HKSAR v. CHAN WAH AND OTHERS

[English Translation – 英譯本]
CACC 344/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 344 OF 2006

(ON APPEAL FROM DCCC NO. 27 OF 2006)

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REASONS FOR JUDGMENT

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Hon Cheung JA:

Fair trial

1. In Hong Kong, every defendant charged with a criminal offence is entitled to a fair trial by an independent and impartial court of law. This is a fundamental right afforded by the Basic Law of the Hong Kong Special Administrative Region, the Bill of Rights and the common law. The prerequisite for securing this right of a defendant to a fair trial is that the judge must conduct the trial in an impartial and fair manner. The judge must neither be biased towards either the prosecution or the defence, nor be biased against the defendant or his grounds of defence.

2. The concept that the judge must not be biased against a defendant refers not only to actual bias but also to the giving of the impression by the judge’s conduct or comments at trial that he had lost its neutrality or impartiality. If there was a real danger that such conduct or speech had materially affected the court’s judgment adverse to the defendant so as to have deprived him of a fair trial, then the judgment is liable to be set aside by the appellate court: see HKSAR v. Leung Kwok Hung [2007] 1 HKLRD 797.

3. The convictions of the three appellants (the 1^st, 2^nd and 4^th defendants) in the present case are quashed by this court on the ground that, in my judgment, they had been deprived of a fair trial: it is clear that, by his conduct and comments at trial, the trial judge had given the impression that he was not impartial or neutral; furthermore, there was the real danger as described above, namely that the judge’s conduct had actually influenced him into making a decision adverse to the defendants, thereby depriving them of their right to a fair trial.

The charges

4. The 1^st, 2^nd and 4^th defendants, all of whom are Mainland residents, were charged with the following offences:

1. Conspiracy to steal Buddhist pine trees planted in the country parks of Hong Kong, contrary to section 7 of the Theft Ordinance (Cap. 210 of the Laws of Hong Kong) and sections 159A and 159C of the Crimes Ordinance (Cap. 200 of the Laws of Hong Kong);

2. Cutting the said plants in the country parks without a permit, contrary to regulation 8 of the Country Parks and Special Areas Regulations (Cap. 208 of the Laws of Hong Kong); and

3. Remaining in the territory of Hong Kong without authority after having landed in Hong Kong unlawfully, contrary to section 38(1)(b) of the Immigration Ordinance (Cap. 115 of the Laws of Hong Kong).

5. They were also charged, as an alternative to conspiracy to steal, with handling stolen goods, contrary to section 24 of the Theft Ordinance (Cap. 210 of the Laws of Hong Kong).

6. Save for the guilty plea that the 4^th defendant entered in respect of the charge of remaining in Hong Kong without authority, all the charges were denied by the defendants. After trial by Deputy District Judge Symon Wong, the three defendants were convicted of the following offences:

1. Conspiracy to steal; and

2. Cutting plants in the country parks without a permit.

7. Deputy Judge Wong also convicted the 1^st and 2^nd defendants of the offence of remaining in Hong Kong without authority and ordered that the alternative charge of handling stolen goods be left in the court file.

Appearance of bias

8. In my view, Deputy Judge Wong gave the impression of being biased against the defendants by the following conduct of his at trial:

(1) The comments or remarks that he made in the course of trial,

(2) The wordings that he adopted in the Reasons for Verdict,

(3) The wordings and attitude that he adopted when he verbally delivered the Reasons for Verdict, and

(4) The comments or remarks that he made after sentencing.

Comments at trial

9. I start by dealing with the comments made by the Judge in the course of trial. The 1^st and 2^nd defendants elected to give evidence. When the 4^th defendant indicated through Counsel that he elected not to give evidence, Deputy Judge Wong said:

Judge:  Smart. Alright, regarding closing submissions, do the prosecution and defence intend to make them today or tomorrow?

