HKSAR v. CHRISTOPHER OKECHI NWOSU

CACC 201/2021

[2023] HKCA 396

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 201 OF 2021

(ON APPEAL FROM DCCC NO 102 OF 2021)

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J U D G M E N T

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Hon Zervos JA (giving the Judgment of the Court):

1.  On 13 August 2021, the appellant was convicted after trial by District Court Judge M Chow (the judge) of one charge of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210, and one charge of failing to surrender to custody without reasonable cause, contrary to section 9L(1) and (3) of the Criminal Procedure Ordinance, Cap 221. On 23 August 2021, the appellant was sentenced to a total term of 18 months’ imprisonment^[1].

2.  On 28 July 2022, the Single Judge[2] granted the appellant leave to appeal his conviction for the offence of burglary on the sole ground that there was excessive judicial intervention during the cross-examination of the appellant when the judge required the appellant to produce his telephone for investigation. Leave for the other grounds of appeal was refused.

The brief facts

3.  In the prosecution case concerning the burglary charge, it was alleged that, on 9 August 2020, the appellant stole a piece of paper in the form of a notice (the Notice) that had been placed inside a lift of a residential building. On 13 August 2020, the appellant was arrested on the rooftop of the building and was found in possession of the Notice. It consisted of a picture of the appellant accompanied by Chinese characters, which stated that the person in the picture was not allowed to enter the building and if residents saw that person, they should call the police.

4.  It was the defence case that the appellant had not stolen the Notice but had taken it to show his Chinese friend so that he could know why his picture was on the Notice and what it said. It was also his case that he was not trespassing as he had lived as a tenant in the building from 27 May 2020 to 13 August 2020, but due to a rental increase, he had to move out of his premises. The appellant believed that he had tacit approval from the watchman at the building to sleep on the rooftop, where he had a bed and possessions.

5.  The issue at trial regarding the burglary charge was whether the appellant was a trespasser and whether he had stolen the Notice with the requisite intention to permanently deprive the owner of it.

The reasons for verdict

6.  Having considered all the evidence, the judge found all prosecution witnesses honest and reliable and accepted their evidence[3]. They had testified that the appellant was not allowed to stay on the rooftop of the building, and he had been forewarned that if he went there, the police would be called[4].

7.  The judge rejected the appellant’s evidence that he intended to take the Notice to his friend to have it translated and then return it afterwards. She also rejected his explanation that as his friend’s shop was closed between 9 and 13 August 2020, he intended to take it to him on 14 August 2020, which was the day he was arrested. She set out her reasons as follows[5]:

“52. It was really convenient for the defendant to say that he would return the Notice on 14 August. On 13 August he was arrested by the police for an offence of theft of the Notice. The management team also came to clear away all his personal belongings.

53. When asked why he did not use the WhatsApp function of his phone to send the pictures of the Notice to his friend, he said that his old Samsung phone did not have the WhatsApp function. But he used that old Samsung phone to take picture of exhibit D1.

54. However, his current Samsung phone which was purchased a few months ago has the WhatsApp functions.

55. The defendant clearly is aware that the modern phones had WhatsApp functions. He knew that he could have taken the pictures of the Notice and send it by WhatsApp to his friend.

56. On the other hand, what he could do was to take picture of the Notice with the old Samsung phone. He knew that the Notice did not belong to him. He did not need to keep the actual Notice physically for his friend to explain to him.”

8.  In this passage of the judge’s reasons, she incorrectly described the brands of the mobile telephones possessed by the appellant. It was the appellant’s evidence that his “Nokia phone” did not have the WhatsApp function, and he used a “Samsung tablet” to take the pictures that were adduced into evidence.

9.  The judge found that the appellant was a trespasser at the material time and kept the Notice with no intention of returning it[6]. She was satisfied that the prosecution had proved beyond reasonable doubt that the appellant had stolen the Notice with the requisite intention and accordingly convicted him of the burglary charge[7].

