HKSAR v. MOHAMMAD JAHANGIR and Others

CACC000035/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No.35
(Criminal)

HEADNOTE

Criminal procedure - trial judge's extensive interruptions - principles in R. v. Matthews applied - intervention of Court of Appeal where possibility of denial of justice.

R. v. Saville adopted - not incumbent on a judge to remain silent and watch justice miscarry - judge must ensure trial is fair and efficient - intervention may be necessary to achieve that goal.

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No.35
(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. These Applicants were convicted in the District Court on 9th January 1997, following a trial before H.H. Judge Chua. The 1st Applicant (D1) was convicted of blackmail between 1st and 4th August 1996 (charge 1), wounding contrary to section 19 of the Offences against the Person Ordinance, Cap.212, on 4th August 1996 (charge 2) and assault occasioning actual bodily harm on 5th August 1996 (charge 4).

2. The 2nd and 3rd Applicants (D2 and D3 respectively) were convicted on the same charges as D1 but in addition were convicted of theft committed on 4th August 1996 (charge 3). All the Applicants now seek leave to appeal against their convictions.

3. The facts of the case as alleged by the prosecution were simple and straightforward. The alleged victim in all the charges faced by the Applicants, and upon whom the entire case depended, was one Mahmood Sajid (PW1). He was a Pakistani resident of Hong Kong. He knew the Applicants. (This fact was conceded by D1 when he gave evidence).

4. On 1st August 1996, PW1 was telephoned by D2 who demanded protection money. The telephone was then passed to D1 who made a similar demand.

5. The following day, D1 and D2 made further demands for protection money. They asked for $5,000. These demands were backed up by threats of physical violence. Two nights later D2 again telephoned and the telephone was passed to D3 who said he was the "most well-known person in the 14K triad gang". PW1 was told to go downstairs from his flat for a "chat about the money". Putting the matter shortly, he went downstairs and when he showed a reluctance to pay money, he was beaten up with hockey sticks. Charge 2 was put on the basis of joint responsibility. All the Applicants were identified by PW1 as being amongst those responsible for the attack. D2 and D3 then stole some of PW1's property.

6. Having received hospital treatment, PW1 gave a witness statement to the police and went home. On his way to work next day, he was confronted by an even larger gang of men, amongst whom he recognized the three Applicants. He was hit a number of times which led to the allegation in charge 4, but he managed to escape to a restaurant. He dialed 999 for the police. Officers quickly arrived at the scene. PW1 led police to the address where he knew some of them lived and D1 amongst others was arrested.

7. D1 was the only defendant to give evidence in the trial. He denied making any telephone calls, and his defence to the wounding charge was one of alibi. So far as the assault, charge 4, was concerned he described how he had seen PW1 beating up D5 from the window of his flat, and how he went downstairs to stop the fight.

8. D2 and D3's defence on charges 2 and 3 also relied upon alibi evidence that was called on their behalf. On charge 4, the case for the defence relied upon an attack made on the credibility of PW1. This suggested that he had deliberately made false allegations arising from grudges that he harboured against the defendants.

9. There are two grounds of appeal which are advanced on behalf of these three Applicants by Mr. Coghlan who did not appear in the court below.

10. In his first ground, Mr. Coghlan submits that there was a material irregularity in the course of the trial in that the learned judge's conduct was such as to leave the impression that she:

11. Mr. Coghlan has very helpfully provided us with a list of about thirty sizeable interruptions made by the trial judge during the course of the proceedings. He has also briefly provided us with his comments on each of the passages that he has highlighted. We have had the opportunity of going through all of these.

12. What has become apparent is that there may have been, on the part of trial counsel, some degree of inexperience. We have seen time and again that questions were poorly directed, and sometimes so vaguely or inaccurately expressed that inevitably confusion resulted. We have also seen many examples of the inexperience of the court interpreter who was speaking in the Punjabi language, which may have led to understandable confusion on the part of counsel and the judge. The combination of these factors accounts for a very large number of interruptions from the Bench.

13. We feel bound to say that there were far more interruptions than we would generally regard as desirable, or even permissible, in a trial involved with such simple issues as this case was. In particular, we were concerned with the number of interruptions of PW1, especially at the time when he was being cross-examined by counsel for the defence. Furthermore, we accept the criticism made by Mr. Coghlan that not only were there a great many occasions when interruptions were made, but that the interruptions were extensive in places. Accordingly, we have looked with great care to examine the context of the interruptions, the tone in which they appear to have been made and the reasons for them.

14. We have approached what happened in the present case, keeping in mind the principles which emerged from R. v. Matthews (1984) 78 Cr.App.R. 23, which we consider remain wholly appropriate to situations of this kind when they arise.

