HKSAR v. KAN HING CHAU

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No.739
(Criminal)

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J U D G M E N T

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Stuart-Moore, J.A. (giving the judgment of the Court):

1. On 28th October 1997, this Applicant was convicted in the District Court, following a 3-day trial before Judge Chua, upon eight charges of accepting an advantage as an agent, contrary to s.9(1)(b) of the Prevention of Bribery Ordinance, Cap.201. The Applicant was acquitted on 17 other similar offences and a co-defendant was found not guilty on charges that he faced.

2. The Applicant, who was sentenced to 15 months' imprisonment, now seeks leave to appeal against conviction and sentence.

3. The first charge against the Applicant alleged that he, being an agent, namely an employee of China Travel Service (HK) Ltd., on a date unknown in or about September 1991, in Hong Kong, without lawful authority or reasonable excuse, accepted an advantage, in that he agreed to receive an advantage, namely a reward or commission of an unknown amount being 10% of the total sum of jewellery settings and 5% of the total sum of gold that were sold by Tse Sui Luen Jewellery Co. Ltd. to tourists of China Travel Service (HK) Ltd. from "Tse Sui Luen", as an inducement to or reward for or otherwise on account of his showing or having shown favour to Tse Sui Luen in relation to his principal's affairs or business, namely arranging tourists of China Travel Service (HK) Ltd. to shop at the showrooms of Tse Sui Luen.

4. The remaining charges related to examples where the prosecution alleged that the Applicant had accepted specific "commissions" from Tse Sui Luen between 1st March 1992 and 31st October 1995.

5. In these circumstances, it is necessary only to refer to charge 2 as illustrating the nature of the allegation. That alleged that the Applicant, being an agent, namely an employee of China Travel Service (HK) Limited, on a date unknown between 1st March 1992 and 31st May 1992, in Hong Kong, without lawful authority or reasonable excuse, accepted an advantage, namely a reward or commission of an unknown amount, being part of the sum of $2,984 Hong Kong currency, from Tse Sui Luen Jewellery Company Limited, as an inducement to or reward for or otherwise on account of his showing or having shown favour to Tse Sui Luen in relation to his principal's affairs or business, namely arranging tourists of China Travel Service (HK) Ltd. to shop at the showrooms of Tse Sui Luen.

6. The wording of these charges is sufficient on its own to describe the nature of the prosecution's allegation for the purposes of the first ground of appeal, which is the only ground that Mr. Egan, on behalf of the Applicant, has been invited to argue. This ground reads that:

"There was a material irregularity during the course of the trial in that Her Honour Judge Chua:

(a) conducted the trial according to her own 'inquisitional' rules of procedure as opposed to the standard 'adversarial' rules;

(b) asked an inordinate number of questions thereby conveying the impression that she was 'entering the arena' and that justice was therefore neither being done nor being seen to be done;

(c) on a number of occasions insisted that facts be admitted and reduced into writing; and

(d) on a number of occasions interrupted either Counsel during the asking of questions, or witnesses during the answering of questions, and thereby either failed to understand the question or the answer or misunderstood the particular question or answer."

7. On any view, even a superficial glance at the transcript, reveals an inordinate number of interruptions of counsel and witnesses. On closer examination, some of these were justifiable as Mr. Egan, for the Applicant, concedes. However, he submits that there were many other interruptions that give an impression, however unintentional, of bias in favour of the prosecution. In a transcript of about 170 pages relating to the trial itself, Mr. Egan points out that the judge was, as he puts it, "heard from" on 566 occasions, and that the interruptions became increasingly frequent as the trial progressed.

8. We do not have to cite again the numerous authorities on this topic. The courts have been confronted with this ground of appeal before, and in HKSAR v. Mohammed Jahangir and Others (1998) 1 H.K.C. 455, this court reviewed a number of the authorities which set out the relevant criteria to be borne in mind by judges when presiding over trials, whether sitting alone or with a jury.

9. We have not, of course, merely looked at the number of interruptions, however irritating or disruptive to the experienced counsel representing both sides these must have been. Often a judge will need, for example, to intervene to prevent irrelevant or prejudicial material being introduced and to discourage the repetition of questions where the matter has already been adequately canvassed.

