HKSAR v. WONG KAM TONG

CACC 522/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 522 OF 2005

(ON APPEAL FROM DCCC NO. 674 OF 2005)

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JUDGMENT

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Hon Yuen JA (giving the judgment of the court):

1.  On 3 December 2005 the Appellant was convicted in the District Court of three charges, the 1^st and 3^rd charges being theft and the 2^nd charge being one of attempted theft.  The charges related to pick- pocketing on three separate occasions. 

2.  In respect of the 1^st charge, the Appellant was sentenced to 3 years and 3 months imprisonment.  In respect of the 2^nd charge, he was sentenced to the same term of imprisonment but with 1 month to run consecutively to the 1^st charge.  In respect of the 3^rd charge, he was also sentenced to the same term of imprisonment but with 1 month to run consecutively to the 2^nd charge.  In total, the sentence was therefore 3 years and 5 months.

3.  The Appellant (then acting in person) sought leave to appeal  (initially against both conviction and sentence, but the application in respect of sentence was later abandoned).  He advanced a number of grounds of appeal.  On 9 November 2006 he was given leave.  Since then, the Appellant has been granted legal aid and on appeal Mr McGowan (who also appeared for him at trial) advanced two  grounds of appeal. 

Trial

- 2^nd charge

4.  At trial, the evidence in respect of the 2^nd charge was called first.    The prosecution case comprised essentially of the evidence of PW1 and PW2 (a husband and wife) who testified that one evening in   May 2005, they were about to cross a road in Kowloon when a taxi accelerated towards them.  This caused the husband to lose balance and he had to steady himself on the taxi bonnet.  At that time he felt something on his leg and when he touched it, he saw the Appellant’s hand being removed from his trouser pocket.  There was then an episode when two other men came forward asking the husband to let go of the Appellant but when the wife raised the alarm, attracting    the attention of a motorcycle policeman, the other men disappeared.  The other witness who gave evidence on the 2^nd charge was PW3, a police officer (not the motorcycle policeman) who came onto the scene only after the events referred to above. 

5.  The Appellant did not give evidence at trial.  It would appear that in respect of this charge, the defence was that there was an accidental collision between PW1 and the Appellant and that PW1 was  mistaken when he thought the Appellant was attempting to pick his pocket. 

6.  The judge was clearly impressed by the evidence of the couple.  In her Reasons for Verdict she said (para. 24):

“Neither Mr Yip, a senior manager of the Stock Exchange,   nor Mrs Yip, a solicitor, were deflected from their evidence   by cross-examination. ... I have not the slightest doubt their observations were accurate”.

- 1^st charge

7.  The next lot of evidence called at the trial was in relation to the 1^st charge which concerned an event in March 2005.  No  civilian witnesses were called.  The prosecution evidence came essentially from police officers PW4 and PW6.  Their evidence was that they were inside a car with two other police officers on Saigon Street when they saw a  taxi suddenly accelerate twice in the direction of a pedestrian who was about to cross the road.  In taking evasive   action, the pedestrian stumbled and a man suddenly appeared    behind him, turned round and returned to the direction from which   he came.   The police officers believed the man had picked the pedestrian’s pocket but stayed in the car and tried to follow him.

8.  PW4’s evidence was that when he caught up with the man (whom    he identified as the Appellant) in Cheong  Lok Street he searched him, patting his waist.  The Appellant then moved his waistband up and down, and at that point a wallet fell to the ground from inside his trouser leg.  PW6's evidence supported that of PW4. 

9.  The wallet contained a Singaporean identity card and other documents identifying the owner as a Mr. Ng.  Mr Ng was later contacted by telephone and collected his wallet at the police station.  However although Mr Ng was listed in the Schedule of Witnesses,   he did not give evidence at the trial, whether oral or written.  Therefore there was no evidence from the owner of the wallet as to when or where or how he had lost it.

