HKSAR v. FONG CHUN KWOK

HCMA 417/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FIRST OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 417 OF 2001

(ON APPEAL FROM ESCC 2561 OF 2000)

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J U D G M E N T

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1. This is an appeal against conviction and sentence.

2. The appellant was convicted of theft by a magistrate at Eastern court and sentenced to 10 months' imprisonment.

3. The facts of the case were that the appellant had taken advantage of an unsecured or partially secured handbag of the victim and had reached inside and taken the victim's mobile phone. The victim had felt her handbag being interfered with during the appellant's activities in this regard and had then checked her handbag, found the phone missing and had then seen the appellant standing nearby holding her phone. The victim then yelled at the appellant asking him effectively what he was up to and snatched back the phone. The appellant said he had "given the phone back" and then ran off.

4. The victim and her father, who had been with the victim, then chased the appellant and he was eventually stopped by a passer-by and the police were called. At the time of or shortly before these events the appellant was employed as a magistrates' court clerk. He said in his evidence he had been suffering from depression for a few years and admitted taking the victim's phone. The appellant said that the reason he had taken the phone was that he intended to return it to its owner and obtain emotional benefit from the thanks he expected to receive. He had done this before and was prompted to do it to alleviate his feeling of depression which became worse when he was under stress.

5. The grounds of appeal against conviction can be broadly dealt with under three headings:

Firstly, the appellant says the magistrate should have recused himself from sitting on this case because the appellant had for some twenty odd years, been a magistrates' clerk and at one stage during that time had worked in the convicting magistrate's court;

Secondly, that the magistrate did not properly consider the appellant's case;

and

Thirdly, that the magistrate did not allow the appellant to call further evidence when the magistrate was asked to review his decision to convict the appellant.

6. I will deal with the first complaint of the appellant which I have set out above. That is effectively an allegation bearing upon the question of perceived bias in the magistrate sitting as the tribunal of fact in the present circumstances.

7. For some years it is fair to say there was considerable confusion in the law of Hong Kong and the common law as to what the correct test was in determining this sort of question. At one stage it was thought that the correct test was whether a reasonable and fair minded person sitting in court and knowing all the relevant facts would have a reasonable suspicion that a fair trial of the particular defendant was not possible: R v Liverpool Justices Ex parte Topping [1983] 1WLR 119; R v Mulvihill [1990] 1 WLR 438 and adopted in Hong Kong in R v Lo Kwok Hung [1990] 1 HKLR 351.

8. The other test which had on frequent occasions been applied to questions of bias was the "real danger" test which was generally expressed as to whether there was a real danger that the defendant may not have had a fair trial.

9. So far as the first complaint of the appellant is concerned I accept that the law in Hong Kong is as stated in the relatively recent case of Nattrass v Attorney-General [1996] 1 HKC 480. The judgment of Keith J. in that case was delivered in determining an application for judicial review of a trial judge's decision to recuse himself from dealing with the case, so far as an application to stay proceedings was concerned, because one of the witnesses had, on a previous occasion, insulted the judge's wife and because the evidence involved the workings of the judge's home country's immigration service and allegations of racism in the conduct of its affairs.

10. In his judgment Keith J. unequivocally adopted the reasoning of the House of Lords in the decision of R v Gough [1993] AC 646. Keith J said this:-

"The 'reasonable suspicion' test was rejected by the House of Lords in R v Gough [1993] AC 646. Lord Goff identified the correct test ....as follows:

.... having ascertained the relevant circumstances, the court should ask itself whether, having regard to those circumstances, there was a real danger of bias on the part of the relevant member of the tribunal in question, in the sense he might unfairly regard (or have unfairly regarded) with favour, or disfavour, the case of a party to the issue under consideration by him.

He added that he preferred 'to state the test in terms of real danger than real likelihood, to ensure that the court is thinking in terms of possibility rather than probability of bias'. He also added...that:

.... it was unnecessary ... to require that the court should look at the matter through the eyes of a reasonable man, because the court ... personifies the reasonable man; and in any event the court has first to ascertain the relevant circumstances from the available evidence, knowledge of which would not necessarily be available to an observer in court at the relevant time."

