HKSAR v. LEUNG KWOK HUNG AND OTHERS

FAMC No. 10 of 2007

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 10 OF 2007 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL
FROM HCMA NO. 335 OF 2006)

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Appeal Committee: Mr Justice Bokhary PJ, Mr Justice Chan PJ and Mr Justice Ribeiro PJ

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DETERMINATION

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Mr Justice Bokhary PJ:

1.  The prosecution seeks leave to appeal to the Court of Final Appeal from a judgment of the High Court (Nguyen J) quashing the defendants’ convictions on two charges laid under the Summary Offences Ordinance, Cap.228.  Charge 1 was of obstruction of a public place, contrary to s.4A, while Charge 2 was doing an act whereby an obstruction may accrue to a public place, contrary to s.4(28).  Both charges arose out of a demonstration staged by the defendants at the entrance of the southbound carriageway of the Eastern Harbour Tunnel on 29 April 2005 in protest against a toll increase due to take effect on 1 May 2005.  Charge 1 involved the defendants leaving four vehicles unattended at that entrance while Charge 2 involved them standing behind those vehicles, displaying a banner and chanting slogans.

2.  There are two discrete bases on which the judge quashed these convictions.  Of these, the first concerns the magistrate’s conduct of the trial while the second flows from some of the judge’s statements on the law of obstruction.  In regard to the first, the prosecution seeks leave to appeal to the Court of Final Appeal under the “substantial and grave injustice” limb of s.32(2) of the Court’s statute.  And in regard to the second, the prosecution seeks such leave under the “point of law” limb of that subsection.

3.  Of the two points which the prosecution asks us to certify, the first arises out of the judge’s statement that “[t]here was, in fact, no evidence adduced to show whether the members of the public who were affected by the protest in fact tolerated the inconvenience”.  And the second arises out of the judge’s statement that events showed “the tolerance accorded to [the defendants] by the harbour tunnel company and by the police [and that it] was only as a result of the tolerance afforded to the demonstrators that the demonstration in fact took as long as it did”.

4.  Putting them in our own words, the prosecution’s two points of law are these.  (1) Establishing the unlawfulness of an obstruction does not require – indeed it does not permit – calling members of the public to state their views of the obstruction.  (2) How long the police or anybody else waited before making arrests or taking any other steps to put an end to an obstruction is not a basis for deciding whether the obstruction was unlawful.  The prosecution’s two points of law are so plainly consistent with the Court of Final Appeal’s decisions on the law of obstruction that it is unnecessary to refer them to the Court of Final Appeal.

5.  Turning now to the magistrate’s conduct of the trial, the first thing to mention is that until the prosecution re-opened its case after all the closing speeches had been made, the prosecution’s evidence consisted solely of facts admitted by the prosecution and all the defendants under s.65C of the Criminal Procedure Ordinance, Cap.221.  Until then the only witness was the 1st defendant, Mr Leung Kwok Hung (who appeared in person before the magistrate, the judge and us).  We pause here in order to make this observation.  Experience teaches that, save in rare and exceptional circumstances, there are often hazards, sometimes fatal, in the prosecution relying solely on admitted facts.

6.  The order of final speeches was reversed so that the prosecution had the last word and Mr Leung’s final speech was the first such speech.

7.  During Mr Leung’s final speech, the magistrate asked him – an unrepresented defendant who had given evidence and was then making his submissions – how many cars had been obstructed.  That was a matter of evidence on which Mr Leung, when he was in the witness-box, could have been cross-examined by prosecuting counsel or even questioned in an impartial manner by the magistrate himself.  But it was inappropriate for the magistrate to question him on it during his final speech.  That involved extracting evidence from him, perhaps in the nature of an admission against his interests, at a stage of the trial not meant for receiving evidence.  Mr Leung obviously appreciated as much, for he said to the magistrate that it was a matter of evidence for the prosecution to have adduced.  Undaunted, the magistrate invited Mr Leung to give an estimate of how many vehicles had been obstructed.

8.  Asking inappropriate questions proved infectious in this instance, and Mr Leung asked one : enquiring if the magistrate would accept it if he were to say 10,000 cars.  The antidote to the infection was promptly administered by the magistrate who told Mr Leung not to be impertinent.

9.  That was followed by Mr Leung responding, accurately, to the effect that he was not obliged to supply evidence by making the estimate which he had been invited to make.  Whereupon the magistrate pronounced that everyone had to assist the court on the extent of the inconvenience caused to the public.  The obvious problem with that pronouncement is simply this.  By that time the magistrate was hearing final speeches.  And while he could seek assistance by way of submissions, he could not gather evidence : most especially and emphatically not by extracting anything in the nature of an admission from an unrepresented defendant whose evidence had concluded and who was then making his final speech.  Whether the magistrate would have held Mr Leung in contempt of court if he had persisted in declining to make the estimate, on which the magistrate had become so insistent, is unknown.  Either because he thought that discretion was the better part of valour or for some other reason, Mr Leung asked for time to make the estimate.  After an adjournment, Mr Leung told the magistrate that from his observation of the video tapes, his estimate was “a few tens of cars”.