10.  The defence case was that the Appellant was known to PW6 as having been a pickpocket and that he was framed.  The defence was that the Appellant was not involved in the incident involving the pedestrian at all (if it occurred).  Reliance was placed on the fact    that even though there were four police officers in the car, none     took down the number of the taxi implicated in the incident, none  had got off to stop the pedestrian to tell him his wallet had been picked, and none had got off the car to follow the alleged thief on foot.  Following the suspect in the car, they admitted they had lost sight of him at times.

11.  Reliance was also placed on the fact that PW4 who was the arresting officer had made entries in a notebook recording the events of that evening but the notebook in fact had been issued a few days later.  The defence also relied on the fact that in a statement PW4 took from the Appellant, the preamble did not record any of the circumstances leading to the arrest.

12.  It would therefore be noted that this charge rested entirely on the police officers’ testimony.

- 3^rd charge

13.  The next lot of evidence at trial was for the 3^rd charge.  A police officer PW7 said he was at the corner of Shanghai Street and Shantung Street when he saw the Appellant running past him and heard someone shouting “snatching things”.  PW7 chased the Appellant and caught him with the help of an off-duty officer.  Two mainlanders then came up.  PW7 separated them from the Appellant and made inquiries with them. 

14.  The prosecution sought to adduce evidence from PW7 as to what the mainlanders told him as res gestae.  The mainlanders told PW7 that they had bought a watch and were crossing Portland Street when a taxi nearly collided with them.  When they took evasive action, one of them found his watch and money had been taken from his pocket.  Seeing a person close to him, he seized that person and accused him of theft.  At that point the Appellant came up and told them that they had the wrong person as the thief had already escaped.  The mainlanders then seized the Appellant and demanded that he return their property.  During this time the first person they had seized escaped.  The Appellant allegedly then returned the watch and cash to the mainlanders and ran away until he was stopped by PW7 and the mainlanders caught up with him. 

15.  PW7 said that without administering a caution he asked the Appellant about the mainlanders’ allegation that he had returned their property.  The Appellant is alleged to have admitted that he had returned the mainlanders’ property to them.

16.  The judge held that the police officer could testify as to what the mainlanders said as res gestae, an exception to the rule against hearsay.  After that evidence was admitted, the parties then agreed that the witness statements of the two mainlanders could be admitted under s.65B of the Criminal Procedure Ordinance.

17.  The defence was that the Appellant had never handled the mainlanders’ property and that he had not made the alleged admission.

18.  The incriminating evidence on the 3^rd charge therefore consisted entirely of evidence which was admitted under the res gestae exception.

Grounds of appeal

19.  Mr McGowan has advanced two grounds of appeal.  They are:

(a)   the judge and prosecution counsel had frequently interfered with cross-examination of the prosecution witnesses such that the Appellant did not receive a fair trial; and

(b)   in respect of the 3^rd charge, the judge had erred in admitting hearsay evidence by way of the res gestae exception.

Interruptions by prosecution counsel and judge

20.  In respect of the first ground, Mr McGowan has referred this court to large tracts of the transcript showing how prosecution counsel frequently interrupted his cross-examination of the prosecution witnesses, sometimes not objecting to the questions as such, but by making comments on the side.  The judge unfortunately failed to stop that conduct and also made unnecessary interventions.  All these interventions made defence counsel’s task as cross-examiner more difficult, and more importantly, gave the defendant the impression that he was not being given a fair trial.

21.  It is well established that justice not only has to be done, but also has to be seen to be done.  In HKSAR v Chan Kwan Kan [1998] 1 HKLRD 495, 498 this court (Power, Mortimer V-PP and Mayo JA) adopted a passage of the judgment of the Chief Justice in R v Tam Chi Ping Crim App 119/85 (unrep) which had been approved also in R v Lau Hing On [1987] 1 HKC 89, 90:

“It must be made clear that there is nothing improper in interventions as such by a judge, even if they are frequent and lengthy, provided that the judge follows the principles set out in Jones v National Coal Board [1957] 2 QB 55 by Denning LJ in the following terms:

The judges’ 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 that the advocates are making and can assess their worth and at 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”.

(Emphasis added).  

