HKSAR v. SIN WING YI, WINNIE

CACC471/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 471 OF 2004

(ON APPEAL FROM DCCC 930 OF 2003)

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REASONS FOR JUDGMENT

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McMahon J (giving the reasons for judgment of the Court) :

1. The applicant was convicted after trial before Judge Line in the District Court of two offences of conspiracy to defraud, contrary to common law (being Charges 1 and 2) and two offences of dealing with property known or believed to represent proceeds of an indictable offence, contrary to section 25(1) of the Organized and Serious Crimes Ordinance, Cap. 455 (being Charges 3 and 4) and was sentenced to a totality of five years’ imprisonment.  She sought leave to appeal those convictions.  On 11 January 2008, we dismissed the application and now give our reasons.

2. The prosecution case at trial was that the applicant at all material times was the head of the marketing department of Prudential Assurance Co. Ltd (“Prudential”) in Hong Kong.  As such her responsibilities included the selection of printing suppliers for Prudential’s marketing and advertising materials, and the approval of those suppliers’ quotations.  She was responsible also for authorising payment to those suppliers.  Between November 1997 and June 2000 the applicant on behalf of Prudential ordered printing work from a company Alliance Advertising and Printing Company (“Alliance”) whose proprietor, Gary Chan, became the first prosecution witness at trial although retaining the nomination of PW12 in the judge’s reasons for verdict.

3. The applicant had together with Ada Cheung, an acquaintance of her husband, represented to PW12 that his financial dealings with Prudential would be through another company, Mex Printing Services (“Mex”).  Ada Cheung was the proprietor of that company.

4. Accordingly PW12 while providing printing work directly to Prudential invoiced Mex for that work.  Mex and two other companies with which the applicant had a connection then, in turn, invoiced Prudential at an inflated level for the work done by Alliance.  Those other two companies were Art Company (“Art”) and Eaton Enterprise (“Eaton”) which had as their proprietors Ada Cheung and K.C. Law respectively.  K.C. Law was the brother of K.W. Law who was a colleague of Ada Cheung at the insurance company where both worked.  This was the basis of the 1^st charged offence.

5. By this arrangement Prudential, through the applicant, would place work orders with Alliance which would deliver the finished printed materials to Prudential.  Alliance would then invoice Mex in a proper amount for work done.  Mex, Art and Eaton would then invoice Prudential at an inflated level of approximately twice the original amount invoiced by Alliance.  The monies received from Prudential would then be used to pay Alliance and the balance amounting to some $16 million over the period of the charged conspiracy was then remitted to the applicant’s own bank account.  This remittance formed the basis of the 3^rd charged offence.

6. In 2000 Prudential initiated its own audit into what was going on.  As a result the applicant issued instructions to PW12 that Prudential was to be invoiced directly by Alliance and by two further companies.  Beyond Communications Ltd (“Beyond”) and Create (Hong Kong) Co. Ltd (“Create”) were eventually used for this purpose.  The latter company was owned by a friend of PW12 who simply supplied PW12 with blank stationery allowing PW12 to invoice Prudential in inflated amounts in the name of Create as well as in the name of Alliance.  The former company was operated by PW15, an acquaintance of the applicant, who placed printing orders with Beyond and instructed PW15 to use Alliance to do the actual printing work, but then to invoice Prudential at an inflated amount.  These were the facts sustaining the 2^nd charged offence.  

7. The payments provided by Prudential in respect of the invoices sent by Alliance, Beyond and Create were again ultimately paid into the applicant’s bank account in a total amount of approximately $256,000.  That formed the basis of the 4^th charged offence.  

8. It should be noted that during the course of the 1^st charged conspiracy Ada Cheung became ill and subsequently passed away.  Her role was then undertaken by Vivian Lee, an aunt of the applicant who though originally jointly charged with the applicant pleaded guilty prior to trial.

9. The applicant did not give evidence and called no witnesses in her defence at trial.  The judge found the prosecution case proven in substance, though he accepted the sums of money involved in the 1^st charged offence may have been less than that asserted by the prosecution.  