The judge’s inquiry

10.  In the course of his examination-in-chief, the appellant produced a set of photographs showing his personal items on the rooftop (exhibit D1), which he purportedly took with his mobile telephone on 2 July 2020[8]. Later, when asked under cross-examination whether he had ever made any effort to inquire about the content of the Notice, the appellant said he called his Chinese friend on his telephone and was told that he would return on 14 August 2020[9].

11.  The judge then queried the appellant about his telephone and what functions were available on it[10]:

“Court: Just a minute.

You had a phone?

A. Yes.

Court: And your phone, do they have any WeChat, WhatsApp functions?

A. No, I don’t have that type of phone, I was using this Nokia, small Nokia phone.

Court: Do you still have it with you?

Igbo Interpreter: He said the phone is in the house, that phone is still in his house.

Q. So you do not have any phone with you now.

A. Yes, I have a mobile phone but not that particular phone that I used that time.

Court: But you say you used the phone to take pictures.

Igbo Interpreter: He say, yes, he used Samsung to took this picture.

Court: Samsung?

Mr Liu: Samsung.

Igbo Interpreter: Samsung phone, yes.

Court: And that was – ‘Samsung to take pictures’.

A. The phone don’t have SIM card, just Wi-Fi only.

Q. Okay.

Court: And you say you used the Samsung phone to take pictures and the phone you use was Nokia.

A. Yes, the Nokia phone have SIM card but the one I used to take this photo don’t have SIM card, it’s Samsung.

Court: But SIM card can move around between phones.

A. That phone don’t have where to put SIM card. It’s tablet, not a phone, it don’t have where to put SIM card. The Samsung only is tablet.

Court: What do you have on your body now?

A. It’s Samsung phone.

Court: So this is the phone you take picture?

A. (Witness answers in English) No, madam.

Igbo Interpreter: He say ‘No’.

Q. So how many phones do you have? How many mobile phones do you have?

Igbo Interpreter: Huh?

Q. How many mobile phones do you have?

A. (Interpreted evidence continues) It’s -- you can recall that this happened on 2020, not now. It has been long, so you can use phone and damage and change another one.

Court: Show me that phone.

Show this to Ms Moosdeen...

Ms Moosdeen: Yes, it’s...

Court: ...and...

Ms Moosdeen: It’s okay. Thank you.

Court: ...the prosecution first.

Ms Moosdeen: Thank you, your Honour.

Court: Is this phone on?

A. It’s locked.

Court: Turn it on.

Do you mind, Ms Moosdeen?

Ms Moosdeen: No, no. As your Honour thinks appropriate. If I do object, I will stand up. Thank you, your Honour.

Igbo Interpreter: He said if you want him to open it, he will open it.

Court: No, you open it. And show us the front page where -- this phone has WhatsApp and WeChat?

A. (Answer not interpreted)

Court: Do you have WhatsApp in this phone?

A. Yes.

Court: Mm. Thank you. I don’t need to see it.

Do you wish to see it?

Mr Liu: No, it’s fine.

Court: Ask him when did he have this phone.

Mr Liu: Sorry?

Court: Ask him when did he has this phone.

Mr Liu: Yes.

Q. When do you have mobile?

A. I bought this phone earlier this year, on January.

Q. Earlier this year.

Igbo Interpreter: January this year.

Court: How much?

A. It’s HKD700.

Mr Liu: 700.

Igbo Interpreter: HKD700.” (Emphasis added)

The appellant’s submission

12.  Mr Trevor Beel, for the appellant, advances the sole ground of appeal that there was excessive judicial intervention during the cross-examination of the appellant, whereby the judge wrongly and erroneously descended into the arena to the extent the appellant did not receive a fair trial[11]. He cites Jones v National Coal Board[12] and HKSAR v Lai Oi Yan[13] in support of his submission, which set out the relevant principles that apply in respect to excessive judicial intervention.

13.  Mr Beel submits that the judge had taken over the cross-examination from the prosecution, particularly regarding questions of the appellant’s mobile telephone, which he contends amounted to “exploratory interrogatories with an interrogative purpose” rather than mere clarifications. He argues that the judge wrongly performed an investigative role and demanded the appellant produce his telephone and to turn it on so that the judge and the prosecution could inspect it. The apparent purpose of the inspection was to ascertain whether the appellant knew he could transmit via the WhatsApp function on his telephone a picture of the Notice to his friend for clarification of its contents. The appellant had already explained that the telephone he then owned did not have this function. He said he still had the telephone, but it was at home, while the one in his possession in court was different. At that point, the judge requested the appellant to produce the telephone in his possession for inspection to see if it had the WhatsApp function. The appellant opened the telephone and confirmed that it had this function[14].

14.  Mr Beel submits that the judge also erred in using this evidence against the appellant to find that since his current mobile telephone had the WhatsApp function, he knew he could have taken a photograph of the Notice and sent it to his friend without having to take it physically to him. In addition, he points out that the judge wrongly stated that the appellant was using a “Samsung phone” at the time of the offence when it was a “Nokia phone”, which did not have the WhatsApp function. He noted that the appellant had used a “Samsung tablet” without a cellular function, as opposed to a “Samsung phone” to take photographs as the judge erroneously found.

The respondent’s submission

15.  Ms Grace Chan, for the respondent, submits that the questions asked by the judge were not excessive and were mainly an effort on her part to clarify the contradictory answers given by the appellant[15].

16.  Ms Chan contends that the impugned questioning concerned the telephone used by the appellant at the time of the offence. She notes that the judge only requested that the telephone be inspected after confirming there was no objection from defence counsel[16]. Upon confirmation that it was a Samsung telephone with a WhatsApp function, the judge did not proceed further with the inspection. She submits that the questions posed by the judge were relevant and permissible given the appellant’s answers that he telephoned his friend and took photographs using his telephone of his personal items on the rooftop of the building on 2 July 2020[17].

17.  In cross-examination, the appellant said that he was using “a Nokia phone” when he tore down the Notice which did not have the function of WeChat or WhatsApp[18]. The judge queried the appellant as he had said he used a telephone to take pictures, which he initially said was a Samsung telephone and later a Samsung tablet. Ms Chan submits that the questions asked by the judge only occurred because the appellant had given confusing answers about this aspect of his evidence^[19].

18.  As for the production of the appellant’s telephone^[20], the judge questioned the appellant about the telephone he was carrying, asking him to produce it, which turned out to be a Samsung telephone with a WhatsApp function. Defence counsel intimated that she had no objection for the telephone to be inspected and the appellant expressed his willingness to unlock it, which he did[21]. Ms Chan submits that no objection can now be taken by the appellant who agreed to the production of the telephone at the time.

19.  It is submitted by the respondent that the ultimate issue in this appeal is whether the production of the telephone resulted in an unfair trial of the appellant. However, an additional consideration arises, and that is whether the information that emerged about the telephone was relevant and admissible and if it was, whether it was correctly relied upon by the judge in her reasons for verdict.

20.  Ms Chan argues that from the judge’s reasons, it is apparent she must have been aware of the evidence that the appellant’s old mobile telephone (whether a Nokia or Samsung) did not have the WhatsApp function, even though he had used it to take the pictures in exhibit D1, and that the appellant’s current mobile telephone had the WhatsApp function, which was purchased months after the offence in January 2021. Thus, the judge did not impute or use the evidence against the appellant impermissibly in finding that he knew he could take a picture of the Notice at that time and send it to his friend. She adds that the production of the appellant’s current mobile telephone had no bearing on the result of the trial, as it was purchased in January 2021 and was not the one used by the appellant to take the pictures in exhibit D1.

21.  Ms Chan submits that the judge, having accepted the prosecution evidence and rejected the defence case, properly convicted the appellant. She notes that on the evidence, it was clearly established that the appellant took the Notice, which remained in his possession for several days. The judge’s finding that the appellant was a trespasser and had no intention of returning the Notice was unassailable.