Keith J concluded that the 'real danger' test now binds the courts of Hong Kong.

11. In the case of Gough, Lord Goff, who had delivered the substantive judgment of the House, said that it was desirable that the same test be applied to all cases of possible bias. In the present case the possibility of bias arose out of the appellant having worked on occasions for the magistrate at least 5 years before the present hearing when the magistrate had apparently been sitting temporarily at San Po Kong Magistracy. In putting those facts before the learned magistrate, Mr Midgley representing the appellant said this:-

"Obviously we have no objection to you hearing this case. This is not the defence suggesting that there would be any bias or even necessarily perceived bias but, having said that, obviously, as a matter of principle in cases of criminal trial, a very basic principle is that the judge doesn't know the defendant."

(and later)

"Your Worship, my only concern - and it perhaps concerns me too strongly, I don't know - was that it's not only that he was in the San Po Kong Magistracy when you were there, but he directly worked in your court as a clerk for you on some occasions. Your Worship, I'm quite happy to leave it in a neutral position for this court to determine whether in the balance it's better to send it to a magistrate that had no relationship with him, or that you're happy that the relationship is (acceptable)"

12. Having heard what Mr Midgley said on behalf of the appellant the magistrate after giving the matter consideration concluded that he would proceed to sit at the trial. He said he had no recollection of the appellant and had no recollection of the appellant acting as a temporary clerk in his court.

13. It is important to note that there is no suggestion in this case that the magistrate was biased in any way, and certainly not against the appellant. Nor is there anything which was put before the magistrate or before me to suggest that there was any possibility of bias. In its essence all that was established, at its highest, was that there was an unremembered, so far as the magistrate was concerned, and relatively brief working relationship between the appellant and the magistrate. In other words it was pointed out to the magistrate that he had come into contact with the appellant some years previously albeit it could not be said that the magistrate knew or remembered the appellant.

14. In my view that does not even begin to satisfy the Gough test. As I say, no facts supporting any allegation of actual or possible bias were suggested before me. All that was asserted was the brief working connection between the magistrate and the appellant some 5 or so years before the hearing. It may well be that that relationship taken alone would have allowed perhaps somewhat more substantive argument under the terms of the previous "reasonable man" test. But, pursuant to the principle established by Lord Goff in the case of Gough, in my view that simple relationship is insufficient to establish any element of bias in the magistrate sitting on the appellant's trial.

15. It may well be that it is desirable that in the course of courts conducting their affairs magistrates and other judicial officers should preside in circumstances where they have had absolutely no previous contact in any way with defendants appearing before them. And the attempts in the present case to list the case before other magistrates who had no known contact with the appellant were quite proper and commendable.

16. But those attempts having failed, and apparently no other magistrate being available on the day of the hearing, the decision of the presiding magistrate to proceed with the trial in the present circumstances cannot be criticised as a matter of law. This ground of appeal in my view must fail.

17. So far as the second complaint of the appellant is concerned, to the effect that the magistrate failed to properly consider the appellant's case, it is important to remember that that case revolved around the narrow issue as to whether the appellant had been proven to have had an intention to permanently deprive the victim of her mobile phone or whether it was possible he intended to return it to her as he said because of the rewarding effect her thanks would have had upon him in his depressed state.

18. Mr Midgley for the appellant argues that the magistrate failed to properly take into account the depressed state of the appellant at the time of the offence. He pointed out that the appellant had, in his evidence, told the court that after being arrested for the offence he had spent some 8 weeks as a patient at a government hospital suffering from depression.

