YU CHO LAM v. COMMISSIONER OF POLICE AND OTHERS

[English Translation –英譯本]

CACV 180/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 180 OF 2014

(ON APPEAL FROM DCPI NO 1600 OF 2011)

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JUDGMENT

Hon Cheung CJHC (giving the Judgment of the Court):

The Judgment in the First Instance

1.  Mr Yu Cho Lam, the plaintiff, alleged that he was attacked and injured by 3 police officers on 11 November 2008, and a civil claim against Commissioner of Police as well as the 3 officers was lodged in the District Court. The case was heard before District Judge Wilson Chan on 19-22 and 25-28 November 2013. Judgment was handed down on 27 December 2013, in which Judge Chan dismissed the plaintiff’s claim.

2.  The judge was of the view that the plaintiff’s testimony was not credible, and that his evidence was inconsistent, incomplete and not truthful.  There were various versions of his complaint(s) of the attack made on him by the officers; some important allegations were unfounded and did not accord with the facts.  The judge even criticized certain allegations by the plaintiff as ‘inconceivable’ and ‘unbelievable’.  In conclusion, the judge expressed that there was no way he was able to accept the plaintiff’s testimony as the facts of what happened that day, and also pointed out that in various important aspects, the plaintiff’s testimony ‘was not only inconsistent, but also defiant of common sense’ (para.72).  In assessing the matters on the balance of probability, the plaintiff’s case was not accepted and, instead, the defendants’ case was accepted.  The judge ruled that the plaintiff did not succeed in proving any of the alleged tortious acts, and the damage and loss, as well as the causal relationship between the two, therefore judgment was entered against the plaintiff.

Leave to appeal

3.  The plaintiff felt aggrieved and lodged an application to the District Court for leave to appeal.  On 22 January 2014, Judge Chan dismissed the application after hearing the application. The plaintiff remained aggrieved, so he lodged an application to the Court of Appeal for leave to appeal, and raised for the first time the issue that, in the afternoon on the second day of the trial, after he had been told by the court to leave the courtroom, the hearing proceeded for another 4 minutes as a ground of the application for leave to appeal.  On 22 May 2014 this Court (consisting of Lam V-P and Kwan JA) handed down its judgment granting the plaintiff leave to appeal based only on his written submissions.  The Court did not accept the various rights and wrongs related to the case put forward as the intended grounds of appeal save one:

‘18. The Court has a clear audio recording of the content of that 4-minute conversation. Now the Court orders that theplaintiff and the defendants be provided with that part ofthe audio transcript. As can be seen from the record, duringthat period, the judge first pointed out to the defence counselthat his cross-examination at that time was heading nowherefor all the parties. Quite often, in order to put the Court’stime to efficient use, the judge and the counsel will have conversations of a similar nature. More often than not, inorder to prevent conversations of this sort from influencing what the witness will say intestimony, the judge will ask the witness to leave the courtroom first before such a conversation with the counsel takes place. Generally, counsel for the parties or the litigants will all be present. There is nothing inappropriate with such a practice.

19. But since the plaintiff was not represented in this case,and he was a witness in the course of his testimony, whenthe judge asked him to leave the courtroom, the plaintiff wouldthen be unable to take part in that part of the trial either byhimself or through his lawyer.

20. Another part of the conversation which took place after theplaintiff had left the courtroom on 20 November focused on the progress of the case.  Generally, the judge should allow all parties to the action to have a fair share of the opportunity to take part in a discussion such as this.

21. After considering the grounds from both sides, and having referred to the judgment dated 27 December 2013, this Court is of the view that the plaintiff’s ground that the judge continued with the hearing on 20 November after he had left the courtroom should be allowed as a ground of appeal.’

Content of the 4-minute Conversation

4.  An extract of the transcript of the audio recording in relation to the period in question on the 2^nd day of the hearing is as follows:

‘Mr Ng [plaintiff’s counsel]: Alright, Your Honour, I think I’llstop(asking) here.

Court:  Come back before 9.30 tomorrow.  Now we’ll adjourn.  Doyou want to adjourn now? Is that right?

Mr Ng: Yes, yes, thank you.

