HKSAR v. TAM CHI HANG

CACC 475/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 475 OF 2003

(ON APPEAL FROM DCCC NO. 705 OF 2003)

----------------------

______________

---------------------

J U D G M E N T

----------------------

Hon Stock JA (giving the judgment of the Court):

Introduction

1. This is an application for leave to appeal against conviction. There were three charges of which the applicant was convicted by Judge Day in the District Court on 27 October 2003. The first was that of making, for sale or hire, infringing copies of copyright works, contrary to section 118(1)(a) of the Copyright Ordinance, Cap. 528; the second, possession of such works in the course of trade or business with a view to committing an infringing act (section 118(1)(d)); and the third, possession of an article used or intended for use in the making of infringing copies (section 118(8).).

The prosecution case

2. The prosecution case was largely accepted. It was to the following effect.

3. On 28 June 2002, Customs Officers arrested the applicant outside his home which was on the first floor, Block A of Hoi Yin Garden in Pat Heung. He was carrying a white plastic bag, two black plastic bags and a shoulder bag. The white plastic bag contained domestic refuse, whilst the two black bags contained 479 optical discs, and six keys were found in the shoulder bag.

4. After he was cautioned, the applicant said that the set of keys could be used to gain access to Block A and that there were more optical discs there. So he was led by the officers to his flat, and they used the keys to enter.

5. The flat consisted of a living room, a bedroom (room A at the trial) and another room (room B). The doors to both rooms A and B were open. Inside room B were 1026 suspected infringing optical discs, 270 blank CD-ROM discs, two computers each with a CD-writer, two large bundles of plastic bags, as well as a large bundle of inlaid cards.

6. In room B there was also a wardrobe on the door of which was hanging a calendar bearing photographs of the applicant and his girlfriend. There were two albums containing photographs of the applicant, and a variety of documents bearing his name. These documents included two tenancy agreements of a shop in Kowloon, as well as bank and credit card statements and a deed poll. Other documents in his name were also found in room A.

7. When the applicant was questioned about the items found inside the flat, he declined to answer. The prosecution established copyright in respect of twenty-nine CD-ROMs of the discs found in the two plastic bags, and in 103 of those found in room B. These formed the subject matter of Charges 1 and 2.

8. One of the computers found inside room B, as well as the CD-writers and 270 blank CD-recordable discs formed the subject matter of Charge 3.

9. The applicant was taken back to the Kai Tak Office of the Customs and Excise Department where, again, he refused to answer questions put to him.

The defence

10. At trial the applicant gave evidence as did his girlfriend, a Ms Lam. His case was that room B in which the offending articles were found was occupied by a friend, one Sze Chung who shared the rent. He said that he seldom saw Sze Chung who used room B for the purpose of storing items. According to the applicant, he had no knowledge of what items were stored there.

11. He then asserted that Sze Chung called him three days before the applicant's arrest to say that he was on the Mainland and would not be returning to the flat.

12. The judge in his Reasons for Verdict has helpfully summarised the remainder of the applicant's account:

"20. On 25 June, he received a phone call from Sze Chung from China, saying that he would not return and asking the defendant to clean out the room. The door to the room, although closed, was not, it transpired, locked, and the defendant and Miss Lam together went into the room and discovered the exhibits later seized by Customs and Excise. The defendant told me that he was 'a bit frightened' at what he saw because he thought that these things were perhaps illegal. They decided to throw it all away but to save the computer in case they could use it.

21. It was not until the next day, however, that he started to clear the room, taking a pile of disks to the rubbish collection point as he went to collect his car to go to work. He threw another pile of disks away on 27 June, and was engaged in doing the same on the 28th when he was arrested.

22. He told me that once back in the flat he explained to Customs and Excise that the disks were not his and said he could contact the owner. This, of course, was a direct contradiction of the officer's evidence.

23. There were two collections of documents seized. Photo 17 shows those found in the locked drawer in the bedroom. Those documents, he said, were recent ones. Photo 29 shows those found in the wardrobe in Room B, supposedly Sze Cheung's room. Those, he said, were old ones, but was then unable to explain why one of the bank statements was from April 2002.