10. Mr Harris (who did not appear at trial) advances two grounds of appeal on behalf of the applicant :

“	(1)	Throughout the proceedings the Learned Trial Judge ‘entered the arena’ so frequently and to such an extent as to lead a fair minded and informed observer to conclude that the applicant’s trial was unfair by reason of the Trial Judge taking over the conduct of the case from the prosecution.
	(2)	The convictions are unsafe and unsatisfactory.”

The judge’s interventions

11. Importantly the substance of the first ground is not that the applicant was hindered in her ability to present her defence at trial by the judge’s interventions but that those interventions were of a sort which generated the impression that the judge was dictating the conduct of the prosecution and the presentation of its case against the applicant.  That is because the complained of interventions were wholly restricted to the presentation of the prosecution case and the defence case proceeded unhindered.

12. Mr Harris relies on a number of incidents which occurred during the trial which we will come to shortly.  But before that we can perhaps make some general observations. 

13. The trial itself should have been relatively straight forward so far as prosecutions of this sort are concerned.  But it got off to a bad start when the judge discovered, before any evidence was called and during what was effectively a pre-trial review immediately before the commencement of the trial, that there were some 4,500 exhibits which were to be produced by the prosecution, but that there had been no schedules, core bundles or draft agreed facts prepared in respect of those exhibits, the prosecutor apparently expecting the court to digest those exhibits and reduce them to order in its own time.  Matters understandably worsened when the judge discovered that the prosecutor apparently intended to produce all these exhibits, with the exception of the banking documents, one by one through individual witnesses.

14. The judge’s frustration further heightened when having perused the prosecution’s written opening the court asked the prosecutor to explain the relevance of various witnesses to that which the prosecution was trying to establish and, at least in the court’s view, the prosecutor was unable sufficiently to do so.

15. As a consequence of all this the judge and the prosecutor had, in respect of the presentation of the prosecution case and the questioning of his witnesses by the prosecutor, a series of running disagreements.  Consequently the ideal as expressed by Denning LJ in Jones v. National Coal Board [1957] 2 QB 55 could not be met as there were without doubt a large number of interventions :

“

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.  Lord Chancellor Bacon spoke right when he said that ‘Patience and gravity of hearing is an essential part of justice; and an overspeaking judge is no well tuned cymbal.’ ”

16. It should be emphasised however there the mere volume of interventions is not decisive, though a large number will put the court on notice : R v. Matthews (1984) 78 Cr.App.R. 23 per Purchase LJ at 32.  It should also be borne in mind that Mr Harris complained as we have said, not that the defence case was hindered or interrupted in some way, but that the judge by his interventions assisted the prosecution case to an extent that the judge gave the appearance of bias. 

17. It is important that the matters complained of be looked at in the context of the trial as a whole.  The gravity of the interventions and their effect can then more readily be assessed.  In the present case Mr Harris relies upon four categories of intervention by the judge which he asserts in their totality amount to the judge conducting the prosecution case and necessarily therefore giving the appearance of bias on the part of the court.

18. The first category complained of were instances where it was said that the judge instructed prosecuting counsel as to how to examine a witness.  Mr Harris asserts that the judge, often in response to unfocused and aimless questioning by prosecuting counsel, gave explicit instructions to him concerning the direction in which to take the evidence and often as to what specific questions to ask. 

19. An example of that relied upon by Mr Harris occurred during the examination-in-chief of PW12 :

“	Q :	When Prudential—an officer from Prudential contacted you and said what work they wanted done, for example alterations or the like, did you issue a quotation for that work?
	COURT :		Do you mean issue a quotation directly to Prudential?
	MR GERBER :			That’s my next question.  First I am asking if he issued a quotation, and then I’ll ask him to whom, because otherwise it would be leading, would it not?
	COURT :		No, it wouldn’t.  Can’t we just ask him, simply?  Did you ever issue…
	MRGERBER :			Well, my learned friend has asked me not to lead, I’m trying not to.
	COURT :		It’s not a leading question, is it, to ask him if he ever issued quotations directly to Prudential?  Why is it tell him yes or why is it tell him no?  Direct his mind to the issue.
	MRGERBER :			May I do it my way, with your Honour’s permission.”