10. It was in my view most improper for Deputy Judge Wong to use the adjective “smart”. First, this would make one think that the Judge considered the 1^st and 2^nd defendants unwise or stupid in electing to give evidence. Besides, the Judge had then already rejected the submission of Counsel for the 4^th defendant that there was no case to answer and had also ruled that there was prima facie evidence against the 4^th defendant. In these circumstances, the Judge’s comment would make one feel that, in his view, the giving of evidence by the 4^th defendant would not serve any useful purpose but would rather lead him into making more mistakes by saying more. On any view of the matter, the Judge’s comment clearly gave the impression that he had reached a decision before the trial concluded. He was apparently biased.

Wordings in the Reasons for Verdict

11. Bias can also be discerned from the wordings adopted by the Judge in the Reasons for Verdict. With respect, I am deeply disturbed by those wordings. Having rejected the defence put forward by the 1^st defendant, the Judge said:

In short, the gist of the 1^st defendant’s defence is that he had no alternative but was forced to do what he did and that he allowed everything to be manipulated by Mr. Lau. However, the summary does not dovetail with the details and is inundated with errors and omissions. The 1^st defendant’s portrayal of himself as an unthinking walking corpse as well as what he said about spirits are weird and benighted.

12. He further described the 1^st defendant as follows:

It is astonishing to see such rascally and unruly behaviour in the court. Although every word and every sentence uttered by the 1^st defendant were false and fallacious, you do not bear any burden of proof.

13. Further, after rejecting the defence of the 2^nd defendant, the Judge said:

The 2^nd defendant pleaded that after boarding the boat on the Mainland, he covered his head with clothes immediately so as to brace himself against the blistering cold wind. Upon arrival, he felt fatigued and took a nap, covering his head with a quilt. He said this in order to explain why all along he did not know where he was. Such use of the covering of the head with clothes and quilt as a story line is extremely flagrant and unbearably naïve. I have described the 2^nd defendant’s story in a most graphical manner. If nothing other than key points were to be described, the essence of his defence could adequately be conveyed in 10-odd words: ‘I arrived in Hong Kong bewildered and to this day I still do not understand the subtleties in it as if I had got lost in a thick fog’. I am deeply perplexed at what the 2^nd defendant said. Your evidence was just like an essay which bore a title but the contents of which were of no substance and could be interpreted in whatever way you liked. But the only conclusion is that, as a piece of evidence, what the 2^nd defendant said is simply incredible.

14. He described the various defendants as:

an integral whole with a common purpose, all tarred with the same brush.

15. I have been in the legal profession (including private practice and public office) for over 30 years and have read and written innumerable judgments. I have never come across such extreme, derisory and insulting words in judgments prepared by judges in recent times. Such language should not have any place in the advanced and enlightened judicial system of Hong Kong. In my view, the wordings adopted by Deputy Judge Wong in his judgment were inconsistent with the requirement that a judge must conduct a rational analysis of the case before him and were unacceptable. In using such wordings, the Judge would in my view actually give the impression that he had lost his impartiality and fairness.

16. Instances of biased conduct of a judge may arise at any stage of a trial. The commonest example is where a judge constantly interrupts the cross-examination of a witness or a defendant or involves himself excessively in cross-examinations, asking questions clearly intended not only to clarify the evidence of a witness or a defendant but to negate the defendant’s defence. Another example is where a judge frequently interrupts counsel’s submissions, which indicates that he does not have any intention to consider those submissions. Apart from these two examples of miscarriage of justice, another valid ground of appeal is that the wordings adopted by a judge in his judgment clearly showed that he was biased against the defendant. An illustration can be found in the case of R. v. Yu Chun Man CACC 435/1993. See also HKSAR v. Pong Tai Chung CACC 467/2006.

Wordings used during the oral delivery of Reasons for Verdict

17. Thirdly, by his attitude and the wordings adopted by him during the delivery of the Reasons for Verdict, Deputy Judge Wong also gave the impression that he was biased against the defendants.

18. Mr. Kenneth Lee, Counsel for the 1^st and 2^nd defendants in this appeal, also represented the same two defendants at trial. He discovered that parts of the contents of the written Reasons for Verdict were different from the reasons for verdict delivered orally by the Judge. With the approval of the court, Counsel obtained a transcript of the audio recording of the trial, which revealed that the words spoken by the Judge of the 1^st defendant during the verbal delivery were missing from the written Reasons for Verdict. Mr. Lee has rearranged the Reasons for Verdict by reinstating the deleted parts, and Miss Mary Sin for the respondent has accepted the contents of the rearranged Reasons for Verdict. At the hearing, the court also listened to the relevant audio recording of the trial.

