THE QUEEN v. CHOI PUI SHING

IN THE COURT OF APPEAL OF HONG KONG

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 109 OF 1987

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JUDGMENT

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Penlington, J.

1. The appellant was convicted by Garcia, J. and a jury of the offence of possession of 4,471 grammes of dangerous drugs (hereoin) for the purpose of unlawful trafficking and was sentenced to ten years imprisonment.

2. This was originally an application for leave to appeal against both conviction and sentence. However at the hearing today, Mr Plowman informed us that the application for leave to appeal against sentence is abandoned. The application for leave to appeal against conviction is on the ground that the trial Judge, after Crown Counsel’s extensive cross-examination, himself asked some 49 questions and the effect of these was to show to the jury that he himself did not believe the applicant.

3. The background of this case may be put very simply in that on the 23rd of June a group of police officers in Kwun Tong were conducting routine road-block duties; they were members of the Anti-robbery Squad and after stopping a taxi they found the passenger in the back of the taxi had a bag. When he was asked what was in his bag, he said it was money. However, when they asked him to get out of the taxi so as to examine it, he threw the bag down and ran away, pursued by two police officers. Subsequently this bag was found to contain a substantial quantity of dangerous drugs.

4. The whole question to be decided was in fact whether the man who was subsequently arrested by police officers including the members of the road-block squad was the man who had been found in the taxi.

5. At the close of the Crown's case there was undisputed evidence that at 3.15 a.m. in Kwun Tong, seconds after the passenger in the taxi ran off, the applicant was also seen to be running in the same area. He was arrested, after a struggle, and was recognised by the members of the road-block squad. The applicant elected to give evidence and quite clearly it was very much a matter for the jury to assess that evidence and to decide whether his explanation was such as, together with the other evidence, it raised a doubt in their minds. He was extensively cross-examined by Crown Counsel on his evidence and also the trial Judge asked him a considerable number of questions about it.

6. The defendant said that he had been taking part in the game of mahjong in the area and had left this game of mahjong at about 3:00 a.m. He had come alone because he said the other members of the mahjong group had something to discuss amongst themselves. By what can only be considered a somewhat extraordinary coincidence, when he emerged into the street and was looking round for a taxi to go home he saw his girl, friend about to board a taxi with another man. One of the purposes of his activities that evening had been in fact to borrow money so as to marry his girl friend, in which he had succeeded, and he said that seeing her with this other man, made him extremely angry. However, he could not cross the road to intercept his girl friend and this other man because there was traffic in the way. When the traffic had passed he decided to chase after the taxi which had by now driven off. However he did not cross over the road to do so as he could see that the taxi was turning right and he would be able to intercept it without crossing over.

7. Reading the transcript, it is very difficult to follow this evidence and it is only now that we have been shown various photographs, and plans that we can see fundamentally what it was. The defendant was saying that he did not have to cross the road because he could see the taxi was about to turn from Hip Wo Street, a main street in Kwun Tong, into Mut Wah Street. By turning right, he could intercept the taxi without crossing Hip Wo Street. However it is not evidence which is easy to follow.

8. The judge asked a lot of questions but we do not consider that these questions were anything else but designed to help the jury to asess the defendant's evidence. It is true that subsequently Mr Keane, Q.C. who was then appearing for the defendant, asked for the jury to be sent out and he then had a discussion with the judge in which it does seem that the judge was under some misapprehension as to which taxi was being discussed, whether it was the taxi that the girl friend was getting into or the taxi that the defendant hoped to intercept for his own use. The judge did however refer to the defendant wanting to intercept the taxi which his girl friend had boarded. However, whether or not the judge was confused and we do not think he was, there was nothing before the jury which was confusing to them.

9. The judge, however, after a considerable number of questions about the taxi, went on to obviously make the suggestion that the defendant must have realized that he was being pursued by police officers because there was not much noise at that time of the morning. These were police officers in uniform and presumably were wearing police boots and must have made a lot of noise in pursuing him. That line of examination had not been brought up by either the defence or the prosecution and some questions seem to be in the form of a cross-examination. But there are only a few questions about that before Mr Keane intervened and we do not think that was prejudicial or could have indicated clearly to the jury that the judge did not himself accept the defendant's evidence. The Judge, in a summing-up which is not challenged, clearly told the jury that all questions of fact were entirely for them.

10. In Jones v. The National Coal Board[1] the function of judges was admirably set out and has been supportedly set but in various decisions of this court. In it Lord Denning M.R. stated that while a judge may ask questions of a witness to clarify any point or to seek information about a matter apparently overlooked by Counsel, he must not descend into the arena and question by way of cross-examination so as to show he disbelieves the witness. This clearly is of the greatest importance when the defendant is the witness. If it goes too far the usual direction that the jury is the sole judge of fact will not cure the defect. R. v. Hamilton[2]. However, Lord Denning did also say that :-

“Even in England, however, a judge is not a mere umpire to answer the question “how is that ?” His object overall is to find the truth and to do justice according to law.”

11. We do not consider that in this case, the intervention and the questions put by the judge went beyond that. The application for leave to appeal is refused.