24. The incriminating wardrobe had, he explained, been in the living room until the day before the Customs and Excise arrived, but he has three dogs and their habit was to urinate and defecate on the wardrobe. By removing two lots of disks to the rubbish dump on the 26th and 27 June, it created some space in Room B and he hit upon the idea of moving the wardrobe into Sze Cheung's room and closing the door, thus keeping the dogs away from it." (pp 14J-15G Appeal bundle).

The findings

13. The judge did not accept the applicant's account. He pointed out that the wardrobe in room B was festooned with Ms Lam's belts and handbags; that that room had the applicant's documents in it; that one of the bank statements found in the wardrobe there did not sit well with the applicant's story that the documents in the locked drawer were old documents; that the applicant's testimony of what he had told the officers who arrested him was contradicted by those officers, whom the judge believed; that the floor of room B was covered with disc inlays and assorted debris, wholly inconsistent with the suggestion of the applicant and of Ms Lam that the wardrobe had been pushed into place the previous day; and that the account did not tally with the fact that when the officers entered the flat the door to room B was open. The judge was satisfied that room B was a small factory used to produce infringing copies, and that the applicant knew that full well and was himself in possession of the items. So he convicted the applicant.

The suggestion of apparent bias

14. The first and second grounds of appeal alleged, in essence, that the judge gave an appearance of bias such that the objective and informed bystander would have concluded that the applicant did not have a fair trial. It is said that this evidenced itself in comments made by the judge at the outset of the trial that the evidence was overwhelming; and that during the hearing of the testimony, the judge 'entered the arena'.

15. The issue first arises from comments made by the judge and his exchange with counsel for the applicant at trial, when the judge, in a context to which we shall shortly turn, said that the evidence looked overwhelming. Mr McGowan, in his measured submissions for the applicant, says that this comment alone breaches the requirement that judges must always maintain an air of impartiality, such that a fair minded person knowing all the relevant facts would not have a reasonable suspicion that a fair trial for the applicant was not possible. He refers us to a number of authorities including R v Lo Kwok-hung [1990] 1 HKLR 351 and HKSAR v Chan Kwan-kan [1998] 1 HKLRD 495. Mr McGowan also refers us to the decision in R v Barnes, 55 Cr App R 100 where the English Court of Appeal quashed a conviction in the light of comments made by a judge at trial, clearly in the nature of pressure on a defendant to plead guilty.

16. The particular exchange to which we are taken is to be found at page 27 of the bundle and reads as follows:

"COURT: ... the evidence, Mr Ng, looks pretty overwhelming if I might be allowed to say so.

....

Can you translate that, the evidence of - I've got a summary of the facts here and it's difficult to know what the answer to them might be. The evidence looks simply overwhelming although I've yet to hear it. It's just what's summarised for me here. Should I stand it down for you to have another word with him, Mr Ng?"

17. With respect to Mr McGowan, to take us to this exchange alone is to ignore context. The context of the judge's comments, and their timing, and his behaviour after the applicant maintained his plea of not guilty, are all relevant. What happened in this case was that at the outset of the hearing there was a discussion between the judge and counsel about the charges, the nature of which discussion is largely irrelevant for present purposes. The relevant exchange is shown, we suggest, by the following passages:

"COURT: Well, the evidence will either show that he made them or he was in possession of them or neither, of course.

MR NG: Yes.

MR WONG: Yes.

COURT: So he wouldn't need to be convicted of both. He could be ...

MR WONG: Yes.

COURT: He could be convicted of both ...

MR WONG: Yes, could be but ...

COURT: ... but it achieves nothing, but the evidence, Mr Ng, looks pretty overwhelming if I might be allowed to say so.

MR NG: I tried very hard, my Lord.