10. We have no doubt in this case that the judge's questions went far beyond this. It is unnecessary to read extensively from the transcript any of the passages about which complaint is made. It will suffice to say that on occasions the judge took upon herself the role which is performed by an advocate which, in the circumstances of this case, inevitably led to the impression being created that she had "entered the arena".

11. Many of the questions which the judge asked unfortunately took out of counsel's hands the whole line of questioning which was perfectly properly being developed, both in chief and in cross-examination. This had, Mr. Egan submits, a cumulative effect which can only be seen as adverse to the defence, because the judge practically took over the running of the case. The damage done by these interruptions may have been magnified because on occasions the judge seems to have missed some of the evidence that was given which, but for the interruptions, should have been straightforward to follow. Sometimes, where the witnesses were unable fully to cover the matters about which questions were being asked, the judge made inquiries, in the middle of the evidence, to see whether the prosecution intended to fill the gaps that were sometimes left in the evidence, and often there were inquiries as to whether evidence could be reduced into written agreed facts.

12. There came a point at page 120 in the transcript where Mr. Egan, who also defended in the court below, found it necessary to express his concern at the way the trial was developing in parts into a dialogue between witnesses and the judge.

13. At this particular point, the judge had inquired of Mr. Cahill, who was prosecuting, whether he would be able to find evidence to fill a particular gap in the case, namely some missing receipts. Mr. Egan, not unnaturally, got up to protest and he said this:

"I don't want Your Honour to misconstrue what I am about to say but I am getting a little bit concerned that we're sort of moving from the common law adversarial system here into the French inquisitional system. Your Honour seems to be taking, with respect, an interest in the way in which the case is presented. I raise that because your Honour knows the rules as well as I do in this regard.

Court: Well, I don't think it's an inquisitional thing, it's a matter for the advantage of the defendant. If there is no record, there is no record. I was enquiring as to this thing he signed, what does it say.

Mr. Egan: Well, you have an experienced prosecutor prosecuting the case and an experienced defence counsel defending the case, perhaps ..."

He was then interrupted by the court:

"Court: Perhaps you think that I'm not experienced enough to hear the case?"

14. Mr. Egan submitted this morning that this is illustrative of open hostility from the bench which could only have worsened the defendant's position in the trial. Mr. Egan replied in court:

"No, your Honour, I'm not suggesting that for a moment. I did preface what I said by saying, 'I don't want you to misinterpret what I'm saying'.

Court: I don't misinterpret what you are saying, I only hear the words which seem plain enough to me."

15. Unfortunately, following this exchange, the trial proceeded as it had done before with numerous questions being asked by the judge on topics about which counsel were capably dealing.

16. The matters of complaint, which are the subject of this application, are not really disputed so far as the second half of the transcript is concerned. Mr. Saw, S.C. for the Respondent, has realistically not sought to argue that many of the passages where the trial judge interfered in the questioning of witnesses may well have gone beyond the proper bounds of proper judicial behaviour. He has reminded us, however, of the relevant authorities in inviting us to apply those authorities to the situation in this case.

17. In our minds, there is no indication of any intended bias on the part of the judge, but the impression created by so many unnecessary questions must almost inevitably have created an impression of bias in favour of the prosecution, especially in the light of the verdicts of guilty.

18. It is true that there were a large number of interruptions on the part of the judge which were to clarify the evidential position for her own benefit. However, the proper time to have done this, bearing in mind the scale of the interruptions, would have been at the end of the evidence of each witness. Sometimes an isolated inquiry in the middle of the evidence, such as when a judge fails to hear an answer properly, or believes that the answer is at cross- purposes with the question, may be perfectly unobjectionable and indeed it is only sensible that the matter is clarified at that stage. However, the scale of interruptions in this case is likely to have led to confusion, distraction and muddle as, indeed, it frequently seems to have done.

