R. v. LO SHU-KEUNG AND OTHERS

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JUDGMENT  OF  THE   COURT

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Yang, C.J.:

1. On the 2nd April 1991, the five applicants were tried by Her Honour Judge Chua  in the District Court on a charge sheet containing two charges of blackmail. The 1st applicant was convicted on the second charge; the 2nd and 3rd applicants were convicted on both charges; the 4th applicant was convicted on the second charge but acquitted on the first charge; and the 5th applicant was convicted on the first charge.

2. Mr. Sanguinetti, who appeared for all five applicants, explained that, as the grounds of appeal comprised questions of law and questions of mixed law and fact, he had proceeded by way of an appeal as well as an application for leave to appeal against conviction: s. 82(2) of the Criminal Procedure Ordinance, Cap. 221.

3. In the event, we granted the applications and treating them as the hearing of the appeals allowed the appeals, quashed the convictions and set aside the sentences. The Crown did not seek a re-trial.

4. We now give our reasons for arriving at the conclusion that we did.

5. The first charge alleged that the 2nd, 3rd, 4th and 5th applicants on a date unknown in December 1989, at Tsui Ping Road Estate, Kowloon, together with other persons unknown, with a view to gain for themselves, made an unwarranted demand of $40,000 from one Pang Wai-sang (Pang) with menaces.

6. The second charge alleged that the 1st, 2nd 3rd and 4th applicants on divers day between March and May 1990 at the same Estate, together with other persons unknown, with a view to gain for themselves, made an unwarranted demand of $120,000 from one Wong Wai-cheong (Wong) with menaces.

7. Of the thirteen perfected grounds of appeal we need only refer to ground 7. This was that "justice was not done and/or seen to be done in all the circumstances of the case."

8. In dealing with this ground it is necessary to summarise the evidence given by Wong (PW1), the manager of one of six decoration companies authorised to do certain decoration work at Tsui Ying House, Tsui Tsz House and Tsui Lam House in the Tsui Ping Estate.

In early December 1989 a group of men came to Wong's office. One of them spoke to a member of Wong's staff. Later, as a result of a discussion with the proprietors of the other decoration companies, Wong instructed Pang to speak with the men who had visited his office. Pang reported to him that the men wanted $50,000 for each block, and that in return they would guarantee that "all work would be carried out without a single nail going missing." At a subsequent meeting between the proprietors of the decoration companies it was agreed that they would pay $50,000 by way of two instalments from a common fund.

9. A day or two later two men showed up at Wong's office and were introduced to him by Pang as Ah Biu and Kam Ming Chai. It is convenient to mention here that Wong subsequently identified the 2nd applicant at an identification parade as Kam Ming Chai. He was unable to identify any of the applicants as Ah Biu.

10. Pang gave Wong two pager numbers and told him that he could contact these men by using them. Two or three days later Wong gave Pang $25,000. In late December a man identifying himself as Ah Kau of a unit known as Ho Choi telephoned Wong and asked him to meet him as the money had not been paid. Later, on returning to his office, Wong noticed a group of 40 to 50 people gathered outside. He then returned to his car. It was then that the 2nd applicant approached him and said "Its all right now Ah Cheong, we will fix it up, you may go." There was no evidence that the 2nd applicant was one of the group.

11. One or two days later the 2nd applicant told Wong, "Ho Choi want us to pay a laisee of $10,800". Wong replied that his company would not pay. However, on that afternoon, Wong received a telephone call from Pang as a result of which he held a meeting with representatives of the other decorating companies. It was decided to pay $3,600 laisee to Ho Choi.

12. At the end of the lunar year the 2nd applicant again approached Wong. On this occasion he asked for laisee to be given to children in return for tangerine trees. When Wong asked how much laisee he should pay, the 2nd applicant replied, "$3000". Several days later the 2nd applicant and "some kids" appeared with six tangerine trees and asked Wong to pay $18,000. Wong refused. He told the 2nd applicant that he would only pay $3000. On hearing that, the 2nd applicant simply left the trees at Wong's office and departed.

13. On the 7th day of the lunar New Year Wong went to his office as a result of a call from the Housing Department and found that a glass door and louvres had been broken and that a shrine had been pushed over. He attempted to contact the 2nd applicant by leaving a message at his paging station. Shortly afterwards he was visited by Ah Biu who expressed unhappiness that damage had been caused to Wong's office and agreed to find out who was responsible. Some time later, the 2nd applicant told Wong that he had discovered who had caused the damage. Wong replied that "he didn't know their rules" and that "he could do whatever he liked".

14. When asked at the trial by prosecuting counsel, Mrs. Panesar, whether Ho Choi was a person or a place, Wong replied, "as far as I presumably understand it, it is a triad society organisation." In her Reasons for Verdict the judge stated that it had formally been agreed that Hoi Choi is a local triad society. However, nothing to that effect appears in the list of facts admitted pursuant to section 65C of the Criminal Procedure Ordinance, nor have we been able to find any reference elsewhere in the record of proceedings to any such agreement.

15. In late March 1990 when work had almost been completed at Tsui Ying House and was about to begin on Tsui Tsz and Tsui Lam Houses, the 2nd applicant and a youth approached Wong and the representative of another decoration company. The 2nd applicant said that "they" were not very happy as they had not been instructed to do the work on the Tsui Tsz and Tsui Lam projects, and asked Wong to invite the bosses of the decorating companies to have a chat with him. Wong replied that the bosses were not satisfied with the manner in which the 2nd applicant's group had performed their duties in inspecting and making routine checks to see that work was being properly performed on the Tsui Ying House project and that no vandalism was occurring. He explained that this was the reason that "they weren't instructed on this occasion."

16. The 2nd applicant then asked Wong to tell the other bosses that $50,000 had been asked for the Tsui Ying House project, and that the 2nd applicant's group wished to be retained for the same work on the two new projects at a fee of $60,000 for each project. Wong told the 2nd applicant that he could not decide the matter and would have to refer it to his boss.

17. Later that day Wong saw the 2nd applicant speaking to the 1st applicant. The 1st applicant then came over to Wong's office and said, "Ah Cheong, this is not right. You people asked somebody else to do the work. We have nothing to do. That makes us lose face" Wong repeated that the decoration company bosses considered that "the work" had not been done properly, and asked the 1st applicant, "What do you want now?" The 1st applicant replied that Wong had to retain his group to do the work and that they required to be paid $60,000 per block and $1000 per day. Later, after having discussed the matter with his boss, Wong met the 1st applicant and told him that "our bosses would not let him work". The 1st applicant became angry and told Wong that his people were "in the wrong". Having said that, the 1st applicant was about to leave when another man came up and said "No need to talk with him any more. Just give them a clean sweep tonight." There was no evidence at the trial, however, that anything untoward happened that night or thereafter to anyone or anything connected with Wong's company or that of any other decorator concerned with the projects.

18. Wong testified that he had seen the 3rd and 4th applicants performing patrol duties with the 2nd applicant at Tsui Ying House and, under cross-examination by defence counsel, he agreed that members of the 2nd applicant's group had been employed as casual labourers on the Tsui Ying House project and that he had actually assigned them to perform various tasks.

19. The following exchanges then occurred at the concluding stage of his cross-examination:

"Q. Do you also agree $60,000 demand for the new block D1 never threatened you?

A. What do you mean by a threat?

Court: I can threaten you directly such as 'I want $60,000 otherwise I'll beat you up.' 'Or something bad will happen to the office premises.' Or a threat can be uttered without necessity to say the words but you don't feel free to reject the demand because you know and he knew you know something bad would happen if you don't pay. That is a silent threat.

Court: In that context did D1 do anything?

A. No

Re-examination:

Q. You said after $25,000 made employment cards issued to some persons?

A. Yes.

Q. Were these persons to receive wages or salary?

A. No.

Court: When you were asked for $50,000 that was not money you were willing to pay, was it?

A.No we were not willing to pay.

Court: You knew if you didn't pay something bad would happen.

Q. What about the employment cards what did you issue them for?

Court: Mrs. Panesar, prosecution should be done with a broad brush. I am not a judge appointed straight from England who initially may not know about such triad cases. I know and understand triad activity and asking questions such as what number of persons - were standing where - which I haven't recorded is unnecessary. The important part is the person and fact of identification which in this case is agreed anyway. Concentrate on the 'protection'. I have enough evidence to infer these demands are unlawful.

