd in the name of Fred Kan & Co Client Account, in whole or in part, directly or indirectly, represented the proceeds of an indictable offence, dealt with the said property.”

7.  A useful Summary of the Facts and circumstances of the trial of Wu Wing Kit, which I conducted, appears in the judgment of the Court of Appeal on his appeal against conviction.[2]  I have not included in the summary references to the case of Ye Fang.

8.  The summary of the Court of Appeal of the facts and circumstances of the case at trial is as follows:[3]

“The trial

The 1st, 2nd appellants and Jack Chen

11. Jack Chen was the husband of the 2nd appellant and had been a client of the 1st appellant11 since 2005.

462

12. Jack Chen was the executive director and joint chairman of China Jin Hui Mining Corp Ltd (CJHM), later renamed Natural Dairy (NZ) Holdings Ltd (NDNZ), a publicly listed company in Hong Kong. At trial, it was referred to by its stock code number, namely 462, which reference is used in this judgment. 462 held a subsidiary company, Nation Resources Ltd (NRL). On 15 September 2009, Jack Chen resigned as an executive director and joint Chairman of 462.

Goldmate

13. Jack Chen was also the majority shareholder and a director of Goldmate Securities (USA) Ltd (Goldmate), previously named Shenlong International Investment Ltd.

The 1st appellant: Fred Kan & Co

14. The 1st appellant was a solicitor practising in Hong Kong and a partner of the firm Fred Kan & Co. (FKC).

The 2nd appellant: Dragon Joy

15. The 2nd appellant held the majority interest, through three New Zealand companies, in Dragon Joy Ltd (Dragon Joy), which in turn held the majority shares in Global Food Holdings Ltd (GFHL). The 2nd appellant’s interests in the three New Zealand companies were held on trust for her by Graham Chin.

The UBNZ Group

16. UBNZ Trustee Ltd (UBTL) is a company registered in New Zealand. Ms May Wang was a director and the sole shareholder of UBTL. In May 2009, UBTL held 100% of the shares of UBNZ Assets Holdings Ltd (UBAH), which had agreed to acquire 22 dairy farms in New Zealand through UBNZ Funds Management Ltd (UBFM). Walter Shum was a director of UBAH and UBFM.

17. Jack Chen introduced Ms May Wang to the 1st appellant in 2008 and she had been a client of FKC since then.

The UBTL and 462 agreement

18. By an agreement dated 22 May 2009, 462 agreed to purchase Ms May Wang’s interest in the New Zealand companies, and thereby the dairy farms. The agreement consisted of two parts. By the first part, 462 agreed to pay NZD100 million to purchase 20% of the issued share capital of UBAH and 20% of the debt owed by UBAH to UBTL. The NZD100 million was to be paid by monies raised in the issue of convertible notes, with a maturity date of 10 years. By the second part, 462 agreed to pay NZD400 million for an option to purchase the remaining 80% of the issued share capital of UBAH. Accordingly, the total consideration was NZD500 million. The agreement constituted a Very Substantial Acquisition under the Listing Rules of the Stock Exchange of Hong Kong (the 1st VSA).

462: Circular/EGM

19. On 8 September 2009, a Circular was issued by 462 to its shareholders concerning the 1st VSA. On 2 October 2009, the acquisition of UBAH’s shares was approved in an EGM by the shareholders of 462.

462: Convertible Notes (CN-C)

20. On 4 December 2009, 462 entered into a Placing agreement with Sun Hung Kai Investment Services Ltd (SHKIS) to place convertible notes, CN-C, for subscription by investors in an aggregate principal amount of HKD951 million. 462 undertook that all subscription monies under the CN-C would be applied solely for the purpose of the acquisition and the general working capital of 462 and its subsidiaries.

21. Between December 2009 and September 2010, HKD842 million was raised under the CN-C.

22. In the period 21 December 2009 to 2 February 2010, HKD692.27 million (equivalent to NZD125.6 million) of the HKD842 million was remitted by SHKIS to Knight Coldicutt, a firm of solicitors in New Zealand acting as escrow trustee.

23. On and between 11 February 2010 and 15 February 2010, Knight Coldicutt remitted a total of NZD25,262,070.17 to UBTL. On 2 March 2010, HKD73,736,482.56, equivalent to NZD13,682,776.50, was remitted from UBTL to an ICBC account held by Goldmate (the First Goldmate Account). On the same day, HKD73.7 million was transferred from the First Goldmate Account to another ICBC account held by Goldmate (the Second Goldmate Account).

The HKD68.95 million

24. On 11 March 2010, Goldmate transferred HKD69 million from the Second Goldmate Account back to the First Goldmate Account. On the same day, Jack Chen issued a cheque for HKD68.95 million on the First Goldmate Account in favour of FKC’s Client Account.

25. An Official Receipt for the transfer was signed by Ms Flora Chan and a member of the staff of the Accounts Department. The money was described as “Costs and Disbursements on Account” and the client as Goldmate.

26. On 12 March 2010, a cheque for HKD68.95 million, signed by the 1st appellant, was drawn on FKC’s Client Account in favour of the 2nd appellant, issued by the 1st appellant. A payment voucher of that date, written by Ms Flora Tam, described the payment as having been made to the 2nd appellant as “C&D refund to client”.

…

The prosecution case

(i) The 1st appellant

28. Ms Flora Tam, the 1st appellant’s secretary, testified that the 1st appellant told her, on a day before 11 March 2010, that Jack Chen would deposit about USD10 million into FKC’s Client Account and that the money would be transferred out the following day. He told her it was to be transferred to Jack Chen’s wife, Betty, namely the 2nd appellant. She did not recall if she was told that before or after the money was deposited into the FKC’s Client Account. She said that it was possible that she had obtained the information in respect of the 2nd appellant’s bank account from Jack Chen’s personal assistant, Lulu.

29. On 11 March 2010, FKC’s Client Account received a deposit of $68,950,000, which she understood to be the USD10 million, the deposit of which the 1st appellant had forewarned her. As he had instructed her, she put down Goldmate as the name of the client on the Official Receipt. In cross-examination, she denied suggestions to the contrary.

30. In her experience, $68,950,000 was a large amount, rarely seen, for “Costs and Disbursements” for an Initial Public Offer, acquisition of company or any work handled by the 1st appellant. The usual range was around $1,000,000. She signed the Official Receipt, dated 11 March 2010, together with a member of staff of the Accounts Department. The money was described as “Costs and Disbursements on Account”. Invariably, she sought the 1st appellant’s instructions before giving instructions to the Accounts Department as to how to deal with any money credited into FKC’s Client Account.

