R. v. AU YEUNG KIN KWOK

IN THE COURT OF APPEAL

1996, No. 215

(Criminal)

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J U D G M E N T

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Mayo J A giving the judgment of the Court:

1. The applicant who was the 4th defendant (D4) at the trial below seeks leave to appeal against his conviction for conspiracy to defraud.

2. There were two separate conspiracies charged. The applicant was convicted on the 1st conspiracy and acquitted on the second.

3. Particulars of the 1st charge was as follows:

" TSANG Hing-ming, HAU Siu-pang, HO Wing-tat and AU YEUNG Kin-kwok, between the 1st day of June, 1993 and the 9th day of June, 1994, in Hong Kong, conspired together and with a person known as Mr. LAU to defraud such persons as might apply to be sales representatives of Fortune Rich Enterprise Company by dishonestly causing them to sign IOU's for sums of monies."

4. The trial judge Her Honour Judge Bokhary as she then was summarised the prosecution case on the 1st conspiracy in this way:

" In broad outline, the prosecution's case as to the nature of the conspiracy charged under the 1st charge is as follows. Members of the public were duped by bogus newspaper advertisements to apply to become sales representatives of a bogus concern named Fortune Rich Enterprise Company (hereinafter called "Fortune Rich"). Applicants were taken on as such sales representatives. Then each would be drawn into what the duped sales representative concerned thought were genuine sales to a genuine customer but which were in fact bogus sales. The bogus customer pretended to pay deposits. Later, the sales representative was falsely led to believe that the customer was complaining and was demanding repayment of his deposits. And the sales representative was then persuaded to give an IOU towards such repayment."

5. This gives an overall view of the conspiracy. The applicant's conviction was based partly upon an admission he made in a post-recorded statement to the police and partly upon the evidence given by 5 of the victims of the conspiracy.

6. The post-recorded statement was admitted as evidence following a ruling made by the judge on a voire dire.

7. After the arresting police officer had briefly described the offence alleged against the applicant and cautioned him the applicant is claimed to have said:

"Ah Sir, I understand. In respect of this job, I am the mastermind. The other persons are only working for me. They have nothing to do with it."

8. The judge did not consider this to be a sufficiently specific admission to enable her to convict the applicant of this offence.

9. So far as the admission of the post-recorded statement was concerned the judge gave her reasons in the Reasons for Verdict why she was satisfied at the appropriate level that the statement was a free and voluntary statement.

10. The 5 victims who gave evidence were PW 26-30 inclusive. The judge summarised the evidence they gave. Three out of 5 identified the applicant as the man who had conducted the initial interview they attended. The other two said that the man who had interviewed them was called Benny - a name which was used by the applicant.

11. The victims all gave evidence of the scam which fell approximately within the four corners of the scheme which had been outlined by the judge in her reasons.

12. Each of them had been required to sign IOUs for the varying amounts they referred to.

13. The first ground of appeal is that the admission made by the applicant on arrest was unbelievable and that the objections relied upon were set out at p537 of the record:

" The grounds of objection is the threat of violence. Arrest. D4 was arrested at his home in room B7, Block B, 27th Floor, Wang Kwong House, 33 Ngau Tau Kok Road , Kowloon in the morning of 1 July '94 by three CIDs numbered Detective Sergeant 12764, DPC 45027 and DPC 503. After D4's wife answered the door she immediately told D4 that it was CIDs looking for him. D4 immediately telephoned his solicitor, saying that he was visited by CID at his Ngau Tau Kok flat. Both D4 and his wife were taken to Ngau Tau Kok Police Station.

In Ngau Tau Kok Police Station DPC 45027 asked D4 to look at his notebook and write down a passage as dictated by DPC 45027. After reading the notebook, D4 said to DPC 45027 that he did not know what the Conspiracy to defraud was as mentioned in the notebook. D4 further denied having uttered those words as alleged said by D4 at his house on page 44 of the notebook. DPC 45027 told D4 that there was no need for him to deny his involvement as he certainly had involvement once police took the arrest action. DPC 45027 further told D4 that all the persons had said the D4 was the prime mover and that D4 would certainly die this time. D4 was told that if he did not admit there would be a lot of .... for him to suffer when he was taken back, meaning Kowloon East Police Headquarters. After all, DPC 45027 gave a pen to D4 and told D4 to write on the notebook according to his dictation. D4 told this officer that he did not want to sign nor write anything on the notebook. This officer told D4 to write as told unless D4 wanted to be beaten up. Under these circumstances D4 wrote down the paragraph on page 46 and signed accordingly.

After returning to Airport Police Station at 0925 hours D4 was given no opportunity to see his lawyer privately. The first time D4 saw his lawyer was at 1112 hours the same day, when another cautioned statement was taken from D4 - that is, between 1112 hours to 1140 hours on 1 July '94, which is not challenged."

14. Mr Callaghan for the applicant submitted that there were important irregularities. No formal note was made of the admission at his home where the arrest took place. It was only done shortly afterwards when the police party the applicant and his wife all attended at Ngau Tau Kok Police Station. This was notwithstanding the fact it was evident from the objections being raised by the defendant that the applicant was alleging that he had telephoned a lawyer to come and assist and that the lawyer had attended at the Airport Police Station.

15. The police officer gave evidence that the police had no knowledge that the applicant had telephoned his lawyer.

16. Mr Callaghan also referred to the evidence where the police officer had said that it had been impracticable to make a note at the time of the arrest and that it subsequently transpired that he had. There appears to have been some confusion as to what note was being referred to. Was it just a note on a piece of paper or was it the formal note which appears in the record? It has certainly not been established that the police officer who recorded the post entry statement had been untruthful.

17. There really is nothing in all of this. The issue was squarely before the judge and there was no convincing evidence to contradict the prosecution case that the written admission had been made freely and voluntarily.

18. There is no merit in this ground.

19. The 2nd Kround is that the judge intervened excessively in the proceedings thus frustrating Defence counsel in conducting the defence.

20. Mr Callaghan accepted that the principles applicable to such a situation were accurately encapsulated in the headnote of R. v. Yeung Mau-lam [1991]2 HKLR 468 at 469.

"3. The following five propositions are established by the authorities:

(i) Interruptions by their number alone are not decisive.

(ii) The quantity and quality of interruptions must be looked at as factors which react upon each other.

(iii) Actual bias on the part of the judge need not be established, it being enough if by his conduct he would be thought by the informed bystander to be taking over the conduct of the case from the prosecution.

(iv) Where a judge sits without a jury, the appeal court must ask itself whether a person listening to the case would justifiably have had the impression that the judge had by his questions entered the arena.

(v) The ultimate question for the consideration of an appellate court is whether the judge's conduct was such that it would have caused the informed bystander listening to the case to say that the defendant had not had a fair trial."

21. Mr Callaghan drew our attention to a passage in the transcript where the police officer who took the post-recorded statement was being cross-examined. The judge did intervene on a number of occasions. However it is evident that the interruptions were an attempt to obtain elucidation or clarification as to what the background situation had been. The interruptions were not excessive in the circumstances.

22. Mr Callaghan then referred us to passages at p643, 649, 652, 657 to 664. Although there were altogether 52 occasions when the judge intervened it cannot be said when the transcript is read as a whole that these interventions were such as to contravene the considerations which were referred to in R. v. Yeung Mau-lam. Generally speaking the judge was attempting to confine counsel to relevant cross-examination. It is possibly true that on occasions she may have been slightly impatient. Undoubtedly, however, the trial was conducted in a fair manner.

23. There is also no merit in this ground of appeal.

24. The conviction is in no way unsafe or unsatisfactory and this application is dismissed.