Court:  Because the problem is – perhaps we’ll ask the witness to goout first. Now I tell you that you have to be back at 9.30 tomorrow morning to continue (with the hearing).

1^st witness for the plaintiff [i.e. the plaintiff himself]:  

(in Putonghua) (I) can.

Court:  Please do not discuss with anyone anything about this case.

1^st witness for the plaintiff:(in Putonghua) Right, right.

Court:  Come back before 9.30 tomorrow.

1^st witness for the plaintiff:(in Putonghua) Right.

Court:  Right, thank you.  Please go out first.  If there is anythingto be taken away, take (it) away with you.

(Yu Cho-lam, the 1^st witness for the plaintiff leaves the courtroom at 16:[36])

Court:  From how I understand (it), (based on) the evidence he gave just now, he does not understand at all what the letter from that party is asking him about.

Mr Ng: Hmm.

Court: Could be.

Mr Ng: Yes, (I) understand.

Court:  Because he said — (I) mean he thought (he was being) asked the sequence of events, that where was hit after the shoulder had been hit.  He said after the shoulder, ‘Shoulder is the waist behind the shoulder,’ (I) mean (this) seems to be his evidence.

Mr Ng: Right, right.

Court:(I) mean, whether (it) serves any purpose if you bring him back in for further questions.

Mr Ng: Alright, (I) understand.

Court:  If that person had obtained VP in advance – he did not understand what the others were asking, …

Mr Ng:   I do not think I will press on with this, but I think I (already) make the point, which is…

Court:  On the contrary, you (can) go the other way round now, ask him (why) – that is, I think that you can go back and ask him why hisevidence this morning was the eye(s).  Whether he now – no, actually, even with that he may – it may be useless (even if) you ask him again, but the problem is he is not giving answer(s) to this thing.

Mr Ng: Right, (I) understand.

Court:  (It) may be that ‘eye(s)’ has been written down here, but still he…

Mr Ng: (I) understand.

Court:  …has no idea that people are asking---here, these two words here were being asked about, (but) he thought he was being asked about the sequence.

Mr Ng: (I) understand, (I) understand, hmm.

Court:  You can go back and give it a thought…

Mr Ng: Alright.

Court:  …the evidence earlier on, but – (I) mean I fear that you will have to spend a lot of time here struggling with him.

Mr Ng:   Alright, (I) understand.  I think (it) should be (the case that) I have finished asking questions (in) this (regard).

Court:  Actually, we can use English now, since he is not present.

Mr Ng: Hmm, alright.

Court:  Just logistically, how much time do you think will require for your cross-examination?

Mr Ng:   Right, I think my cross-examination will take another half a day tomorrow.  And then after that, I aim at finishing at least six of my witnesses, if possible.  I mean of course it depends on the cross-examination.

Court:  Tomorrow? Yes, that’s the whole point.  I mean even – I mean I have to explain to the plaintiff that he has to put his case to each and every one of the witness (witnesses?).

Mr Ng:   Certainly, certainly.

Court:  There is a recent case, not so recent, of course a case of a difference scale, different nature where the trial judge adopted a process called deemed put.  I think it was a decision by Reyes J.  All the parties agreed that that could be done because there were a number of witnesses and somehow counsel agreed amongst themselves that allegations are deemed to have been put provided that it is put to one – witnesses.  This matter is going to the CFA. So I don’t think we are going to take that risk of deemed, you know, deemed putting.

Mr Ng:   Right, right, certainly, certainly.

Court:  So if you call eight witnesses, I would expect the plaintiff to have to put his case to each of the eight witnesses.

Mr Ng:   In the circumstances, maybe, your Honour, I would think abouttake some instructions later on today and see whether we can cut short and call like maybe…

Court:  Well, it’s a matter for you.  I’m not…

Mr Ng:   Certainly.

Court:  …putting any pressure on you, well, except I mean you mustappreciate that in the magistracy, the burden of proof is on your client to prove beyond reasonable doubt.  Now, you…

Mr Ng:   Yes, it’s reversed, yes.