and again :

“	Q :	Did you discuss alterations to that initial film with Ada [MEX’s representative]?
	COURT :		Look he’s doing a printing job, isn’t he?  What does it matter the ins and outs of how he actually does the printing?  It’s an ordinary commercial contract, isn’t it?  We’re plodding through it at a rate that you’d think it was something special.  All he’s saying is, ‘I’m a printer.  I dealt with Ada, she represented MEX and I printed stuff for the Prudential.’
	MR EGAN :			Well that’s the problem, you Honour.  You see—it’ll come out in cross-examination but I’m careful that leading doesn’t take place because your Honour now believes that he’s the printer that actually did the printing.  My learned friend knows and I know that that’s not what happened.
	COURT :		I thought the questions you need to ask him about, what size company do you have, how much of it was sub-contracted, how much of this material did you actually see personally, how much of it related to the Prudential from MEX, how much was related to anything else, if at all.  Those are the relevant questions, aren’t they?  Not about altering things.
	MR EGAN :			I didn’t think so, but if that’s the view your Honour takes then very well.”

20. Another example relied upon by Mr Harris occurred during he examination-in-chief of PW9 who was the applicant’s subordinate in the marketing department of Prudential at the relevant time :

“	Q :	As far as issuing quotations went and payment of fees to production companies, who did that?
	COURT :		There are two things there.  Do them separately, please.
	MR EGAN :			All right.  Yes.
	Q :	Who was responsible for issuing of quotations?
	COURT :		It’d be much easier if it goes like this.  Who made the decisionwhich companies were to be asked to quote?
	MR EGAN :			All right.
	A :	My superior, Winnie Sin.
	Q :	And who dealt with paying the printers who did work for Prudential for the marketing department?
	COURT :		Sorry.  I don’t understand what the question you ask here, ‘who dealt with.’  I mean the finance people do the cheque…
	Q :	Who was responsible for…
	COURT :		Do you want to know who agreed the price?
	MR GERBER :			Well…
	COURT :		Is that what you want to know?
	MR GERBER :			Well, possibly, yes.
	Q :	Who agreed the price with the suppliers of printing work?
	A :	It’s also Winnie Sin.
	Q :	And who was responsible for issuing cheques to the companies who supplied the work…
	COURT :		I’m sorry to be so picky but if you ask it like that, it takes three questions then to sort it all out by response when you’re not directing it.  Do you now want to know : did the defendant have to approve payment to any supplier?  Is that what you want to know?
	MR GERBER :			Yes.  All right.
	Q :	Did Winnie have to approve payment to these suppliers?
	A :	Yes.”

21. There were other similar interventions by the judge.  Most occurred during the evidence-in-chief of the principal prosecution witness PW12.  But it is apparent in our view that the complaints Mr Harris makes regarding this category of intervention have no real substance.  It is plain and would have been plain to an informed observer that the judge was simply concerned that prosecuting counsel ask clear, concise and unambiguous questions which did not stray off into time wasting irrelevancies so that both the witness and the court were in a position to understand what the question was, and that the evidence be elicited efficiently.  That is not to help the prosecution but to assist the process of the trial generally. 

22. Mr Harris concedes that in large part the presentation of the prosecution case and the elicitation of evidence from its witnesses was far from perfect and, from what we have seen of the transcript, there is good reason for that view.  In those circumstances it was not only permissible, but it was the duty of the judge to intervene if he could reasonably do so when the prosecutor’s examination of his witness was such as chronically to confuse the evidence, or delay it.  To prevent that happening can hardly be said to give the appearance of bias.