31. Ms Rachel Fong Siu Lan, the accounts clerk of FKC, said that she prepared the Official Receipt for this money. She followed Ms Flora Tam’s instructions in using the term “Costs and Disbursements on Account”.

32. The prosecution’s case was that, from his knowledge of and involvement in the background transactions with Jack Chen and Ms May Wang, the Judge could infer that the 1st appellant had knowledge or reasonable grounds to believe that the HKD68.95 million represented the proceeds of an indictable offence:

(a) HKD68.95 million was a large amount of money, rarely seen for costs and disbursements for any work handled by the 1st appellant;

(b) The bank account of FKC was used for no purpose other than to satisfy the request of a “third party” that the money be deposited into and remitted from the account;

(c) The 1st appellant was aware that Jack Chen had been disqualified in the Mainland in 2004 by the Chinese Securities Regulatory Commission, and prohibited from holding any senior management position in any listed company or securities company there for three years. Furthermore, the 1st appellant had executed a Form B for Jack Chen in the offices of FKC, which disclosed this matter;

(d) The 1st appellant was party to emails, and replies to the enquiries of the SEHK, reassuring the SEHK that Jack Chen was no longer involved in CJHM, when the 1st appellant clearly knew that Jack Chen was involved;

(e) The 1st appellant was aware of the proposal for 462 to acquire the share capital of UBAH, and that payments had been remitted to Knight Coldicutt to be held in escrow;

(f) The 1st appellant had acted for Jack Chen on various listing matters, but Jack Chen was not his client with regard to the HKD68.95 million, which was transferred by the 1st appellant as a favour to Jack Chen. It was on the 1st appellant’s instructions that the money was credited to the name of Goldmate;

(g) Ms May Wang had been a client of FKC from May 2008, which included the period of the 1st VSA transaction;

(h) At the time that the money was transferred from Knight Coldicutt ultimately to the 2nd appellant, the 1st appellant was aware of complaints about the relationship between Ms May Wang and Jack Chen, and allegations that the transaction was a sham;

(i) Of VSA-2, the 1st appellant had been aware that the parties were connected, but failed to disclose that fact to the Hong Kong Stock Exchange. Ms May Wang had been a director of GFHL previously, and the 1st appellant himself had an interest in the company;

(j) The 1st appellant knew that a number of dairy farms had been placed into receivership, but did not voice any doubt as to the projected valuation of valuable assets to be acquired under the 1st VSA;

(k) In a search of FKC offices, a number of files, entitled “Sale of Dairy Farms”, were seized. The 1st appellant had also been involved in drafting the announcements regarding CNC-C;

(l) The 1st appellant had failed to act according to or comply with The Law Society’s guidelines on anti-money laundering set out in Practice Direction P (Exhibits PP190-1): particularly in respect of “client due diligence”. He had done nothing to ascertain the names and identities of the “investor” of the HKD68.95 million.

…

The defence case

The 1st appellant

34. The 1st appellant gave evidence at trial. He first became aware of the deposit of $68.95 million on the morning of 11 March 2010, when his secretary, Ms Flora Tam, informed him that the money was, “… in the process of coming into” FKC’s Client Account, and that he should telephone Jack Chen about it. He did so and Jack Chen told him that he wanted him to represent investors who had agreed to purchase the 2nd appellant’s entitlement, through Dragon Joy, to receive the proceeds under the VSA-2 (an agreement for GFHL to sell its production lines and certain trademarks to 462). The 1st appellant told Jack Chen that, because of a potential conflict of interest arising from his prior knowledge of the 2nd appellant’s interest in Dragon Joy, he could not represent them. So, he asked Jack Chen to take the money away. However, Jack Chen persisted in his request that the monies be deposited into FKC’s Client Account and then passed on to the 2nd appellant, explaining that the investor wanted a solicitors’ firm to acknowledge receipt of the monies. Jack Chen having explained that the matter was urgent, and in response to his request for a favour, the 1st appellant agreed to his request. In response to his request for the details of the 2nd appellant’s bank account, Jack Chen suggested that he asked Ms Flora Tam to contact Lulu, his own secretary. As a result, he instructed Ms Flora Tam to do so.

35. The 1st appellant understood Jack Chen to be the person behind Goldmate, who made the $68.95 million deposit. From his dealings in respect of the 1st and 2nd VSA, he believed that the 2nd appellant’s interest was a valuable asset and that Jack Chen had a genuine commercial reason for the deposit of the monies and their transfer to the 2nd appellant. He relied on what Jack Chen told him, namely that the money represented a payment for the purchase of the 2nd appellant’s interest in Dragon Joy. Although the 1st appellant was aware of complaints and allegations made against Jack Chen, having been a party to e-mails in various transactions, those complaints were not substantiated. There was no basis for the 1st appellant to rely on them, given Jack Chen’s solicitor’s reply to the contrary and SEHK’s eventual approval of the listing.

36. It was the 1st appellant’s case, in cross-examination and in his own evidence, that Ms Flora Tam was an unreliable witness. He had been arranging for the termination of her employment for some time prior to the transaction, due to her continued late attendance at work. In those circumstances, it was suggested that it was unlikely that the 1st appellant would have forewarned her of the anticipated deposit of USD10 million and its transfer to the bank account of Jack Chen’s wife, the 2nd appellant, if the transaction was one of money laundering.

37. It was contended that the 1st appellant did not gain from the transaction. He was not aware of any event or fact which would give rise to reasonable grounds to believe that the monies had their provenance in the commission of an indictable offence. There was no evidence that the background transactions were part of an indictable offence. An unexpected receipt of money, without more, did not point irresistibly to money laundering. Also, failure to comply with the Law Society Practice Direction P did not equate to criminality.”

9.  The Judge convicted Wu Wing Kit.  Wu Wing Kit appealed to the Court of Appeal.  It appears that Wu Wing Kit was convicted upon the basis of the 2^nd limb of the basis for liability under section 25 of Organised and Serious Crimes Ordinance.  In other words, the issue was whether Wu Wing Kit had reasonable grounds to believe the property in question, in whole or in part, directly or indirectly, represented the proceeds of an indictable offence, dealt with that property.

10.  The critical part of the appeal of Wu Wing Kit focused on the treatment by the District Judge of the issue.  As a matter of legal history, the District Judge followed the judgement of the Court of Appeal in HKSAR v Pang Hung Fai CACC 34/2012.  By the time that Wu Wing Kit’s case came before the Court of Appeal, the Court of Final Appeal had adopted a different approach to the Court of Appeal.[4] In the premises, the Court of Appeal allowed the appeal against conviction and ordered a retrial.