Discussion

22.  The issue in this appeal is whether the judicial interventions in question would have caused an informed bystander observing the case to conclude that the appellant did not have a fair trial. The judge’s interventions had two parts. First, the judge’s questioning about the appellant’s telephone, and second, the judge’s request of the appellant to produce his telephone to the court. In the leave judgment, it was held that the judge, in asking questions about the appellant’s telephone, was seeking to clarify his testimony on this issue. Therefore, it could not be said that she had improperly intervened, or did so in a manner or by the questions asked that rendered the appellant’s trial unfair[22]. We agree with this evaluation of the judge’s questions on this issue.

23.  It is the second part of the judge’s intervention that warrants consideration in this appeal. It was unusual for the judge to request the appellant to produce his telephone, particularly when he said it was not the telephone he used at the material time. The question is whether the judge descended into the arena and played the role of an advocate by requiring the appellant to produce his telephone for it to be examined. There is also the collateral issue of whether it was correct for the judge to extrapolate her reasoning that since the appellant’s current telephone had a WhatsApp function, he knew he could take pictures and send them to his friend.

24.  The test as to when judicial interventions would lead to a conviction being quashed is whether the judge’s conduct was such that it would have caused a fair-minded and informed bystander to conclude that the appellant had not received a fair trial[23]. In our adversarial system of criminal justice, the judge does not have an inquisitorial role but rather stands aloof from the arena in which the legal representatives of the parties contest the case on their behalf. The judge’s prime duty is to ensure that criminal proceedings are tried fairly and efficiently and to intervene as necessary to ensure that these objectives are achieved.

25.  In Jones v National Coal Board[24] it was held that judicial interventions would usually be proper and should not impact on the fairness of the trial where they were made for the purpose of clarifying the evidence or for any legal procedure or evidential purpose, or in the exercise of a case management function.

26.  In R v Hamilton[25] it was held that it is wrong for a judge to descend into the arena and give the impression of acting as an advocate. Whilst interventions by the judge can be appropriate and justified, whether they go beyond the permissible boundaries is a matter of degree and also depends at what the interventions are directed and what their effect may be. Interventions which may lead to the quashing of a conviction are[26]:

“(1) those which invite the jury to disbelieve the defence evidence in such terms that they cannot be cured by telling the jury that the facts are for them;

(2) those which make it impossible for counsel to present the defence properly; and

(3) those which have the effect of preventing the defendant from doing himself justice and telling his story in his own way.”

27.  The ultimate question is whether the judicial interventions impacted on the fairness of the trial. An underlying consideration in answering this question is the composition of the court, whether it was judge sitting alone or judge and jury. As a judge alone performing the function of the tribunal of fact, this might require a judge from time to time to clarify matters in the exercise of his or her fact-finding responsibility, more so as a judge with a jury where the jury performs the fact-finding function.

28.  It is not uncommon during a trial that evidence may need to be adduced, which had not been previously anticipated would be required, because it is relevant to an issue that has arisen from the evidence given by a witness or the conduct of the case by the parties. In the present case, the judge asked the appellant to produce his mobile telephone to ascertain if it was installed with a function from which a photograph could be taken and transmitted. However, this mobile telephone was not the one the appellant had at the time of the offence, having purchased it recently.

29.  The judge was entitled to ask questions of the appellant to clarify and explain his evidence regarding his telephone to address a relevant fact in issue as part of her fact-finding function.  She simply enquired of the appellant whether there was a WhatsApp function on his current telephone and whether he would have known he could have transmitted a picture via his telephone at the time of the offence. She conducted the examination of the appellant’s telephone in an entirely proper manner. Defence counsel raised no objection to this being done, even after the judge enquired if she objected. The appellant volunteered his willingness to unlock his telephone to reveal its functions. No actual inspection of the telephone took place because the appellant said in evidence that his current telephone had the WhatsApp function. Immediately after this took place, prosecuting counsel continued with the cross-examination of the appellant.

30.  In the circumstances, it cannot be said that the judge’s intervention was excessive and inappropriate. The inspection of the appellant’s mobile telephone took place with the concurrence of defence counsel and the appellant, and after it was confirmed that it had the WhatsApp function, the matter ended there. Nor can it be said that it denied the appellant a fair trial.

