HASHIMI HABIB HALIM v. SECRETARY FOR JUSTICE

HCAL 269/2017

[2019] HKCFI 548

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 269 OF 2017

___________________

___________________

___________________

J U D G M E N T

___________________

Introduction

1.  This is an application for judicial review of the decision of Mr Colin Wong dated 26 April 2017, in which the learned magistrate recused himself from further hearing a criminal trial listed before him and in which the first prosecution witness (“PW1”) had commenced his evidence.  Under his Form 86 dated 6 June 2017 and in his affirmation in support, the applicant seeks an order of certiorari to set aside the decision of the magistrate.  In short, he wishes the trial to re-commence before the same magistrate because he had already achieved a “tremendous/considerable breakthrough in cross‑examining PW1”.

Background

2.  The applicant was charged with criminal intimidation.  The victim (“PW1”) was a member of the Duty Lawyer Service (“DLS”).  The facts of the case are not material to this hearing, save to say, that there had been a dispute between the applicant and PW1 in court on a previous occasion.  The trial was fixed before Mr Colin Wong on 26 April 2017.  The applicant had elected to represent himself.  PW1 was So Shiu-cheong, Peter.  The magistrate recognised PW1 when he was called to give evidence.  He indicated to the applicant[1] that he had previous professional dealings with the witness as a member of the DLS prior to his appointment to the magistracy and at a time when he was in private practice.  The magistrate asked the applicant if he had any objection to him hearing the case and no objections were raised.

3.  PW1 was examined in chief[2] and at 10.55 the applicant began his cross‑examination.  The basis of his defence was that they had many previous dealings with each other as a result of PW1’s role in the DLS and that there had been considerable ill‑feeling especially from the applicant towards PW1.  At an early stage of the cross‑examination, the applicant wished to allude to records made by the DLS[3] and it became clear that those records were not immediately available and should be produced[4].

4.  They were crucial to the issue of credibility, which, it was now clear, was the sole issue before the magistrate.  The trial therefore needed to be adjourned for the documents to be made available and that adjournment could not be a short one for reasons not material to this decision.

Grounds of review

5.  In his original affirmation dated 6 June 2017, the applicant submits that the magistrate had no right to recuse himself in the middle of a trial where there had been no material change of circumstances and, additionally, such a decision was to the prejudice of the applicant because he had a “tremendous/considerable breakthrough in cross examining PW1”.

6.  In his subsequent affirmation dated 14 February 2019, which was filed late, and was inappropriately worded, he submits:

i) the decision of the magistrate was inequitable; and

ii) the magistrate should have known from the beginning what the case was about.

The remainder of the affirmation was not relevant to his application for judicial review and was a complaint about the process thereafter.

Judicial review

7.  Judicial review is not a rehearing of the merits of the applicant’s original trial. This is an application to judicially review the decision of the magistrate to recuse himself.  It is for the applicant to show an arguable case that there was either unlawfulness, unreasonableness or unfairness by the magistrate when dealing with his application in order to judicially review him.

Reasons for decision

8.  The magistrate explained in his reasons for decision, that he had been in practice as a criminal barrister for 12 years during which time he had professional dealings with PW1 on several occasions.  In so doing, he had quite naturally formed a view about PW1’s character.  He had not known the nature of the defence prior to trial and had not foreseen any possibility of conflict but had nevertheless raised the issue with the parties. That view altered as soon as the applicant commenced his cross‑examination and it became clear the central thrust of the applicant’s case was that PW1 was a liar.  During the morning adjournment, the magistrate considered his position and came to the view that it would be unfair to the applicant if he continued to hear the trial.  As the matter had to be adjourned for the production of documents in any event, he decided to have the matter listed for a trial de novo before a new tribunal.  In so doing, he gave the applicant an opportunity to address him upon his intended course of action.  The applicant objected, having felt that he had made some headway in his cross‑examination and not wishing to be prejudiced by a new hearing where such headway may not be repeated.  Taking everything into account the magistrate decided nevertheless to recuse himself.

Discussion

9.  I have had the benefit of reading the entire transcript of proceedings.  There is no doubt that it is the duty of a judge to ensure that proceedings are carried out in a fair and proper manner and that applies to both the prosecution and the defence.  The magistrate would not have had advanced notice of the content of the proceedings or the nature of the defence to be run and he acted properly when he first realised that he had recognised PW1.  There would have been nothing to put him on notice at that stage that he should recuse himself given that his professional dealings with PW1 had been just that, professional.  This same difficulty may have arisen before any other tribunal who may have had a professional association with a member of the DLS.  In any event, he acted entirely properly by raising the matter, hearing the parties and coming to the view that he could continue.  No doubt, if the applicant had been legally represented, his counsel would have indicated at that stage the tenor of the defence to be run and most likely the magistrate would have come to a different view.  As it was, the applicant did not raise the issue and the magistrate was left unaware of the possible difficulties with his decision.  That did not last long.  The same morning, the applicant commenced his cross‑examination.  It was a full scale attack.  The language and demeanour of the applicant was not to his credit, an example of which is “You are a liar.  You are a godforsaken liar”[5]. The cross‑examination did not last long before it became clear that DLS files were required and much of the remainder of the proceedings was taken up with considering how that should be done.  It was at this point that the magistrate could take stock of what had become a personal and offensive attack on PW1.  It was not at all surprising that the magistrate felt that his personal experience of PW1 was highly relevant to whether the applicant could, in fact, receive a fair trial and quite properly he raised it with the parties and he heard them on it.

10.  The thrust of the applicant’s objection to the recusal was that the applicant had felt he had made headway and that he would be prejudiced by starting again before another magistrate.  This was incorrect. Any reading of the transcript by a lawyer would immediately suggest that no such headway had been made and that the applicant would be better placed starting again and focusing questions based upon evidence, in particular, the documents which he believes will support his case.

Conclusion

11.  The magistrate did nothing wrong.  He alerted the parties to his knowledge of the witness and when the defence case became clear and he could see actual conflict had arisen he informed the parties and heard them upon it again.  Having heard the applicant and knowing his own view of the witness, he took the view, in the interests of justice, that the matter should be tried de novo and he was correct to do so.  He acted wholly reasonably in coming to that conclusion.

12.  I took the opportunity to ask the parties to address me on costs.  The applicant is a man of limited means but these proceedings have been brought upon an irrational basis without any merit and the applicant has resorted to language which this court cannot countenance and he would be best placed to remember that in the future.  Respect for those before the court and to the court is an essential part of the judicial process.

13.  This application is dismissed.  The applicant is to pay the sum of $1,000 towards the costs of these proceedings.