HKSAR v. CHUNG YING FAI

HCMA 452/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 452 OF 2001

(ON APPEAL FROM NKCC 6625/2000)

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J U D G M E N T

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1. This is an appeal by the appellant, Chung Ying Fai, against his conviction of one charge of unlawful wounding contrary to section 19 of the Offences against the Persons Ordinance Cap. 212 by Mr Sinclair at North Kowloon Magistrates Court on 6 April 2001.

2. The appellant had been jointly charged with his wife but the learned Magistrate acquitted her after trial. At the commencement of the hearing of the appeal the appellant was granted leave to abandon his appeal against sentence.

3. The principal ground of appeal against conviction is directed at interventions by the learned Magistrate during the trial. It is alleged that he compromised his appearance of impartiality resulting in the appellant appearing to and receiving an unfair trial. It is further alleged that he took over the conduct of the prosecution by his questions including taking over the cross-examination of the appellant and telling the prosecutor what questions to ask.

4. A further ground of appeal is that he exhibited a degree of annoyance, impatience and exasperation which the appellant and both counsel must have found so intimidating and inhibiting as to make a fair trial impossible.

5. Insofar as the interventions by the learned Magistrate are concerned, he himself acknowledged that it was a case in which he had to "intervene persistently in order that the evidence could come out in a coherent manner". He justified his interventions on the ground that the hearing "was difficult, not in relation to the issues or the law but in relation to the practicalities. The interpreter was a trainee who experienced difficulty in putting questions and in eliciting replies to questions as put by a very inexperienced lay prosecutor".

6. That a judge or magistrate can intervene and ask questions during a criminal trial, notwithstanding the fact that in common law jurisdictions there is an adversarial system, is well established. In the case of a judge or magistrate sitting alone, he cannot properly perform his duty without fully understanding the evidence that is placed before him. He may intervene in order to ensure that he does. Furthermore, he has a duty to ensure that trials are conducted fairly and are not unduly protracted.

7. Lord Taylor CJ in R v Whybow (Times Law Reports, February 14, 1994 at p. 75) made these comments:

"Their Lordships wished to make clear that there were, of course, circumstances in which and purposes for which it was entirely appropriate for a judge to intervene during the evidence.

If a witness gave an ambiguous answer, the judge should have it clarified as briefly as possible. If the answer was long or the judge did not hear it clearly, he could certainly have it repeated for the purposes of his note.

Furthermore, The Royal Commission on Criminal Justice Report (Cm 2233 (1993) p 19) recommended that judges should be more interventionist so as to prevent trials becoming protracted.

Their Lordships entirely supported that recommendation.

Judges should intervene to curb prolixity and repetition and to exclude irrelevance, discursiveness and oppression of witnesses."

8. In a passage which has been quoted more than once in Hong Kong decisions, Simon Brown LJ in R v. Saville (unreported) March 17, 1992, Criminal Appeal 4181/91 made these further comments on the duty of a judge:

"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 on 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 a comparable error on the part of the defence. Rather it is the duty of the judge to ensure that criminal proceedings are tried fairly and efficiently, and to intervene as necessary to ensure that that goal is achieved."

9. Nevertheless there are limits to what is permissible. The courts have emphasised that the judge or magistrate must continue to preserve an appearance of neutrality throughout a trial and must strive so as to conduct himself during a trial that a neutral observer would be left in no doubt that the trial was conducted fairly before a judge or magistrate who stood above the conflict and retained his air of impartially throughout. He must not above all assume the role of an advocate. Should a judge or magistrate when sitting alone assume the role of an advocate, not only was the appearance of neutrality lost but, the judge or magistrate being a judge of fact as well as law, there might be a very real possibility that his judgment would be influenced by his conduct and the defendant generally deprived of a fair and impartial trial (see R. v. Lau Hing On [1987] 1 HKC 89).

10. It is argued by Mr McLanachan that in this case the learned Magistrate trespassed beyond what was permissible and by his interventions wholly or partially appeared to assume the role of prosecuting counsel. In making his submissions, Mr McLanachan emphasised that he did not relied upon anything said by the magistrate as a result of difficulties with interpretation.

