HKSAR v. AU YEUNG LONG AND ANOTHER

CACC522/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 522 OF 1998

(ON APPEAL FROM DCCC 559 OF 1998)

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J U D G M E N T

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Stuart-Moore, V.-P. (giving the judgment of the Court):

1. On 15th September 1998, these Applicants (D1 and D2) were convicted of a variety of offences, following a trial in the District Court before Judge Chua. The charges on which D1, then aged 25, was convicted were as follows:

1. Lending money at an excessive interest rate, contrary to section 24(1) of the Money Lenders Ordinance, Cap.163.

2. & 3. Aiding and Abetting lending money at an excessive interest rate.

4. False imprisonment, contrary to Common Law.

5. Theft, contrary to section 9 of the Theft Ordinance, Cap.210.

6. Claiming to be a member of a triad society, contrary to section 20(2) of the Societies Ordinance, Cap.151.

7. Criminal damage, contrary to section 60(1) of the Crimes Ordinance, Cap.200.

2. D2, then aged 20, was convicted on charges 4, 5 and 7. These convictions were on the basis that he had been an accomplice to D1.

3. The offences took place between February and November 1997. All of the crimes were directed at the same victim (PW1) who was a 33-year-old female named Fok Fung-yee.

4. D1 received a sentence of 41/2 years' imprisonment in total and D2 was made the subject of a Training Centre order.

5. D1 and D2 now seek leave to appeal against conviction on all the charges. They have abandoned their applications in respect of sentence and these have been dismissed.

6. The judge accurately and concisely summarized the gist of the allegations in her opening remarks when giving the Reasons for Verdict at page 8 in the Appeal Bundle. She said:

"The Prosecution alleges D1 is a loanshark and the offences complained of occurred after PW1, Fok Fung-yee, borrowed money from D1 in February 1997 at an illegal rate of interest. Thereafter, he arranged a second illegal loan from another person to settle her debt to him. There was a third illegal loan arranged by him with a second man (charges 1, 2 and 3).

When PW1 stopped repayments and disappeared, D1 traced her through her estranged husband, PW2. It is alleged D1, his accomplice (D2), and the two lenders held her against her will (4th charge). In the course of this, they took her necklace and bracelet (5th charge) and D1 told her he was No. 14 (6th charge). She was released when a new financial arrangement was made. On 13 November 1997, after she stopped payment, they went to her home and broke the door to her rented room (7th charge)."

7. There are two grounds of appeal in D1's case. The first of these is that:

"By virtue of negligence or a gross error of professional judgement on the part of counsel who represented the Applicant at his trial, the said convictions are unsafe and unsatisfactory.

Particulars

(a) The case of the Applicant was not put and/or properly put to prosecution witnesses, such as:

(i) PW1 was in debt to the Applicant.

(ii) Conversation between the Applicant and PW2.

(b) The applicant was not properly advised as to whether he should give evidence or not."

8. This ground was also relied upon by Mr. McGowan, who represents D2.

9. D1 and D2 were represented in the court below by Mr. Michael Vidler who is a solicitor, not counsel as this ground states.

10. Dealing firstly with ground 1(b), where it was submitted that D1 had not been properly advised as to whether or not he should give evidence in his own defence, in D1's first affirmation dated 30th November 1998, he stated that Mr. Vidler had explained to him the advantages and disadvantages of giving evidence at the trial. He went on to state that Mr. Vidler had asked him to decide for himself whether he should give evidence.

11. We accept that there may be some cases in which the duty of the defending advocate is to advise the defendant whether or not the defendant should give evidence. However, this was not such a case.

12. Mr. Kwok was the first to concede that Mr. Vidler had conducted a skilful cross-examination of PW1 and had highlighted numerous inconsistencies and contradictions in her evidence. In these circumstances, it was a case, it seems to this court, where it was sufficient for D1 to have been advised that it was for him to decide for himself whether or not he should give evidence, and to have been advised of the potential advantages and disadvantages of giving or not giving evidence.

13. Turning to ground 1(a), for this to succeed it would need to be established that Mr. Vidler's advocacy was flagrantly incompetent (see: The Queen v Mo Lee-kuen, (1993) 1 HKCLR 78) in order to show that the trial had been unfair to D1 and that he thereby suffered injustice. Mr. Kwok submitted that material aspects of D1's instructions were not put to PW1 on whose evidence all these allegations solely depended.