11.  On the retrial, Wu Wing Kit faced what I believe to have been the identical charge that he faced at his first trial.  He was represented by other counsel.  He was found not guilty and was acquitted.

The present trial

12.  It is also of great importance to understand the issues in the present trial.  In order to understand that, it has to be recognised that this proceeding also has a history.  That is best summarised in the judgement of Ribeiro & Cheung PJJ  in the Court of Final Appeal as follows:[5]

“2. The 1st appellant, Chen Keen (alias Jack Chen), the 2^nd appellant, Hao May (alias May Wang) and the 3rd appellant, Yee Wenjye (alias Eric Yee), “A1”, “A2” and “A3” respectively, were convicted on 29 April 2016 on two counts of conspiracy to defraud contrary to common law after trial before Anthea Pang J and a jury. The first count alleged a conspiracy to defraud the Stock Exchange of Hong Kong Ltd (SEHK) and the second, a conspiracy to defraud China Jin Hui Mining Corporation Ltd, a company listed on the SEHK (referred to by its stock code number “462”) and its existing shareholders. The appellants were alleged to have conspired by using dishonest means to cause the SEHK and 462 to permit the acquisition by 462 of farms in New Zealand, held by companies owned by A2, to proceed. A1 was also convicted on a count of money laundering in respect of his dealing with the alleged proceeds of such conspiracies to defraud.”

13.  Chen Keen, Hao May and Yee Wenjye had appeal against their conviction to the Court of Appeal.  That appeal was dismissed.

14.  The Court of Final Appeal allowed the appeal of Chen Keen, Hao May and Yee Wenjye on the basis that owing to defects in the manner in which the conspiracy charges were drawn, the convictions were unsafe and unsatisfactory.  Even the most superficial reading of the judgement of that Court will realise that the preceding sentence is a gross oversimplification. The Court ordered that the convictions of all three appellants be quashed and that a retrial with the prosecution being at liberty to amend the indictment or to prefer a fresh indictment.  The amendment has been made in the present trial, of which I am presently concerned is that which follows the orders of the Court of Final Appeal.

15.  In order to properly determine the issues in this case, it is necessary to outline at least a sense of the likely case at trial.  The most succinct summary can be derived from the judgment of Ribeiro & Cheung PJJ of the Court of Final Appeal.  It is being used in this judgment as simply a broad outline of the case and the issues, but it is, in my judgement, sufficient to provide a basis to determine the issues arising in this application.  It essentially accords with the reading in which I have done so far. That summary is as follows:[6]

“A. The factual background

A.1 Planning to acquire farms in New Zealand

4. A2 controlled three companies which are relevant for present purposes. She was the owner and sole director of UBNZ Trustee Ltd (UTCL) which had, as its wholly owned direct subsidiaries, UBNZ Funds Management Ltd (UBFM) and UBNZ Assets Holdings Ltd (UBAH).

5. In early 2008, A2 asked one Barry Fraser (Fraser) to help her look for New Zealand farms to purchase. Fraser identified certain cattle and dairy cattle farms (the Properties) owned by companies known as the “CraFarms Group” and A2 authorised him to enter into negotiations to acquire them. A1 then signed a commission sharing agreement (CSA) dated 8 October 2008 with A2 and Fraser (the latter signing on behalf of Latitude Asia Ltd, a company of which his two sons were directors). The CSA provided as follows:

‘All parties agree that all commission received through dairy farm purchases with CraFarms Group (Incorporating Plateau Farms Ltd, Hillside Ltd, Taharua Ltd, Nugen Farms Ltd, Ferry View Farms Ltd, Windburn View Ltd) will be shared equally between the said three parties. All commissions negotiated and paid by vendors and investors (if any) will be shared equally between the said three parties. Commissions will be payable by the vendor and investors (if any) upon settlement of dairy farm purchasers. Commissions will be held by a nominated company trust account. The said parties will only be able to claim commission upon submitting an invoice to the nominated company. The Confidentiality Agreement between CraFarms Group and UBS (sic) Funds Management NZ Limited forms part of this agreement.’

A.2 Arranging for 462 to acquire the farms

6. Some months later, in about April 2009, A1 approached Katherine Chan Wai Kay (referred to below as “Kathy Chan” or “PW1”) who was a director and chairman of 462 which was, at that time, a moribund company with trading in its shares suspended. A1 told PW1 that he knew of farms in New Zealand “which were a very wealthy woman’s farms” (naming her as May Wang). PW1 expressed an interest in having the farms injected into 462 and a few days later, A1 introduced PW1 to A2 when the supply of dairy products from New Zealand to Mainland China was discussed as a project with potential. A1 was then appointed a director and co-chairman of 462 to facilitate negotiations with A2.

7. On 18 May 2009, A2, through UBFM, entered into a series of agreements to purchase 22 farms owned by the six companies forming part of the CraFarms Group for a total consideration of NZD259 million.

8. In the following week, on 22 May 2009, 462’s board, chaired by PW1 and A1, approved the purchase by 462 of those farms with the minutes recording that the board was told that the ultimate beneficial owners of UTCL and UBFM were “third parties independent of the company and its connected persons.”

9. Later that day, 462 entered into an Agreement dated 22 May 2009 with UTCL and UBFM for the purchase from UTCL of the shares of its subsidiary UBAH (the Acquisition), the vendors undertaking that UBAH would become the owner of the Properties (which its fellow subsidiary UBFM had contracted to purchase from CraFarms) before completion under the Agreement.

10. The purchase would initially be of 20% of the shares in UBAH for the HK Dollar equivalent of NZD100 million with 462 having the option of acquiring the remaining 80% of UBAH for NZD400 million. The consideration was to be provided by the issue of convertible notes, that is, debt instruments convertible into shares in 462, to UTCL. It was agreed that 462 would perform due diligence inquiries. Conditions precedent to the Acquisition included permission from the SEHK to list and deal in converted shares; approval by 462’s shareholders; and all necessary approvals from the relevant New Zealand authorities (in particular the Overseas Investment Office (OIO) of New Zealand) for the transfer of ownership of the farms.

A.3 Due diligence and the Announcement

11. As the Acquisition qualified as a Very Substantial Acquisition (VSA) under the SEHK’s Listing Rules, trading in the shares of 462 was suspended between 25 May 2009 and 5 June 2009, pending the making of a public announcement. On 3 June 2009, a firm of accountants, ShineWing HK (CPA) Ltd (ShineWing) was engaged by 462 to conduct a due diligence check on UBAH and the farms. At about the same time, A2 engaged A3 as a consultant to compile accounts for the Acquisition and to provide the financial information to ShineWing.