Court:  …the burden is reversed and the standard of proof is onbalance of probabilities.  So you may have – you may, you know, chew on that overnight.

Mr Ng:   Right.  Thank you.

Court:  Thank you.  9.30, please.

Mr Ng:   Thank you.

Court adjourns – 4.39 pm

20 November 2013”

Amicus Curiae

5.  Owing to the fact that the plaintiff was not represented and handled the action and this appeal in person, after leave to appeal had been granted, the Court ordered that an amicus curiae be retained to assist in dealing with this case.  Here, the Court would like to express gratitude towards Ms Frances Lok for her assistance in this appeal case in the capacity of an amicus curiae.

Submissions

6.  As the plaintiff was acting in person at the appeal hearing, he was unable to make extensive submissions on the legal issues involved in the subject of the appeal.  To put it simply, the plaintiff submitted that there was no reason for the judge to order him to leave the courtroom, and continued to discuss the case with the defence counsel after he had left.  The plaintiff is alleging that the judge was biased towards the defendant, thus doing him injustice.

7.  In her submissions, Ms Ann Lui, counsel for the defendants (who were represented by Mr Stanley Ng at the trial) submitted that it was procedurally wrong for the trial judge to order the plaintiff to leave the courtroom and then continue discussing the issue of case management with the defence counsel, but no injustice was caused to the plaintiff’s case and the result of the trial.  Considering the matter from an overall perspective, which included the content of the discussion between the judge and the defence counsel in the absence of the plaintiff, there was no apparent bias on the part of the judge.  Therefore, Ms Lui submitted that although there was a procedural mishap at the trial, that was not sufficient to reverse the judgment of the trial judge.

8.  In rendering assistance to the Court, Ms Lok, the amicus curiae, submitted that there were two aspects to this appeal: (1) whether the trial the plaintiff received was a fair one; (2) whether there was apparent bias on the part of the trial judge.  In relation to the former, counsel submitted that procedurally it was obviously wrong (for the judge) to request the plaintiff to leave the courtroom and then continue to discuss the facts of the case with the defence counsel after that.  In terms of the consequences, Ms Lok submitted that the matters discussed between the judge and the defence counsel, including comments of how the plaintiff performed during his testimony, whether the defendant would need to call the 8 witnesses as originally planned, etc., one could not say that these did not carry a risk of having a substantial impact on the plaintiff’s case.  On the issue of apparent bias, Ms Lok submitted that looking at the whole matter as well as the content of the conversation between the judge and the defence counsel, a fair-minded, well-informed bystander would be of the view that evidently the court may have lost its impartiality. In that situation, the Court of Appeal should consider interfering with the trial judge’s verdict.

The Relevant Law

9.  Article 10 of the Hong Kong Bill of Rights has clearly stipulated thatin the determination of one’s rights and obligations in a suit at law, one shall be entitled to ‘a fair and public hearing by an independent and impartial tribunal established by law.’  In terms of the facts of this case, this right includes two points: (1) the trial has to be fair; (2) the Court has to be ‘independent and impartial’, which are totally in line with the requirements of the common law.

10.  Generally speaking, regarding the first point, a fair trial has to include the presence and participation of the litigants throughout the trial, including a litigant testifying in court as a witness. Without doubt, if the judge wishes to discuss with both parties or their counsel matters which are inappropriate in the presence of the witness before the witness finishes his evidence, such as those in relation to evidence or cross-examination, certainly he has the authority to request the witness to leave the courtroom temporarily to facilitate such a discussion, which is a procedure both reasonable and legitimate.  However, in the present case, the plaintiff was acting on his own with no legal representation.  It was certainly inappropriate for him to be requested to leave the courtroom so as to allow the judge to discuss the facts of the case or the state of the plaintiff’s evidence with the counsel representing the other party while he was in the course of giving evidence.  As Sir John Arnold P. pointed out in Tomlinson v Tomlinson [1980] 1 WLR 322 (p. 327A):

‘This [the exclusion of witnesses from the court] of course does not apply and never has applied to the parties themselves or their solicitors or their expert witnesses. Those are never excluded from the court.’