14. In dealing with this aspect of the application, Mr. Kwok submitted that it was expedient and in the interests of justice to hear the evidence of D1 under the provisions of section 83V(1)(c) of the Criminal Procedure Ordinance, Cap.221. This was, Mr. Kwok submitted, in the event that the court was unable to resolve the matter on the material contained in the affirmations and the exhibits annexed to them. Mr. Bruce, S.C., on behalf of the Respondent, resisted the application for evidence to be called during the hearing and, having heard submissions from both sides, we informed Mr. Kwok that we were not prepared to hear evidence and that his application was refused.

15. This decision was brought about in these circumstances. D1 had made a second affirmation, dated 23rd February 1999, dealing with ground 1(a), in which he stated that he had been able to reduce into writing the instructions he had given to Mr. Vidler at trial. It is clear from the context that this exercise was carried out following the completion of the trial. These so-called instructions were in direct conflict with what had been put to PW1 and PW2 in two material ways.

16. If Mr. Vidler had failed to put his instructions on these two issues, either accurately or at all, he would have been guilty of professional misconduct. We emphasize, in fairness to Mr. Vidler, that no such finding has been reached. We did not need to determine that issue in the light of our ruling that no evidence could be called.

17. D2, like D1, did not give evidence at trial. Had either of them done so, any departure from their testimony compared to what had been suggested on their behalf in cross-examination to the prosecution witnesses, might have had considerable significance. As matters stood, however, the evidence of PW1 on whom the prosecution's case entirely depended, had been extensively challenged. The trial judge made an assessment of this evidence and, in the event, she felt able to rely upon PW1.

18. As to whether there were further matters that could or should have been put to PW1 and PW2, these could not, in the circumstances, have made any difference to the outcome of the trial as suggestions made in cross-examination do not have evidential status. Thus, if a defendant elects not to give evidence, any failure on the part of the advocate to put his case in cross-examination cannot have any impact on the fairness of the trial.

19. Despite the ruling that no evidence could be called, Mr. Kwok nevertheless maintained that there was force in ground 1(a) when looked at in an alternative way. He pointed out that when PW1 was being cross-examined, Mr. Vidler had suggested to her that no loan had ever been made to her by D1 and yet, when PW2 gave evidence that D1 and D2 came to his address chasing PW1 for the repayment of a debt, Mr. Vidler failed to challenge the evidence relating to an outstanding debt. Why there was no challenge we do not know. There are a number of possible reasons about which it is not for us to speculate. In any event, as D1 and D2 chose not to give evidence in their own defence, any failure to challenge this evidence was of marginal significance and the judge made no reference to the discrepancy.

20. Accordingly, ground 1 must fail.

21. Turning next to ground 2, Mr. Kwok relied upon the grounds advanced on behalf of D2. Although there are five remaining grounds set out by Mr. McGowan, these can conveniently be dealt with as two basic grounds of appeal. The first of these is that the judge failed adequately to evaluate the numerous inconsistencies in the evidence given by PW1. This point is a short one.

22. The evidence of PW1 had left a large number of inconsistencies exposed, both in her own evidence, and when compared with other evidence in the trial. The trial judge dealt with some of these in her Reasons for Verdict at page 11R in the Appeal Bundle in the following way:

"PW1 made a total of five statements. Her first was in the early hours of 13 November 1997 while her two children were with her. Her second was later in the day. It is not disputed she subsequently identified D1 and D2 at an identification parade.

Mr. Vidler concentrated his cross-examination on specific aspects of her evidence. He brought out many contradictions and inconsistencies. I intend to deal with the main ones only.

So far as they touched on whether or not she was divorced by a certain date, her exact marital status has not been established. In court, PW2 considered he was still married to her. With regard to her status and the fact that she was raising the children on her own, I am inclined to think she did not deliberately lie. I do not think she knows for certain what her marital status in fact is. She believed she was divorced.

She did lie to the police in her earlier two statements, claiming it was PW2 who had borrowed the money. She admitted the truth in her third statement. She has not really given a satisfactory explanation as to why she had lied.

It is also true she originally said it was to Rose Villa she was taken to. The address she gave in court was not correct. However, I accept her explanation that she had confused the names. In fact, Rose Villa was the place one above the actual place she was taken to. It is not disputed she led the police to the villa and recognised the woman at the counter. This person was to have been a prosecution witness but the witness summons could not be served on her.

It is also true she did not alert anyone to her predicament; not in the restaurant, on the street, the taxi or the villa. She did not report the loss of her furniture. She only called the police on 13 November 1997 and even then omitted to complain D1 had struck her through the hole in the door.

As to the loans, she had originally said in her statement the daily deposit for the second loan was made to a Hongkong Bank branch. She has corrected this. She was not able to produce a single deposit slip. She said all the deposit slips got lost in the move to Gillies Avenue. As for the final arrangement, her earlier testimony was that she had to pay them $125,000. Later she corrected the figure to $110,000.

However, I am satisfied on the central facts of the amount of the loans, the repayment terms, where and by whom the loans were made, there were no discrepancies with her statements. I have noted there were a few other discrepancies ..."

23. In the context of this case there was no need to deal with other inconsistencies of less significance than those the judge had itemized. It is abundantly plain that the trial judge was fully aware of the points which had been made out by the defence and had taken them into account when deciding whether she could accept PW1's evidence.

24. There is no substance to this ground.

25. Secondly, Mr. McGowan submitted that the judge had interrupted at key points during PW1's evidence. He further submitted that the judge had interrupted Mr. Vidler's final address with such frequency that he was unable to develop his arguments properly. It was submitted in regard to the latter complaint that some of the interventions were argumentative and even sometimes personal. In both aspects of this ground, it is said that the judge effectively descended into the arena to the detriment of the defence.

26. We do not need to make reference to any of the passages to which our attention was brought in the transcript so far as the interruptions during the evidence of PW1 are concerned. These were, in our judgment, of minor consequence. Indeed, Mr. McGowan accepted that none of the interruptions would be sufficient in themselves to succeed but, he argued, in combination they had broken the flow of cross-examination. We do not agree.

27. Far more serious, however, were the interruptions made by the judge during Mr. Vidler's final submissions. These came after the decision of this court in HKSAR v Yung Hei-choi, CACC 475 of 1997, where Power V-P, giving the judgment of the court on 24th March 1998, said:

"Counsel, in his closing address, should be allowed, as far as is possible without intervention, to develop his argument along the lines which he considers best puts his client's case.

It is of course permissible and, indeed, at times necessary, for a judge to intervene. If the judge is, at any time, unable to understand counsel or to appreciate the case being put for the defence he must seek clarification. It may be appropriate, if the judge has already resolved a matter in favour of a defendant, to indicate that this is so and to suggest that counsel move on to his next point. The judge can properly assist counsel to focus his argument by indicating to him points that he feels are of particular concern.

We do not attempt to set out an exhaustive list of situations when a judge can properly intervene but rather to indicate the kind of situation when he can properly do so. Comments that invite argument are only rarely appropriate. Personal comments should be avoided altogether."

28. The penultimate sentence in that passage should be read with some caution. We do not think that the court in Yung was discouraging a judge from putting to counsel what might be an answer to the point which counsel is making so that counsel has an opportunity to deal with it. What the court was saying was that a "running dialectic" (an expression used later in that judgment) between counsel and the judge was inappropriate.

29. Mr. Bruce, with that judgment in mind, conceded there had been far too many interruptions. He went on, however, to demonstrate that despite this, the points Mr. Vidler had wished to make, were made without him being "blown off-course". Mr. McGowan, on the other hand, argued that the frequency and effect of such repeated interference during the speech Mr. Vidler was trying to make, meant that he was unable to make his points in a coherent way.

30. Mr. Vidler's speech very sensibly concentrated upon the inconsistencies to be found in PW1's evidence, on the manner in which she gave evidence and the absence of supporting evidence where some might have been expected. From time to time, the judge interrupted where she believed that the evidence had been inadvertently misrepresented. Sometimes the judge's points were erroneous, but this gave Mr. Vidler the opportunity to correct her. On other occasions, the judge's interventions enabled Mr. Vidler to enlarge on subjects where the judge had expressed her concern. Mr. Vidler, time and again, demonstrated that he had an excellent grasp of the case. He often had to correct the judge over matters of detail where the judge's recollection had been at odds with his own.