19. Mr Midgley argued that the learned magistrate did not properly take the evidence of the appellant's mental state into account in determining the issue of the appellant's intention to permanently deprive the victim of her phone. In his Statement of Findings the magistrate referred to the appellant's evidence in this regard in full. He said:-

"(The) Appellant said he was suffering from depression. And that when he was under pressure he would have an impulse to take mobile phone from female. He first acted on his impulse around March 1999. There were other occasions since then, and on one occasion in September 1999 he was accused of stealing. He recognised that he had a problem, and on 24th October 2000 he went to see a Dr Chan expressing suicidal thoughts. Dr Chan referred him to Princess Margaret Hospital, and on 28th October he was transferred to Kwai Chung Hospital where he received in-patient treatment till 28th December 2000. After his discharge, he continued receiving treatment as an out-patient. (The) Appellant reiterated that his motive was to get thanks and recognition from people. He owned a phone and there was no need for a second one. He said he was not guilty of theft because he would have returned (the phone) to PW1."

In concluding however that the appellant did intend to permanently deprive the victim of her phone the magistrate said this:-

"(The) Appellant said he would have returned (the phone) to PW1 because his motive was to have thanks from her. However, it is difficult to see, in the present case, how (the) Appellant could have returned the phone without attracting suspicion - not to mention getting thanks from PW2 (PW1's father). Is PW1 to believe a phone which was in an almost completely closed zip-pocket of a handbag that she was carrying somehow ended up with (the) Appellant innocently? Further, in the case where PW1 did not discover the loss of (the phone), and the Appellant returned (the phone) to her after 5-10 minutes as he said he would, is she to believe that (the) Appellant came by the phone innocently and somehow knew it belonged to her?"

20. In other words the magistrate concluded, on the evidence as to the circumstances surrounding the taking of the phone, that the appellant's version of his intentions in taking the phone from the victim was wholly implausible. And that was because in those circumstances the return of the phone would not have attracted thanks, it would have attracted suspicion and perhaps opprobrium on the part of the victim and her father. In coming to that conclusion the magistrate had borne in mind the appellant's mental state. He said this:-

"In assessing (the) Appellant's evidence, I accepted that he could well have been suffering from depression which necessitated his stay in hospital. However, for the reasons stated above, I found his story about taking PW1's phone with the intention of returning it to her to be inherently incredible and utterly unbelievable. I found him to be a incredible and unreliable witness and I had no hesitation in rejecting his evidence."

21. Accordingly the magistrate had taken into account the appellant's defence, but had rejected it because of its inherent incredibility on the facts of the case. In short, he had properly taken into account the appellant's evidence and his defence and had given reasons, supported by the facts of the case, for rejecting the appellant's case. He was entitled to do so and no complaint can be made of his findings in this regard. And I might leave this ground of appeal with the observation that the period of time that the appellant spent in hospital in respect of his depressed state occurred after he had been arrested in respect of this offence.

22. I turn now to the third complaint made by the appellant as to his conviction. During the course of the trial the appellant had called no medical evidence. Evidence of his depressed mental state at the time of the offence had come solely from the appellant himself. Following his conviction however and prior to sentencing, the magistrate of his own volition had sought two reports. One was from a psychologist Dr Winnie Wong of the Correctional Services Department, the other was from Dr. Yuen a consultant psychiatrist at Siu Lam Psychiatric Centre. So far as Dr Yuen's report is concerned the doctors' conclusions were as follows:-

"(The) Defendant has been suffering from a depressive illness for about 2 to 3 years. It was severe at one stage, as reflected by the presence of suicidal thought and requiring inpatient treatment. He is understandably depressed at this moment because of the trial. As for the motive of the alleged crime, it seems that the stealing behaviour was really related to abnormal psychological need - the seeking of a transient moment of gratification and happiness. This, in turn, is related to his illness of depression. He needs psychiatric treatment but no inpatient treatment should be required at this moment and since he is already receiving psychiatric and psychological treatment from East Kowloon Psychiatric Centre, there is no specific recommendation that I would like to make."

23. That conclusion apparently in considerable extent, given other contents of the doctor's report, was based on paragraph 5 of that report which was headed 'The Defendant's own account', and accordingly the doctor's conclusion took on board the facts of the case and the facts of the appellant's complaint as reiterated to him by the appellant.