19. Deputy Judge Wong dealt with the evidence of the 1^st defendant in paragraphs 9 to 22 of the Reasons for Verdict. The Judge had this to say in the following ten paragraphs before or after he made mention of the 1^st defendant:

12. 1^st defendant, still talking about you, …

13. 1^st defendant, still about you, …

14. … 1^st defendant, oh, still about you, …

15. Oh, still talking about you, 1^st defendant, …

16. Still about you, 1^st defendant. Wow, you have wasted quite a lot of the court’s time, alright, … only …

17. Still talking about 1^st defendant, alright, … put them in open quotation mark so that you can listen for yourself: …

18. Still about 1^st defendant, …

19. How come it’s still about you? …

20.  Still about 1^st defendant, you see how lengthy your speech has been, …

21.  Still you, oh, …

20. That the Judge repeatedly commented that he was still dealing with the 1^st defendant’s case showed that he was extremely impatient with the 1^st defendant and dissatisfied with his defence. It can be heard from the recording that the Judge made part of the relevant comments in a scornful tone. In my judgment, even if the Judge had already analyzed and summed up the case when he delivered the reasons for verdict, he should not have dealt with a solemn verdict in the manner that he did, which obviously gave the impression that he was biased against the 1^st defendant.

Comments after sentencing

21. Fourthly, after imposing sentences on the defendants, Deputy Judge Wong said to them “Good luck to you”. Such a statement, with its overtones of derision, should not have appeared in solemn court proceedings. The terms of imprisonment meted out to the various defendants, which ranged from 4 years to 4 years and 8 months, were rather substantial. The statement “Good luck to you” in such circumstances reinforced the impression of the Judge being biased against the defendants.

Convictions quashed

22. The behaviour of Deputy Judge Wong fell short of the requirement that a judge must conduct the trial of a case before him in a solemn manner. In the present case, there was the danger that the Judge’s conduct had actually influenced his decision, as a result of which the defendants had been deprived of their right to a fair trial. For the above reasons and in the interests of justice, all the convictions of the defendants must be quashed. As the biased conduct of the Judge had a direct impact on the safeness of his verdict, we do not consider it appropriate to uphold the convictions by applying the proviso. All the convictions are quashed accordingly.

Order for retrial

23. The appellants’ appeals are allowed not because of insufficient prosecution evidence but because of the improper conduct of the trial by the Judge. We therefore order, upon application by the prosecution, that the cases against the 1^st and 2^nd defendants be retried, with such retrial to take place promptly. In the absence of an application by the prosecution, we make no order for retrial in respect of the 4^th defendant.

Judgment of the two Judges

24. Furthermore, I concur with the reasons for judgment of Yeung JA and Yuen JA.

Hon Yeung JA:

Background

25. There were originally five defendants in the present case. They were Chan Wah (“D1”), Cheung Yan Yau (“D2”), Liu Hin Ko, Ko Kwan (“D4”) and Chan Lo Ba. They are hereinafter collectively referred to as the defendants whereas D1, D2 and D4 are referred to as the applicants.

26. At about 3:30 a.m. on 23 November 2005, a team of police officers intercepted and arrested the defendants in a bush on the beach of Nam She Wan during an anti-illegal immigrants operation. The police found at the same time ten uprooted “Buddhist pines”, one long handsaw, two cotton quilts, a backpack, some clothes and some other equipment. Further out on the beach a blue motorised sampan was seen which contained two life jackets and one and a half barrels of petrol.

27. The defendants were Mainland residents and, at the time of their arrest, neither held any valid travel document nor had the authority to remain in Hong Kong.

28. Eventually the defendants were arrested and charged jointly with conspiracy to steal (the first charge), an alternative charge of handling stolen goods (the second charge), and felling plants in country parks without a permit (the third charge). They were also each charged with one count of remaining in Hong Kong without the authority of the Director of Immigration.

