HKSAR v. SHIN JOYCE and Another

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 310 OF 1997

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J U D G M E N T

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1. The Appellants were convicted in the Magistracy on a joint charge of Attempting Obtaining Property By Deception and appeal against such conviction. The 2nd Defendant appeals also against his sentence of 3 months' imprisonment suspended for a period of 18 months.

2. The incident related to a competition run by the firm for which the 1st Appellant worked. A computer was offered as a prize in a lucky draw. The draw, which was organised by the 1st Appellant, took place on the 28th October 1996 at the "Futurekids Prince Edward Branch" and the winner was a boy named Chan Tak-san. The boy was to be informed and the presentation of the prize to be arranged for 30th October at 10.00 p.m. At that time, the 2nd Appellant arrived and introduced himself to the staff, as the father of Chan Tak-san. The 2nd Appellant was greeted by the staff and also by the 1st Appellant, who was his sister-in-law. Appellant filled out the form to collect the prize, photographs were taken and the 1st and 2nd Appellants were photographed showing the prize computer being handed over.

3. Soon after, another man, Mr. Chan Kee, arrived and claimed he was the father of Chan Tak-san the prize winner; he brought various documents to support his claim, including the birth certificate of Chan Tak-san. PW1, who was the founder of Future Kids, asked the 2nd Appellant if he was the father of Chan Tak-san and the 2nd Appellant said that he was. He was informed that another man had arrived claiming to be the father of Chan Tak-san. At this point the 1st Appellant told PW1 that she had asked 2nd Appellant to come, to let him go and she would explain the matter to him.

4. An explanation was demanded by P.W.1; the 2nd Appellant tried to leave but was stopped. The 1st Appellant tried to take back the documents presented by the 2nd Appellant but was unable to, and a proper explanation was demanded by PW1. In the event, the prize was presented to Mr. Chan Kee on behalf of his son. When questioned the 1st Appellant said that she had wanted to get one more computer to use. The matter was subsequently reported to the police.

5. The 1st Appellant, who elected to give evidence, claimed that she had recollected receiving information that the prize winner had gone to Canada and that when it was apparent she was unable to find the prize-winner, she was told to find someone for the photo taking. On the afternoon of the prize giving she contacted her brother-in-law, the 2nd Appellant, and asked him to come for the photo taking. She said she did not tell anyone she had not been able to contact the prize-winner, nor did she tell them that the 2nd Appellant had come to pose for the photographs. She told staff that the 2nd Appellant was just a friend. The 2nd Appellant said that he had been telephoned by the 1st Appellant, who told him she was unable to contact the prize-winner and asked him to come to her office for photographs to be taken, as she was in a rush for the photographs to be included in a newsletter. He claimed that he had filled in the claim form as he was told to and did not realise what it contained, or what it was all about.

6. The first area of appeal was that the Magistrate erred in law in failing to evaluate or analyse the evidence in a proper or satisfactory manner and particulars were given. The Appellant complained first that the statement of findings contained only a summary or outline of the evidence and the evaluation of it was limited to 2 paragraphs. It was argued that the Magistrate relied too heavily on the demeanour of the witnesses and had asked so many questions herself that she had in effect "entered the fray" during the trial. It was submitted that there was nothing on the face of the examination of the Appellants, or in their account of events, that made their evidence worthy of disbelief or inherently incredible. Further it was said the 3rd defence witness's evidence was not properly weighed or evaluated and that the Magistrate failed to evaluate the evidence of the 2nd Appellant in relation to his having received a particular exhibit. Finally, the Magistrate failed to consider that all the witnesses could be mistaken regarding what was said at the actual time of the prize giving, as no one made any contemporaneous notes.

7. The second area was that the Magistrate failed to consider properly whether the Appellants were acting dishonestly or had any intention to permanently deprive the owner of his property. The basis of this ground was that Appellants were of clear record and mature individuals in responsible positions; that the 1st Appellant had concerns on her mind other than work at the material time; that the 1st Appellant had asked for the presentation to be postponed; that a letter had been delivered to the real prize winner's father although there was no way to ascertain the date of delivery as opposed to the date on which he actually received it. The 1st Appellant testified that she had sent that letter. Further the 2nd Appellant had only become involved late in the afternoon of the prize giving and the Magistrate had not considered the issue of mens rea properly.

8. A further ground of appeal for the 2nd Appellant was that the Magistrate erred in law in failing to give separate consideration to his case; that it was possible the 2nd Appellant could be innocent despite findings of guilt in respect of the 1st Appellant and this possibility had been excluded by the Magistrate's failure to evaluate the evidence or issues properly.

9. I did not find any substance in the allegations that the Magistrate had failed to evaluate the evidence of the witnesses or Appellants properly. The Statement of Findings followed a simple format. It consisted of outlining the evidence for each of the prosecution and defence witnesses followed by a brief paragraph of assessment saying that she accepted the prosecution evidence in full. In a second paragraph the Magistrate stated that neither Appellant was worthy of credit; they did not impress her to be telling the truth; she found them evasive and their account of events inherently incredible. She stated that this was not to misconstrue the burden of proof which remained throughout on the Crown, but "to take account of practical matters pertaining to the credibility of witnesses and the weight to be attached to their evidence."