19. We also note with dismay that there are frequent passages where the questioning of witnesses was taken over almost completely by the judge on crucial aspects of the case. Quite apart from any other consideration, a matter which may seem unclear at some point during the evidence of a witness will often be resolved by counsel if they are left to their examination of the witness without interruption. A judge frequently requires great patience, and this is vital if the adversarial system is to operate in the way it was intended.

20. That defending counsel was understandably frustrated by the constant interruptions to the normal flow of evidence becomes apparent once more towards the end of the trial. At page 194 in the transcript, Mr. Egan had raised a perfectly reasonable objection to a question which he considered to be in leading form asked by prosecuting counsel. Mr. Egan reinforced his objection, when he was not immediately upheld, by reference to what he had read in the statement of the witness who was giving evidence. He went on to say this:

"... with respect, your Honour shouldn't probe. Your Honour should approach the question of the witness's evidence in the same way that a jury would approach it. Now, a jury wouldn't be allowed to ask anywhere near the number of questions that your Honour has asked in a jury trial, and your Honour is sitting as a jury as much as a judge in these proceedings. And it's for that reason that I say if we know what the witness has said in a witness statement, and what the witness is capable of saying and not capable of saying, particularly if you have experienced counsel in front of you, that you should perhaps trust the experienced counsel to make the decision as to whether it's admissible or not.

Court: Yes, but sometimes I feel why I have asked questions is because it hasn't been explained very well to me.

Mr. Egan: Well, perhaps there's a reason for that.

Court: If the question was objectionable, or if you felt I was treading into territory which I shouldn't have, you could have stood up and said so and you haven't, because you realise it was just to explain what the answer was or to expand on the answer."

21. Pausing there, as Mr. Egan says, that was hardly the situation because the earlier passage which I read at page 120 of transcript had involved a complaint to the judge that she was involving herself too much in these proceedings.

22. At this point in the transcript, at page 195, Mr. Egan went on:

"Well, the reason I got to my feet was that Mr. Cahill indicated he was finished with the witness and your Honour expressed some surprise.

Court: Well, yes, why was this witness called? He's talking about records and then suddenly that's the end of the matter, so I'm surprised.

Mr. Egan: Well, your Honour, in order for something to qualify as a business record, there must be established a system whereby those records are systematically kept so that they're reliable. Business records are admitted as an exception to the hearsay rule, therefore the courts have been keen to scrutinise the reliability of the way in which the business records are kept before they allow this exception to the hearsay rule to take place.

Court: Mr. Egan, this is the man from the financial section. How am I to know that he was not the one who prepared the records? How am I to know anything when Mr. Cahill opens with questions about business records being submitted to his department and then I'm taken by astonishment when he suddenly lets the witness go. That's why I ask are there any records?

Mr. Egan: Well, your Honour, if you would approach it on the basis that he probably was not the person responsible for creating the record and the records are haphazard anyway and partial at most, and there was no real system for the..."

At that point he was interrupted by the judge:

"No, just a minute, Mr. Egan. If the records were kept by D1 and submitted to him, I don't see any objection to the prosecution producing them. That's what I thought was meant to have happened, that's why I asked that.

Mr. Egan: Well, your Honour has made a fundamental assumption that on the evidence your Honour wouldn't be entitled to make.

Court: I have not made the assumption. I was thinking that was why he was calling this witness.

Mr. Egan: Can I just say I think that would be an unsafe assumption for your Honour "to make and that's perhaps...

Again, the court interrupted and said:

"I didn't make an assumption, I'm thinking that is probably why he was calling -- when there was nothing, I was wondering why he was called anyway."

Perhaps I should earlier have said that this was a witness who had been asked a number of questions in chief. Mr. Cahill had stopped asking questions until something said by the judge forced him to re-open evidence-in-chief which led to the question to which there was objection on the ground that it was leading.

23. In the light of all the matters which we have had brought to our attention in this application, we take the view that the number of interruptions which the judge felt it necessary to make in this trial amounts to a material irregularity. In these circumstances, there is no need for us to consider the other grounds that were to have been raised in this application.

24. We shall allow the application for leave and, treating this hearing as the appeal, we allow the appeal. The convictions are quashed and the sentence is set aside.