23. The second category of intervention Mr Harris advances in support of his grounds was said to be interventions by the judge which amounted to him taking over the questioning of prosecution witnesses from prosecuting counsel.  He argues that the judge in taking over the questioning of a witness on some occasions elicited crucial evidence from the witness which would not otherwise have been obtained had the prosecution been left to its own devices.  A prime example of that in Mr Harris’ submissions was as follows :

“	COURT :		So whilst Mr Gerber’s probing his papers, I’m going to ask some questions.  I’m not sure that I follow this and I don’t want to get it wrong.  Will you just please look at 4279 and 4280, do you have that there?  Now that’s an invoice you sent to Beyond, isn’t it?
	A:	Yes.
	COURT :		And the total is 126,000.
	A:	Yes.
	COURT :		And you actually did the work that was the subject of that invoice?
	A:	Yes.
	COURT :		You initially quoted for that work to MEX.
	A:	Yes.
	COURT :		How much did you quote to MEX for that work?
	A:	4278.  That’s 90,000.
	COURT :		And you actually did the work that was the subject of that invoice?
	A:	Yes.
	COURT :		And you actually did the work that was the subject of that invoice?
	A:	Yes.
	COURT :		And the difference between the 90,000 and the 126,100, was the amount that came from adding the MEX charge as well faxed to you on 4272, is it?  Tell me if I’ve got it right.
			[unclear answer from the witness]
	COURT :		I’ll come to this another way then.  How much were you actually paid?  How much did you put in your pocket for doing this work?
	A:	The 90,000 on 4278.
	COURT :		Right.  You were actually 126,100, your company, did they receive that amount ever?
	A:	Yes.
	COURT :		So what happened to the difference between the two?
	A:	The job, ‘At Your Service,’ was originally carried out by me for MEX before Beyond took up the job.  This difference was actually the same as what I previously said.  The charges by MEX would have to be added in.
	COURT :		Right, so who had the difference between the 90 (90,000?) and 126,100?
	A:	We have read the document which has been altered to…
	COURT :		Look, who had the money?
	A:	MEX issued an invoice charging me and I made this payment to them.
	COURT :		Right.  So, this is the situation, is it?  You charged Beyond 126,000 (126,100), but in fact you did the work for 90,000, and the difference between the two you gave to MEX.
	A:	Yes.

24. The judge made it plain at the commencement of his questioning that he was doing so to ensure he understood PW12’s earlier evidence concerning his sending of part of the “inflated” moneys obtained by him to Mex.  This was an important area of evidence.  It related to the new system of fraud, the subject of the 2^nd charge.  We do not see that by doing so the judge was either unnecessarily or unfairly intervening.  A judge, perhaps even more particularly in a trial of this nature, has an obligation to understand the evidence and quite often the most expeditious way of doing that is to ask a few cogent questions himself of a witness.  We note only about a dozen questions were asked and that there was no other instance during the course of the trial when the judge asked any comparable sequence of questions.  The “one-off” nature of this series of questions can be illustrated and explained by that which the judge then said to counsel :

“	COURT :	Good.  All I can say now—and we’ll withdraw stumps now as it’s very near 4.30—to get that simple piece of information before me, took between 10 past 4 and 4.30, it was not the witness’s fault.  If he’d been shown those end documents first rather than the early beginning ones and been asked what are these revisions about which your questions are not designed to go to what was actually important, we’d never have wasted all that time.
		Mr Gerber, tomorrow I want this case to flow properly.  I want you to have planned the questions that you’re going to ask the witness and have the documents ready in support, and I want them please given to him in a logical manner which goes to what matters rather than asking just, ‘What’s this?’  I’m sorry if that sounds either—rather pre-emptory or whatever, but I’m driven to it.”

25. It is quite obvious that what occurred on this occasion as on others when the judge asked questions of a witness and particularly PW12, was that the judge by a series of concise questions got to a point in the evidence towards which the prosecutor had been struggling and at which he would have arrived only after considerable time.  The effect of the judge’s questions in most cases was therefore simply to shorten what was otherwise an unnecessarily laborious evidential exercise.  That cannot have given the appearance of bias. 

26. In so far generally as the judge’s questioning was concerned there was no attitude of partiality, or of any desire to assist the prosecution evidence.  Quite the contrary, on most occasions the judge’s questions occurred in circumstances where he expressed impatience with cumbersome or irrelevant questions asked by the prosecutor.  No real objection can be taken to the judge’s questioning of witnesses and in our view the complaints made by Mr Harris in regard to this second category of intervention were also without merit.