24. What then appears to have happened is that during the course of his speech in mitigation of sentence Mr Midgley for the appellant incorporated into that speech what he referred to both as a suggestion and an application that the appellant be allowed "a second chance or the possibility of an acquittal." In that regard Mr Midgley said this at that time:-

"Your worship, can I just ask this court formally to consider before passing sentence the position that I would urge the court might be the best position to adopt at this stage, which is to allow the defence to speak to Dr Yuen to see if he would be willing under a subpoena to give evidence on oath about those points, those professional views that he holds and are expressed in his report addressed to the court, ......I make this suggestion, your Worship, I make this application, in the hope that it might be helpful to the defendant in putting before the court material that would allow a second chance or the possibility of an acquittal."

25. This application can only be made sense of as an application pursuant to s.104 of the Magistrates Ordinance for a review by the magistrate of his decision to convict the appellant, though that section was never referred to. Nor were the provisions of the section requiring any such application to be made in writing complied with: s.104(2).

26. That requirement is not a mere formality. It is a requirement that ensures at the very least that the other party, in this case the prosecuting authority, is properly able and prepared to present and meet arguments relevant to the application and any subsequent review of the magistrate's decision. Nevertheless the appellant was in no way prejudiced by that procedural irregularity and the magistrate proceeded to consider the application made on behalf of the appellant that he review his decision to convict the appellant and in due course following that consideration the magistrate refused the application to review.

27. The difficulty Mr Midgley has before me in complaining of the magistrate's refusal to review himself is that such a refusal, if that is what it was, cannot, in my view, be the subject of an appeal brought by way of s.105 or s.113 of the Ordinance. That is because s.104(10) after dealing with the running of time limits for the purposes of an appeal following a review application says this:-

"s.104(10)...........but nothing in this Ordinance shall authorize an appeal, whether by way of case stated or otherwise, from the refusal of a magistrate to grant a review"

28. In my judgment that provision contained in s.104(10) plainly prevents any appeal against a magistrate's refusal to grant an application for a review of his decision. That is because the right of appeal against a magistrate's decision or order is statutory. There is no inherent jurisdiction in this court to deal with appeals from a magistrate's decision. Any such jurisdiction is granted specifically by the Magistrates Ordinance itself, namely s.105 and s.113.

29. It seems to me that the policy underlying the concluding provision of s.104(10) is to limit the proliferation of proceedings and allow an appellant whose application for a review pursuant to s.104 has been refused, to proceed only against the magistrate's original decision by way of s.105 or s.113 of the Ordinance.

30. Accordingly in my judgment there is no merit in this final complaint of the appellant and his appeal against conviction is dismissed.

31. I turn now to the appeal against sentence. The appellant was sentenced to 10 months' imprisonment. The magistrate adopted a starting point of 12 months' imprisonment and allowed the appellant a 2 month discount in recognition of his previous good character. There can be no complaint of the starting point taken by the magistrate or of the discount allowed by him in respect of the appellant's previous good character.

32. The magistrate in the course of giving his reasons for sentence said that in his view:-

"There was really nothing much in mitigation apart from the appellant's good character."

But at an earlier part of his Statement of Findings the magistrate had accepted that the appellant could well have been suffering from severe depression which necessitated his stay in hospital for a significant period. In my judgment if the magistrate had accepted that the mental state of the appellant was genuine and sufficiently poor to warrant an 8 week stay in hospital following his arrest for this offence then that was a matter which it was proper for him to take into account as a mitigating factor.

33. From the contents of the reports of both Dr. Winnie Wong and Dr Yuen it appears that at least in the period following this offence the appellant did suffer from a severe form of depression which required treatment. That treatment apparently ended shortly before his trial for these offences in so far as his being an in-patient was concerned.

34. Bearing in mind that the appellant apparently had suffered a genuine bout of severe depression following his arrest in this case, in my judgment that amounted to a further factor which should have been taken into account by the learned magistrate in considering his sentence. On the basis of the contents of Dr Wong's and Dr Yuen's reports the appropriate conclusion would in my view had been that a further reduction of the imposed sentence of imprisonment to the extent of 3 months was warranted.

35. Accordingly the magistrate's sentence is set aside and substituted by a sentence of 7 months' imprisonment.