12. The public announcement was published on 4 June 2009 (the Announcement). It stated that 462 had agreed conditionally to purchase from UTCL the UBAH shares (describing the principal terms of the agreement) and contained the following declaration:

‘To the best of the information, knowledge and belief of the Directors having made all reasonable enquiries, UTCL and UBFM and their respective ultimate beneficial owners are third parties independent of the Company and its connected persons.’

13. In New Zealand, Stretton’s were the CraFarms Group’s accountants, Mark King (King) being the accountant in charge. In the course of the due diligence exercise, in June 2009 King provided unaudited management accounts for the years ended 31 May 2006, 2007 and 2008 to A3 and A2 who forwarded the same to ShineWing and PW1.

14. In e-mails examined in detail by the Court of Appeal, A3 engaged in recasting the figures in various ways under pressure from A2. By 24 June 2009, the overall deficit of NZD5,420,975 shown in King’s figures had been altered to present an overall surplus of NZD14,875,785. After further manipulation, by 7 July 2009 the purported net profit figure for the 10-month period ended 31 March 2009 had been further revised upwards to NZD17,789,715. When the circular discussed below was published on 8 September 2009 (the Circular), it put the unaudited profit of UBAH for the year ended 31 May 2009 at NZD20 million, equivalent to HKD95.95 million.

15. The prosecution case was that the manipulation by A3 (in conjunction with A2 and with the acquiescence of A1) of the historical figures provided by King represented the dishonest falsification of those figures. The defence argued that the adjusted figures did not represent and were known by ShineWing not to represent historical figures but reflected honest projections by A3 of achievable improvements brought about by achieving efficiencies and a “change of management focus”.

A.4 Seeking SEHK’s approvals

16. During July and August, 462 was engaged in seeking the SEHK’s permission to issue the Circular required to be published for the Acquisition, being a VSA. This was referred to as a “pre-vetting” process and involved the SEHK raising a series of queries. In a letter dated 10 August 2009, the SEHK stated that it had received a complaint alleging that A2 was the sole shareholder and director of the vendor UTCL and that:

‘In respect of the Acquisition, Ms Wang is partnering with Mr Jack Keen Chen … the executive director of the Company. They work together in New Zealand under the same office at Level 10, 175 Queen Street, Auckland, New Zealand, and the office is a property owned by Ms Wang …’

17. The letter asked whether the allegations were accurate and went on as follows:

‘if Ms Wang is the beneficial owner of the Vendor, your confirmation whether there is any existing or prior relationship between Mr Chen and Ms Wang, or whether there is any prior arrangement(s) or understanding between Mr Chen and Ms Wang with respect to the Acquisition such that the Acquisition shall become a connected transaction under Chapter 14A …

We note that the circular on the Acquisition will be despatched by the Company in due course. Please ensure that all information relevant for shareholders to make an informed assessment on the Acquisition has been duly disclosed in such circular, including the information mentioned in the complaint above, where appropriate.’

18. A1 responded by saying that he had met A2 at non-business related events and that he had then been appointed as director of 462 to “assist and negotiate the acquisition”. He asserted that: “There were [sic] no existing or prior relationship between myself and Ms Wang with respect to the Acquisition”. A2 acknowledged that she was the sole shareholder of UTCL and likewise declared: “There was no existing or prior relationship between Mr Chen & me with respect to the Acquisition.”

A.5 The Circular and the Acquisition

19. On 8 September 2009, 462 published the Circular which stated that:

‘To the best of the information, knowledge and belief of the Directors having made all reasonable enquiries, each of the Target Company, the Vendor, the Warrantor, the ultimate beneficial owner of the Target Company, the Vendor and the Warrantor, the registered owners and the ultimate beneficial owners of the Properties and Fixed Assets are Independent Third Parties to the Company and its connected persons and in particular there is no existing or prior relationship or understanding between Mr Jack Keen Chen and Ms May Wang with respect to the Acquisition such that the Acquisition shall become a connected transaction under Chapter 14A of the Listing Rules.’

20. As noted above, the Circular put the unaudited profit of UBAH for the year ended 31 May 2009 at NZD20 million, equivalent to HKD95.95 million. The unaudited combined profit and loss statements attributable to the farms for the year ended 31 May 2009 annexed to the Circular also stated that the farms’ gross profits were HKD92,520,000 (“representing an improvement of 68.1% when compared to 31 May 2008”). The Circular further said that the statements had “been prepared based on the financial and other information provided by the management of the vendor”.

21. On 2 October 2009, at an Extraordinary General Meeting, 462 approved the Acquisition.

22. On 4 December 2009, the SEHK granted listing approval for 462 to issue convertible notes to UTCL. 462 then appointed Sun Hung Kai Investment Services Ltd (SHKI) as placing agent to market the additional convertible notes.

A.6 The Convertible Notes, their proceeds and the incomplete Acquisition

23. Consequently, on 21 December 2009, 462 issued to UBTL NZD50 million worth of notes convertible into 110,431,200 shares in 462 as the Acquisition deposit and NZD100 million worth of notes convertible into 276,077,999 such shares for the acquisition of 20% of UBAH’s shares. On the same day, the SEHK granted 462 listing approval to issue the additional convertible notes and an Optional Bond.

24. Between 16 July and 1 September 2010, sales of some of the convertible notes took place and the 462 board approved conversions of various batches of convertible notes into shares. Because of the SEHK’s concerns in the light of various complaints made against A1 and A2, 462 froze and stopped transfers for any CN-A and CN-B shares released to UTCL. A2 was declared bankrupt in New Zealand on 8 December 2010 and A1 and A2 were arrested on 16 December 2010.

25. On 12 January 2011, OIO refused to approve a transfer of the farms to UBAH and UBFM cancelled the sale and purchase agreements with the New Zealand farm companies.”

16.  Wu Wing Kit is not a party to the present trial.  He is not listed on the back of the indictment as a witness and, as far as I am aware, there is no intention on the part of the prosecution to call him.  I cannot imagine circumstances in which any of the defendants would even contemplate calling him.  There is no reference to him in the summing up of Anthea Pang J.  Plainly, on the evidence, there are likely to be brief references to Wu Wing Kit in the evidence in relation to, for example, the provision of BVI companies to D1 and D2.

