HKSAR v. CHEUNG MAN CHOI

CACC 43 & 50/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 43 OF 2016

(ON APPEAL FROM HCCC 427 OF 2015)

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AND

CRIMINAL APPEAL NO 50 OF 2016

(ON APPEAL FROM HCCC 344 OF 2015)

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J U D G M E N T

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Hon Yeung Ag CJHC:

1.  I agree with the judgment of McWalters JA and I have nothing to add.

Hon McWalters JA:

2.  The applicant faced charges in two sets of High Court proceedings. 

3.  In HCCC 344/2015 the applicant appeared before Deputy High Court Judge Campbell-Moffat SC, as Campbell-Moffat J then was, (“the judge”) on 28 December 2015 and pleaded guilty to one count of “Trafficking in dangerous drugs”, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

4.  The Particulars of Offence alleged that on 19 January 2015 at a flat in Shatin the applicant, together with Wong Ho Yin, unlawfully trafficked in dangerous drugs, namely 456 grammes of a solid containing 164 grammes of cocaine, 0.06 gramme of a powder containing cocaine and 5.20 grammes of a crystalline solid containing 5.11 grammes of methamphetamine hydrochloride. 

5.  After pleading guilty to this offence his sentencing hearing was adjourned to 27 January 2016 and was heard together with the proceedings in HCCC 427/2015. 

6.  In HCCC 427/2015 the applicant appeared before the judge for the first time on 27 January 2016 and pleaded guilty to one count of “Conspiracy to traffic in a dangerous drug”, contrary to section 4(1)(a), 4(3) and 39 of the Dangerous Drugs Ordinance, Cap 134 and sections 159A and 159C of the Crimes Ordinance, Cap 200.

7.  The Particulars of Offence alleged that between an unknown day in July 2014 and 28 August 2014 in Hong Kong the applicant conspired together with Yau Kwok Yin and Chan Yik Tung, to unlawfully traffic in methamphetamine hydrochloride. 

8.  On 27 January 2016 the applicant was sentenced to a period of 8 years and 8 months’ imprisonment in respect of HCCC 344/2015.  On the same day the judge sentenced the applicant to 18 years and 8 months’ imprisonment for the offence in HCCC 427/2015.

9.  The judge then ordered that 4 years of the 8 years 8 months’ in HCCC 344/2015 should be served concurrently with the sentence imposed in respect of HCCC 427/2015.  The effect of this order was that 4 years 8 months was to be served consecutively to the sentence of 18 years and 8 months imposed in HCCC 427/2015.  This made a total sentence of 23 years 4 months’ imprisonment for both offences.

10.  The applicant thereafter applied for leave to appeal his sentences.

11.  At the hearing of the application for leave to appeal I informed Mr HY Wong, counsel for the applicant, of the fact that I had been involved in the hearing of an appeal by the one of the named co-conspirators in HCCC 427/2015, namely Yau Kwok Yin.  I had heard his appeal on 30 August 2016 and was the author of Reasons for Judgment handed down on 1 September 2016. 

12.  As a result of this disclosure counsel for the applicant indicated that he would wish to consider whether he should make an application that I recuse myself from the hearing of this applicant’s appeal.  After considering his position and taking instructions he indicated he would be making such an application.

13.  The parties were directed to file written submissions and subsequently did so.  This is my judgment on the recusal application.

The appeal of Yau Kwok Yin

14.  Yau Kwok Yin pleaded guilty to unlawfully trafficking in 4.11 kilogrammes of a crystalline solid containing 4.02 kilogrammes of methamphetamine hydrochloride and was sentenced to a total period of 18 years and 8 months’ imprisonment.  He applied for leave to appeal against his sentence and his appeal was based upon post-sentence assistance to the authorities.  This assistance took the form of providing the police with information on Cheung Man Choi, the applicant in the present proceedings. 

15.  In the course of my Reasons for Judgment, I referred to Yau Kwok Yin’s[1] characterisation of Cheung Man Choi as follows:

“16. There were three persons arrested in this police investigation. Ms Chan, whom the applicant had recruited, the applicant himself and Mr Cheung whom the applicant maintained was the mastermind of this international drug trafficking operation. Mr Cheung was subsequently released without being charged due to there being insufficient evidence to enable his prosecution. …

…

18. The person Mr Cheung, whom the applicant implicated as the mastermind of the drug trafficking operation, appeared before Deputy High Court Judge Campbell-Moffat, as she then was, on 27 January 2016 charged on two indictments.

…

20. The second count in HCCC 427/2015 related to the incident involving the applicant and Ms Chan and to this count Mr Cheung pleaded guilty.  Both Ms Chan and the applicant were listed as prosecution witnesses. …”

16.  When dealing with the grounds of appeal against sentence that were being advanced by Mr Jon Wong on behalf of Yau Kwok Yin, I said:

“23. … Mr Wong referred to the applicant having made a non-prejudicial statement on 14 July 2015 against Mr Cheung who, he submitted, was the ‘mastermind’ behind the drug trafficking. …

…

25. … As to the total discount to be afforded to the applicant, Mr Wong submitted that Mr Cheung was the mastermind of the offence and his re-arrest and plea of guilty were the result of the non-prejudicial statement given by the applicant.  Without that statement it would not have been possible to prosecute Mr Cheung. … Mr Wong did not suggest that by virtue of his assistance the applicant had exposed himself to the risk of harm.”

17.  When dealing with the respondent’s submissions I said:

“The respondent accepted that the applicant was a key witness for the prosecution in Mr Cheung’s case and that Mr Cheung was the mastermind of this drug trafficking operation.”

18.  In the “Discussion” part of the Reasons for Judgment I said in respect of my assessment of the value of the assistance provided by the applicant:

“30. There is no doubt that the applicant has provided genuine and valuable assistance to the police. By providing them with a witness statement the prosecution was able to charge a person whom it is accepted was the mastermind of this cross-border drug trafficking operation. Once this person realised the strength of the prosecution case against him he pleaded guilty to a charge of conspiracy to traffic in dangerous drugs. This was a person who would otherwise have escaped justice.

31. There is no doubt that it was the applicant’s cooperation which led to Mr Cheung’s plea of guilty and that without it the police investigation would only have resulted, as so frequently happens, in the punishment of the lower level traffickers.  As a result of the applicant’s assistance a much more senior and very active drug trafficker has been removed from circulation and appropriately punished.  Furthermore, the applicant was able to reveal more information about Mr Cheung which led to his prosecution on an additional count of conspiracy to traffic in dangerous drugs.  Although this count was left on the file it has been confirmed by Ms Wong that it played a part in the plea negotiations with Mr Cheung and in his ultimate decision to plead guilty.”

The judge’s Reasons for Sentence for the applicant

19.  The Summary of Facts which the applicant admitted for the purpose of his sentencing in HCCC 427/2015 summarised the contents of Yau’s non-prejudicial statement (NPS) to the police in which he recounted how he had been recruited by the applicant to traffic in “Ice” to Japan. 

20.  In her Reasons for Sentence the judge referred to Yau’s NPS saying:

“However, on 14 July 2015, a month before he was due to be sentenced, Yau made a non-prejudicial statement in which he made a number of allegations against you. In essence stating that you were the mastermind and that you had approached him to find Chan. By reason of the statement of facts before me you agreed that that was the case.”

21.  She took an equally adverse view of the applicant in respect of his conduct in HCCC 344/2015 which involved his recruitment of his co‑accused, Wong Ho Yin, who was only 15 years of age at the time of the offence.

22.  The judge described the applicant’s involvement in both offences as follows:

“These were two sets of offending which were very different. One is scheme to export dangerous drugs from this country to Japan using a drug mule or (as you call it ‘a pig’) who was to be paid well for the risk she undertook. At the time of arrest, she had already received $10,000 of the $50,000 she had been promised. And I also note from the papers that Mr Yau was to be paid $15,000 for his trouble. So it is clear that this was to be a lucrative arrangement for you.