22.  What happened in Chan Kwan Kan was that when counsel was cross-examining the victim about the events surrounding the offence, the judge challenged counsel on the likelihood or credibility of the version of events counsel was advancing.   The Court of Appeal allowed the appeal on the basis that the judge’s conduct made the trial unfair and the conviction unsafe.

23.  The court held (p.503):

“The effect of the intervention was to pour cold water onto the defence when the judge’s role was to listen to the cross-examination of the victim and to give the points balanced treatment and consideration.  Only in this way could the judge assess its worth.  This unnecessary diminution of the defence in the middle of cross-examination is to be deplored.  It is clear even from a reading of the transcript that the judge failed to retain an air of impartiality – so important when he was the judge of both fact and law.

The effect on the applicant was that the judge gave no credence to his defence and was even reluctant to allow his counsel to develop his defence in the best light in cross-examination. ...

The ultimate test however is whether there was a real possibility that by his conduct the judge deprived the applicant of a fair and impartial trial throughout and he prejudged the case before the evidence was complete”.  (Emphasis added).      

And further at p.506,

“When the judge is both judge of fact and of law, it is particularly important that he should retain his air of impartiality.  A person being tried has the right to feel confident that during his trial his defence is being given fair and balanced consideration however implausible it may be.  Further, counsel for the defence must be permitted to present the accused’s defence fully, fairly and in its best light.

... All these principles apply with equal force whether the defence is credible or whether it is ridiculous and laughable”.  (Emphasis added).

24.  We were directed to parts of the transcript at the trial which showed prosecution counsel had a tendency to make comments while defence counsel was cross-examining the police witnesses.  In one instance, when defence counsel was cross-examining PW6, a police officer who gave evidence on the 1^st charge, on how he conducted his search of the Appellant, prosecution counsel interrupted as follows (p.115):

“Q. And his criminal record was checked using his ID card number, presumably.

A. No.

Q. Now, he’s asked if he ... or told that he is .. a request for a search.  So presumably the defendant was put into the classic search position of arms against the wall or arms against the top of a car. 

MR FORREST: That’s what they do in LA Law or Starsky & Hutch.  It’s not what they do in Hong Kong.

COURT: Well, can you leave out the word ‘classic’, because if you stop somebody on the street you ...

MR FORREST: My friend’s been watching too many of these TV programs in America.  That’s how they do it there.  They don’t do it like that here necessarily. 

COURT: Well, whatever.  Mr McGowan, go on”.  

25.  There were many more examples of similar interruptions and it is fair to say that at times defence counsel was fortunate to ask half a dozen questions in a row in cross-examination without interruption.  Prosecution counsel’s interruptions were discourteous to defence counsel, inappropriate in court proceedings and also disrupted the flow of the cross-examination.

26.  More importantly the fact that the judge failed to control prosecution counsel would also have given the prosecution witnesses (and the defendant as well as the public) the impression that the prosecution enjoyed an unfair advantage in the proceedings.  The judge regrettably also lapsed occasionally into making unnecessary interventions. 

27.  One instance was when defence counsel was cross-examining PW4 another police officer who was giving evidence in respect of the 1^st charge.  The police officer said he took a statement from the Appellant at the police station.  Defence counsel was attempting to cross-examine the police officer as to why when he wrote the preamble to the statement, he did not refer at all to the alleged circumstances in which the Appellant was arrested, i.e. how they had intercepted the Appellant, he had patted his waistband and the wallet had then fallen to the ground.  This was consistent with the defence case that the Appellant had nothing to do with the wallet and that he was framed by the police officers.

28.  Part of the cross-examination went as follows (p.86-87):

“Q. Yes.  Is there a mention of him having the wallet in his possession?  Is there, officer?

COURT: If you want to start the case on Monday, I’ll make an indication that this should be left for submissions rather than cross-examination.

MR. McGOWAN: Very well, Your Honour.

Q. He was never asked why he had that wallet in his possession, was he?

A. Well, yeah, the wallet ...

COURT: What do you mean “yeah”?  Yes or no?

INTERPRETER: “Yes”.

COURT: “I agree”.  Yes, okay. Yes.