29. D1 and D2 denied all the charges whereas D4 denied the first, second and third charges but admitted the charge of unlawfully remaining in Hong Kong. Liu Hin Ko and Chan Lo Ba admitted the first charge of conspiracy to steal, the third charge of illegally felling plants and the charge of unlawfully remaining in Hong Kong. After trial, D1 and D2 were found guilty of the first and third charges and also the charge of unlawfully remaining in Hong Kong. D4 was convicted of the first and third charges. The second charge, being an alternative charge, was not dealt with.

30. D1, D2 and D4 were each sentenced to imprisonment for 2 years and 9 months for the first charge and 6 weeks for the third charge, with the sentences to run concurrently.

31. For the offence of unlawfully remaining in Hong Kong, D1 and D2 were sentenced to imprisonment for 23 months, which was to run consecutively to the sentences on the first and third charges, making a total term of 4 years and 8 months.

32. D4 was sentenced to imprisonment for 15 months for the charge of unlawfully remaining in Hong Kong to which he had pleaded guilty, but the sentence was to run consecutively to the sentences on the first and third charges, making a total term of 4 years.

33. D1 applied for leave to appeal against conviction, D2 applied for leave to appeal against conviction and sentence, and D4 applied for leave to appeal against conviction on the first and third charges.

34. After hearing, we granted leave to appeal and, treating the hearing as the appeal, we allowed the applicants’ appeal against convictions which were quashed accordingly. We ordered a retrial in respect of D1 and D2. We acquitted D4, in respect of whom the prosecution had not applied for a retrial. We now set out our reasons for the decisions.

Prosecution case

35. Apart from the undisputed background facts, the prosecution and defence agreed that Buddhist pines were planted in the area where the defendants were arrested, namely Sai Kung Country Park. The prosecution also adduced as evidence the confessions that some of the applicants had made to the police on the course of events.

36. The prosecution alleged that D1 confessed to the police upon arrest that he had been hired to come to Hong Kong to fell trees illegally.

37. Subsequently, D1 voluntarily participated in two video-recorded interviews with the police at the police station. D1 said that when he was working at a pier in Nanao, he came to know one Mr. Lau, who deceived him into coming to Hong Kong. That Mr. Lau claimed to D1 that he would call people together to come to Hong Kong to perform construction work and earn daily wages of $150 to $200. Eventually, D1 and four other people were brought to Hong Kong by boat as arranged by Mr. Lau on 17 November 2005.

38. After the group went ashore, Mr. Lau led the rest of the group to a plastic tent by the hillside. According to Mr. Lau, they had to hide by the hillside because the situation was unfavourable. In the meantime, they found people felling trees and some people being arrested by the police. D1 said he had asked Mr. Lau to lead him away but Mr. Lau refused.

39. D1 said he had not seen the Buddhist pines found by the police. He also denied that he had been instigated to come to Hong Kong to fell Buddhist pines. He said that neither he nor the other defendants had ever felled Buddhist pines, and that he had not confessed to the police at the time of his arrest that he had been hired to come to Hong Kong to hack trees.

40. D1 said that, prior to his arrest, Mr. Lau had neither referred or assigned any work to the defendants nor paid them any wages.

41. D1 stated that he had not applied for any document for coming to Hong Kong, but Mr. Lau had told him that they could travel freely between the Mainland and Hong Kong as China had resumed sovereignty over Hong Kong. Mr. Lau managed to escape the arrest, and among the people arrested, D1 only knew Chan Lo Ba.

42. At the other video-recorded interview, D1 said Mr. Lau had stayed with them since they arrived at the scene on 17 November 2005. Although Mr. Lau had left them temporarily, this was for the purpose of checking if any boat had arrived as he expected that some other people would arrive at the scene. D1 reiterated that Mr. Lau had never asked them to hack or remove trees, nor had they seen anyone hack trees.

43. D1 said that he did not write down “never said [I] helped the boss hack trees” when the police constable read over the caution administered at the scene to him because he was not allowed to do so by the constable.