The other matter appears at first blush to be a small-scale local operation carried out just some five months later using a vulnerable 15-year-old boy who was addicted to ‘Ice’. But it is interesting to note, however, that for a relatively small amount of cocaine - 164 grammes - your profitability in January 2015 was considerably increased in relation to the profitability on the 4 kilogrammes of ‘Ice’ which was to be exported to Japan in August 2014.

So whilst the operation may seem smaller, it would seem that the financial gain was just as significant, if not more so, and the harm was being done to citizens of Hong Kong.”

23.  Not surprisingly, the judge treated the applicant’s use of Wong, who was a minor at the time of the offence, as an aggravating feature, enhancing her starting point for the applicant in respect of this offence by one year.[2]

The applicant’s ground of appeal in his appeal against sentence

24.  The applicant advances only one ground of appeal and that is that the total sentence of 23 years 4 months’ is manifestly excessive.  The applicant argues that this total sentence for 4 kilogrammes of “Ice” and 164 grammes of cocaine represents a notional starting point for the two offences of 35 years’ imprisonment, yet the tariff for 4-15 kilogrammes of heroin is only 26-30 years’ imprisonment.

25.  Mr Wong makes it clear in his written submissions that he takes no issue with the individual sentences and the only issue is whether the judge approached totality properly.

26.  No challenge is made to the judge’ statement in her Reasons for Sentence that the applicant was the mastermind or to the judge’s comments in respect of the applicant being the recruiter of Wong in HCCC 344/2015 and being responsible for ruining this young boy’s life.

The applicant’s submissions on the recusal application

27.  Mr Wong makes it very clear in his written submissions that he is not suggesting at all that there is any prospect of any actual bias by me if I were to hear his client’s application for leave to appeal.  He said the recusal application is based upon apparent bias.  He submitted that what I came to know, and what I had said, in Yau’s appeal, would give rise to the perception of a real possibility of bias or a reasonable apprehension of bias in this applicant’s application for leave to appeal. 

28.  He referred to the test for apparent bias as set out by the Court of Final Appeal in HKSAR v Md Emran Hossain[3] At paragraph 36 of his judgment Fok PJ, with whom the other members of the court agreed, said:

“36. The test for apparent bias in Hong Kong is the reasonable apprehension of bias test applied by the Appeal Committee in its determination in Deacons v White & Case Ltd Liability Partnership & Ors at [18] to [21], namely:

‘The court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility ... that the tribunal was biased.’

Although that was said in the context of a civil case … there is no reason why the same test should not apply where it is said that there is apparent bias on the part of the judge in a criminal case …

37. The test of apparent bias is an objective one and the issue is considered from the viewpoint of an observer who is both fair-minded and informed. The qualities of such an observer were described by Lord Hope in Helow v Secretary of State for the Home Department and another:

‘2. The observer who is fair-minded is the sort of person who always reserves judgment on every point until she has seen and fully understood both sides of the argument. She is not unduly sensitive or suspicious, as Kirby J observed in Johnson v Johnson (2000) 201 CLR 488, 509, para 53. Her approach must not be confused with that of the person who has brought the complaint. The “real possibility” test ensures that there is this measure of detachment. The assumptions that the complainer makes are not to be attributed to the observer unless they can be justified objectively. But she is not complacent either. She knows that fairness requires that a judge must be, and must be seen to be, unbiased. She knows that judges, like anybody else, have their weaknesses. She will not shrink from the conclusion, if it can be justified objectively, that things that they have said or done or associations that they have formed may make it difficult for them to judge the case before them impartially.

  3. Then there is the attribute that the observer is ‘informed’. It makes the point that, before she takes a balanced approach to any information she is given, she will take the trouble to inform herself on all matters that are relevant. She is the sort of person who takes the trouble to read the text of an article as well as the headlines. She is able to put whatever she has read or seen into its overall social, political or geographical context. She is fair-minded, so she will appreciate that the context forms an important part of the material which she must consider before passing judgment.’”