11. Mr McLanachan referred the court to the 5 propositions which were stated by the Court of Appeal in R v. Yeung Mau Lam, Criminal Appeal 550/1989 ([1991] 2 HKLR 468), to have been established by the authorities, namely:

(1) Interruptions by their number alone are not decisive;

(2) The quantity and quality of the interruptions must be looked at as factors which react upon each other;

(3) Actual bias on the part of the judge need not be established, it being enough if by his conduct he would be thought by the informed bystander to be taking over the conduct of the case from the prosecution;

(4) Where a judge sits without a jury, the appeal court must ask itself whether a person listening to the case would justifiably have had the impression that the judge had by his questions entered the arena;

(5) The ultimate question for the consideration of an appellate court is whether the judge's conduct was such that it would have caused the informed bystander listening to the case to say that the defendant had not had a fair trial."

12. Mr McLanachan argued that an informed bystander would have had the impression that the learned Magistrate had entered the arena and taken over the conduct of the case for the prosecution and that therefore the appellant had not had a fair trial.

13. Mr McLanachan complains about the numerous interventions and conduct of the learned Magistrate at various stages of the trial but in particular in relation to the two principal witnesses for the prosecution, the alleged victim and a 10-year-old boy who allegedly witnessed part of what occurred, where he says the judge took over the role of the prosecutor.

14. Insofar as the first two prosecution witnesses are concerned, I do find substance in Mr McLanachan's submissions, particularly in relation to the first witness.

15. The evidence of the alleged victim (PW1) was central to the prosecution case. After the prosecutor had asked 4 unobjectionable preliminary questions, the learned Magistrate started to intervene. Initially his numerous interventions were primarily for the purpose of clarification, but as examination-in-chief progressed the learned Magistrate's questions went beyond seeking to clarify the situation or to assist the prosecutor to formulate the questions he wanted to ask. The questions from the prosecutor became less and less frequent. The learned Magistrate gradually assumed the principal role in eliciting the evidence for the prosecution.

16. Insofar as the second prosecution witness is concerned, the 10-year-old boy who had allegedly witnessed part of the assault, the same features, though somewhat less marked, were present during his evidence. The learned Magistrate took upon himself a very significant role in conjunction with the prosecutor in eliciting the evidence from the witness upon which the prosecution would rely.

17. Even if the interventions of the learned Magistrate were from the best of motives - and I am satisfied that they were, namely, to ensure that the evidence emerged clearly and expeditiously (in his own words "in order that the evidence could come out in a coherent manner"), the quantity and scope of his inventions resulted in him trespassing beyond his function in an adversarial system. It is the function of the prosecutor to elicit the evidence upon which he relies. Even if the magistrate doubts the competence of the prosecutor in performing this role, it is not for the magistrate to assume it.

18. After careful consideration, I am satisfied that an informed bystander hearing the evidence of the first 2 prosecution witnesses would have been left with the impression that the magistrate by his numerous interventions was assuming the role of prosecutor in this regard and had entered the arena.

19. Mr McLanachan complains about other aspects of the learned Magistrate's conduct at the trial which he says indicated that the magistrate was assuming the role of prosecutor. They included his comments at the close of the prosecution case about whether there was a case to answer, the 16 questions asked by him of the appellant after the conclusion of the appellant's examination-in-chief and before the prosecutor started his cross-examination, the questions asked of the appellant by the magistrate during cross-examination by the prosecutor and the assistance given by him to the prosecutor in formulating questions in cross-examination of the appellant. They also included the fact that the learned Magistrate did not invite the prosecutor to address him at the conclusion of the evidence and the fact that he immediately delivered a fairly lengthy judgment convicting the appellant as soon as his counsel had finished addressing the court. I do not propose to go into these complaints by Mr McLanachan, save to say that while the numerous interventions by the learned Magistrate throughout the whole trial exceeded what was advisable, these further matters had they stood alone would not have themselves been improper. It is however an unfortunate result of exceeding his proper role earlier in the trial that the learned Magistrate's subsequent actions in the trial, otherwise unexceptional, might be misconstrued by an outside observer as continuing assistance on behalf of the prosecution.

20. I find no substance in the ground of appeal that the learned Magistrate exhibited a degree of annoyance, impatience and exasperation which the appellant and both counsel must have found so intimidating and inhibiting as to make a fair trial impossible.

21. I find as a result of the nature and extent of the learned Magistrate's interventions that an informed bystander listening to the trial may well have come to the view that the appellant did not have a fair trial.

22. I therefore allow the appeal and quash the conviction.