31.  There is the collateral issue that the judge wrongly relied on this evidence to extrapolate an inference that because his current mobile telephone had the WhatsApp function he would have known that he could have taken a picture of the Notice and send it to his friend by WhatsApp. This finding was not open to the judge to make, but it is a minor mistake. The judge also found that the appellant could have taken a photograph of the Notice with his old Samsung telephone and shown it to his friend without the need to physically take the Notice[27]. Based on the evidence the judge was entitled to make this finding. The appellant testified that he took photographs of his personal items on the rooftop of the building on 2 July 2020 (exhibit D1). He initially said he took the photographs using his Samsung telephone but then changed his evidence and said he used a Samsung tablet. Whether it was a telephone or tablet is immaterial. The judge was making the point that he did not have to take physical possession of the Notice because he had the means to photograph it and show it to his friend for him to translate what it said.

32.  The case against the appellant was strong, notwithstanding that it involved a minor matter of him stealing a piece of paper in the form of a Notice. It was not in dispute that he took the Notice and kept it in his possession. Despite his explanation that he wanted his friend to translate the Chinese characters to find out why his photograph was in the Notice, he would have known what it was about because he had been previously warned not to enter the building. The watchman of the building testified that when the appellant asked what the Notice was about, he told him that he was prohibited from entering the building as he was not a resident[28].

33.  We are satisfied that the judge’s intervention did not go outside the permissible parameters and the incorrect finding was minor, which would have had no bearing on the result of the trial.

The renewal of the leave application for the failing to surrender charge

34.  At the appeal hearing, the appellant applied to renew his leave application to appeal against conviction for the failing to surrender charge, which had been refused by the Single Judge. The appellant appeared in person as Mr Beel did not have legal aid to represent the appellant on this matter, nor did he consider there were reasonably arguable grounds to support the application.

35.  So far as is relevant to this case, under Rules 40, 41 and 42 of the Criminal Appeal Rules, Cap 221A, when a notice of application for leave to appeal (Form XI) has been refused by a Single Judge, the Registrar notifies the appellant of the decision by a Form XII and forwards to him a Form XIII (Notice of Renewal of Application after Refusal by the Single Judge) to be filled out and returned to the Registrar forthwith. Rule 42(3) provides that if the appellant does not return the Form XIII filled out by him to the Registrar within 14 days, the refusal of his application by the Single Judge shall be final.

36.  As required by Rule 42, the appellant was served with a Form XII dated 28 July 2022 and a Form XIII. In the Form XII, he was informed, amongst other things, that his application for leave to appeal against conviction for the failing to surrender charge had been refused and that he could renew his application within 14 days by completing the Form XIII.

37.  The appellant claimed before us that he filled out the Form XIII and gave it to the welfare officer at the prison. However, the form was not received by the Registrar and in accordance with Rule 62 the appellant was served with a Form XXIV, dated 12 August 2022, which notified him that his leave application against conviction for the failing to surrender charge had been finally determined. This form is issued after no renewal application is made within the prescribed period of 14 days.

38.  In a letter dated 19 December 2022, the appellant wrote to the court that he intended to renew his application for leave to appeal for the failing to surrender charge and that he had applied for legal aid. In a letter dated 23 December 2022, the appellant was informed by the court that he should follow proper procedure to renew his application, which was out of time, and consult his legal representative or the welfare officer of the Correctional Services Department. However, nothing further was done by the appellant, except to write to the court that he still intended to renew his application after legal aid had been refused.

39.  We do not accept the appellant’s explanation, and as the appellant had not complied with the Rules, in completing and returning the Form XIII, the decision of the Single Judge is in accordance with Rule 42(3) final.

Conclusion

40.  It follows from what we have said that we dismiss the appeal against the appellant’s conviction for the burglary charge.

41.  It would be remiss of us not to mention our surprise that this relatively minor case was put in the District Court for trial when it could have been adequately dealt with in a Magistrate’s Court.