44. D1 also said that the camouflage he was wearing at the time was provided by Mr. Lau who had asked them to wear it.

45. D2 tried to flee during the arrest. After arrest and under caution, D2 also admitted illegal entry into Hong Kong but denied stealing Buddhist pines. He said that the night before his arrest he arrived at the scene with Liu Hin Ko and Ko Kwan by a small boat from Nanao, but that they had neither felled the Buddhist pines found at the scene by the police nor had intended to steal those Buddhist pines.

46. Later in the video-recorded interview, D2 gave an account of why and how he came to Hong Kong. He said he got on a boat on the night of 22 November 2003 and unknowingly came to Hong Kong. He said a ganger had approached him about doing construction work abroad and as a result, he, Liu Hin Ko and Ko Kwan left Nanao by boat, but shortly after arrival at the scene, they were all arrested. D2 said he neither knew that some people had sawn Buddhist pines nor was aware that he had entered Hong Kong illegally.

47. D4 said at the video-recorded interview that he had been working in the construction industry in Nanao. He said that, 8 days before his arrest, someone recommended him to a job in the construction industry which offered a daily wage of $60 as well as food and accommodation. Later, he was taken on board a boat and was told that he would be coming to Hong Kong to work for 10-odd days. Liu Hin Ko and D2 also travelled on the boat with him and they arrived in Hong Kong after a journey lasting an hour or so. The man who steered the boat told them to find a place to sleep and then left the scene. They were arrested by the police shortly afterwards.

48. D4 said that, prior to his arrest, he was merely sleeping with some 10 people and did not notice any Buddhist pine or other equipment. D4 also said he neither knew D1 and Chan Lo Ba nor saw anyone felling trees. However, he did admit that he had come to Hong Kong without the permission of either the Mainland or Hong Kong authorities.

The defence case

49. D1 and D2 gave evidence for their defence but did not call any witness. D4 elected not to give evidence or call any witness.

50. D1 denied that he had admitted to the police that he had been hired to come to Hong Kong to fell trees. He said that there was a communication barrier between the police constable who did not speak Putonghua and D1 himself who did not speak Cantonese. D1 further said that the police constable had not cautioned him and therefore, even if he had made a confession, it should not have been admitted as evidence.

51. D1 reiterated in his testimony that he came to know Mr. Lau while he was working at a pier in Nanao and that, at Mr. Lau’s invitation, he worked in the construction industry at the Mainland-Hong Kong border at a daily wage of $60 dollars with food and accommodation provided.

52. D1 claimed that he, Mr. Lau and others got on board a fishing boat on the night of 17 November 2005 and went ashore when the boat arrived at a beach. The boat then left and they went up the hill and lodged in a makeshift tent.

53. D1 said that he did not get any job after waiting for two days and that they were even driven by Mr. Lau to hide in the gully so as to avoid the police. D1 said he felt he had been cheated but was unable to think of a way out, and subsequently he was arrested by the police.

54. D1 stressed that he did not notice at the time of his arrest that there were Buddhist pines in the vicinity, and that he did not see Buddhist pines at the scene until after daybreak.

55. D1 denied conspiring to steal or having felled trees. He also denied having made any confession to the police.

56. D2 said he came to know a boss whilst working in Nanao and promised the boss that he would go to a certain place to do construction work. D2 said that on the night of 22 November 2005, having travelled on a boat and gone ashore in the dark on a beach, he went up a hill. Later, he tripped over someone in the dark and  randomly found a spot to sleep. He said he was fast asleep when the police arrested him. He stressed that he did not come to Hong Kong on purpose and denied conspiring with others to fell trees, steal or handle in any manner the Buddhist pines found at the scene.

Findings of the trial judge

57. The trial judge accepted the evidence of the police constables including the evidence of the confession that they said D1 had made. The trial judge rejected the evidence of D1 and D2.

58. The trial judge emphasized that the place where the defendants were arrested was remote and seldom trodden, and that the arrest took place in the small hours. Apart from quilts, clothes, daily necessities and a handsaw, a motorized sampan was found resting on the beach nearby at that time. Furthermore, 10 uprooted Buddhist pines were found lying around the area where the defendants slept.

59. The trial judge ruled that a reasonable and irresistible inference was that the Buddhist pines were felled from the nearby country park. He stressed that it was unrealistic to suggest that the Buddhist pines had been felled in some other place and then moved to Sai Kung Country Park where they were to be re-transported.

60. In rejecting the evidence of D1 and D2, the trial judge commented on their evidence in the following unusual language. Examples of such comments are: “What he said about spirits [is] weird and benighted”, “It is astonishing to see such rascally and unruly behaviour in the court”, “every word and every sentence … were false and fallacious”, “astonishing utterances”, and “extremely flagrant and unbearably naïve”, etc. In delivering his oral verdict, the judge also on numerous occasions spoke of the applicants in words that could be regarded as contemptuous. They included “I tell you there is order in the court proceedings. By order, I mean orderly. You need not yell or shout. It is the court which is now addressing to you, please listen carefully.”, “Defendant, would you, 1^st defendant, please stand properly, do not wander your eyes here and there”, “1^st defendant, still talking about you”, “1^st defendant, still about you”, “1^st defendant, oh, still about you”, “Oh, still talking about you, 1^st defendant”, “Still about you, 1^st defendant. Wow, you have wasted quite a lot of the court’s time, alright.”, “Still talking about 1^st defendant, alright”, “put them in open quotation mark so that you can listen for yourself.”, “Still about 1^st defendant,”, “How come it’s still about you”, “Still about 1^st defendant, you see how lengthy your speech has been”, “Still you, oh”.

61. The audio recording of the trial, which we listened to during the hearing of the appeal, shows that the trial judge adopted such an arrogant attitude in delivering the judgment that the listener was made to feel that the judge professed an extreme contempt for the defendants’ evidence.

62. When counsel for D4 indicated to the court that D4 elected not to give evidence for his defence, the trial judge commented that the decision was “smart”.

Grounds of appeal

63. Regarding the convictions on the first and third charges, Mr. Lee, counsel for D1 and D2, and Mr. Cheng, counsel for D4, put forward similar grounds of appeal. They both argued that the prosecution’s evidence was insufficient to give rise to an irresistible inference that the Buddhist pines in question were felled from a place near the scene of the offence.

64. Mr. Lee contended strongly that it was not an offence to possess felled trees in a country park and that the prosecution bore the burden of proving that the trees concerned had actually been felled from the park.

65. Mr. Lee pointed out that, as the Buddhist pines in question had been felled about one week before the alleged offence took place, they might not have been felled at the scene. He suggested that the said Buddhist pines might have been felled at some other place and then moved to the scene to be gathered together pending their removal by sea.

66. Mr. Cheng also stressed that the scene of the alleged offence, being close to Shenzhen and Nanao, was an attractive stopover point where illegal immigrants could make short stays when travelling between Hong Kong and Shenzhen.

67. Mr. Cheng argued strongly that the location of the alleged offence, the time of the defendants’ arrest or the outfit seized had no significant relevance to the accusation that the defendants had stealthily felled Buddhist pines.

68. Mr. Cheng further submitted that the ten Buddhist pines, of which the branches were “sawn off”, did not necessarily have a market or commercial value and might have merely been intended to be used by illegal immigrants for making a fire.

69. Mr. Cheng stressed that there were doubts in the present case, including the fact that the Buddhist pines had been felled some 7 days prior to the alleged offence and that no tools for uprooting or cutting Buddhist pines were found at the scene. Furthermore, the location at which the defendants were arrested, the exact position of the Buddhist pines and whether they were piled up together were all open to doubt.

70. Mr. Cheng also submitted that the trial judge had simply rejected the explanation given by D4 in the video-recorded interview without properly considering such explanation.

71. As regards the confession made by D1, Mr. Lee pointed out that D1 could not possibly have understood the nature of the caution which was administered to him in Cantonese. Therefore, even if there had been communication between D1 and the police constable, it was by no means certain that they had correctly understood what each other said.

72. In such circumstances, Mr. Lee argued, the trial judge should not have relied on the confession allegedly made by D1.

73. Mr. Lee maintained that the wordings used by the judge in the course of trial indicated that he was biased against the defendants and made findings of facts prematurely, without dealing with factual discrepancies objectively. 