MR McGOWAN: Thank you.

COURT: And?

A. The wallet fell out from his trousers.

Q. Yes.  And ...

A. And also ...

Q. ... that was never put to him.

COURT: Sorry.  This has to be interpreted, Mr McGowan.

MR McGOWAN: Yes, sorry, Your Honour.

A. And according to my previous observation of the defendant, I believe firmly that he had stolen wallet from the man.

Q. Yes.  You never put to him ...

MR FORREST: Your Honour .. Look, before .. Just a minute.  Before we go on, this is quite wrong, this line of cross-examination for this reason.  The officer, quite properly, has put to him that he stole the wallet.  The defendant says “ I have nothing to say”, which indicates that he doesn’t want to say anything.   He is cautioned.  He doesn’t want to say anything.  My friend is now ... 

COURT: Well he says .. . gives something quite different: “I did not

steal anything from anyone”.  Have a look.

MR FORREST: Sorry, yes, “I did not steal anything from anyone”.  That’s right, yes.  But the point is that, “Do you want to say anything?”  And he says, “I have nothing to say”.  Now, my friend is criticising him for not ... this officer for not putting various matters, such as the wallet fell from his belt, and so forth.  If a witness ... if a defendant says he has nothing to say, that’s an end of the matter, isn’t it?  That’s what I am saying is wrong, this line of cross-examination.

COURT: I think Mr McGowan is entitled to do that.  But I have told him already if he wants to do this case on Monday he should best leave this for submissions, rather than cross-examining along those lines.

MR McGOWAN: Right.  Thank you, Your Honour.

Q. I also suggest that you had previously taken a post record in a notebook from the defendant, when again you’d asked him no questions about the wallet.    

A. On which day do you refer the post record?

COURT: Before the statement.  Do you agree or disagree?

A. I disagree.

Q. Did you take record ... notebook record with the defendant after 17 March?

A. No.

Q. And you photographed the defendant in the police station?

COURT: He’s already said no.

Q. And I suggest you ...

COURT: It wouldn’t be him, anyway.  They do take photographs  just as they take fingerprints.

MR McGOWAN: Yes.

COURT: But it’s somebody else.

MR FORREST: It’s done by the duty officer or someone like that.

MR McGOWAN: Well, I bow to many years of experience in Hong Kong.

COURT: Anyway, your client says it’s him.

MR McGOWAN: Yes.

COURT: All right”.

29.  The proportion of interruptions to cross-examination in this instance was not dissimilar to that in the whole of defence counsel’s cross- examination of the police witnesses, although we accept that the purpose of some of the interruptions was to clarify the evidence immediately rather than waiting for it to unfold.  Further PW4 had    in fact not previously been cross-examined about whether he had taken photographs of the Appellant, so the judge was in error when she said “he’s already said no”.  But that is beside the point.  What was regrettable were the remarks of prosecution counsel and the judge regarding the Appellant’s case that PW4 had taken photographs of him.  They cut off defence counsel’s cross- examination in mid-sentence and between them simply dismissed   the version of events that he was advancing.  This was the sort of “unnecessary diminution of the defence in the middle of cross- examination” that this court in Chan Kwan Kan cautioned against.

30.  In another instance, defence counsel was cross-examining a police officer about some entries he had made in his notebook.  The entries  concerned the arrest on 17 March but the front cover of the notebook (exhibit PD5) showed that it was issued only after that date, on 20 March.  The cross-examination went like this (p.94):

“Q. And when did you make the entry which is shown as a post record at 0213 on Friday 18 March?  So at the bottom of page 2 there is the date Friday 18 March.  Do you see that, officer?

A. Yes.

COURT: Do you recall when did you write that entry?

A. 20^th.

Q. That purports, though, to be written 0213, doesn’t it, on Friday the 18^th?

 COURT: Does it purport?

MR FORREST: Well, does it, yes.  No.

COURT: It doesn’t.  It says here, “A record of what happened at 2.13".

MR FORREST: Of what happened.  That’s right.  It doesn’t purport anything of the kind.