15. Purchas L.J. at p.32 said:

16. Of course the matter presently before us was not a trial by jury but by a single judge in the District Court. Such a position was reviewed in R. v. Lau Hing-on (1987) H.K.C. 89, where at p.90, a passage of Denning L.J.'s judgment in Jones v. National Coal Board (1957) 2 Q.B. 55 is set out, giving the principles which apply to the role of the judge:

17. Cons V.-P. in the Lau case went on at p.91 of his judgment to indicate that where the judge is not only the judge of the law but of fact also, there is a real possibility, if the appearance of neutrality is lost, that:

18. We have been taken by Mr. Coghlan through the majority of the judge's interjections, in order to examine in detail the content of what was said and the context in which they came. Indeed we gave Mr. Coghlan an extension to the time allocated to his oral arguments in order that he could complete most of the references he wished to bring to our attention. We have, in any event, read all of the passages to which Mr. Coghlan has directed our attention and we have noted the comments he makes in respect of each in a document entitled 'Index to the Transcript of Evidence'.

19. It is perhaps necessary to turn to one or two examples, if only to illustrate Mr. Coghlan's point that the case was being taken over at times by lengthy interventions from the judge. At p.51K of the appeal bundle, PW1 was being asked in chief about the blackmailing telephone calls that he received when the following exchanges occurred:

20. This passage reveals a number of things. Firstly, counsel for the prosecution was content, apparently, not to explore how it was that PW1 knew that he was speaking to D1 and D2 on the telephone. Although identification was never an issue in the trial, the judge was trying six of the nine Pakistani defendants who were originally arrested in connection with these charges. She clearly, and in our view understandably, needed to know on what basis the witness was able to say he spoke to D1 and D2.

21. Secondly, as so often happened in the course of the trial, an ambiguous question led to an answer that left counsel and the witness at cross-purposes. The judge attempted, as seen in this example with the word 'relationship', to assist by providing some helpful clarification.

22. Thirdly, there were often translation difficulties such as the significant omission of the word 'Pakistani' in the passage cited. The interpreter was almost certainly unfamiliar with court procedures. We observe in an earlier example that on arraignment at the start of the trial, the interpreter is shown as indicating not guilty pleas in respect of some of the charges for "all the defendants". A more practised interpreter would have been expected to enter the pleas on an individual basis.

23. Mr. Saw, S.C. for the Government, points out that although counsel for the Applicants says that this was a case of 'judge interrupts and takes over conduct of the case', on simple analysis this was more a situation where the evidence was not being adduced with the precision the trial judge was entitled to expect. The evidence needed clarification if the judge was to understand the issues properly and to make a judgment upon them.

24. Another example provides a similar pattern, although on this occasion the interruptions came during the defence counsel's cross-examination. At p.77T of the appeal bundle, the following passages occurred:

25. As defence counsel himself candidly observed, the guidance he had received was helpful. The whole tone of the questions asked by the trial judge was, we think, designed to that end. In particular, at no stage do we find the emergence of any animosity or sarcasm, either of which might have created in the present circumstances, an impression that a fair trial was not being held.

26. Mr. Coghlan has additionally submitted that the judge's interventions must have hampered the defence. We consider that one way of testing whether this is so is to look at whether the trial judge understood the issues raised on both sides, and in particular those raised on behalf of each defendant in the trial, by the time she came to give her decision. In our judgment the Reasons for Verdict reveal that each and every issue on these charges was properly considered in the context of how each defendant's case had been put. Indeed Mr. Coghlan makes no complaint that the Reasons for Verdict have failed to cover any essential point in the defence of any of these applicants. In a recent case, HKSAR v. Miyashita Akira, Crim.App. 624 of 1996, this court had occasion to quote the words of Simon Brown L.J. from the transcript of R. v. Saville (unreported), March 17, 1992, Crim. App. 4181/W2/91:

27. These words are again pertinent in the present context. What has emerged in our judgment is that while there were too many interruptions of one sort or another, some of which did disturb the flow of the questions, there was apparently no hostility behind them. They were often intended to help, and were accepted by counsel in that spirit as the transcript frequently demonstrates. Of course we have not overlooked the fact that it is possible that counsel was merely being sychophantic, anxious not to upset the judge who would in due course have to decide the verdict. However, we are firmly of the view that this does not appear to be the case. There is therefore no basis on which we can grant leave on the first ground.

28. The second ground of appeal raises a complaint that the trial judge placed too much emphasis on the alibi notice (P7) as providing evidence of discrepancies in the defence case relating to alibi when no evidence about the reasons for the discrepancies had been given.

29. We need only say that the learned judge gave careful consideration to the evidence called on behalf of the Applicants so far as the alibi is concerned. She made a finding of fact that the alibi witnesses were not in the company of these Applicants (Charge 2). The discrepancies which had emerged from the evidence affecting the alibi witnesses who were called, were perfectly properly used in making an overall assessment of their accuracy and truthfulness. There is no substance in this ground.

30. Accordingly, we shall refuse leave to appeal and these applications are dismissed.

31. At the start of the hearing, Mr. Coghlan indicated that the applications in respect of sentence were to be abandoned by all the Applicants including, as he understood it, D2 with whom he had not then fully discussed the matter. Unless we hear to the contrary, we shall treat all the sentence applications as abandoned and these will also be dismissed.

Representation: