YEUNG SIU KEUNG v. HKSAR

 FACC No. 7 of 2005

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 7 OF 2005 (CRIMINAL)

(ON APPEAL FROM HCMA NO. 51 OF 2005)

_____________________

_____________________

_____________________

J U D G M E N T

_____________________

Chief Justice Li :

1.  This appeal raises important questions of law relating to appeals from magistrates and to the review by magistrates of their decisions.  These questions turn on the proper interpretation of the Magistrates Ordinance, Cap.227 (“the Ordinance”).  The answers to these questions would clarify how the appellate process and the review process should properly function.  In this judgment, save where otherwise stated, references to sections are to sections in the Ordinance. 

2.  The overwhelming majority of appeals from magistrates do not invoke the case stated procedure under s.105 and are appeals lodged under s.113.  The first question arising in this appeal is whether an appeal may be made under that provision against a decision which is a nullity.

3.  The power of magistrates to review their decisions has been a feature of our criminal justice system since 1890.  This power is a useful one and its uses include the correction of mistakes through a speedy and simple procedure.  This is beneficial in obviating the need for an appeal with the time and expense involved.  In this appeal, various questions relating to the review process also arise for consideration. 

History of the proceedings

4.  The proceedings in the lower courts leading to this appeal have been tortuous and protracted.  The unfortunate course which these proceedings took was the result of a failure to operate the review process and the appellate process properly on the basis of a correct interpretation of the relevant statutory provisions.

Special Magistrate Leung

5.  The appellant was charged with the offence of using a vehicle without third party insurance contrary to s.4 of the Motor Vehicles Insurance (Third Party Risks) Ordinance, Cap.272 (“the MVI Ordinance”).  The facts relating to the offence are not material for present purposes.  On 11 October 2004, on the appellant’s plea of guilty, Special Magistrate Leung convicted him of the offence.  He imposed a fine of $1,500 and disqualified the appellant from holding or obtaining a licence to drive for 12 months (“the disqualification order” or “the disqualification”).  The disqualification was ordered under s.4(2)(a) of the MVI Ordinance which provides that a person convicted of an offence under s.4:

“… shall (unless the court for special reasons thinks fit to order otherwise) be disqualified from holding or obtaining a licence to drive a motor vehicle for such period as the court may determine being not less than 12 months nor more than 3 years from the date of conviction.”

6.  On 1 November 2004, the appellant applied to Special Magistrate Leung pursuant to s.104 for review of the disqualification order on the ground that there were “special reasons”.  At the earlier hearing, the appellant was unrepresented.  But at this hearing and in subsequent proceedings before the Magistrates’ Courts and the Court of First Instance, the appellant was represented by counsel.  Special Magistrate Leung granted the application for review and adjourned the review to a date to be fixed.  Pending the review, he stayed the disqualification.  In fact, Special Magistrate Leung was due to retire soon.  He adjourned the matter on that day to Magistrate Sham who then fixed 18 November 2004 for the review.  By then, as Magistrate Sham appreciated, Special Magistrate Leung would no longer be sitting.

7.  It should be noted that on this appeal the true nature of the order made by Special Magistrate Leung in relation to the disqualification pending review was debated.  The Special Magistrate, conducting the proceedings in Chinese, had used the phrase “擱置” in making the order.  This may be interpreted to mean “set aside” or “stay”.  Taking what he said in context, it should be concluded that the nature of the order was an interim order staying the disqualification pending review (“the interim stay order”).

8.  On 18 November 2004, having regard to the state of his diary, Magistrate Sham was unable to hear the review.  He adjourned it to 7 December 2004.  On that day, he transferred the matter to Principal Magistrate Lin to be dealt with.

Principal Magistrate Lin

9.  Principal Magistrate Lin was faced with an unusual situation.  Special Magistrate Leung had granted the application for review.  What was outstanding was the review itself.  This could not be heard by the Special Magistrate since he had retired.  In these circumstances, with the consent of the prosecution and the defence, Principal Magistrate Lin ordered the plea to be retaken.  On the appellant pleading guilty, he convicted him.  After hearing submissions, he imposed a fine of $1,500 and made a 12 month disqualification order, rejecting the defence submission that there were special reasons which made it fit to order otherwise.  In his Reasons for Decision, Principal Magistrate Lin recognised that proceeding in this way was not completely satisfactory.  He stated that having regard to the practical difficulties in arranging for Special Magistrate Leung to deal with the matter and the costs the defence had incurred as a result of repeated adjournments, he reluctantly adopted the course he did which in his view was workable.

10.  Unfortunately, the course which Principal Magistrate Lin took was fundamentally flawed.  When the matter came before him, the appellant had already been convicted of the same offence by Special Magistrate Leung.  That conviction, together with the sentence consisting of the fine and the disqualification order, still stood, although the latter had been stayed pending review.  The conviction by Principal Magistrate Lin was plainly a nullity on the basis of “autrefois convict” (formerly convicted).  So was the fine and the disqualification order imposed by Principal Magistrate Lin on the basis of that conviction.  This has not been disputed before the Court of First Instance nor before this Court.

Court of First Instance

11.  The appellant appealed to the Court of First Instance against Principal Magistrate Lin’s decision.  The appeal first came before Deputy Judge Pang on 8 February 2005 when he adjourned it, awarding costs against the prosecution.  That costs order is under appeal.  On 15 March 2005, Deputy Judge Poon adjourned the matter again in order to obtain additional transcripts of the proceedings below.

12.  On 7 April 2005, when the appeal was heard by Deputy Judge Poon, it was common ground that the appellant’s conviction and sentence before Principal Magistrate Lin were nullities.  The issue was whether an appeal under s.113 could be brought against such nullities.  Deputy Judge Poon, accepting the prosecution’s submission, concluded that one could not [2005] 3 HKLRD 546.  She held that she had no jurisdiction to hear an appeal directed against proceedings which are a nullity.  Although she must have been aware that Special Magistrate Leung had retired, she remitted the matter to him to conduct the review of the disqualification order he had imposed (at para.32).

Leave to appeal

13.  The Appeal Committee certified two questions of law of great and general importance and gave leave to appeal on such points of law and also on the substantial and grave injustice ground.  The certified points of law are :

“1. Whether a review under s.104 … may be heard by a Magistrate other than the one of whose decision review is sought.

 2. Whether an appeal under s.113 … can be brought against a decision amounting to a nullity.”

Subsequently, a consent order was made by Bokhary PJ suspending the disqualification order made by Principal Magistrate Lin pending this appeal.

Section 113

14.  It is convenient to deal first with the second certified question.  Section 113(1) and (2) of the Ordinance provide :

“(1) Any person aggrieved by any conviction, order or determination of a magistrate in respect of or in connection with any offence, who did not plead guilty or admit the truth of the information or complaint, may appeal from the conviction, order or determination, in manner hereinafter provided to a judge.

 (2) Any person who after pleading guilty or admitting the truth of the information or complaint is convicted of any offence by a magistrate may appeal to a judge against his sentence unless the sentence is one fixed by law.”

15.  For a long time, the courts have acted on the basis that an appeal may be made against a magistrate’s decision which is a nullity under the statutory appeal provision now found in s.113, although there does not appear to be a reasoned decision on the point reached after argument.  See for example the first instance decisions in Li Ping v. R [1957] HKLR 563 and Szeto Chi Wai v. The Queen [1964] HKLR 749.  Apart from judges at first instance, the Court of Appeal has also proceeded on that basis when dealing with appeals from magistrates on reference from the first instance judge.  See Cheung Kwok-cheung v. The Queen [1982] HKLR 126 and The Queen v. Do Bing-hung [1988] 1 HKLR 558.

16.  The provisions in question confer a right of appeal against decisions of magistrates.  Under s.113(1), the person aggrieved has a right of appeal against any conviction, order or determination in respect of or in connection with any offence where he or she did not plead guilty or admit the truth of the information or complaint.  Under s.113(2), where a person is convicted of the offence after pleading guilty or making such admission, he has a right of appeal against sentence unless the sentence is one fixed by law.  As with appeals using the case stated procedure under s.105, an appeal under section 113 must relate to a final decision on all matters in issue between the parties.  See R v. Yeung Wai Hung [1990] 2 HKC 86 and Newton v. Walker [1975] HKLR 317.

17.  The essential question is whether the words “any conviction, order or determination” in s.113(1) and “sentence” in s.113(2) on their proper interpretation include decisions which are nullities.  These words have to be interpreted in the context of the statutory purpose of conferring a right of appeal on the person concerned.