27. The third category of intervention Mr Harris put forward concerned what were said to be instances where the judge instructed prosecuting counsel as to how to prosecute his case.

28. An obvious example of this so far as Mr Harris’ submissions were concerned went as follows :

“	COURT :	Mr Egan, I’ll give you an opportunity in a minute to have your chat with Mr Gerber.  But [this] would seem to me a way that was potentially wasteful of time, to start plodding through from PW1 and plodding through that way.  To call in the human resources director when I can tell from the draft admissions there could no dispute about her job, when she started and…
	…
	COURT :	It seems to me the sensible place to start is with the man from Alliance, PW12.  He’s the man to start with.  And what I’d have thought, given that draft admissions had prepared at the moment, is that he needs to go through a couple of the transactions.  Mr Gerber can then say he doesn’t need your consent or the like, he can then put in the man’s hands in some form or other, ‘Did it happen on 30 other or so occasions?’  And then you can cross-examine him, the issue should then emerge.
	…
	MR GERBER :		I understand what your Honour says that at first blush it sounds a great idea to cut through all this and cut to the chase with Gary Chan, PW12.  But he can’t produce all the documents.  He could only produce the documents that he had.  But his task would be—in addition to producing his document—to comment on Prudential’s documents to show where the difference lies; to show what’s really happened.  And I can’t get him to…
	COURT :	No, sorry, I disagree with that.  It’s not that … witness of fact don’t start commenting on other people’s documents at all.
	MR GERBER :		Yes, it is, with respect because he issues an invoice to MEX.
	COURT :	He can speak to the facts he actually dealt with.  If he says, ‘These are my inflated invoices.  I agreed to inflate them with the 1st defendant.’  Here are the invoices.  That’s the burden of his evidence, isn’t it?
	MR GERBER :		Well, I don’t know what he’s going to say as regards to agreeing to inflate.  I don’t think that comes into his statement at all.  I don’t think he says that.  He just invoices MEX at a certain amount.  Now he has the documentation…
	COURT :	Sorry, do you mean you’re not in a position to tell me whether your main witness is someone who’s actually agreed with the defendant to inflate or not?
	MR GERBER :		No, he doesn’t accept that as regards Charge 1, or Charge 1 and 3.  But he does accept it in cases of Charge 2 and 4 because he, himself, inflated the invoices.
	COURT :	Can I just ask you this then.  On the 1st charge, is it your case that the invoice that Alliance creates is inflated?
	MR GERBER :		No.”

29. Mr Harris relies also on this exchange :

“	MR GERBER :			Well, that’s what I mean.  What witnesses do I bring and what does the court want of these witnesses in-chief?
	COURT :		We’re rushing our bridges in a bit.  But if [the defence] wants to do that he then has Mr Chan there to say, ‘Look, look at page 21, those aren’t the same goods.  You look, that’s about 106,000 goods, this is about 200,000 goods.’  The paper chain is—it allows the defence to do that if they want, to break the chain of the inference that you’re trying to set up and it also it gives them the hard copy on which to say, to demonstrate his case is different, to say why this is being done.
			And once you’ve heard the first witness cross-examined, I suspect, if you call PW12 first, it’ll all fall into place.
	MR GERBER :			Well, I wasn’t proposing to call PW12 first because he comes once the whole—I was planning—let me explain to your Honour what I had planned to do before this morning.  I knew that your Honour was going to try to cut it, whittle it down to make it more manageable.  That was a given.  But what I had planned to do was this.  I was going to call the Prudential witnesses as to the system in operation to paint the backwash if you like, the background of a canvas.  Some of these things…
	COURT :		You see that’s just the sort of thing judges who sit here and try these fraud cases…
	MR GERBER :			Sorry?
	COURT :		I mean, all companies work much the same way.
	MR GERBER :			Well, I don’t know.  They’ve…
	COURT :		They do.
	MR GERBER :			… had to change their systems and so on.  First of all…
	COURT :		No, no, I’m going to interrupt you.  The system doesn’t matter, right.
	MR GERBER :			All right.
	COURT :		If it matters the defence will make it matter.  If they say this system allowed for what picture you painted … then it will become the subject of investigation.  But how a company like this orders their glossy brochures and pays for them doesn’t matter as long as an invoice comes in from ‘X’ and goes out to ‘X’s’ account in response to the invoice.”