SUBMISSIONS

17.  Counsel for the prosecution, Ms Draycott, SC submitted that the law deals with the apprehension of a real possibility of bias by a fair-minded and well-informed observer.[7] Ms Draycott submitted that the law is set out in Deacons v White & Case Ltd Liability Partnership & Ors (2003) 6 HKCFAR 322.[8] She then argued that: “It is respectfully submitted that where the tribunal has acted for one side in a criminal case, albeit a part that was severed for reasons of expediency, such an observer would apprehend or conclude that such a possibility [that the tribunal was biased] existed.”[9] 

18.  Ms Draycott submitted that there could be no question of forum shopping or impugning the integrity of the judge.  She reminded the court that the court would be unlikely to countenance a judge presiding who had acted for the prosecution.[10]

19.  It is appropriate also to note that Ms Draycott wrote to the Registrar, High Court inviting the Registrar to reassign the case to another judge.  That letter is dated 26 June, 2020.  She adopted and incorporated that letter into her submissions.  In that letter, Ms Draycott argues that the nexus between the present case and the District Court case in which Wu Wing Kit was tried is “too close”.  She went on: “We fear there is a real risk of unconscious bias where a Judge has defended someone for the same criminal conduct over which he is now asked to preside.  He has obviously considered the same facts from the perspective of a defendant and formed a stance which he has advocated in the course of a parallel trial, seeking to persuade that Judge [that is, the District Court Judge] [that] the prosecution is wrong.”  The submission goes on: “Despite the DHCJ Bruce’s best endeavours, some part of that mindset may carry over into in the current proceedings.”  The letter also asserts that: “…DHCJ Bruce will also inevitably be privy to matters closely related to the present trial, but not in evidence, which he would be professionally bound not to disclose to the parties.  We suggest such a connection is highly undesirable.  One has but to imagine the consternation of the defence if DHCJ Bruce had prosecuted Wu Wing Kit and Ye Fang instead of defending in that trial, to appreciate the problems.”

20.  The letter goes on to point out that the property, the subject of the charge in the District Court case, is part of the transaction where with the 1st accused faces a charge of money laundering.

21.  It is also asserted that the case against Wu Wing Kit was severed from the original proceedings to avoid his and his co-defendant’s involvement in a long trial.

22.  It was then submitted in the letter that Wu Wing Kit was aware of the relationship between D1 and D2 and, in particular, that the assertion by those accused that they were on opposite sides of the transaction.  In oral submissions, it was accepted by Ms Draycott that if that had been true and Wu Wing Kit had provided the legal services he did in that context, then a conviction on the money-laundering charge was inevitable.  The letter goes on to summarise the case against Wu Wing Kit at his trials (I was not concerned with the second trial and I proceed on the assumption that the case against Wu Wing Kit was, if not precisely the same as at the first trial, it was not materially different).  In the letter, Ms Draycott went on to outline the close relationship that she asserted between Wu Wing Kit and D1 and D2. She asserted that he was a joint director and equal shareholder of Progress Great Ltd which is one of the BVI companies holding 15% of the shares in one of D2’s companies.  Further, counsel for the prosecution asserted that there was a close relationship between D1 and Wu Wing Kit.  That Wu Wing Kit had acted as a solicitor for D1 was not in dispute, but Ms Draycott went on to further point out that on many occasions D1 had said, in Wu Wing Kit’s presence, that he was one of D1’s very best lawyer friends in Hong Kong.  It was not in dispute that Wu Wing Kit also acted for D2.  However she went further and suggested that he, that is Wu Wing Kit, knew that D1 and D2 were working together on opposite sides of the VSA.  The closeness was also indicated, so the prosecutor asserted, because Wu Wing Kit signed the agreement as a witness and was acting for D2.

23.  Ms Draycott also pointed to issues with a BVI company known as Super Worth International Limited (Super Worth).  She asserted that Super Worth was incorporated in BVI by Wu Wing Kit for D2.  She went on: “His bill was paid by D1 whose duty as a director of the purchasing company lay with 462.  The Heads of Agreement for the VSA between D2 and 462, stipulated that Super Worth would receive part of the consideration of the VSA.  D2 sent a draft of the Heads of Agreement to [Wu Wing Kit] on 16 May 2009 for him to ‘have a look and let me know your comments’.  [Wu Wing Kit] was therefore aware that he had set up a BVI company for D2, paid for by D1, in order to receive the proceeds of the VSA.  In the final agreement D2 nominated UBTL as the recipient, but the original purpose of Super Worth is clear.”

24.  Ms Draycott concluded her letter by noting that “[Wu Wing Kit] was acquitted at his second trial and nothing in this letter is intended to go behind that verdict or to disparage him in anyway.”

25.  Ms Draycott made oral submissions on 17 August 2020.  I do not propose to repeat the points that she made in her written submissions and the letter, which she incorporated into those submissions by reference.  In the submissions, she did say: “Well, as I say, I am concerned about the relationship between your Lordship and the personnel in this trial are matters that you may know about them and matters which you may have formed views about in the course of representing Mr Wu. And I say this: that I think all of us here when we are asked to represent somebody do so to the utmost of our ability and we perceive matters from their point of view. We push that point of view, we advocate that point of view, and it’s very difficult to step back and lose that completely. And I just don’t see why we have this risk.” She asked, rhetorically, why I wished to “cling on” - her words - to this case when there were so many able judges available to do the case.

26.  D1 provided written submissions.  In those submissions, it was contended by Mr Owen, QC, what is critical is to identify what the judge is required to decide.  It was submitted that this must be viewed in the context of a judge presiding on a jury trial where the judge is not required to decide matters of credibility or whether Wu Wing Kit is to be accepted as a witness.[11] In this connection, he preferred to Komal Patel v Chris Au [2016] 1 HKLRD 328.  He contended, citing Kwan JA in the Falcon Private Bank Case in the Court of Appeal, that an applicant must demonstrate that there was a logical connection between the asserted apprehension of bias and a particular party or issue.  Mr Owen made the point that not only was the charge different in Wu Wing Kit’s case, but the legal issues were different.

27.  In the course of submissions, I asked Mr Owen what sort of issues I may have to decide in the course of the trial, if I were to continue as trial judge.  The submission was that there would be issues of law to determine and I would have to deliver a summing up.  That proposition was picked up by Mr Derek Chan, SC in his submissions on behalf of D2.  In Mr Owen’s submissions, the position might be different if I was the trial judge in a District Court proceeding, where the judge is the tribunal of fact as well as tribunal of law.  Again, that was picked up by Mr Chan.  It was contended by both of them that I have no role in making findings of credibility.  It was submitted by Mr Owen that there was no logical connection between what I might be required to decide in the case and my representation of Wu Wing Kit in the previous proceedings.