18.  A decision of a magistrate, whether it be a conviction, order, determination or sentence, takes effect when it is made.  Where it is alleged to be a nullity, it nevertheless continues to be effective until a court, holding it to be a nullity, sets it aside.  Thus, a sentence of imprisonment would be operative.  In the present case, the appellant was disqualified pursuant to Principal Magistrate Lin’s disqualification order.  In the context of the statutory purpose, there is no basis for restricting the meaning of the relevant words to exclude nullities.  They were plainly intended to cover any conviction, order, determination or sentence imposed by a magistrate, notwithstanding that it is subsequently alleged and eventually held to be a nullity.

19.  If nullities were held to be outside the appeal mechanism, the person aggrieved would first have to consider whether the decision in question is a nullity and to pursue judicial review if so and to appeal if not.  The court dealing with the matter may ultimately come to a different view on that question with the consequence that the wrong process would have been invoked.  Whether a particular decision is a nullity is a legal question and may well be a debatable one.  Plainly, it was not the legislative intent to subject aggrieved persons to such a complicated regime, especially bearing in mind that many litigants appearing before magistrates are unrepresented.

20.  The conclusion that sections 113(1) and 113(2) cover decisions of magistrates which are nullities is consistent with the position in relation to appeals to the Court of Appeal against District Court convictions.  In Re Tse Sun-miu [1994] 2 HKLR 78, the Court of Appeal in relation to a District Court conviction concluded that its criminal jurisdiction :

“… includes jurisdiction to quash convictions which are null and void because they were entered in proceedings which the convicting court had no jurisdiction to hear.  It follows, of course, that it includes jurisdiction to set aside sentences passed in respect of such convictions.” per Bokhary JA as he then was at 80 line 40-45, see also 82 at line 15-20.

See also R v. So Mun-sung (1994) 4 HKPLR 318, at 323 line 10.

21.  In the Court of Appeal’s earlier decision in R v. Currency Brokers (HK) Limited [1987] HKLR 1136 which was citied in Re Tse Sun-miu, Kempster JA (at 1140 C-D) expressed the view that the appropriate remedy for quashing a conviction in the District Court which is bad for want of jurisdiction, and therefore a nullity, is by judicial review and that an appeal would be inappropriate.  The decision is a puzzling one.  Notwithstanding its view that the appropriate remedy is judicial review and that the court regarded the Crown’s submission that the convictions were bad for want of jurisdiction to have considerable force, the appellants were invited to elect whether to pursue an appeal or judicial review.  On their deciding on the former, the court then dealt with the appeal on its merits.  The view expressed in that case that the appropriate remedy for a conviction which is nullity is judicial review and not an appeal is inconsistent with the later decision of the Court of Appeal in Re Tse Sun-miu and should not be followed.

22.  Having regard to the conclusion above on the proper interpretation of s.113(1) and 113(2), Deputy Judge Poon was wrong to hold that an appeal could not be brought under s.113 against nullities.  She should have quashed the conviction, the fine and the disqualification before Principal Magistrate Lin which were undoubtedly nullities.  Although the appellant, having pleaded guilty before him, could only appeal against sentence under s.113(2), and although the notice of appeal only relates to the disqualification order, that plea of guilty must have been a fundamental error as the conviction by Special Magistrate Leung still stood.  In the unusual circumstances of this case, Deputy Judge Poon was not precluded by s.113(2) or the notice of appeal from exercising her jurisdiction to quash the conviction before Principal Magistrate Lin and consequently, the fine and the disqualification imposed for that conviction. 

23.  Accordingly, the answer to the second certified question (see para.13) is in the affirmative.  The following orders should be made : (1) All orders made by Deputy Judge Poon (including the remitter to Special Magistrate Leung) should be quashed and (2) The conviction by Principal Magistrate Lin, and the fine and disqualification order imposed for that conviction, should also be quashed.

24.  The conviction by Special Magistrate Leung together with the fine and the disqualification order he had imposed still stand.  The Special Magistrate had granted the application for review of the disqualification order but had made an interim order staying it pending review.  As Special Magistrate Leung has retired, he will not be available to conduct the review.  To determine how the matter should now be dealt with, it is necessary to consider the review process as provided for in s.104.

The power to review

25.  The purpose of s.104 is to confer on a magistrate the power to review his decision.  As this Court has observed, the statutory provision is a wide one and should receive a liberal construction to achieve its purpose.  Poon Chau Cheong v. Secretary for Justice (2000) 3 HKCFAR 121 at 129 D-J.

Who may initiate?

26.  The review process may be initiated by either party or by the magistrate.  Section 104(1), dealing with the former, provides :

“Within 14 clear days after the determination in any manner by a magistrate of any matter which he has power to determine in a summary way it shall be lawful for either party thereto to apply to the magistrate to review his decision in the matter.”

It is open to both the prosecution and the defence to apply.  The application must be made in writing to the magistrates’ clerk.  Section 104(2).  It is essential for the application for review to be made in writing within the time limit.  Section 104(4) provides :

“It shall be lawful for the magistrate to grant the application for a review at any time provided that the application for the review shall have been duly made in accordance with the provisions of subsections (1) and (2).”

As to the power of a magistrate to act on his own initiative, s.104(5) provides :

“It shall also be lawful for a magistrate on his own initiative, within 14 clear days after the determination in any manner of any matter which he has power to determine in a summary way, to re-open the case, and thereafter, whether within the said period of 14 clear days or after its expiration, to review his decision in the matter.”

It should be noted that there is no express or inherent power to extend the statutory time limit of 14 clear days after the determination in question within which a party may apply for review or a magistrate may on his own initiative re-open the case.  Re Cheung Man Kwong [1999] 1 HKC 82 at 84 H-I.

Same Magistrate?

27.  The statute plainly requires that the review must be conducted by the same magistrate who made the decision which is to be reviewed.  It is after all a review.  That this is the statutory intent is clear from the use of the phrase “the magistrate” in the s.104(1), s.104(4) and s.104(6) and “his decision” in s.104(5).  Accordingly, the answer to the first certified question (para.13) is in the negative.

28.  If the same magistrate is not available to deal with the review for whatever reason, for example, death or retirement, this would mean that the review process cannot proceed and would be at an end.  The party concerned would be left to pursue an appeal.  It should be noted that no application for review may be granted and a magistrate may not on his own initiative re-open the case to review his decision if proceedings have been commenced to question the magistrate’s decision by way of appeal, mandamus or certiorari.  Section 104(9).

29.  In Re Leung Moon Lam [1985] 2 HKC 7, Mayo J (as he then was) appears to have expressed the view that where the same magistrate is not available to deal with an application for review, another magistrate may deal with the matter by virtue of s.54 of the Interpretation and General Clauses Ordinance, Cap.1.  This view is incorrect and should not be followed.

The review process

30.  The review process contemplated by the statute involves two stages.  Poon Chau Cheong v. Secretary for Justice at 129 D-E.  (1) At the first stage, a party applies for review or a magistrate on his own initiative re-opens the case.  (2) At the second stage, the magistrate considers and decides what is to be done “upon the review”.  Upon the review, the magistrate has wide powers including powers “to re-open and re-hear the case wholly or in part, and to take fresh evidence, and to reverse, vary or confirm his previous decision”.  Section 104(6).

31.  In practice, the two stages are usually conducted as part of one process. This practice is plainly a sensible one.  See R v. Chiu Chun Chuen [1973-76] HKC 456 at 458 A-B.  It is only in exceptional circumstances that the two stages are split and dealt with separately.  Where exceptionally, as happened in the present case, the two stages are split and the magistrate grants the application for review and decides to conduct the review later, the question arises as to his power to make an interim order to stay an order such as the disqualification order in the present case.  This question will be dealt with later.

32.  Where, as is usual, the two stages are conducted as one process and the magistrate at the end of the process decides not to change his decision, he may either (i) dismiss the application for review or (ii) allow the application but confirm his decision.  Whichever may be the appropriate order would depend on the circumstances of the particular case.  It should be noted that a magistrate must not reject an application for a review without giving the applicant or his counsel an opportunity to make representations to him in open court.  Section 104(4A).  However, where the application is out of time, he may decline jurisdiction without a hearing.  The provision requiring a hearing relates to a rejection of an application for a review but is not applicable where jurisdiction is declined on the ground that it is out of time.  Re Cheung Man Kwong at 85 A-D.

33.  For the purposes of the review, a magistrate has all the powers as to securing the attendance of the parties and witnesses and otherwise, as he would have if the matter were brought before him as an original complaint or information.  Section 104(8).

Exercise of the power

34.  The grounds and the factors to be taken into account for the exercise of the review power are not statutorily specified.  Essentially, the magistrate must act in accordance with the requirements of justice in the circumstances of the case in question.  Poon Chau Cheong v. Secretary for Justice at 129 E-G.  As has been noted, the power to review is a useful one and its use would include the correction of mistakes.  However, it is plainly not intended to enable parties to re-litigate the matter with the same materials and submissions.  Magistrates must be careful to prevent any abuse of the review jurisdiction.

Re-hearing by another magistrate

35.  Upon the review, that is at the end of the review process, the magistrate may reverse, vary or confirm his previous decision.  Section 104(6).  The statute also provides in s.104(7) the limited circumstances in which after the conclusion of the review process by the first magistrate, the case may be re-heard and determined by another magistrate.  Section 104(7) provides :

“If the magistrate upon the review decides that the case is one which should be re-opened and wholly re-heard and if he is of the opinion that in the interests of justice the case should be re-heard by another magistrate, it shall be lawful for some other magistrate to re-hear and determine the case accordingly.” (emphasis added)

36.  Before another magistrate may re-hear and determine the case, first, the magistrate reviewing his previous decision must decide that the case is one which should be re-opened and wholly re-heard.  The phrase “wholly re-heard” in s.104(7), used in contrast to the phrase “re-hear the case wholly or in part” (emphasis added) in s.104(6), means that the case must start all over again.  Secondly, the magistrate must be of the opinion that in the interests of justice the case should be re-heard by another magistrate.

37.  Where the magistrate so decides and is of such opinion, he should make an order under section 104(7) that the case should be re-heard and determined by another magistrate.  The effect of such an order would be that all previous orders made by the first magistrate, including any conviction and sentence, would, by virtue of such an order, be set aside.  Another magistrate may then begin the case afresh.  Since the previous orders would have been set aside, the plea of “autrefois convict” would not be available.  There is no question of the transfer of the previous proceedings to him.  And the other magistrate would of course not be engaged in any review process.  That process, which could only be dealt with by the same magistrate who made the decision subject to review, would already have been concluded.

Special Magistrate Leung’s interim stay order

38.  In the present case, Special Magistrate Leung, adopting the exceptional course of separating the two stages of the review process, had granted the application for review of the disqualification order and had made the interim stay order pending review.  The question is whether he had the power to make the interim stay order.

39.  The statute does not confer any express power for the making of the interim stay order.  Does such a power exist by implication?  In considering this question, the test is whether such a power is necessary in the sense of reasonably required for the effective exercise of the statutory jurisdiction expressly conferred on the magistrate to review his own decision.  PCCW-HKT Telephone Ltd v. Telecommunications Authority (2005) 8 HKCFAR 337 at paras 36, 40 and 50 (Bokhary PJ) and at para.60 (Ribeiro PJ).

40.  Whilst the review process must be initiated within the 14 day time limit, the review of the disqualification order may only be dealt with some time later.  This may be due to a variety of reasons such as the availability of the magistrate, of the party concerned, his counsel or a witness the party wishes to call.  Upon the review, the magistrate has wide powers include reversing the disqualification order he had made.  For the effective exercise of his review jurisdiction, it is reasonably necessary for him to have the power to stay the disqualification pending review.  In the absence of such a power, the 12 month disqualification would take effect and its subsequent reversal upon the review would be rendered ineffective.  Applying the test referred to above, the power to stay the disqualification pending review exists by implication since it is reasonably required for the effective exercise of the magistrate’s review jurisdiction.

41.  The power is a power to stay a disqualification order.  The disqualification order remains in place and is only stayed pending review.  Pending review, the magistrate has no power to reverse the disqualification, that is, to set it aside.  Reversing it would mean there is nothing left for review.  The power to reverse is exercisable only at the conclusion of the review.  Whether the power to stay a disqualification order should be exercised in a particular case depends on its circumstances.  All relevant considerations would have to be taken into account, including in particular, the time when the review hearing would or is likely to take place and the effect of the disqualification in the meanwhile on the person concerned.  There is no suggestion that, on the basis that Special Magistrate Leung had the power to make the interim stay order, he had wrongly exercised his discretion in the present case.