Q. Their asking for $60,000 in relation to the new blocks was it in the same context?

Court: Mrs Panesar do you have to ask this?

Mrs Panesar: In that case I have no more re-examination."

20. The first of the judge's interventions in re-examination was a blatantly leading question whose purpose could only have been to undermine the defence case and to advance that of the prosecution. Apparently, the intervention which then followed was not intended to be a question, for, contrary to her invariable practice when recording questions, the judge did not record it with a question mark. Nor, it seems, was it understood by the witness to have been intended as such, for he made no response to it.

21. By intervening in this manner, the judge had not only descended into the arena of dispute and departed from the position of neutrality which her proper role demanded of her, but she clearly revealed the view that she had prematurely formed of the case.

22. This was further illustrated by her observation to Mrs Panesar, by which she made it plain that, without having heard any evidence that the defendants might eventually give, she had decided that demands had been made which were both unlawful and triad connected.

23. First, there was no evidence that Ho Choi was a triad society. Certainly, none of the members of this court all of whom have lived in Hong Kong for many years has ever heard of such a group. Even if the judge had properly come to the conclusion at the end of all the evidence that the applicants had been involved in the type of protection racket that is a common feature of triad activity, it would by no means have followed that it was a triad operation.

24. Secondly, in view of Wong's testimony that he had engaged the 2nd applicant's group as casual labourers, had assigned them tasks and had seen some of them performing patrol duties, the question of whether any one or more of the applicants had acted unlawfully should not have been resolved prematurely and in such an arbitrary manner.

25. In Lai Chuk-ting v. The Queen [1978] HKLR 402, which was a case in which the judge, having prepared a written judgment overnight delivered it immediately at the conclusion of defence counsel's address on the following morning, Huggins, J.A., in giving the judgment of the court, said at p.403:

" Now there are, of course, two conflicting principles here. We should not too readily assume that a judge, and particularly a judge of this experience, would make up his mind finally before hearing the address of a defendant's counsel. However, with some reluctance, we have come to the conclusion that the other principle outweighs that, and that principle is that justice must manifestly be seen to be done, and it is possible that the Defendant and his counsel would be aggrieved and believe that the learned judge may not have given proper weight to the address which was made to him. There is little more that we can say. We think that there is some justification for such a grievance and, therefore, this appeal of the 1st Appellant must be allowed.

    I would add that we did not think it appropriate to obtain an affidavit from the learned judge since that could not have cured the appearance of what was done."

26. In delivering the judgment of this court in R. v. Lau Hing-on (unreported), Criminal Appeal 378 of 1986, Cons, V.-P., as he then was, having referred to Jones v. National Coal Board [1957] 2 Q.B. 55, had this to say:

"    The case before that court related to a jury trial and the court went on to quote, and rely upon, three principles that had been formulated by Lord Parker in R. v. Hamilton [1969] Crim. L.R. 486. The first two of those principles are not appropriate to trial by a single judge and no reliance has been placed upon the third in the present instance. We find assistance however in a later passage of the judgment:-

'    Nevertheless we administer an adversarial and not an inquisitorial system. Until the law is changed, as we hope it will not be, we must seek to preserve it. One of its most important rules is that the judge must continue to preserve an appearance of neutrality throughout a trial. Whatever he may think, he must not seek to impose his views on the jury, during the course of a trial, by interventions of a volume or nature which put pressure on a jury to find as the judge has shown he wishes them to do.

    It would, of course, be naive to expect that every convicted defendant would acknowledge that his trial had been fair. But the judge must strive to so conduct himself during a trial that a neutral observer would be left in no doubt that the trial was conducted fairly before a judge who stood above the conflict and retained his air of impartiality throughout.'

    Those remarks must apply even more strongly to trial by a single judge, for should the judge assume the robe of an advocate, as Lord Denning put it, not only is the appearance of neutrality lost, but the judge being a judge of fact as well as law, there is a very real possibility that his judgment will be influenced by his conduct and the defendant genuinely deprived of a fair and impartial trial."

27. With respect, we entirely agree. In our view, the judge failed to keep an open mind on the evidence before her. Regrettably, we are driven to the conclusion that her conduct did not display the neutrality that would have led any right minded observer to conclude that the proceedings were being conducted fairly and impartially. The applications were therefore granted and the appeals allowed.