29.  Mr Wong then referred to statements made by me in the appeal of Yau Kwok Yin where I referred to the applicant as “the mastermind of this cross-border drug trafficking operation” and as being “a much more senior and very active drug trafficker”.  Mr Wong relied upon a statement in Fok PJ’s judgment in Hossain where he referred to a comment by Laws LJ in Sengupta v Holmes[4]when discussing the circumstances which might give rise to a perception of bias.  Fok PJ said at paragraph 45 of his judgment:

“45. However, that is not to say that there might never be circumstances in which a single judge who has refused leave to appeal would be in a position in which the fair-minded and informed observer would consider there to be a real possibility that the judge might be biased on a subsequent hearing of the underlying merits of the case. In Sengupta v Holmes, Laws LJ gave as examples: (i) where a judge of first instance has committed himself to a view of the facts which he had the responsibility to decide (at [32]); (ii) where he had decided that a party or witness was a crook or a rogue (at [33]); and (iii) where he had expressed himself in such vituperative language that any reasonable person would think him unable to take a fair view of the case if called on to revisit it (at [34]).[26] Since cases of apparent bias are necessarily fact sensitive,[27] this list is not closed and there may be other particular instances in which apparent bias may be shown. Other than in these types of case, though, there is no reason to think that, in the ordinary case of judicial reconsideration of an issue such as leave to appeal, the fair-minded and informed observer would harbour any misgivings as to the ability of the judge to bring a fair and open mind to bear on the issue before him.”

30.  Mr Wong relied on the third example quoted by Fok PJ and submitted that my reference to Cheung being “A much more senior and very active drug trafficker” was an example of vituperative language and that by expressing myself in this way “any reasonable person would think [me] unable to take a fair view of the case if called on to revisit it.”.

The respondent’s submissions on the recusal application

31.  Ms Peggy Lo, Senior Public Prosecutor, for the respondent submits that when I was referring to Cheung as a mastermind in those parts of the Reasons for Judgment dealing with Yau’s ground of appeal and the respondent’s reply to them I was doing no more than reciting the positions they were advancing and not recording a personal view that I had adopted.  When expressing the court’s view in the “Discussion” part of the judgment I was expressing a view based upon and derived from what was agreed by the parties for the purposes of Yau’s appeal.

32.  The respondent also referred to the comment of Fok PJ in the Hossain case about the informed observer being aware of the judicial oath sworn by judges and that judges will generally try to live up to the high standard which it imposes.

Discussion

33.  Although neither party has alluded to it, it seems to me that there are two quite separate aspects to the recusal application.  The first is whether there would be an appearance of bias in my determination of the merits of the application for leave to appeal against sentence.  If I participated in the appeal and the Court of Appeal concluded there was merit in the appeal and was, as a consequence, called upon to sentence the applicant afresh then the second aspect would arise of whether there would appear to be a real possibility of bias in my participating in the re-sentencing of the applicant. 

34.  The test for apparent bias requires that the court “first ascertain all the circumstances which have a bearing on the suggestion that the judge was based.”  These circumstances essentially come down to comments made by me in the Yau Reasons for Judgment in which I characterized the applicant as the mastermind of a cross-border drug trafficking operation and as a much more senior and active drug trafficker. However, for these comments to be capable of constituting bias it seems to me that they have to be relevant to the applicant’s appeal and to represent a view of the applicant which he challenges and would be asking the Court of Appeal not to act upon when determining the merits of his appeal, and should it come to it, when re‑sentencing him.  

35.  Yet, part of the factual context of the applicant’s appeal is that the judge in his case made similar findings of fact in respect of him and these findings of act are not being challenged on appeal.[5] Thus, it seems to me that for the purpose of determining the applicant’s appeal I would not be asked to depart from the views that I expressed in the Yau Reasons for Judgment.  If that is so then the applicant has not surmounted the hurdle of showing a factual basis for the perception of bias.  This is relevant to both aspects of the recusal application.