74. Mr. Lee pointed out in particular that, when D4 indicated to the court that he would not give evidence, the trial judge commented that he was “smart”. This showed that the judge thought the decision of D1 and D2 to elect to give evidence was unwise, and that the judge had already ruled against them on the facts before hearing submissions from both sides. Mr. Lee insisted that both the attitude of the judge and the manner in which he dealt with the case were improper and unfair to the applicants.

75. Mr. Lee also submitted that when the judge commented on the evidence of D1 and D2, he used words that were not only strong but also distinctly complimentary or otherwise, so that one would strongly feel that justice had not been seen to be done. Mr. Cheng concurred with Mr. Lee’s position and arguments.

Discussion

76. There was no direct evidence in the present case to prove that the applicants had actually felled Buddhist pines or conspired to steal Buddhist pines. The issues in the present case were simple and straightforward: whether the defendants’ explanations were credible and whether the prosecution evidence was capable of buttressing the irresistible inference that the defendants had actually felled the Buddhist pines with a view to conspiring to steal them. On the charge against D1 and D2 of illegal remaining in Hong Kong, the issue was whether they knew they would enter Hong Kong illegally.

77. As we order that the cases against D1 and D2 be retried, it is not appropriate for us to comment on the strength or otherwise of the prosecution evidence or the credibility of the explanations offered by D1 and D2 lest such comments should influence the judgment to be made at the retrial. We only have to point out that, looking at the evidence as a whole, it is possible for D1 and D2 to be convicted of all the charges.

78. We shall only focus on considering the manner in which the judge had conducted the trial, in particular whether the wordings adopted by the judge were appropriate and whether they would cause a reasonable bystander to think that the judge had failed to conduct the trial in a fair and impartial manner.

79. Hearing cases is an extremely important and solemn task that a judge undertakes because his decision will put the liberty of the person being tried at stake. A judge must be discreet in word and deed in the course of hearing and determining a case. Not the slightest impropriety or ambiguity is allowed. We wish to reiterate the oft-cited principle that justice must not only be done but the administration of justice must also be seen to be done, otherwise the public will lose confidence in our system of justice.

80. A defendant at trial is entitled to respond to the prosecution’s allegations in whatever way he thinks fit. No matter what the substance of his response and the manner of expressing the response are, the trial judge is duty-bound to make a detailed analysis of the response before making an appropriate decision. The trial judge should not make deprecatory and contemptuous comments simply because the defendant’s defence is incredible and, all the more, should not make rash judgments before hearing submissions from the prosecution and the defence. Otherwise, the defendant or a reasonable bystander may not be convinced that the judge has heard the case in a fair and impartial manner and may even think that the decision of the judge is unfair and unreasonable.

81. The trial judge is of course entitled, after carefully evaluating the defendant’s evidence, to reject such evidence and state or explain his decision in resolute and unequivocal language. However, in delivering his decision, the judge must be discreet in the choice of words, which should not be deprecating, contemptuous or insulting.      

82. As this Court pointed out in HKSAR v. Pong Tai Chung CACC 467/2006:

It is most obvious that a judge should conduct a trial in an impartial and composed manner, making decisions based on legal principles and rational analysis. If a judge chooses to use emotive language in the Reasons for Verdict, such as to describe the defendant as ‘neither a human being nor a ghost’, then the defendant (or any other reader) would inevitably be given an impression that the judge has failed to act in a professional manner that one would have expected him to act.

83. We must also emphasize that Reasons for Verdict are not only mandatory and enforceable, but are also expected to be able to convince the parties involved. It follows that Reasons for Verdict must be seriously and accurately articulated and must avoid using exaggerating, coloured or ambiguous words and expressions. Wordings that are excessively strong or go to either extreme of praise or censure will undermine the solemnity of Reasons for Verdict. We quote below a paragraph in Chapter Two of “A Brief Discussion on the Preparation of Judicial Writings” compiled by the Judiciary:

Literary language places emphasis on description of artistic conception, craves for imagery and liveliness so as to arouse the associations and imaginations of the readers and to emotionalize them by means of artistic style of writing. The object of judicial writings is to resolve problems based on facts and law, and to educate the public. The language used aims to facilitate comprehension and not to emotionalize. As the aims are different, so are the languages and the styles. If a judicial document is written in literary language, using artistic diction and employing lyric, exaggerating, satirical, figurative or insinuating means of description and carries marked literary colours, it is inconsistent with the solemnity of a judicial document.

