HKSAR v. LAU CHI FAI

1997, NO. MA 352

IN THE HIGH COURT OF HONG KONG

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL

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REASONS FOR DECISION

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1. I allowed the appeal of the Appellant at the hearing on 5th September, 1997. These are my reasons for allowing that appeal.

2. This is an appeal by the Appellant against his conviction by a Magistrate in the San Po Kong Magistracy ["the Presiding Magistrate"] of the offence of crossing continuous double white lines at Princess Margaret Road on 23rd July, 1996 contrary to regulation 11 (1) of Road Traffic (Traffic Control) Regulations (Cap.374).

3. The Appellant complained that he did not have a fair trial. He said the Presiding Magistrate repeatedly led prejudicial evidence from the sole witness ["PW1"] for the prosecution. He further said his right to cross examine that witness was severely curtailed by repeated interruptions and interjections from the Presiding Magistrate.

4. PW1 was the police officer who witnessed the incident. His evidence commenced at p. 10 of the transcript. The evidence in chief consisted of pp. 10 - 15. After PW1 was sworn in, the Presiding Magistrate began to pose questions to PW1 even though the Prosecution was represented by a Court Prosecutor. The questions were not for the purpose of clarification. The questions elicited in essence the evidence in chief. Pages 10 - 15 of the transcript show that the Presiding Magistrate played the predominate role. Those pages give an unfortunate impression that the Presiding Magistrate had already descended into the arena. Whilst one bears in mind the desire to achieve efficiency, the Bench cannot supplant or supplement the function of the Prosecution.

5. Cross examination commenced at p. 15 of the transcript. There were repeated interjections from the Bench. Some of the questions are legitimate attempts to elucidate evidence already given. Other interruptions are of a more disturbing nature. At p. 17 of the transcript the presiding Magistrate purported to supply what he reckoned to be an obvious answer to the appellant's question when the appellant was attempting to test PW1's recollection. At p. 21 of the transcript, he took over the Appellant's cross examination. At p. 22 of the transcript, he stopped the cross examination when the Appellant was attempting to discredit PW1 on his recollection as to the status in quo. Whilst one understands the pressure of work in the Magistracy and the difficulties in keeping a lay defendant on what is strictly relevant, the totality of the transcript do suggest that the Appellant's right of cross examination was curtailed.

6. Counsel for the Government conceded that the conduct of the Presiding Magistrate might not be a model example of judicial behaviour but he pointed out that the Presiding Magistrate was doing no more than to try and help both the prosecution and the defendant. Counsel helpfully drew my attention to R. v. Yeung Mau Lam [1991] 2 HKLR 468. Interruptions by their number alone are not decisive. The quantity and quality of the interruptions must be looked at as factors which react upon each other. The ultimate question is whether the jduge'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.

7. Applying the test in Yeung Mau Lam and for the reasons outlined above, I am of the view that an informed bystander would say in these circumstances that the defendant did not have a fair trial.

Accordingly, I allowed the appeal.