11.  Of course, what Sir John Arnold P. was referring to was a general instruction to witnesses who were yet to give evidence, that they were not to stay in court to listen to testimonies from the other witnesses.  The same principle, however, was also clearly applicable to the situation in which a litigant was testifying in court as a witness.

12.  If the procedure in a trial before a court was unfair, the Court of Appeal has the authority, as it considers appropriate, to overturn the judgment in the first instance and order a trial de novo.  In this regard, Order 59 Rule 11(1) of the Rules of the High Court, Cap. 4A, Laws of Hong Kong provides that the Court of Appeal may, ‘if it thinks fit’, make orders including one for a new trial.  Rule 11(2) further states in respect of 3 grounds, namely, misdirection, the improper admission or rejection of evidence, or because the verdict of the jury was not taken upon a question which the judge at the trial was not asked to leave to them, unless in the opinion of the Court of Appeal the mistake in question has ‘occasioned substantial wrong[1] or miscarriage’, an order for trial de novo does not necessarily ensue.

13.  In other words, Rule 11(1) applies unless the unfair hearing was one of those 3 situations stated above in Rule 11(2). This means the Court of Appeal has a generous discretion (‘if it thinks fit’) to decide whether it should make an order for a trial de novo.

14.  In this regard, Ms Lok has adduced some authorities in applications for judicial review to point out to the Court that it can refer to the practice of courts hearing judicial reviews: where the challenged decision involves procedural mistakes, unless the Court is of the view that such procedural mistakes have not occasioned any risk of prejudice to the applicant at all, relief should be granted by setting aside the decision in question, and ordering that the decision maker reconsider the matter .  On the contrary, if the court hearing the judicial review is of the view that even where there are procedural mistakes, but the result of the matters in question will invariably still be the same, relief may be refused in an exercise of discretion: see Leung Fuk Wah v The Commissioner of Police [2002] 3 HKLRD 653; Chu Ping Tak v Commissioner of Police [2002] 3 HKLRD 679. 

15.  This Court, in principle, accepts the submissions of Ms Lok.  If the unfairness at trial involved in a case falls under any 1 of the 3 scenarios stipulated under Order 59Rule 11(2), the Court will then have to act in accordance with what is stipulated by that rule and examine whether the procedural unfairness has ‘occasioned substantial wrong or miscarriage’ and deal with the case in exercise of its discretion.  However, if the unfairness at trial falls out of the 3 scenarios (as in this case), when the Court exercises the authority under Rule 11(1), the major factor under consideration is whether the unfairness in trial has not occasioned any risk of prejudice to the complainant at all.  If this cannot be made absolutely certain, the Court should exercise its discretionary power in ordering a re-trial or making any other orders as it considers appropriate.  If there is really no risk at all, the Court should still consider the nature as well as the extent of the seriousness of the unfairness in accordance with the situation.  If the nature and extent of the unfairness is very serious, though it may not have occasioned any risk of prejudice to the complainant, the Court can still exercise its discretion to order a re-trial or make any other orders as it considers appropriate.  The actual application of these principles has to be decided in accordance with the facts of the individual cases, and they are not meant to be exhaustive here.

16.  In relation to the requirement of an ‘independent and impartial’ court , this is completely in line with the stringent requirement the common law has for courts and judges to hear cases impartially.  The common law demands judges not only to maintain absolute neutrality, but also to maintain an appearance of holding a neutral stance throughout the trial.  In other words, the law does not allow any situations in which there is actual bias or that there is an appearance of bias, i.e. apparent bias.

17.  Actual bias is a rarity, whereas apparent bias occurs occasionally. The legal standard for apparent bias has been expounded in Deacons v White & Case Ltd Liability Partnership (2003) 6 HKCFAR 322 and Falcon Private Bank Ltd v Borry Bernard Edouard Charles Ltd (2014) 17 HKCFAR 281 by the Appeal Committee of the Court of Final Appeal.  To put it simply, the Court has to, first of all, ascertain all the situations which may contribute to apparent bias on the part of the tribunal, then the Court has to ask whether these situations would lead a fair-minded, well-informed bystander to assert that the tribunal may have lost its impartiality.

18.  Generally speaking, if apparent bias arises, then whether or not it occasions any risk of prejudice to the complaining party, the Court of Appeal will still overturn the judgment in the first instance and order a re-trial.  As pointed out in paragraph 59 in Incorporated Owners of Finance Building v Bright Hill Management Consultants Co Ltd [2010] 3 HKLRD 1 by this Court (Yuen and Kwan JJA), apparent bias affects the parties directly, and even the public confidence in the fair administration of justice on the part of the Court.  In this situation, generally the Court of Appeal will have no choice but to overturn the judgment in the first instance and order a re-trial so as to safeguard the confidence of the parties as well as the public in the fair administration of justice by the courts.  This is especially important to a society governed by the rule of law, and transcends the considerations of the merits of individual cases.

The Present Case

19.  With reference to the facts in the present case, what transpired in the final 4 minutes during the second day of the trial engaged the rights of the plaintiff guaranteed under Article 10 of the Bill of Rights.  A detailed classification would involve his rights as a party to be present during the whole trial, and also involve the issue that there should not be apparent bias on the part of the court.  As it has been analysed above, the requirements of a fair trial in these two aspects in the law have different focuses; they can exist independently, yet they appeared together in the present case.

20.  In relation to the plaintiff’s right to be present during the whole trial, obviously it has been violated.  Although the plaintiff was in the course of his testimony, as a party he was still entitled to be present during the whole trial, and should not have been ordered to leave the courtroom.

21.  That erroneous procedural order does not fall under any of the 3 scenarios as stated in Order 59 Rule 11(2). Therefore, that rule is not applicable.  On the other hand, this Court has the discretion under Rule 11(1).  In other words, this Court should consider whether the erroneous procedural order would occasion any risk of prejudice to the plaintiff’s action.

22.  In this regard, one has to consider the content of the conversation between the trial judge and the defence counsel after the plaintiff had left the courtroom.  Regarding the content of the conversation, the first main point is that the trial judge was of the view that as a witness, the plaintiff was unable to comprehend the questions put by the defence counsel, hence leading to irrelevant answers.  On this subject, the trial judge has on a total of 4 occasions mentioned that the plaintiff was unable to understand the questions during the cross-examination at all, and therefore suggested that the defence counsel may ask no further questions.

23.  Secondly, the trial judge was discussing with the defence counsel whether the ‘deemed put’ procedure should be adopted in the cross-examination.

24.  Thirdly, the trial judge was discussing with the defence counsel whether it was necessary for the defendants to call 8 witnesses.  The trial judge pointed out that the defence was not prosecuting in a magistrate’s court, where he would have a burden of proof beyond reasonable doubt;rather the defendant in a civil action does not bear the burden of proof, and the standard of proof is only one of balance of probabilities.  The trial judge requested the defence counsel to think over this issue during the adjournment that day.

25.  This Court is of the view that if the trial judge thought the plaintiff was unable to comprehend the questions during the cross-examination, thus leading to irrelevant answers, the correct way to handle it was not to ask the party conducting the cross-examination to stop asking further questions, but to think of ways to assist the plaintiff as a witness to understand the questions he was being cross-examined so that he may give relevant answers.  This was especially the case as the trial judge had pointed out that the plaintiff had the burden of proof.  If the evidence was unclear, it would have a direct bearing on the success of his claim.  It was probable that the way the trial judge handled it might have caused an impression that the judge considered the plaintiff ‘beyond help’as a witness, and therefore advised the defence counsel not to pursue with further questions.

26.  If the plaintiff had been present at that time, he might have raised enquiries with the judge, asking the the judge to remind him where he was mistaken or had failed to understand the questions, or had given a wrong answer, or explained to the court the difficulties he had with comprehending the questions while testifying, so as to enable him to give further answers during the cross-examination or to reply during the re-examination, or requested the court to put questions to the plaintiff after the cross-examination.  Some of these responses could be given by the plaintiff as a party, while some of them could be given while testifying as a witness.  If both identities were inappropriate, then that itself might be the indication that the judge should not have raised the matters in question for discussion at that stage of the trial.  No matter what, the plaintiff was not present, so he was unable to participate in the discussion and could not respond.