84. We must emphasize that, even where a verdict is reasonable and correct, Reasons for Verdict which carry words that are excessively strong or go to either extreme of praise or censure, or exaggerating, coloured or even insulting words, may be subject to unnecessary appeal, thereby increasing the workload of the court. Such words and expressions should therefore not appear in Reasons for Verdict.

85. We have carefully considered the comments made by the trial judge in the Reasons for Verdict on the explanations given by the applicants. We have also listened to the audio recording of the judge’s oral delivery of the Reasons for Verdict. In our judgment, the conduct of the judge fell short of the requisite standard. Both the tone and the words adopted by the judge showed that he was extremely scornful of the explanations given by the applicants in their defence. The judge had repeatedly said “still talking about you” and commented that D1’s defence evidence was lengthy and had wasted much of the court’s time. Such comments were unnecessary and should not have appeared in the delivery of reasons for verdict. Such utterances showed that the judge was very dissatisfied with the explanations given by the applicants in their defence, and a reasonable bystander would be made to think that the judge was biased against the applicants and had failed to hear the case in a fair and impartial manner.

86. However, the problem mentioned above is not the main or sole basis on which we quash the convictions. Our decision to quash the convictions is mainly based on the comment “smart” made by the judge on the decision of D4, who by counsel notified the court that he had elected not to give evidence.

87. The comment “smart” made by the judge is open to the following constructions or interpretations: (1) That the judge considered D4’s decision not to give evidence “smart” could serve to show that he considered the decision of D1 and D2 to give evidence “not smart”; (2) D4’s decision to give evidence would have been considered “not smart”, and the reason must be that if he had elected to give evidence, any explanation that he could have given for his defence would definitely have put him in a more disadvantageous position.

88. No matter how the comment “smart” is construed or interpreted, it shows that the judge had already made a decision based on preconceptions on the explanations that the applicants had given or might give in their defence. It would also cause a reasonable bystander to perceive that the judge could not or would not assess the explanations given by the applicants in an objective, impartial and fair manner.

89. It has to be stressed that neither party had made closing submissions to the court when the judge made the comment “smart”. It was at that stage improper and wrong for the judge to make a clear indication by word or conduct that could lead a reasonable bystander to feel that he had already made a final decision on the case.

90. To ensure that justice is seen to be done, to remind judges that they must maintain a fair and impartial stance throughout the hearing of a case, and to ensure that every defendant charged with a criminal offence enjoys the rights enshrined in the Basic Law and the Bill of Rights that “all persons shall be equal before the courts and shall be entitled to a fair and public hearing”, we are of the view that the correct approach is to set aside all convictions made by the judge against the applicants.

91. The nature of the offences against the applicants is serious and there is prosecution evidence upon which the applicants can be convicted. A comparison of the sentence that D1 and D2 have already served with the sentence that they are likely to receive upon conviction does not reveal an exceptional reason for not ordering a retrial of their cases. We accordingly order a retrial of the cases against D1 and D2, such retrial to be conducted as soon as possible. As D4 has served the bulk of his sentence and the prosecution has not sought a retrial of the case against him, we order that D4 be released.

Hon Yuen JA:

92. I respectfully agree with the judgments of Cheung JA and Yeung JA and the reasons given by them. Despite the solemnity of court proceedings, it may not be entirely objectionable that parties to the proceedings occasionally utter a few humorous words or statements. In the present case, however, we find it regrettable that the trial judge appeared to have made the defendants a laughing stock on many occasions. By such conduct, the judge had not only lost the dignity that a judge should have, but had also given the impression that he had lost the composure and impartiality required of a judge. The comment that he made before counsel made final submissions also showed that he had already prejudged the defendants. I hope that such conduct, which was in my view very inappropriate, will not recur.