36.  However, I shall also address what the position would be on the assumption that, as part of his appeal submissions, the applicant is asking the Court of Appeal to find that the judge erred in her portrayal of the applicant or that what Yau said was mere self-serving exaggeration designed to maximise his sentencing discount or that at least in respect of my description of the applicant as “a much more senior and very active drug trafficker”, I went beyond anything said by the judge when sentencing the applicant.

37.  Even, in that situation it seems to me that there is no basis for me to recuse myself.  I say that for a number of reasons.  The first is part of the factual context of the Yau Reasons for Judgment.  The Yau appeal proceeded on the basis that there was no factual challenge to what was being said on behalf of Yau as to the nature of his assistance.  Nor was any challenge made to the assessment of the value of that assistance.  Consequently, there was no need for the Court of Appeal to embark upon a fact finding enquiry through a contested, adversarial process at the end of which it would reach its own conclusions on both these matters.  Thus, the views that the court expressed on the nature and value of Yau’s assistance merely repeated the agreed views of the parties.  They did not represent views to which the court was committed because the court had not been invited to independently reach its personal view of these matters.  There was no pre-judgment by the court.  This is an important contextual fact which would be known to the fair‑minded and informed observer. 

38.  Secondly, as Ms Lo points out, also relevant, and which must be taken into account, is the knowledge and appreciation that the informed observer will have of “the qualities of a judge and the essential characteristics of the judicial function and process.”

39.  At paragraphs 41-42 of his judgment in the Hossain case Fok PJ discussed this aspect of the fair-minded and informed observer.  He said:

“41. … the consideration by the fair-minded observer is necessarily informed by objective appreciation of the qualities of a judge and the essential characteristics of the judicial function and process. As the High Court of Australia said in Johnson v Johnson:[20]

‘12. ... At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is ‘a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial’.

13. Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. ...’

42. The significance of the judicial oath, which in Hong Kong (like in other jurisdictions) imposes on judges a duty to ‘safeguard the law and administer justice without fear or favour, self-interest or deceit’,[21] is not to be overlooked: it is an important bulwark of judicial impartiality. It expresses the ‘general rule of the common law ... that judges must apply the law as they understand it to the facts of individual cases as they find them without fear or favour, affection or ill-will, that is, without partiality or prejudice.’[22] The fair-minded and informed observer will be aware of the oath and that judges will generally ‘try to live up to the high standard which it imposes’: see Davidson v Scottish Ministers [2004] HRLR 34 at [18].”

40.  In discussing the judgment of Laws LJ in Sengupta v Holmes, Fok PJ said in the Hossain case:

“43. … Laws LJ considered what would be known to the fair-minded and informed observer, which included the following features. … He regarded a readiness to change one’s mind on an issue to be ‘a commonplace of all the professions, indeed of the experience of all thinking men and women’ and the fact that judges do change their minds under the influence of oral argument to be a central feature of the adversarial system.[24] Another important feature of the English legal culture which Laws LJ considered important was the expectation that a judge would be positively expected to alter an earlier expressed view if objectively persuaded by his colleagues that it should be altered.[25]

44. In my view, all these features of the English common law system described by Laws LJ apply equally to Hong Kong and inform the view of the fair-minded observer in this jurisdiction.”[6]

41.  Once the fair-minded and informed observer appreciated that the comments made in the Yau Reasons for Judgment were made upon an agreed view of the nature and value of Yau’s assistance and once this observer took into account the essential characteristics of the judicial function and process, I have no doubt that this observer would not conclude that there was a real possibility of me being biased in my adjudication of this applicant’s appeal.

42.  The applicant submits that the perception of bias arises from my use of vituperative language when I described the applicant as “a much more senior and very active drug trafficker”.  I do not accept that is “vituperative language”.  These words do not more than state an inferential finding of fact based upon the information provided to the court for the purpose of adjudicating Lau’s appeal.  Vituperative language is invested with the emotions of the speaker and reflects very strongly held personal views expressed in an abusive manner.  The words complained of do not come anywhere close to being vituperative language.

Conclusion

43.  For these reasons I would hold that the application that I recuse myself from participating in the applicant’s appeal is not well founded and I would dismiss it.