28.  Counsel for D3, Mr David Khosa, provided a very helpful summary of the evidence and contentions in the first trial of Wu Wing Kit.  As far as I can see, that accords entirely with the summary I have adopted from the Court of Appeal set out earlier in these reasons.

PRINCIPLES

29.  The principles in this area are well-established. A judge may not hear a case if in all the circumstances, a fair-minded lay observer may reasonably apprehend that the judge may not bring an impartial mind to the resolution of the question or questions the judge is required to decide.[12] This was the test propounded by the Appeal Committee of the Court of Final Appeal in Deacons v White & Case Ltd Liability Partnership & Ors (2003) 6 HKCFAR 322.  In that case, the Appeal Committee of the Court of Final Appeal made the point that it was not strictly necessary for the Court to decide the terms of the applicable test for Hong Kong.[13] Nevertheless, Ribeiro PJ for the court observed:[14]

“The court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility, or a real danger, the two being the same, that the tribunal was biased.”

30.  This test was also accepted as correct in Falcon Private Bank Ltd v Borry Bernard Edouard Charles Ltd (2014) 17 HKCFAR 281.[15] The onus of establishing that matter is on the party applying for recusal. 

31.  As set out by the High Court of Australia in Johnson v Johnson (2000) 201 CLR 488, Kirby J observed:[16]

“The hypothetical reasonable observer of the judge’s conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues. At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is ‘a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial’.”

In that case, Kirby J made the point that the fair-minded observer should not be confused with the complainant.

32.  These principles give effect to the requirement that justice should both be done and be seen to be done.[17] The concern for the principles of the independence and impartiality of judicial officers is deeply rooted in the common law and the appearance of impartiality is essential for public confidence and the administration of justice.[18]

33.  In this context, it is relevant to consider what the hypothetical reasonable observer brings to the required evaluation.  Plainly, the hypothetical reasonable observer is fair-minded and hears both sides (or, perhaps where relevant, all sides) of the argument before coming to a conclusion.[19] In Helow v Secretary of State for the Home Department & Anor [2008] 1 WLR 2416, Lord Hope of Craighead observed:[20]

“2. The observer who is fair-minded is the sort of person who always reserves judgment on every point until she has seen and fully understood both sides of the argument. She is not unduly sensitive or suspicious, as Kirby J observed in Johnson v Johnson (2000) 201 CLR 488, 509, para 53. Her approach must not beconfused with that of the person who has brought the complaint. The ‘real possibility’ test ensures that there is this measure of detachment. The assumptions that the complainer makes are not to be attributed to the observer unless they can be justified objectively. But she is not complacent either. She knows that fairness requires that a judge must be, and must be seen to be, unbiased. She knows that judges, like anybody else, have their weaknesses. She will not shrink from the conclusion, if it can be justified objectively, that things that they have said or done or associations that they have formed may make it difficult for them to judge the case before them impartially.

3. Then there is the attribute that the observer is ‘informed’. It makes the point that, before she takes a balanced approach to any information she is given, she will take the trouble to inform herself on all matters that are relevant. She is the sort of person who takes the trouble to read the text of an article as well as the headlines. She is able to put whatever she has read or seen into its overall social, political or geographical context. She is fair-minded, so she will appreciate that the context forms an important part of the material which she must consider before passing judgment.”

That passage was followed by Zervos J in Komal Patel v Chris Au [2016] 1 HKLRD 328, §11.

34.  In Johnson v Johnson (above), Kirby J considered the nature of the observer:[21]

“The attributes of the fictitious bystander to whom courts defer have therefore been variously stated. Such a person is not a lawyer. Yet neither is he or she a person wholly uninformed and uninstructed about the law in general or the issue to be decided. Being reasonable and fair-minded, the bystander, before making a decision important to the parties and the community, would ordinarily be taken to have sought to be informed on at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances. The bystander would be taken to know commonplace things, such as the fact that adjudicators sometimes say, or do, things that they might later wish they had not, without necessarily disqualifying themselves from continuing to exercise their powers. The bystander must also now be taken to have, at least in a very general way, some knowledge of the fact that an adjudicator may properly adopt reasonable efforts to confine proceedings within appropriate limits and to ensure that time is not wasted. The fictitious bystander will also be aware of the strong professional pressures on adjudicators (reinforced by the facilities of appeal and review) to uphold traditions of integrity and impartiality. Acting reasonably, the fictitious bystander would not reach a hasty conclusion based on the appearance evoked by an isolated episode of temper or remarks to the parties or their representatives, which was taken out of context. Finally, a reasonable member of the public is neither complacent nor unduly sensitive or suspicious.”

35.  Further, such an observer would be aware of the judicial oath taken by both permanent and deputy Judges and Recorders.[22] Because my impartiality is impugned because of my acting for Wu Wing Kit at an earlier time, the observer would also be aware of the traditions and discipline of the legal profession and the ethical standards imposed and expected of those in the legal profession.[23]  There is a similar tradition and discipline apposite to the judiciary.[24] Such an observer would also be expected to understand the obligations of lawyers as to the conduct of cases.  In particular, such an observer would understand the professional obligation of a lawyer (whether solicitor or barrister) to be agnostic towards instructions given from a lay client.  In HKSAR v Egan (2010) 13 HKCFAR 314, Ribeiro PJ observed:[25]

“In the absence of actual knowledge, a solicitor (or barrister) is bound to adopt an agnostic approach towards the client’s instructions in carrying out his professional duties since it is not his business to judge their truth or falsity. The solicitor or barrister may privately harbour distinct feelings of scepticism about his client’s story but that is wholly beside the point.”

36.  Obviously, in criminal proceedings where a lawyer is instructed to defend a client, such a lawyer would be required to evaluate or form a view about his client for purposes such as deciding what advice to tender as to whether or not his client should testify.  While popular culture might point to a different conclusion in this context, it is professionally inappropriate for a lawyer to become, as it were, a card-carrying member of the accused’s team adopting the accused’s view of the facts.  After the case is concluded, the only obligation that such a lawyer would have in those circumstances would be to observe the obligation of legal professional privilege.  The obligation does not extend to advocating his former’s position or beliefs. Further, the Bar Code imposes strict rules about the conduct of barristers who are told directly by their client that they are guilty or where to represent a client would be to have a conflict-of-interest.