30. While it may appear that the judge was quite robust in expressing his views to counsel it must be borne in mind that these particular exchanges took place during what was effectively a pre-trial review conducted by the judge prior to the prosecution commencing its case.  The judge at that stage had been provided only with a written copy of the prosecution’s opening, though its case had not yet in fact been opened, and was at pains to understand what that case was about.  He was concerned also as to the most expedient order in which the witnesses were to be called.

31. Those are valid concerns for a judge at a pre-trial review.  There is no reason why a judge cannot suggest what order prosecution witnesses or indeed defence witnesses are to be called.  The final decision may well rest with counsel in that regard but we find nothing unusual or untoward in the judge, in this instance, trying to convince counsel that PW12 (who as we have said did eventually become PW1) should be called as the first witness.  The judge was quite reasonably of the view that PW12’s evidence would, if led first, put the balance of the prosecution case in perspective and crystallise the issues to be fought.

32. Mr Harris complains further however that the judge’s attempts to instruct prosecuting counsel how to run his case carried over into the evidence.  What he described as a pivotal example of this occurred during the examination-in-chief of PW12, though in the absence of the witness :

“	COURT :	Can I just ask you how you intend to deal with how much he was paid say in total for the work that’s the subject of transactions 1 to 32?  I might have missed that.  Don’t you need it in this case for this man to say, ‘What I got paid by MEX was ‘X’.’ Isn’t that an important figure to have?
	MR GERBER :		Well, I don’t know if it really is because the gravamen of the charge is that the defendant ended up with some 18 million in her pocket which she should not have done.
	COURT :	But isn’t your case against the defendant that she, in fact by doing various things, ensured that her employers paid out more for the printing than the true cost of it?
	MR GERBER :		Yes.
	COURT :	And therefore isn’t the true cost of the printing on your case what this gentleman was paid by MEX, and whether it be by passing on Prudential cheques, whatever; whatever came his way that way.  Don’t you need a figure for that?
	MR GERBER :		I didn’t think I did because the false invoices from Alliance covers part of what he was paid and some other stuff from MEX.  It doesn’t really matter really, it’s just that the 18 million can be shown never to have been generated as proper invoices by Alliance.
	COURT :	Just suppose this lady was allowed to do this by her employers, or suppose she thought she was allowed to do it, right.  She thought she was onto a good contractual thing where she ran a company, right, which could have contracts with her employers and that she could get the work done cheaper, sub-contract out and therefore make a profit.  Suppose that’s the situation, right.  Is it not important for the court to know what the true cost of the actual work was and what the employers were then charged?  Those are two important sums.  It’s the difference between the two that’s important, isn’t it?
		This is what I asked you in the opening.  You told me some 6 million.  It can’t be difficult for somehow, somewhere, by looking at the right documents to find out—this is why I ask you how you intend to do it, if you intend to do it—how you intend to find out what that sum is.  Or is it your intention not to seek to quantify that sum?
	MR GERBER :		Well, I wasn’t intending to quantify it, but—let me start with one thing.  Your Honour started off with saying, ‘Let us suppose that the defendant was entitled to set up her own company to do this, that and the next thing,’ let us suppose that the defendant thought that she was entitled to do what she said.  I started off this trial as prosecution by intending to call witnesses to reject that submission ab initio.  So that it can never be part of the possibilities.
	COURT :	Sorry, the point I’m afraid has eluded you.  Never mind.
	MR GERBER :		All right.”

33. We do not think this exchange, though again robust, really demonstrates much more than the judge asking counsel if there was to be evidence of a particular matter.  It is not unknown for jurors to express similar concerns during the course of a trial, and to suggest that in doing so they are attempting to instruct the prosecution how to conduct its case would be, quite simply, wholly unrealistic. 

