R. v. HO CHIU HUNG

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.359 OF 1996

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J U D G M E N T

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1. The Appellant was convicted before a magistrate after a trial of two offences :

Charge B - Dealing with goods to which the Dutiable Commodities Ordinance applies.

Charge C - Possession of goods to which the Dutiable Commodities Ordinance applies.

2. When the case was first before the magistrate on 22nd January 1996, the Appellant through his counsel submitted that the magistrate had some three weeks before, on 4th January 1996, convicted and fined the Appellant on a charge similar to Charge B after the Appellant had pleaded guilty to it. In order that justice be seen to be done, the magistrate should in exercise of his discretion transfer the case to another magistrate for trial. The application for transfer was refused by the magistrate on the ground that being a professional magistrate, he was able to dismiss from his mind the Appellant's previous conviction and to decide the case on the evidence before him.

3. The case was then adjourned. On the adjourned date, the trial proceeded before the same magistrate. Most of the facts including some photographs were admitted and the prosecution called only one witness. The facts were that the Appellant was a lorry driver and on the date of the offence, he was hired to transport and to help moving cartons of goods from a container truck to his lorry for $700. Customs and Excise Officers came onto the scene and saw the Appellant moving the cartons. There were 245 large cartons and 50 small ones in total in the two trucks. These were found to contain dutiable cigarettes in respect of which no duty had been paid. These cartons did not bear any mark on the outside indicating they contained cigarettes and some of them had markings showing the contents were food containers. The Appellant was arrested and a bunch of keys was found on his person. The keys were keys of the premises in Kin Hing Building particularised in Charge C. Inside those premises, there was a room. The keys could also open the door of this room. But there was an additional combination lock on this door. The Appellant did not know its combination number which the officers obtained from a co-defendant. Inside the room were dutiable cigarettes, the subject matter of Charge C. In a cautioned statement made after his arrest, the Appellant stated that he did not know there were dutiable goods inside the cartons.

4. The defence of the Appellant was he did not have knowledge that the cartons contained dutiable cigarettes and neither did he know there were dutiable cigarettes inside the room. At the close of the prosecution case, the Appellant again through his counsel indicated to the magistrate that the Appellant chose not to give evidence because he felt uncomfortable about giving evidence because the magistrate knew his criminal record. The magistrate indicated that he would not take into account his previous conviction in coming to any conclusion in the case. Nevertheless the Appellant elected not to give evidence. He was subsequently convicted of the two charges.

5. The magistrate in his statement of findings said :

"In relation to the B charge there was no dispute that D4 (the Appellant) had been moving the large carton boxes containing the dutiable cigarettes at Yuen Shun. The question remained was whether he did so in the knowledge that the goods contained in the large carton boxes were of the kind to which the Dutiable Commodities Ordinance applied. Mr Yu sought to argue that the evidence in this regard was insufficient and relied upon D4's claim in his caution statement (P17) that he had no knowledge of the kind of goods he was moving. Although the defendant himself was under no duty to testify I did take into account the fact that this claim of lack of knowledge in P17 on the part of D4 had not been made under oath or affirmation and was not therefore the subject of cross examination. Notwithstanding the fact that it would not have been apparent from mere inspection of the markings of the large carton boxes that dutiable cigarettes were inside, I found I could attach no weight at all to D4's claim that he did not know the contents of the large carton boxes. The consignment of goods was large and D4 on his version was being paid HK$700 to move them and yet despite this he claimed to have no idea what he was moving. I found his claim unsustainable and not credible. ..."

The magistrate then drew the inference that the Appellant knew they were dutiable goods.

6. On the C charge, the magistrate also rejected the Appellant's claim of knowledge of the number of the combination lock and relying on the evidence that he had the keys to the premises, found the Appellant knew the number of the combination lock as well as there were dutiable cigarettes inside the room.

7. On his refusal to transfer the case to another magistrate for trial, the magistrate said :

"Prior to my starting this case D4's counsel had sought to persuade me to transfer D4's case to another magistrate for trial since I had dealt with D4 in another case where he had pleaded guilty to a dutiable cigarettes charge and I had fined him. I however rejected the application ruling that as a professional magistrate sitting alone I was confident that I could deal with this case solely on the evidence produced and disregard D4's similar previous conviction in considering his guilt or otherwise on the charges he faced. That is the approach which I ultimately adopted."

8. The Appellant now appealed against his convictions. The main ground of appeal is that the magistrate erred in law in that he failed to consider having regard to all the circumstances of the case whether there was a real danger of bias on his part in particular whether there was a real danger that his mind may unconsciously be affected by bias.