31. One of the matters stated by this Court in Yung (above) was that a District Court judge should seek clarification where, in the judge's mind, this had become necessary. We take the view in the present case that some of the interventions were unnecessary for the purposes of clarification and that others invited argument. Having said this, Mr. Vidler clearly engaged the judge in building his points. He seems almost to have gained momentum from the judge's questions by being at the same time able to correct what she had said and then to add strength to the argument he was advancing.

32. Examples of the kind referred to are to be found in the appeal bundle, beginning at page 144 I where Mr. Vidler was commenting on PW1's discomfort when giving evidence and her reference to having "sweaty palms". The judge interjected:

"You think every honest witness should not have anxiety and sweaty palms?"

33. At page 149, Mr. Vidler was making a perfectly valid point that PW1 could not even remember the date of her divorce from PW2 "if there was a divorce". This then descended into a dialogue between the judge and Mr. Vidler about Hong Kong's divorce laws that were immaterial to any aspect of the case.

34. At page 151, Mr. Vidler was dealing with the absence of any evidence supporting PW1's account and, in the context of the false imprisonment charge he referred, amongst other gaps in the evidence, to the absence of any evidence from the taxi driver who had allegedly driven PW1 to a villa in Mongkok as the virtual captive of three men, including the defendants. There then followed this passage:

"Court: How do you find that taxi driver?

Mr. Vidler: If I was being detained by someone and no doubt anybody in this room was being detained ...

Court: Mr. Vidler, you no doubt would have reported it immediately.

Mr. Vidler: One would have made a note of the taxi driver's number which is in prominent display in the taxi. Matters such as that.

Court: Because you carry a pen and a notebook.

Mr. Vidler: If I was being detained in the manner she is claiming, yes. She is asking you to believe that she did all this and didn't report it. And now she's asking you to say, 'Ah, well, I can rely on the fact that there's such a time lapse that I can't ...'

Court: No, she's not relying on it. I'm saying to you that may be the reason why the police weren't able to find witnesses.

Mr. Vidler: That is undoubtedly the reason. The other reason of course is maybe that it didn't occur and that there isn't the circumstances such as that and that there wasn't the incident which she claims. That is very much the point. Because when one considers does one believe something, one considers is that behaviour consistent with what someone does?"

35. Mr. McGowan suggested that the trial judge's comments in this exchange were sarcastic and even personal. If they were, and we are by no means convinced that they were, they were very mild. The judge was simply making it plain she did not think much of the point which was being made. Putting it bluntly, it was highly unlikely that PW1, if she was being taken to a villa against her will, would have been in a sufficiently clear-headed state of mind to have made a mental note or otherwise of the taxi's number.

36. There was then further dialogue (at pages 152-153) when the judge invited Mr. Vidler to address the question of motive. Why should PW1 have made up these allegations against D1 and D2? Again, the judge was entitled to ask about this. It was obviously a matter that troubled the judge and, by raising the subject, she gave Mr. Vidler an opportunity to deal with it.

37. Having said this, we do not wish to appear to be giving the green light to interruptions such as these. If bad points were being taken, they could be discounted in the Reasons for Verdict. If the final address ignored a point of importance, this could be dealt with at the end of the address which is usually the proper time to raise such issues.

38. We have had regard to the five propositions which Power J.A. (as he then was) set out in The Queen v Yeung Mau-lam, (1991) 2 HKLR 468 at 473, where this court was addressing the proper approach when considering interventions by a trial judge, which are as follows:

"(1) Interruptions by their number alone are not decisive;

(2) The quantity and quality of the interruptions must be looked at as factors which react upon each other;

(3) 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;

(4) 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;

(5) 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."

39. In our view, despite the admitted frequency of the interruptions during Mr. Vidler's speech, no "informed bystander" would have said the trial had been unfair. On the contrary, the view that would almost certainly have been obtained would be of a seasoned advocate ensuring, at every opportunity, that the judge did not misunderstand or misstate the evidence during his presentation of the defence and of a judge who was concerned to put to the defending solicitor what she thought might be the answers to some of the points which he was making.

40. This ground must fail.

41. There is nothing which causes us to say that the convictions were unsafe or unsatisfactory. Accordingly, the applications are dismissed.