COURT: Can you translate that, the evidence of - I've got a summary of the facts here and it's difficult to know what the answer to them might be. The evidence looks simply overwhelming although I've yet to hear it. It's just what's summarised for me here. Should I stand it down for you to have another word with him, Mr Ng?

MR NG: I would be extremely grateful, yes.

COURT: All right. How long do you suggest?

MR NG: 10 minutes.

COURT: All right. Would you let me know when you're ready? That's the answer.

MR NG: Certainly.

COURT: Is on bail? Continue the bail, please.

MR NG: I'm grateful.

COURT adjourns - 9.54 am

Court resumes - 10.37 am

Defendant present. Appearance as before.

COURT: Are we to take a plea?

MR NG: Your Honour, thank you for the time given. I've tried very hard but without success.

COURT: Yes, all right. Well, then we should take a plea, shall we? And I shall allow the amendments that the prosecution asked for." (pages 26P-27Q Appeal Bundle)

18. Put in proper context, and looking as well at how matters progressed once testimony commenced, we take the view that the judge did not overstep permissible bounds. The comments made came nowhere near those to which objection was taken in Barnes. The judge, we see, started from the proposition that the evidence might show that the applicant neither made nor possessed the offending articles; and it was in that context that he made a comment in the nature of an aside based, as he made clear, only on the summary of evidence which he had; and he qualified his comment by saying, not that there could be no answer, but that it was on the face of the summary difficult to see what the answer might be. The judge was not in a position to know what the defence might be, whether a matter of law or fact, or what advice had been given and if it had, what the basis of that advice was. The ramifications of proper advice, and consideration of it, can be significant given the credit that is accorded for a timely plea properly advanced. So where a judge has good cause to wonder, because of the apparent absence of a reasonably imaginable defence given what appears to be common ground, whether such advice has been tendered and, if so, properly considered, he may - especially where he thinks it for the accused's own benefit and not by way of pressure - he may well think it proper to make sure, in so far as he can, with suitably crafted and qualified phrases, that the accused has been advised as to the apparent strength of the case. Judges, especially highly experienced judges such as the one in this case, will have a very good feel for a given situation, for the atmosphere presented, for whether upon first exchanges counsel and the client appear to have taken on board the issues in a case in the light of the accepted facts; and whilst the course adopted by this judge is one that should be followed rarely and only then for very good reason and with considerable caution, we cannot say that it will inevitably be unacceptable to employ it. We are satisfied that it was not unacceptable in this case for the judge to say what he did. The judge intimated that on the face of the summary alone, the case appeared overwhelming, and he could not himself see, on the information he had, a defence. Given the caveats engaged by the judge and the manner in which he expressed himself, a far cry from the overt pressure and any hint of scorn which we see in Barnes, and given his earlier acceptance that the evidence might indeed not make out the prosecution case at all, and given as well his conduct once the decision to plead not guilty was reaffirmed, and his conduct after the evidence commenced, we are satisfied that no improper pressure was brought to bear, and that the informed observer would not have concluded bias or prejudgment of the case.

19. On this point, and on the issue of interventions too, we have taken the opportunity of reading the entire transcript, as indeed Mr McGowan invited us to do. The question of a judge's conduct, whether he has overstepped the function of adjudicator of fact and assumed the role of a party or given to the informed reasonable observer the appearance of bias such as would render the trial unfair, is often a question of overall impression born of experience; and is a question to be addressed in the context of the case, the issues in the case, and in particular the proper context of questions put by a judge which are said on appeal to have been improper.

20. We have to say that we do not judge this tribunal as having overstepped the boundary at all. The judge did not sit mute, nor is he expected to. He asked questions, but by and large they were bona fide questions in response to testimony which, if it had any remote chance of being accepted, required explanation. We do not intend to deal with each remark that has been attacked, for it is unnecessary to do so. We will take an example. The judge asked questions about tenancy agreements which were found at the premises and he said aloud that he wondered what was sold in the shop, whether what was sold might be discs. It is said that the judge was being sarcastic. That is not necessarily so at all. The applicant had given testimony that he was employed at a warehouse; yet here was evidence that he owned a shop and the judge said that there was no clue from the documents what shop it was, and he wondered aloud whether the officers had ascertained the answer. It was obviously a matter of potential relevance, for if the applicant owned a shop that sold discs that would have had a significant impact on the case. But in any event, we see the judge at the end of the day canvassing with counsel whether the evidence as it eventually turned out was more prejudicial than probative, and he decided the matter in the applicant's favour.