37.  The authorities demonstrate that it is important that judicial officers should be careful not to accede too readily to suggestions of appearance of bias as such may encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide their case in their favour: Re JRL; Ex Parte CJL (1986) 161 CLR 342. In that case, the High Court of Australia was concerned that a counsel who had been dealing with one of the parties in family law proceedings making representations to the judge in the case in the absence of the other party.  In the course of considering the principles which applied, Mason J observed:[26]

“Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.”

38.  This matter was taken up by the Appeal Committee (Ribeiro and Tang PJJ and Chan NPJ) of the Court of Final Appeal in Falcon Private Bank Ltd v Borry Bernard Edouard Charles Ltd (2014) 17 HKCFAR 281. In giving the judgement of the Court, Ribeiro PJ observed:[27]

“Judges must be wary of unjustified applications for their recusal motivated by tactical or forum-shopping considerations. By its very nature, it is generally in quite exceptional cases that recusal is called for. As Kwan JA noted, Judges can generally be expected to exercise proper judicial standards even after they have found it necessary to criticise wayward legal representatives. Judges should accordingly feel confident of appellate support if they continue with the case where there are no reasonable grounds for apprehending a risk of bias. On the other hand, if there is a real possibility that a risk of bias might objectively be apprehended, this should be recognised and they should prudently arrange for a colleague take over the proceedings. To press on with hearing the matter in such cases poses a risk of costs being thrown away if, on appeal, it is held (as in the present case) that the judge should not have continued to hear the case. Even if there is a suspicion that forum shopping motivates an application, the fact and appearance of judicial impartiality must have priority and the prudent course should be followed where a real risk of apprehended bias exists.”

39.  The English Court of Appeal expressly followed the observations of Mason J in Re JRL; Ex Parte CJL (above) followed in Locabail (UK) Ltd v Bayfield Properties Ltd & Another [2000] QB 451.[28]

40.  In ZN v Secretary for Justice [2016] 1 HKLRD 174, Zervos J discussed the position where the applicant is an arm of the Hong Kong government.  He observed that “When the litigant is the HKSARG, it should be rare indeed that it would make an application for the recusal of a judicial officer, and if it does it should be only in the most obvious cases: The HKSARG should be more reluctant to do so than the ordinary litigant, and thereby display greater confidence in and respect for the workings of the judiciary.”[29] In my judgement, if those observations I have just quoted are meant to imply a limitation on the right of the Secretary for Justice to apply to recuse a judicial officer, then I respectfully disagree.  If it is a statement of aspiration, I wholeheartedly agree.  The reason I am concerned about the limitation on the right of the Secretary to apply is, unlike the position of an accused person, the appellate review options available to the Secretary are distinctly limited.  Accordingly, from that procedural standpoint alone, it is incumbent on the judge to whom the application is made to take, perhaps, especial care in dealing with such an application.

41.  On any view, an application to a judge for recusal places that judge in an invidious position.  The judge has to determine the application.  Most of the authorities that I have considered, when considering the principles to be adopted, are appellate decisions reviewing the decision of the First Instance judge, who had to make the decision to recuse or otherwise.  As to the appropriate considerations to bring to bear on such a decision, of great assistance to this court was the approach adopted by Zervos J in Komal Patel v Chris Au (above).

RESOLUTION

42.  As Zervos J in Komal Patel v Chris Au (above) identified, the first task that a judge facing an application for recusal must consider is to identify how or why the judge is or may be biased by reference to the issues that the judge must consider in the case.  In short, in the present case, the contention must be that there is a reasonable apprehension on the part of a reasonable and well-informed observer that I could possibly be biased against the prosecution in relation to its case against the 3 accused. The basis on which the prosecution says that such an observer may have such an apprehension is that I acted for Wu Wing Kit in his trial for money laundering.

43.  While it is certainly true that the conspiracy charges faced by the 3 accused in this case are different charges, the practical reality is that there is some common evidence as between Wu Wing Kit’s trial and the present trial.  D1 in the present case also faces a money laundering charge.  However, while the prosecutor in the present case confidently asserts knowledge of Wu Wing Kit as a pertinent fact germane to both cases, the plain fact is that certainly at the trial that I conducted on his behalf, he denied knowing these facts.  Indeed, I cannot conceive of circumstances in which there could be anything other than a verdict of guilty on the money laundering charge that Wu Wing Kit faced, if it were proved that he knew the facts that the prosecutor asserted.  At the trial that I conducted as counsel, the learned trial Judge convicted Wu Wing Kit on the basis of the second limb of liability under section 25 of the Organised and Serious Crimes Ordinance. The issue before the Court of Appeal was whether the learned trial Judge adopted the correct test.  I understand that Wu Wing Kit was never charged with the conspiracy charges faced by the accused in the present case.

44.  It is said by the prosecutor, and these are her exact words, that “Well, as I say, I am concerned about the relationship between your Lordship and the personnel in this trial are matters that you may know about them and matters which you may have formed views about in the course of representing Mr Wu.”  First of all, I have no relationship, professional or otherwise, with the accused in this case.  I have a relationship with Mr Khosa and I will return to that topic in due course. My relationship and obligations (legal professional privilege aside) to Mr Wu are over.

45.  What I “know” or what I have been told by Wu Wing Kit could only be relevant if it could conceivably affect the decision or decisions I was required to make in the present trial.  Further, as was my professional obligation, I remained (and remain) agnostic about the instructions given to me by Wu Wing Kit.  Whilst I am not permitted to reveal my instructions in Wu Wing Kit’s case, it is only right that on no account was I ever instructed that Wu Wing Kit knew of the dishonest activities alleged against, particularly D1 and D2.  D3 had no real part to play in the issues at trial.  If those had been my instructions, I would have recused myself a long, long time ago. Under the Bar Code, it is at least doubtful that I could have acted for him in the first place.

46.  The prosecutor, in the course of her submissions, asked rhetorically why I wished to “cling on” to this case where there were so many able judges available to do the case. Plainly, there are many able judges serving Hong Kong. No doubt at least some are available. I have not enquired. I reject as absurd the suggestion that I am “clinging on” to this case. 

47.  Agnosticism as to instructions is a critical part of what a barrister is expected to do.  Barristers are expected to provide objective advice.  Agnosticism is a prerequisite of objective advice. That advice may be unpopular or unwelcome, but that is the obligation.  If a barrister is not agnostic as to his or her instructions, that barrister runs the risk of failing in one of his or her principal duties. In my experience, leaving aside the need to render independent legal advice, counsel who lose their objectivity run the real risk of diminishing their ability to conduct a case.