MR McGOWAN: Well ...

COURT: I mean you can go about your duties.  There is no way a busy policeman can take out his notebook and every hour makes an entry.  You can’t do that.  You make a post record.

MR McGOWAN: Your Honour, I am not suggesting that.  What I am saying is that if (inaudible) have the front cover of this book showing when it was issued ...

COURT: They always have it.

MR McGOWAN:... that would appear ... well, they don’t always  have it.  You sometimes get it if you asked for it.  This appeared in a bundle of documents.  All it shows is that that was a post record made at 2.13 on 18 March.

MR FORREST: Your Honour, it doesn’t.

COURT: Well, leave that for submissions again.

MR McGOWAN: Very well.

MR FORREST: It’s not how the police work.

COURT: No, that’s not how it works.”   

31.  The point is not whether this experienced judge’s opinion of the plausibility of the defence case was right or wrong, nor whether it was understandable that the judge was feeling impatient as courts often operate under time constraints.  The point is that the impression given to the defendant was that the judge and prosecution counsel were collectively asserting their knowledge of  “how the police worked” contrary to what defence counsel was trying to question the witness on, with the result that the judge was not giving defence counsel’s cross-examination a fair and balanced consideration. 

32.  Again at p.83 when defence counsel was cross-examining a police officer in respect of the 1^st charge:

“Q: ... the four of you said something along the lines that he would ensure the defendant was convicted by making his statement coincide with that of the victim.

MR FORREST: By making his, the officer’s statement.

MR McGOWAN: Yes.  Or making his and the victim’s statement

coincide, I think he said.  

COURT: How can it coincide when the victim didn’t even know his wallet was stolen?  Anyway, there we go.

A. I disagree”.

33.  As was said in Chan Kwan Kan “counsel for the defence must be permitted to present the accused’s defence fully, fairly and in its best light.   All these principles apply with equal force whether the defence is credible or whether it is ridiculous and laughable”.  It was inappropriate for the judge to make remarks indicating disbelief of the defendant’s case before the end of the evidence.

34.  No purpose would be served by reproducing here other examples of unnecessary interventions by prosecution counsel uncontrolled by the judge and by the judge herself.  One can only say with a degree of diffidence in view of the judge’s experience that they were regrettable but it is important to heed what was said in Jones v National Coal Board [1957] 2 QB 55, 65:

“Nevertheless, it is obvious for more than one reason that such interventions should be as infrequent as possible when the witness is under cross-examination.  It is only by cross-examination that a witness’s evidence can be properly tested, and it loses much of its effectiveness in counsel’s hands if the witness is given time to think out the answer to awkward questions; the very gist of cross-examination lies in the unbroken sequence of question and answer”.

35.  In the present case, it is clear from substantial parts of the transcript that the interruptions by prosecution counsel and the judge would have given the Appellant and informed bystanders an unacceptable impression that the defendant had not been given a fair and impartial trial with the result that the convictions so affected should be quashed.

36.  The convictions so affected would be the 1^st and 3^rd charges but not the 2^nd charge.  Mr McGowan has not submitted that there were any interruptions during the evidence of PW1 and PW2 (the couple who gave evidence in respect of the 2^nd charge) and he does not suggest that he was not able to present his case clearly during his cross- examination of those witnesses.  He accepts that the conviction for the 2^nd charge rested essentially on the credibility of the couple and he has not shown that the judge was wrong to have accepted the couple’s evidence.

Not res gestae

37.  In light of our decision on the first ground of appeal, it is not necessary for us to consider the Appellant’s second ground of    appeal regarding the 3^rd charge.  We would however indicate that we would in any event have allowed the appeal on the 3^rd charge as it does not appear to us that the mainlanders’ statement to the police officer had been made in conditions of sufficiently approximate contemporaneity as to fall within the res gestae exception (see R v Andrews [1987] 2 WLR 413).

Order

38.  Accordingly we would allow the appeal and quash the convictions for the 1^st and 3^rd charges.  It follows that the Appellant’s sentence is one of 3 years and 3 months only.