21. As a further example, we were taken to the following question at page 52 of the appeal bundle where the judge said:

"All Mr Wong is saying, 'Well, look at the interview. You said you refused to answer any questions there.' So Mr Wong's next question may be, 'When did you tell the Customs and Excise this?'"

and we then see that counsel for the prosecution asked that very question. This, contends Mr McGowan, was prompting by the judge giving rise to an appearance of bias.

22. As ever, these matters are best looked at in true context. The true context was an objection by counsel for the applicant that prosecuting counsel was, he contended, pressing the applicant to say why he had not told the police what he was now telling the court, thereby undermining the applicant's right at the time of his arrest to say nothing. It was in that context that the judge made his remark. There was nothing wrong in this. The question by prosecuting counsel which followed the judge's remark was an obvious one to ask and the judge himself would have been entitled to ask it.

23. We are satisfied that the judge's behaviour as attacked in Grounds 1 and 2 does not provide a ground of appeal of substance.

Counsel's remarks to the judge

24. Although not a ground of appeal, we have an observation to make about counsel's response to the judge's comment about the apparent strength of the case. We have seen that when the question of the strength of the case was broached by the judge, counsel told the judge that he had "tried very hard"; a remark repeated after the adjournment. Counsel should not do this. Counsel's function is to place upon his client's overall case the best light, whatever he personally may think of it. If a judge adopts the course taken in this case, counsel may, if he wishes, ask for time to consider the matter, and then consult his client; and if it transpires that the client wishes to pursue a defence, counsel has merely to say to the judge that he is grateful for the time given and that his client has a defence which it is intended to pursue. We are nonetheless satisfied that the result in this case should not be affected by what transpired, for the comment was made to a professional judge sitting alone whose experience would tell him what weight to place on a comment of this kind, namely, none at all, and who in any event by his conduct of the case clearly showed that he was not affected by it.

Other grounds

25. There are two other grounds of appeal. The first is that the judge failed to consider the significance of the missing key to room B. The evidence was that the keys found on the applicant did not include the key to room B, where the offending items were found. There is, with respect, nothing in this point. The judge acknowledged in his Reasons for Verdict that there was found on the applicant no key to room B, and there had been much cross-examination to highlight the fact, so that its suggested relevance could hardly have escaped the judge. The door to room B was found open by the raiding party, and the applicant's wardrobe was in the room, with his belongings in it and, viewed at in that light, the point is reduced to its true significance.

26. The next ground is that the judge misapprehended the evidence of the applicant and that of his girlfriend as acknowledging that one of the photographs produced by the prosecution showed the room as it was after the wardrobe had supposedly been moved in; whereas, it is said, Ms Lam's testimony was to the effect that the photographs showed what was there after the door was first opened, that is, before the wardrobe was moved in. This interpretation of her evidence comes from a passage in which she said that when she and the applicant first opened the door, they "found what was depicted in the photographs". She was, in our judgment, saying no more than that she and the applicant had found the items depicted in the photographs, not that they were in the precise position depicted there where first they found them. The latter assertion would not make sense, given that on her own account the wardrobe was moved into the room after they first saw the room and its contents. It is further said that the applicant himself had not agreed that the photographs showed the items as they were after the wardrobe was moved. We have to say that the applicant's answers to questions about this were hardly clear and we do not think that this suggested error by the judge has any possible bearing on the strength of the case and on the result. It is a matter which, in context, is a lame one to take as a ground of appeal.

Conclusion

27. Accordingly, and for the reasons we have given, the application for leave to appeal against conviction is dismissed.