HKSAR v. LAI KWAI WAH AND OTHERS

IN THE HIGH COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.268 OF 1997

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REASONS FOR DECISION

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1. The three appellants were convicted of one count each of Assault Occasioning Actual Bodily Harm, contrary to the Offences Against the Person Ordinance and the 2nd appellant was convicted of an additional charge of Criminal Damage. They were sentenced to three months' imprisonment and all were granted bail pending appeal.

2. The victim of the case was a taxi driver. In the early hours of 19 March of last year, after some disputes over the manner of driving the respective vehicles, the victim's taxi was intercepted by the three appellants and he was assaulted and injured. The windscreen of the taxi was also damaged.

3. This appeal turns not on the findings by the learned magistrate but on the way in which he had conducted the trial. Counsel for the appellants argued that from the record of proceedings it was apparent that the learned magistrate had not only descended into the arena but he had a preconceived notion about the guilt of the appellants even before the trial had commenced. The learned magistrate's state of mind, it was submitted, had manifested itself by :

1) his reference to the fact that a plea of guilty would be treated as a substantial mitigating factor. His remarks in this context were made after he had read the brief facts of the case. What followed was an inquiry as to whether a plea should be taken from the appellants. This course of action must have created the impression that the learned magistrate had looked at the facts, accepted them and then invited the appellants to enter a plea of guilty.

2) his frequent interruptions by way of questions from the bench during the proceedings. Learned senior counsel had counted upwards 260 interjections from the bench during cross-examinations of the principal prosecution witness alone. Despite the fact that the questions asked by the learned magistrate were labelled by him as clarifications on evidence, their culminative effect, it was argued, was to obstruct or hinder an otherwise competent piece of cross-examination.

3) his indicating to the court prosecutor that there is no need to conduct any further cross-examination on the defendants thereby giving an impression that he had already determined the outcome of the trial.

4) his departure from the accepted procedures of cross-examination of the prosecution witness on previous consistent statement by insisting that the witness should be given a copy of the statement in question to refresh the witness's memory. That again, it was argued, was a further hinderence of the proper conduct of the defence case.

4. Mr Liu for the prosecution submitted that the reference by the learned magistrate to a plea of guilty as a mitigating factor was no more than a general statement and it could not be construed as an invitation to plea.

5. As for the interruptions from the bench during cross-examination, Mr Liu argues that they were genuine efforts by the learned magistrate to clarify ambiguities in the evidence and it was so referred to by the magistrate as such in his statement of findings. I think it was not a matter of how those questions were labelled but the substance of those questions which is important. If they had the effect of obstructing the flow of cross-examination, then it would be ground for concern. By looking at the transcript of proceedings, one is left with the distinct impression that, by the way in which the questions were put to the witnesses by the learned magistrate and the number of interruptions from the bench, I cannot help but have the feeling that the learned magistrate had descended into the arena.

6. A judicial officer must be seen to be impartial in all the cases coming before him for trial and he must not suffer himself to be criticised as being biased or having a preconceived idea about the guilt or innocence of a defendant in any way. It is with some regret that the criticism levelled against the lead magistrate in the present case is to a large extent justified.

7. On the point of the learned magistrate's remarks that a guilty plea would be considered cogent factor in mitigation and would be reflected favourably in the sentence for the appropriate offence, I think it would be suffice for me to say that such practice should be discouraged. The remarks of the learned magistrate may be his genuine opinion based on the strength of the case as disclosed in the "Brief Facts". But not infrequently, the evidence presented at the hearing may be very different from that which is stated in the "Brief Facts". A magistrate's duty is to receive the evidence and try the case. He should refrain from making remarks on the perceived strength or weakness of the case of the parties lest they be misunderstood to be an inducement from the bench for a plea of guilty. We have come to a stage where the bulk of cases in the magistracies is legally represented and I think it should be left to the legal representative of the defendants to advise their clients on the merits of their case and also of the possible effects of a plea of guilty. In giving such advice, they will no doubt have access to information which would otherwise not be available to the court, one example of such information would be the previous conviction of a defendant.

8. On the records of proceedings before me, it appears that the learned magistrate had failed to meet the standard of fairness that is expected of him. For the reasons given, I do not think the convictions of the appellants are safe and satisfactory. This appeal is allowed, the convictions are quashed and the sentences are set aside.