34. We were satisfied that there was nothing improper in the judge making the enquiry that he did.

35. Mr Harris complained also that on one occasion during the trial the judge had brought to the attention of prosecuting counsel a gap or lacuna in PW12’s evidence and had, in effect, directed him as to the recalling of PW12 to cure that defect.  This was perhaps Mr Harris’ strongest point.  But the existence of that gap in the evidence had been drawn to prosecuting counsel’s attention in the course of a lengthy exchange with the judge triggered yet again by the judge attempting to ascertain precisely what it was that the prosecution was attempting to prove.

36. In truncated form the discussion went as follows :

“	COURT :	Are you saying that anybody here has paid out on invoices where the goods were not in fact delivered?
	MR GERBER :		Yes.
	…
	COURT :	Well, where?  This is an aspect of the case that’s a mystery to me.  Why it should be a mystery after we’ve been going over a week is a matter of regret.
	MR GERBER :		It’s all in the schedules.
	…
	MR GERBER :		These goods were—there is no corresponding invoice from Alliance to MEX for these goods, ergo they were never produced by Alliance.  It’s not suggested that Alliance—right, that’s enough.  So therefore these goods were not produced by Alliance, ergo they were never delivered to Prudential because they were never produced.  But, Prudential was invoiced for these goods, these non-existent goods, by MEX, Eaton or Art.
	…
	COURT :	Well, that would depend on you having evidence, would it not, that for every time that Alliance actually did some work for MEX where the goods were delivered to Prudential, that the ICAC or whoever has retrieved the invoices from Alliance or MEX?  That’s in each case made sure that they could never have missed an invoice.
	MR GERBER :		Well, that’s right.  But I think Gary Chan has told us that.
	COURT :	He hasn’t.”

and having disabused the prosecutor of that notion :

“	COURT :	It means you haven’t got the invoice.  How do I know there isn’t an invoice?  The mere fact that you haven’t got it…
	…
	MR GERBER :		Because it’s not in his records, otherwise it would be here.
	COURT :	How do I know it’s not in his records?  Where’s the evidence of that?
	…
	COURT :	It you can’t see the gap in that, I’m afraid you’re blind to basic forensic realities.  Can’t you see the gap in that?
	MR GERBER :		No.
	COURT :	You could drive a coach and horses through it.”

37. It is quite clear to us that the judge’s expressed view that there was an evidentiary gap could not be categorised as an attempt by him to direct prosecuting counsel as to how to prosecute his case.  Rather, the matter came to counsel’s attention by a somewhat less direct route.  The judge was initially attempting to establish what a particular aspect of the prosecution’s case was and in the course of that exposed a misunderstanding in counsel’s mind as to what evidence had been given by PW12.  In the context of the trial as a whole it cannot be fairly said that this was any indication that the judge was improperly directing the course of the prosecution case.  Nor do we think the judge’s questions of PW12 when the witness was recalled concerning how his invoice filing system operated were unduly interventionist.

38. The matters raised by Mr Harris in respect of this category of intervention seem to us to be encompassed by the comments of the English Court of Appeal in R v. Saville (Crim.App.4181/1991, unreported) :

“

Any contention of this sort that a trial judge has behaved unfairly and descended into the arena, must obviously receive this court’s anxious consideration.  Nothing is more unfortunate than when, as has occasionally happened in the past, a judge enters the arena and appears to be taking an active role on one side or the other.  But our consideration of this case persuades us that there is nothing whatever in any of these various criticisms advanced against the Assistant Recorder here.

Litigation, as the Lord Chief Justice pointed out during the course of argument, is not a game, although too many believe it to be.  If the presiding judge perceives the risk of a case going off on a wholly wrong basis, whether because of some legal technicality which has been overlooked, or because of some lacuna in the evidence, it is not incumbent upon him to grit his teeth, remain silent and watch justice miscarry—for it is no less a miscarriage of justice when an accused person escapes conviction through inefficiency or carelessness on the part of the Crown than when he is convicted as a result of comparable error on the part of the defence.  Rather it is the duty of a judge to ensure that criminal proceedings are tried fairly and efficiently, and to intervene as necessary to ensure that that goal is achieved.”

