HKSAR v. HUI RAFAEL JUNIOR, also know as HUI SI YAN RAFAEL AND OTHERS

HCCC 98/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO. 98 OF 2013

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RULING
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1.  On 30 October 2014, following submissions from the parties, I indicated how I shall be directing the jury on various issues in my summing-up. These included a proposed comment I intend to make concerning two defence documents, Exh’s CN60 and CN83, which were not shown to the purported maker of those records, Agnes Leung, during her cross-examination. However, I made clear that I was not intending to say anything in front of the jury about what I perceive to be the failure of counsel to do that which should have been done; my comment was confined to the fact that it was not done and we do not, therefore, have the benefit of the witness’s comments on the evidence concerned.

2.  Following those indications, I went on to voice my concern at the potential consequences of the failure to put the documents to the witness concerned.  Those discussions resulted in an invitation by Ms Montgomery on behalf of D2 for me to call (or recall) the witness Agnes Leung so that the documents in question might be put to her.  The invitation was supported by all other defence counsel but opposed by the prosecution.  The matter was adjourned until 31 October 2014 for fuller argument, which I have now received from all parties.

3.  I wish to make two important points at the outset.  Firstly, it would be, given the dearth of authority on the topic, a highly unusual course for a court of its own motion to recall a prosecution witness after the conclusion of the defence case.  The prosecution are not seeking to call rebuttal evidence: the defence are not seeking to recall a defence witness.  The court is being invited to recall a prosecution witness who has already given evidence after the close of the defence case, when, as Ms Montgomery recognises, that witness cannot be called by the defence.  The recall of Ms Leung at this late stage of proceedings, therefore, falls solely within my discretion.

4.  That leads me to the second important point.  It is my discretion to be exercised in a principled way, having recognised and considered the various factors which bear upon the exercise of that discretion.  As with many exercises of discretion, different judges may exercise the same discretion in different ways and sometimes even an appellate court may consider that it would have exercised the lower court’s discretion differently.  However, I have had the advantage of being seized of this case since the middle of last year, of reading a plethora of correspondence between the parties since that time, of hearing and determining every pre-trial application (including a related application from Mr X in July and August 2013) and of seeing and hearing every witness and argument in this case since the proceedings commenced in the High Court.  That does not mean that my exercise of a particular discretion is infallible but it does mean that I have the acute advantage of having seen and heard the witnesses in the context of the issues as they have unfolded and within the dynamic of the adversarial process.

5.  I make this second point because of all the witnesses I have heard over the course of more than four months of evidence, the one who made a singular impression on me is the witness who is the subject of this invitation or application.  The evidence of Agnes Leung has been variously described at various times by various parties as “nervous”, “vague”, “hesitant”, “tentative”, “inconsistent”, “equivocal” and “opaque”.  Some of those epithets are mine during argument but I would agree with all of them.  I am not suggesting that she was deliberately obtuse but she was not very forthcoming for a personal secretary of more than 20 years and understandably, perhaps, found the prospect of giving evidence for the prosecution in a trial concerning her immediate boss of long standing rather alarming.  One can certainly get a flavour of her evidence from the transcript but one does not get a complete picture of the witness and her demeanour from the moment she entered the witness box and asked for a glass of water to the sigh of relief when she left it, unless one heard and saw her.

6.  I have already commented that Ms Montgomery may have felt somewhat diffident in putting the documents to such a witness in cross-examination, but I do not accept she had any choice if she was going later to rely upon them.  Yet, a decision was made for what Ms Montgomery candidly accepts were “tactical” reasons made in the best interests of her client.  Now, in the light of my remarks on 30 October, she invites me to recall the witness in order to do that which I have suggested she should have done, even though, as she again candidly admits, she would not be asking me to do so but for my remarks.

7.  I confess this has been a very difficult decision to make and there are cogent arguments on both sides.  My ultimate concern is not with stolidly resorting to a rigid application of the rules of procedure but with the overall interests of justice.  And while those interests embrace the prosecution as well as the defence, the balance on an issue such as this must be tilted in favour of the defence; particularly if, as Mr Kelsey-Fry starkly suggested, there is a risk that as a result of counsel’s error, what may have been entirely genuine documents will be treated by the jury as false, inexorably leading to the logical conclusion of guilt.  As he and Mr Winter put it, procedural rigidity should not stand in the way of the jury hearing the evidence they should have heard but for counsel’s decision, whatever that evidence may be.

8.  The ultimate question, therefore, must be whether the interests of justice demand that I recall Agnes Leung, so that the documents, which emerged for the first time during the defence case, may be put to her for her comment.

9.  In approaching that question, it is relevant to bear in mind the stage at which we have reached.  The case for Thomas Kwok closed on 16 October 2014, while the entire defence case and the evidence closed on 23 October 2014.  On that day, the jury were told that the evidence had concluded and that there would be no more.  As a result, a timetable was then discussed with the jury and as far as they are presently aware, they will be hearing the prosecution closing address in two days time on Wednesday 5 November.  I am not troubled at all by the fact that if Agnes Leung is recalled, the timetable for the remainder of this case may have to be revised or that the jury may well be surprised to learn that, contrary to what I had earlier told them, the evidence has not in fact finished; although I will have to take the responsibility on myself for recalling the witness so that the jury do not attribute fault to any particular party.

