THE QUEEN v. WONG CHI WAH

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JUDGMENT

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Hon. Yang, C.J.:

1. The applicant was convicted by jury of robbery together with three co-accused. He now seeks leave to appeal against his conviction. He also applied to appeal against his sentence out of time. No proper grounds having been advanced, we have refused to extend time. Accordingly, we were concerned only with his appeal against his conviction. Having heard Mr. MacKenzie-Ross acting on behalf of the applicant, we dismissed the application and intimated that we would give our written reasons later, which we now do.

2. The case against the applicant was that shortly after mid-night on the 5th June 1988 five men, including the applicant, posing as customers in the Fu Shing Restaurant at Nathan Road, Kowloon, robbed members of staff there of various items including some $28,000 in cash. These men were armed with knives. The manager of the restaurant succeeded in eluding the intruders and went out to alert the police, who arrived shortly and arrested these men outside the restaurant.

3. The only issue at the trial was whether or not the applicant and one of the co-accused were part of the group who committed the robbery, the other two co-accused having pleaded guilty to the offence.

4. Six grounds of appeal were advanced. These could conveniently be grouped under four headings, viz., (i) that the trial judge entered into the arena on behalf of the prosecution and was biased in his summing up upon the conduct of the identification parade and the cautioned statement (see Grounds 1 and 6); (ii) that "the trial judge wrongly excluded the jury from hearing part of the trial despite defence objections to his so ruling" and that the jury were thus "deprived from hearing argument upon an important issue, namely the issue concerning the police officer's notebook entry, which was a material issue in the trial" (Grounds 2 and 3); (iii) that the judge failed to exercise his discretion to exclude the identification parade evidence (Ground 4); and (iv) that the judge was wrong to allow the police officer's entry in his notebook to be admitted as evidence (Ground 5).

5. Items (iii) and (iv) may be disposed of briefly. We have considered counsel's argument, inter alia, that the applicant might have been identified by his clothing rather than his physical and facial features. The judge dealt with this aspect of the case with care, drawing the jury's attention to the mutual exchange of clothing between the first accused and the applicant at the identification parade. There was however the evidence of one of the victims that he identified the applicant because of his facial appearance. As to item (iv), no argument has been addressed before us, nor has our attention been directed to any particulars under this head. There are no merits in these grounds of appeal.

6. Item (ii) relates to the complaint of defence counsel that a prosecution witness (a police officer) during an adjournment in the course of giving evidence relating to entries in his police notebook, was seen to be speaking with his inspector about the notebook. When the hearing resumed defence counsel sought to make a submission to the judge in the presence of the jury concerning the incident. The judge refused to accede to this request and heard counsel's submission in the absence of the jury.

7. We think the judge was clearly entitled to take this course. In R v. Hendry (1989) 88 Cr. App. R. 187 the Court of Appeal in England held that it is for the judge, having heard the views of the defence, to have the final word on whether the jury should remain in court when counsel was making a submission. We would add that the wisdom of the judge's decision became evident when in the course of his submission counsel proceeded in effect to give evidence as to what had happened. We do not accept Mr. MacKenzie-Ross's contention that the jury should have been permitted to hear this. Grounds 2 and 3 therefore fail.

8. We now come to item (i). At the request of the Crown, Mr. MacKenzie-Ross furnished particulars of his complaint under Ground 1. It is his argument that a number of interventions by the trial judge indicated bias.

9. Under the first set of particulars, it is alleged that the judge failed to order either a separate trial or the editing of the references to the applicant in the Statements of the three co-accused. Indeed the statements of the first and second co-accused were also admitted into evidence and they too implicated the applicant. In his summing up, the judge made it perfectly clear to the jury that a statement is only evidence against the maker. There is no substance in this complaint.

10. The second set of particulars attempts to show that the judge had entered the arena. On some of these Mr. MacKenzie-Ross made submissions, on others he did not, though he still sought to rely on them. Having considered the particulars, we are of the view there is no foundation whatsoever for any complaint against the trial judge. Particulars (a) to (e), which we do not think it necessary to discuss, cannot possibly be criticised as entries by the judge into the arena. If anything it was Mr. MacKenzie-Ross whose sarcastic response, when he complained that the judge had come to the aid of a prosecution witness, bordered upon impropriety (see p. 124P of transcript). A similar discourtesy was shown to the judge a little later on (at p. 131L of transcript: item (f) of the Particulars). Indeed, counsel seemed to have lost control of himself, at page 146Q of the transcript, when the judge overruled his objection to prosecution counsel's leading question on a matter which had not previously been challenged (item (g) of the Particulars). Then there is item (h) of the Particulars which deals with the judge's ruling as to how money in an envelope should be produced by a prosecution witness as an exhibit: we do not see how the judge could fairly be accused of entering the arena here.