48.  I perfectly accept that being agnostic as to instructions has obvious limitations in the analysis of whether it is necessary for me to recuse myself.  For example, agnosticism as to instructions would be of no relevance if Wu Wing Kit was an accused person in the present trial.

49.  As I made plain in exchanges between myself and the prosecutor in oral argument, I did form views about Wu Wing Kit.  As with virtually every trial I have ever done, I consider that my professional obligation means that I am required to form views.  However, those views are limited to making an assessment of an accused for the purpose of the trial. The most striking example of that is an assessment of what sort of a witness the accused might make, if he or she was to go into the witness box.  That is highly relevant to the advice that I am professionally obliged to render in the event that in the case I am instructed to defend the court holds that there is a case to answer.  I try to avoid forming any emotional feelings about an accused and almost without exception I have been successful in that.  (I have been conducting trials since 1977).  I formed no emotional feelings about Wu Wing Kit.  Even if I had, I cannot see how such emotions might affect any decision I might be called to make in the present trial.

50.  I indicated that I would return to the topic of the fact that Mr Khosa who was my junior at the trial of Wu Wing Kit. Mr Khosa is a senior and respected member of the Bar.  He is a person with whom I have enjoyed friendly relations with for many, many years.  In that regard, he is to be regarded as in common with a fairly large portion of the Bar.  As Sir Anthony Mason once observed at the talk that I attended, the Bar produces great friendships and great rivalries.  It ought not to be surprising that this was my experience having been in practice as government counsel and as a barrister in this jurisdiction since 1982. Mr Khosa, and many other persons of his seniority, have regularly appeared before me since I started sitting as a Deputy Judge some years ago.  Some of them I count as friends.  Some of them I do not.  Some of them have assisted me as Junior Counsel.  Some have been opponents.  So far, when they have appeared before me, the record clearly demonstrates they have all been treated the same.  Counsel for the prosecution appeared to resile from a submission that the fact that Mr Khosa was my junior in the trial where I represented Wu Wing Kit was a relevant factor either for me or, presumably, the fair-minded lay observer acting reasonably.  I make these points in case I have misapprehended her position.

51.  Counsel for the prosecution also says “…I say this: that I think all of us here when we are asked to represent somebody do so to the utmost of our ability and we perceive matters from their point of view. We push that point of view, we advocate that point of view, and it’s very difficult to step back and lose that completely. And I just don’t see why we have this risk.”  The central core of that submission is that it is contended that counsel as a generality and, perhaps me in particular, cannot step back after a case after having pushed that case before a tribunal as far as professionally appropriate.  I fundamentally disagree.  In my opinion, that completely misses the point about what we as counsel do.  That said, I could readily see how if a person learned of their concept of what barristers do from watching legal dramas in popular culture, how the submission of the prosecutor might have a proper basis.  However, it has none in the day-to-day world of the Bar.  Even if I was wrong about that, even if, for example, I thought that Wu Wing Kit was, with respect to the first trial, be wrongly convicted or was unlucky to be convicted, I fail to see how that could influence me in making any determination against the prosecution germane to the accused in the present case.

52.  I am not sure I wholly agree with the submissions of Mr Owen and Mr Chan as to certain aspects of what the judge in a jury trial is required to determine.  In particular, issues of admissibility which are issues of law almost always depend on facts being found as a precondition to admissibility.  In that regard, a judge in a jury trial has a fact-finding responsibility.  However, I cannot conceive of any ruling of that kind which I may be called upon to give where I made rule against the prosecution out of some misplaced belief in or loyalty to Wu Wing Kit.  (In making that observation, I am assuming Wu Wing Kit was not a witness.)  Of course, some issues of admissibility may have an uncontroversial or accepted factual base.  What the prosecution’s submissions come to must be that there is a perception that there is a real risk that I would skew my decision either as to law or as to facts because of that misplaced belief or loyalty to Wu Wing Kit.

53.  Further, as Mr Owen and Mr Chan submitted, the judge has an important role at the conclusion of the prosecution case to determine whether or not there is a case to answer.  The legal discipline in determining that issue is based on settled law.

54.  It has always been my approach in the conduct of criminal trials that if there are any rulings, other than minor short-term matters as to whether counsel for a particular party is improperly asking leading questions or matters of that kind, that I give a reasoned decision. This is an obligation recognised by the Court of Appeal in HKSAR v Okafor [2012] 1 HKC 427, [2012] 1 HKLRD 1041.[30] It is my invariable practice that when giving reasons in recognition of those obligations, the reasoned decision is to be reduced to writing.  In other words, there is open scrutiny of any decision I make.

55.  Of course, I would be obliged to sum-up the case and its conclusion in the event that I hold that there is a case to answer.  It is elementary that the obligation of the judge in such a circumstance is to sum-up not only the prosecution case, but to put the defence case as well.  In this jurisdiction, prosecuting counsel are obliged in law to take exceptions where an error is made in the summing-up, whether it be of fact, law or emphasis.  While there is no such obligation on defence counsel as presently the law stands, I suspect that the time is not far off when that may become an obligation imposed on defence counsel as well.  Be that as it may, there is ample opportunity for scrutiny of the summing-up.  Although it is not my invariable practice to do so, I cannot imagine circumstances in this specific case in which I would not consult with counsel prior to the summing-up.  I cannot imagine circumstances in this case where those consultations would not be extensive, not just as to the applicable law (which, while somewhat tricky, is probably reasonably easy), but as to aspects of the facts as well.  It is my invariable practice to invite counsel to make submissions in advance of a summing-up except in the most basic trials.

56.  The point of all of this is simply to focus on what I will be required to consider (I use the word “consider” in contradistinction to “decide” quite deliberately) in the trial.  That will be focused and counsel will have the opportunity at all stages to make submissions, particularly, by reference to a case such as the present one, I cannot imagine it being anything else.

57.  However, even though I am wholly and utterly sure that I will bring an open mind, as opposed to a biased mind to this case, in many respects that is only part of the issue.  The real issue then becomes whether a fair-minded lay observer may reasonably apprehend that the judge may not bring an impartial mind to the resolution of the question or questions the judge is required to decide.  I make the point that such an observer, consistent with Kirby J in Johnson (above), in order to be a fair-minded observer, would have to know about aspects of how barristers go about their business and how judges go about their business.  In many ways, that fair-minded lay observer is, in a sense, required to get the basics of a legal education starting with things that were learned in the first few classes of first year law school.  In my judgement, I am sure that such a fair-minded lay observer would not reasonably apprehend that I may not bring an impartial mind to the resolution of the question or questions that I am required to decide.

58.  Accordingly, I refuse this application.