10.  However, even if I am confident of making a neutral explanation to the jury for the recalling of a prosecution witness, they may well be surprised at this turn of events, given my earlier indication.  They will also necessarily now be focused on this issue and these particular documents and will inevitably wonder why the matter was not dealt with earlier; when I very much doubt such thoughts would have been generated by the neutral comment I was proposing to make in my summing-up.  On the other hand, if the witness is not recalled, the jury will know nothing of this discussion and what has passed between the Bench and the Bar in the last few days, and the issue will not be given the significance her recall would signal.

11.  Furthermore, I am by no means sure what the witness will say when confronted with accounting records, which in re-examination she said no longer existed.  Ms Montgomery will want to be as confident as she can be of the answers she gets, otherwise the consequences of getting adverse answers, when the spotlight is turned on the documents, would be, as I described them last Thursday, potentially devastating for her case.  But it is not, with respect, as simple as getting a confirmation from the witness that these documents were made by her.  Agnes Leung will have to explain why she said they no longer existed, where they were kept, when she last saw them, what discussions (if any) she had with D2 about their location and recovery, when they may have been removed from her possession, what the “curious” (to use Mr Perry’s description) markings on the documents mean, where the others in the sequence are, and so on.

12.  If the witness were to be resolutely confident that these are her records and in her answers to these issues, the jury may well contrast her certainty and confidence with her earlier performance in evidence, which I have already described.  I recall, for example, my own surprise, that she felt unable to confirm, when I enquired, that the signature on Exh C77 was that of Walter Kwok when the brothers were obviously in the habit of writing to each other and she must have been familiar with his signature.  She also appeared reluctant to acknowledge to Ms Montgomery, which again prompted me to intervene, that she had received the $3 million October 2003 cheque, notwithstanding that she had signed the Letter of Authority at page 8002 of D2’s bundle both as authoriser and recipient of the cheque.

13.  If she were to be vague about the documents in question, that will only serve to intensify the jury’s interest in their authenticity, given the focus that will now be upon them.  And if she were to say she does not recognise them or, worse, that they are not her documents, the effect could, as I have said, be devastating.

14.  If Ms Montgomery is as confident as she says she is about the witness’s answers, one wonders why she did not put them to the witness in the first place.  If she is not so confident, but is only seeking the recall of the witness in order to put the documents because of what I have said (which she does not accept), then it is a dangerous course which exchanges the forensic advantage she had intended to obtain by not previously showing them to the witness for the uncertainty and potential disadvantage of doing so now.

15.  The recalling of the witness will also, of course, allow her to be questioned by the prosecution.  Although Agnes Leung was a prosecution witness, Mr Perry has since called into question during cross-examination of D2, the authenticity of documents he did not know existed when Agnes Leung gave evidence.  What is he to do when confronted with a confident, or even a vague, confirmation by the witness that she did in fact make the records, when she has already told the jury they no longer exist?  If he is confined to re-examining (or, more accurately, re-re-examining) the witness, Ms Montgomery will have achieved a second forensic advantage by having the prosecution’s position that the documents may not be authentic undermined in a dramatic and unexpected final flourish immediately before Mr Perry addresses the jury.  I am not so concerned at that prospect: I would not refuse to countenance a course of action simply because the prosecution were placed, through no fault of their own, in an awkward or invidious position if that course of action were necessary in the interests of justice.

16.  I could of course redress that disadvantage by allowing Mr Perry to cross-examine the witness should she give evidence inconsistent with her earlier answer or answers.  Had the witness been a new witness called at my behest, I am confident that I would be entitled to decide who asks questions and how.  But I am not confident on the authorities, such as they are, that Ms Leung would be my (in the sense of the court’s) witness.  I am prepared to accept that she is a re-called prosecution witness and that the ordinary mode of examination would obtain and, in this regard, I agree with Ms Montgomery that Mr Perry would probably be confined to re-examining the witness following her cross-examination, unless she were to be turned hostile for some reason.  I say “probably” because I would in the circumstances that have arisen be much more easily persuaded that Mr Perry should be given leeway in examining the witness on an issue on which he has now committed himself, but may not have committed himself had the witness given the evidence in cross-examination three months ago on 1 August 2014.  Much would depend on what she was to say and how she said it.

17.  This all pre-supposes that the process I am invited to set in motion is confined to the recalling of Agnes Leung.  It may not be.  There is a possibility that I might be confronted with an application to call rebuttal evidence from other witnesses or an application that D2 be recalled for further examination or cross-examination.  I wish to emphasise that I am not put off recalling the witness and what it might precipitate by the inexpediency of derailing the timetable for the remainder of the trial.  If that is what is necessary in the interests of justice, then that is what will have to happen.  Although the impact of recalling the witness on the trial schedule is a factor, it is not a very important one and, in any event, involves a measure of somewhat pessimistic speculation, which may be unrealistic.

18.  In all the circumstances, I am satisfied that the interests of justice are best served by leaving the matter where it is.  To do otherwise, will for the reasons I have discussed create a hostage to fortune, which may not be in the best interests of the defence.  As things stand, Ms Montgomery does have the forensic advantage she intended to achieve, however undeserved I consider it to be, without the uncertainty of the way the witness might react to, and deal with, the documents being shown to her at this late stage, and without the uncertainty of the way the jury might react to that spectacle and its timing.