10.  Mr Douglas Kwok (who appeared for the 2nd to 5th defendants before the magistrate) then made his final speech.  Lastly Mr Robert Lee (who conducted the prosecution’s case before the magistrate and was led by Mr John Reading SC for the prosecution before the judge and us) made his final speech.

11.  After Mr Robert Lee had said what he wanted to say in his final speech, the magistrate asked him when the obstructing cars had been removed.  This involved supplying evidence, and Mr Robert Lee no doubt wondered how a prosecuting counsel was expected to supply evidence in his closing speech.  Pressing on, the magistrate invited both the prosecution and the defence to provide him with the information which he was seeking.  Mr Kwok objected to that as unfair.  For making that legitimate objection, he was rebuked by the magistrate.  Raising his voice, the magistrate said that as a lawyer Mr Kwok had a duty, together with his clients, to tell the magistrate what he wanted to know.

12.  Still in a raised voice, the magistrate proceeded to insist that both the prosecution and defence tell him when the obstructing cars had been removed.  And if they could not tell him that, the magistrate said, then they were duty-bound to call witnesses who could.  One can readily imagine how bewildering the defendants must have found this assertion of the magistrate’s to the effect that they were duty-bound to complete the case against themselves.  Matters were made worse when the magistrate said that the case could not be considered as at an end until the matter was clarified.  Did this mean, one is naturally left to wonder, that the defendants would remain on trial indefinitely until the magistrate got what he wanted?

13.  The rest of that day’s hearing was taken up by an exchange between the magistrate and both counsel, in the course of which defence counsel was chided by the magistrate for unwillingness to assist.  This exchange ended with the magistrate saying that what he regarded as ambiguous words in the admitted facts could be deleted or the prosecution could re-open its case and call witnesses.

14.  Narrating such conduct on the part of the magistrate is a painful duty, but it is a duty all the same being essential to the just disposal of this application.  There is some consolation.  It can be said that the magistrate was obviously anxious to do what he believed to be right.  And one can point to these very proper efforts made by Mr Robert Lee.  First, he had pointed out to the magistrate that if there was a reasonable doubt on any vital matter, the case should be disposed of in the defence’s favour.  Secondly, he had spoken to the effect that re-opening the prosecution’s case at such a late stage would be going a step too far.

15.  However, understandably having regard to the magistrate’s attitude, Mr Robert Lee did formally apply on the next day to re-open his case to call two witnesses.  The defence opposed the application, no doubt without any expectation that the magistrate would manage to listen to its objection with any measure of detachment.  To nobody’s surprise, the prosecution’s application was granted.  Two prosecution witnesses then gave evidence about the removal of the obstructing vehicles.  Their evidence may not have turned out to be either controversial or important.  Be that as it may, what is deeply disturbing is the magistrate’s insistence on extracting further evidence rather than – as even prosecuting counsel had suggested – deciding the case on what the parties had placed before him by way of evidence, convicting if there was no reasonable doubt of guilt but acquitting otherwise.

16.  When quashing the convictions on the basis of the magistrate’s conduct of the trial, the judge said this :

“In my judgment, unfortunately, even if justice was done, it was not manifestly seen to be done.  This would constitute a material irregularity, and on this ground alone, the appeals against conviction must be allowed”.

17.  Cases like this one should be approached on the basis which the Court of Appeal indicated in R v. Lau Hing-on, Criminal Appeal No. 378 of 1986, 4 December 1986, at p.4 and reiterated in R v. Lo Shu Keung [1992] 1 HKC 71 at p.77D – E.  Slightly refining what was said in those cases, we would put it like this.  In a criminal case tried by a judge without a jury or by a magistrate, if the judge or magistrate’s conduct of the trial has lost him the appearance of impartiality, the question, at least in general, is whether there is a real danger, as opposed to a merely fanciful one, that his conduct had actually influenced his decision adverse to the defendant so as to have deprived the defendant of a fair trial.  A real danger of that is a basis for quashing the conviction or convictions concerned and, at least in general, the same should then be quashed.  We take the precaution of putting it like that because, given the problems that saying “never” can sometimes cause, it is best not to rule out the possibility of cases where the just course would nevertheless be to affirm the conviction or convictions (by the application of the proviso where s.83 of the Criminal Procedure Ordinance applies or on the basis explained in Ching Kwok Yin v. HKSAR (2000) 3 HKCFAR 387 at p.390C – G where s.119 of the Magistrates Ordinance, Cap.227, applies).

18.  In our view, it is plain beyond reasonable argument to the contrary that the magistrate’s conduct of the trial had lost him the appearance of impartiality, and that there is a real danger that such conduct had actually influenced his decision to convict so as to have deprived the defendants of a fair trial.  There is no basis on which it can be said that the just course in the circumstances of this case is nevertheless to affirm these convictions.  In substance therefore the quashing of these convictions by the judge involved no reasonably arguable departure from accepted norms.  It would accordingly be academic on any view for the prosecution’s two questions of law to be referred to the Court of Final Appeal in this case.

19.  For the foregoing reasons, leave for the prosecution to appeal to the Court of Final Appeal is refused.  This determination is not to be taken as any indication that an obstruction such as the one which appears to have been caused in the present case could not properly be held unlawful after a fair trial.