42.  Two further points should be made.  First, in the present case, Special Magistrate Leung had exceptionally split the two stages of the review process and had granted the application for review at the end of the first stage.  Where, as is usual, the two stages are conducted as part of one process, the power to stay a disqualification order between the application by a party or re-opening by the magistrate and the disposal of the review would similarly appear to be reasonably required for the effective exercise of the magistrate’s review jurisdiction.  Secondly, one is concerned with a disqualification under the MVI Ordinance in the present case.  Similar considerations would apply in relation to other types of order for which a stay would be appropriate having regard to their nature.  A stay would not be appropriate for a sentence of imprisonment for which bail may be granted pending review.

How the matter should now proceed

43.  Special Magistrate Leung granted the application for review of the disqualification order and adjourned the hearing of the review to a date to be fixed.  As he has retired and cannot conduct the review, the review process is at an end.  It necessarily follows that the interim stay order, which preserved the position pending the review, has ceased to be effective.  A declaration should be made to this effect.

44.  The remedy now open to the appellant is to pursue an appeal.  His counsel, Mr McCoy SC stated that an appeal will be lodged against both his conviction and sentence consisting of the fine and the disqualification order before Special Magistrate Leung.  The appellant had pleaded guilty.  On his forthcoming appeal, the question may arise whether that plea was a nullity as having been made under a fundamental mistake so that an appeal is not precluded by s.113(2).

45.  For the purpose of determining the time limit for appeal, time starts to run from “the determination of a case by way of review [under s.104] or the refusal to grant a review”.  Section 104(10).  This provision may not have contemplated the extraordinary situation which arose in the present case where the review process has come to an end because it could not proceed.  But assuming that an appeal by the appellant is now out of time, it is clear that in the circumstances, there is the strongest justification for time to be extended to enable the appellant to appeal.

46.  Where an appeal against a disqualification order is pending, a magistrate may and in the event of his refusal, the Court of First Instance may suspend the disqualification.  Section 71(4) of the Road Traffic Ordinance, Cap.374.  But it is right that the appellant’s position should be protected pending his intended appeal.  Accordingly, the Court should make an order (i) staying his disqualification for 14 days from the handing down of this judgment and (ii) in the event that an appeal is lodged within that period, staying his disqualification further until the disposal of his appeal by the Court of First Instance.

47.  The situation which confronted Deputy Judge Poon was an extraordinary and difficult one.  Neither the Deputy Judge nor counsel appearing before her should be criticised.  The adverse comments which the Deputy Judge expressed in the course of the hearing and in her judgment of counsel for the appellant appearing before her are best left to one side.  It should be noted that Mr McCoy, whose submissions on this appeal have been of considerable assistance, did not appear before Deputy Judge Poon. 

Orders

48.  The appeal should be allowed and the following orders should be made :

(1) All orders made by Deputy Judge Poon (including the remitter to Special Magistrate Leung) should be quashed.

(2) The conviction by Principal Magistrate Lin and the fine and the disqualification order imposed for that conviction should be quashed.

(3) It should be declared that the interim stay order made by Special Magistrate Leung has ceased to be effective.

(4) An order should be made staying the appellant’s disqualification by Special Magistrate Leung in the terms set out in para.46 of this judgment.

Costs

49.  Having heard the parties on costs, (1) there should be no order as to the costs of the proceedings before Principal Magistrate Lin and (2) the appellant should be awarded the costs of the proceedings on appeal before Deputy Judge Poon and of the appeal to this Court.  The foregoing orders do not cover the costs of the proceedings before Deputy Judge Pang whose award of costs against the prosecution is under appeal.

Mr Justice Bokhary PJ :

50.  I agree with the judgment of the Chief Justice.

Mr Justice Chan PJ :

51.  I agree with the judgment of the Chief Justice.

Mr Justice Ribeiro PJ :

52.  I agree with the judgment of the Chief Justice.

Sir Ivor Richardson NPJ :

53.  I agree with the judgment of the Chief Justice.

Chief Justice Li :

54.  The Court unanimously allows the appeal and makes the orders and the costs orders set out in paras 48 and 49 of my judgment.