39. The final category of interventions relied upon by Mr Harris was said to be those which evidenced pre-assumptions of fact by the judge.  Perhaps the prime example of that was illustrated by defence counsel’s comments contained within the exchange we have set out in paragraph 19.  But such instances were in our view both rare and minor, and came about not because the judge had in any way pre-judged any issue but because, at an early stage of the trial at least, he was, through no fault of his own, uncertain of certain aspects of the prosecution case.  Indeed Mr Harris conceded that the judge had said nothing to indicate a pre-judgment of any issue in the case.  Given that concession it is difficult to see how the judge’s occasional pre-assumptions as to what evidence would or may be called before him, especially in the context of him attempting to ascertain what the prosecution case was and how it was to be presented, could possibly lead to any appearance of bias.  There was no merit in this complaint.

40. Looking at Mr Harris’ submissions in the round and taking all of his complaints concerning the judge’s interventions together we are quite satisfied that a fair-minded and informed observer would not conclude there was any real possibility the court was biased.  The judge’s interventions were not of a nature to take over the prosecution case but were in the main simply to prevent the prosecutor from wasting the time of the court and of the applicant by presenting his case in an unnecessarily time consuming manner.  On the one occasion when the judge brought to the prosecutor’s attention that his case suffered from an evidential lacuna he was doing no more than his duty.

41. There were without doubt a large number of interventions in this trial.  They were caused in the main by the less than satisfactory conduct of its case by the prosecution.  An informed observer looking at those interventions in the context of the trial as a whole would have realised that.  Those interventions occurred in most part during the pre-trial review procedure and during the first prosecution witness’ evidence-in-chief.  There was not at trial, nor was there before us, any suggestion the defence case had been interfered with or obstructed in any way.  It may well be that the same level of intervention during the course of a defence case would cause a different view to be taken, but in the present case the complained of “descent into the arena” was restricted to the prosecution’s case and was concerned with remedying procedural inefficiencies and preventing vague, confusing or irrelevant questioning of witnesses.  There was no hostility to the defence case evidenced and we are satisfied the judge’s interventions did not have the effect of creating any unfairness in the trial.  This ground could not succeed, but before leaving it we wish to say this :

42. This challenge to the judge’s handling of this case is illustrative we think of a malaise in the conduct of complex, and indeed other, cases, which makes a false assumption about a judge’s role.  Judges are not there to flow with whatever tide is created by the approach adopted by counsel.  To the contrary, the managerial flow of a case is in the judge’s hands, not counsel’s.  It is a judge’s positive duty to manage trials.  His function is to adjudicate cases and that means adjudication upon evidence properly and efficiently presented.  If that requires vigorous management, then he must manage vigorously.  And if counsel, whether for the prosecution or the defence, are not presenting their respective cases in an intelligible and economical manner, the judge must ensure that they do so.  Firm skilled management by the court is not inconsistent with the interests of a defendant for no one is hereby advocating the exclusion of relevant evidence, or the inclusion against him of inadmissible evidence, or the use of a biased procedure.  Not only did the judge in the present case not err in his approach or intervene inappropriately, he performed the judicial task in a complex commercial crime case in precisely the way it should be performed.

43. The judge by his urgings eventually succeeded in having the prosecutor provide various schedules of exhibits and what amounted to core bundles of exhibits.  The trial then in fact took 11 days as compared with the prosecution’s estimate of 40 days given at its commencement.  That is a reflection of the effect the provision of materials such as schedules, flow charts and other such summaries of evidence have in the presentation of commercial crime or other complex criminal cases.  The days of such cases being prosecuted by the step-by-step production of documents are long gone.  It is a fundamental necessity for the prosecutor of such cases to have prepared well in advance materials such as schedules, bundles and affirmations and draft or signed factual admissions which allow inter alia the formal production of the exhibits the subject of those schedules.  The commencement of such a trial without that being done would in most cases be wholly unacceptable whether before a single judge or a jury.

Unsafe and unsatisfactory

44. No separate basis was advanced in support of this ground, the applicant’s arguments in respect of the first ground being relied upon.  For the reasons we have given this ground therefore also failed and the application was dismissed.