10. It is true that these 2 paragraphs are somewhat formulaic and do not set out examples of inconsistencies, or state what it was that was so inherently incredible about the Appellants' accounts. Nor is there any detailed reflection on the separate cases of each Appellant.

11. Nevertheless the Magistrate was not required to set out full details of her thought processes in her Statement of Findings and she was satisfied the elements of the charge had been established.

12. The ground which gave real concern was the allegation that the Magistrate relied too heavily on the demeanour of the witnesses and had herself entered the fray during the trial, so that by the time the Appellants and their witness came to give evidence she had adopted an attitude of disbelief and hostility against their case.

13. There were a number of interventions by the Magistrate throughout the trial where she asked questions. I have examined the transcript in the light of Appellant counsel's submissions.

14. The intervention began during the evidence in chief of P.W.1. It is difficult to see why it was necessary for the Magistrate to ask any questions as the Prosecutor appeared to be competent and to know what he was doing. The position of the defence counsel was somewhat different as she appeared to be inexperienced; she made errors, asked clumsy and convoluted questions and the Magistrate, no doubt exasperated, at various stages took over. The Magistrate, perhaps recognising counsel's inexperience, may have felt she was keeping the defence case on course. However, it appears that she stepped outside her role as referee in doing so.

15. On the authority of Yeung Mau-lam C.A. No 550 1989 it is clear that it is the quality and not the quantity of interruptions by the court that is relevant. Many of the Magistrate's questions were directed at clearing up ambiguities or clarifying details but Pages 15, 16, 18,19 contain many questions asked on behalf of the Prosecutor before the examination-in-chief is completed.

16. On p. 21 there is an unnecessary interruption of defence cross-examination, further significant interruptions occur at 31 and 34 and the Magistrate's comment about legal privilege effectively stops defence counsel's line of questioning. Again at 33 defence counsel is stopped from asking questions that relate to her client's reaction. In each instance defence counsel appeared too nervous to rephrase questions to obtain the answers she sought, certainly the Magistrate did not suggest she might like to do so.

17. At 38-41 the Magistrate takes over the cross-examination of P.W.2 - thereafter defence counsel doesn't ask any more questions. The net effect was that defence counsel's attempt to establish as part of the defence the possibility a letter was delivered and overlooked was stopped by the Magistrate (40 R-S) asking a leading question, which turned a defence point into a prosecution one.

18. At 50 Defence counsel tries to lay the ground work for another defence point - that Appellant 1 was very pre-occupied with maternal duties at the time of the incident. The Magistrate (50K and 50R) stops her.

19. At 64-68 the Magistrate conducts the whole examination-in-chief of P.W.4 - for reasons that are unclear given that the Prosecutor knew what he was about. Then, at 70, she interrupts the cross-examination including, at 70R, misstating a question she believed defence counsel was trying to ask.

20. At 75 onwards, in 1st Appellant's examination-in-chief, defence counsel tries again to suggest that Appellant was preoccupied with home concerns - the Magistrate appears unsympathetic, questions the relevance of a medical certificate, and defence counsel backs away from producing it. At 86/87 the Magistrate, in effect, cross-examined 1st Appellant while defence counsel was trying to examine her in chief. At 94/95 the Magistrate interrupts the cross-examination, at 95C she suggests 1st Appellant must be lying.

21. While 2nd Appellant is being examined in chief the Magistrate interrupts with pointed questions (100-104) which amount to cross-examination and which indicate she does not believe his evidence.

22. D.W.3's examination-in-chief was interrupted, 110-116, again with cross-examination type questions which can only have been disruptive of defence counsel's examination, or with direct or implied criticisms of defence counsel's technique. The cross-examination by the Prosecutor was short and again the Magistrate felt constrained to join in.

23. I feel that in this case, possibly with good intentions, there were far more interruptions from the Magistrate than can be regarded as desirable or permissible in what was a simple case, even allowing for the apparent inexperience of defence counsel. It is important that Magistrates and judges sitting alone bear in mind the principle stated by Denning L.J. in Jones v. National Coal Board to [1957] 2 Q.B.55. "The judge's part in all this is to hearken to the evidence only himself asking questions of witnesses when it is necessary to clear up any point that has been overlooked or left obscure, to see that advocates behave themselves seemly and keep to the rules laid down by the law, to exclude irrelevance and discourage repetition to make sure by wise intervention that he follows the points the advocates are making and can assess their worth and in the end to make up his mind where the truth lies. If he goes beyond this he drops the mantle of a judge and assumes the robe of an advocate and the change does not become him well."

24. I bear in mind too the propositions established in the case of R. v. Yeung Mau-lam CA No.550 1989. The question that has to be asked, where a judge sits without a jury, is whether a person listening to the case would justifiably have had the impression that the judge had by his questions entered the arena. In this case I answer that question in the affirmative. The second question is whether the judge's conduct was such that it would have caused an informed bystander listening to the case to say that the Appellants had not had a fair trial. Given the way the Magistrate unnecessarily took over the role of prosecuting counsel at times and also because she appeared to be blocking the efforts of defence counsel to defend her clients, I cannot be sure that the reasonable bystander would be satisfied that these Appellants had had a fair trial.

25. For these reasons, I allow the appeals against conviction and

the sentences imposed are quashed. I do not consider a retrial would be justified given the nature of the offence.