9. Mr Grounds for the Appellant relied on R v. Gough (1993) AC 646. Mr Lo for the Crown did not disagree that it is the leading authority today on bias.

10. Mr Grounds submitted that the magistrate had not applied the correct test of bias in Gough and despite the magistrate might have intended not to be bias, he might have been unconsciously affected. He referred to the following paragraph in Gough :

"... But there is also the simple fact that bias is such an insidious thing that, even though a person may in good faith believe that he was acting impartially, his mind may unconsciously be affected by bias - a point stressed by Devlin LJ in R. v. Barnsley Licensing Justices, Ex parte Barnsley and District Licensed Victuallers' Association [1960] 2 QB 167, 187. In any event, there is an overriding public interest that there should be confidence in the integrity of the administration of justice, which is always associated with the statement of Lord Hewart CJ in Rex v. Sussex Justices, Ex parte McCarthy [1924] 1 KB 256, 259, that it is 'of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done'."

11. It was submitted that the fact that the two charges required proof of knowledge and the magistrate was aware of the Appellant's previous admission of knowledge in his plea of guilty to a similar charge, gave rise to the possibility of bias and over compensation when the magistrate concluded that he found the Appellant had the necessary knowledge. The magistrate had not applied his mind to the question: would there be unconscious bias because of his knowledge of the Appellant's previous conviction?

12. Mr Lo referred to two cases. Yu Tit-shing and another v. R. Cr. App. 695/71 and Wong Wai Fat v. R. MA 466/85. The first case decided that knowledge of a defendant's criminal record would not bar a judge from trying a case against the defendant and where a judge was satisfied that he could proceed without bias, he did not exercise his discretion wrongly. In the second case, the court relied on Yu Tit-shing and concluded that justice had still been seen to be done where a judge or magistrate who had had a particular defendant before him before is no bar to that judge or magistrate proceeding to hear another case and do justice according to law in the second case.

13. These two cases were decided before the decision of Gough in the House of Lords which is binding in this court.

14. The test in Gough is to be found on p.670 of the case :

" In conclusion, I wish to express my understanding of the law as follows : I think it possible, and desirable, that the same test should be applicable in all cases of apparent bias, whether concerned with justices or members of other inferior tribunals, or with jurors or with arbitrators. Likewise I consider that, in cases concerned with jurors, the same test should be applied by a judge to whose attention the possibility of bias on the part of a juror has been drawn in the course of a trial, and by the Court of Appeal when it considers such a question on appeal. ... in any event the court has first to ascertain the relevant circumstances from the available evidence, knowledge of which would not necessarily be available to an observer in court at the relevant time. Finally, for the avoidance of doubt, I prefer to state the test in terms of real danger rather than real likelihood, to ensure that the court is thinking in terms of possibility rather than probability of bias. Accordingly, having ascertained the relevant circumstances, the court should ask itself whether, having regard to those circumstances, there was a real danger of bias on the part of the relevant member of the tribunal in question, in the sense that he might unfairly regard (or have unfairly regarded) with favour, or disfavour, the case of a party to the issue under consideration ..."

15. The test of bias in Gough was applied in Aaron Patrick Nattrass v. AG MP 2337/95 by Keith J. but he added that in order to determine whether there is a real danger of unconscious bias on his part, one of the factors which it is permissible for the judge to take into account is whether an informed and fair observer would think that such a real danger existed.

16. The magistrate was aware of the Appellant's previous conviction 3 weeks ago on a charge similar to Charge B. The magistrate convicted him by his own plea of guilty. By his own plea the Appellant on that occasion admitted he had knowledge of the goods being dutiable goods. Knowledge is a vital element of the B and C charges which the prosecution must satisfy the magistrate beyond reasonable doubt. The magistrate rejected the Appellant's claim of lack of knowledge and inferred from the large number of boxes being handled that the Appellant knew the cartons contained dutiable cigarettes and he also relied on the Appellant's possession of the keys to infer that the Appellant knew there were dutiable cigarettes in the room inside the premises. In these relevant circumstances, there is a real danger of the magistrate being unconsciously bias against the Appellant in reaching his finding that the Appellant had the necessary knowledge.

17. The magistrate in refusing to transfer the case to a different magistrate only considered whether he would be personally bias but he failed to consider all the circumstances including whether the circumstances dictated that no other magistrate could hear the case and the admission of knowledge by the Appellant in his previous plea before him might have unconsciously influenced

him in his findings against the Appellant. The magistrate had not applied the test in Gough. The convictions cannot stand. The appeal is allowed and the convictions quashed and sentence set aside. The case is remitted back to the Magistracy for a retrial before another magistrate.