27.  This Court is of the view that the discussions between the trial judge and the defence about the burden of proof, the standard of proof and whether the defence needed to call 8 witnesses were inappropriate.  It was only the 2^nd day of the trial and the plaintiff was still in the course of his testimony, the development of the case was anything but predictable.  The defendant would of course have his own considerations as to whether to call 8 witnesses.  The testimonies of some of those witnesses might have a bearing on the plaintiff’s case, especially where the cases of the both sides were mainly based on the credibility of the testimonies.  Whether the witnesses testified in court and their demeanour during cross-examinations were of utmost importance.  If the plaintiff had been present, he could have objected to the judge’s expressing his own opinions on those matters.

28.  Based on these considerations, this Court cannot be certain as to: whether the judge would have conducted discussions or given suggestions in respect of the above topics if the plaintiff had been present then; whether the plaintiff would (or should) have raised objections or responded in other ways; whether the development of the case would have been the same; whether the trial judge’s finding of facts would have remained unchanged in any way; and whether he would still have formed exactly the same impression of the platintiff’s testimony.  These may all be unpredictable.

29.  Regarding the issue of apparent bias, as analyzed above, to a fair-minded, well-informed bystander the 4-minute conversation between the trial judge and the defence counsel could very likely cause an impression: that the trial judge was totally disappointed with the plaintiff’s ability to testify, and had adopted a give-up attitude, therefore he asked the defence counsel to shorten his cross-examination to save time.  Moreover, the trial judge was also of the opinion that since the burden of proof fell on the plaintiff, and he, being the most important witness of fact, performed so unsatisfactory in his testimony, it would be a waste of time for the defence to call 8 witnesses to refute allegations that the plaintiff was unable to prove.  In other words, from a bystander’s point of view, the Court might already have formed an inclination in respect of the merits of the case, so that even it was still the plaintiff testifying as the first witness at that stage, the rest of the trial did not mean much to the judge, and it should be finished as soon as possible.

30.  Moreover, the discussions leading to those impressions were conducted after the court had erroneously requested the plaintiff to leave the courtroom. From a bystander’s point of view, such misunderstanding even reinforced his impression that there was apparent bias on the part of the Court.

Results

31.  Based on these considerations, this Court is of the view that the error made by the trial judge cannot be remedied by any order.  Although his judgment is well-supported by detailed reasons, unfortunately it cannot rule out the risk of his error causing any prejudice to the plaintiff’s claim, nor can it eliminate the impression of apparent bias.  This Court is obliged to, without any other choice, order that the appeal is allowed, the judgment in the first instance is set aside, and the case will be remitted to the District Court to be tried by another judge.

32.  This Court has already heard submissions on costs.  This Court ordersthat the costs of the trial and those of the application for leave to appeal before the trial judge will be in the cause of the retrial; and the costs arising out of the application made to this Court for leave to appeal and those for this appeal will be paid by the defendants to the plaintiff.  Such costs are summarily assessed at $3,000 in the form of an order nisi.  Should any of the parties disagree with the quantum, a written application for variation may be lodged with this Court within 7 days after the handing down of this judgment.  The written application must attach the grounds (on no more than 2 sheets of A4 paper).  If the opposite party should object to such an application, the grounds of objections have to be raised in writing within 7 days after receipt of the written application. Then this Court will give a final assessment in writing.

33.  Finally, to be fair to the trial judge, it has to be pointed out that: there is nothing in this case to show that the trial judge held any actual bias towards the plaintiff.  Although the trial judge’s order that the plaintiff had to leave the courtroom was an erroneous procedural decision, obviously it was not an error made intentionally. Rather he was mistaken that since the plaintiff was a witness in the middle of his testimony, the witness should leave the courtroom when the Court and the defence counsel were discussing matters on case management and evidence in cross-examination, and had forgotten that the plaintiff was both a witness and a party, and that he was entitled to be present throughout the trial.  This Court is also undoubtedly of the view that the trial judge and the defence counsel started off the conversation with case management in mind, but sadly part of the content of the conversation was inappropriate.