SECRETARY FOR JUSTICE v. LI CHAU WING

HCAL 143/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO.143 OF 2004

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REASONS FOR JUDGMENT

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Introduction

1. On the morning of 10 July 2003, a traffic accident took place on the Tuen Mun Road in the New Territories.  In the course of the accident a container lorry driven by the respondent collided with a bus.  The results were devastating.  The bus crashed through a barrier and fell into a valley below the road.  Of those in the bus, 20 died and 20 were injured.

2. The respondent, the driver of the container lorry, was subsequently charged with four offences under the Road Traffic Ordinance, Cap.374 (‘the Ordinance’).  The first offence was that of dangerous driving causing death, contrary to s.36(1) of the Ordinance.  I am told that the remaining three offences were strict liability offences.

3. Pursuant to s.36(9) of the Ordinance, an alternative offence to that of dangerous driving causing death is an offence of lesser gravity; that is, the offence of careless driving.

4. On 15 November 2004, the respondent’s trial commenced in the District Court before Deputy Judge Thomas.  The applicant apparently pleaded guilty to the three offences of strict liability but not guilty to the offence of dangerous driving causing death.  It was therefore for the judge to determine whether, on the evidence, the prosecution had proved that the respondent was guilty of that offence or, failing that, of the alternative offence of careless driving.

5. Shortly after the commencement of the trial, an application was made by the prosecution for the judge to recuse himself from hearing the matter.  The application was supported by the defence.

6. The application for recusal was based on the contention that, because of certain remarks made by the judge in the course of a social conversation at a conference held the weekend before the commencement of trial, there was a real possibility that fair-minded and informed observers would conclude that the judge was biased.  The judge refused the application.  In doing so, however, he gave time to the prosecution to seek leave to judicially review his decision as being wrong in law.

7. That application, made in terms of O.53, r.3 of the Rules of the High Court, came before me this morning as a matter of urgency.  Having heard submissions from the applicant’s counsel, Mr Kwok Siu Hay, I refused leave, saying that I would give my reasons later in the day.  I now give those reasons.

The test for granting leave

8. The burden to be discharged by an applicant who seeks leave is not an onerous one.  The test has been the subject of much debate.  At this time the test which judges at first instance in this jurisdiction are obliged to adopt is the test enunciated in R v. The Director of Immigration, ex parte Ho Ming Sai (1993) 3 HKPLR 157 in which Kempster JA said that the test was—

“… whether the material before [the judge] disclosed matters which, on further consideration, might demonstrate an arguable case for the grant of the relief sought.”

9. The purpose of the requirement for leave is to ensure that an applicant is only allowed to proceed to a substantive hearing if the court is satisfied that there is a case fit for further investigation.  As I have said, it is not an onerous test.  But that is not to say it is no test at all.

The factual basis of the application to recuse

10. As I have indicated earlier, the application made to the judge to recuse himself was founded on remarks made by him during the course of a social conversation the weekend before the commencement of the trial.

11. It is important to note the context within which the remarks were made.  The judge was attending a conference on criminal law.  At the end of that conference, the judge took part in a social conversation with other delegates.  It is not surprising that the conversation related to matters of criminal law.  One of the delegates who took part in the conversation was Mr Gavin Shiu, a member of the Prosecutions Division of the Department of Justice.  In his affidavit of 18 November 2004, Mr Shiu described what he recalled of the conversation in the following terms :

“I attended the Hong Kong Archbold Criminal Law Conference last Saturday, the 13 November 2004.  After the end of the conference at about 5:45 pm there were some drinks and canapés for participants.  During this time I spoke causally to Mr D.I. Thomas over a glass of wine.  I had met Mr Thomas at the conference, not having ever spoken to him before.

One has to bear in mind that the room at this time, was still fairly full, with people noisily socialising after a full day’s conference.  I did not catch clearly all that was said and certainly any subtle nuances were lost.  I do not remember the exact order of the conversation nor all aspects of the conversation.

Somehow, the conversation turned to driving and the policing of traffic matters.  I mentioned that I felt the penalties for dangerous driving causing death are too low.  Shortly after that, Mr Thomas said he was dealing with a bus accident case in the New Territories involving that charge.  I assumed he referred to a magistracy case.  I was not clear when this case would start but I think I became aware it would be soon.

He mentioned that a late application had been made for ‘Live Note’ [a computerised form of transcription service] and this came only months after it had been set down.  He indicated he would probably refuse the application and the court stenographers could be used.  Shortly after that, I am sure it was after a few further exchanges but I cannot recall what was said in those exchanges, he said careless driving was an offence he either ‘did not believe in’ or thought was of little efficacy.  I do not recall firmly his exact phrasing.  (This was not said in relation to the previously mentioned case.  It was a general comment.)

I remember asking him why he though that.  He said something about it being an insurance matter.  I did not entirely follow his reasoning.  The other person may have then said something in relation to this and I think I made no further comment, save for perhaps nodding.  Soon after that, I moved away and talked to other persons.  I did not speak to Mr Thomas again.”

12. Mr Shiu’s affidavit may, I think, be broken down into the following component parts :

(a)      The conversation between Mr Shiu and the judge (and apparently one other person) turned to matters of general legal interest in respect of road traffic.  Mr Shiu said that, in his opinion, the penalties for dangerous driving causing death were too low.

(b)     The judge did not comment on that opinion.  But shortly thereafter he said that he was dealing with a motor accident case — clearly the case from which he has now been asked to recuse himself — and spoke of a case management matter in respect of that case; namely, the likelihood of his refusing an application made for the use of a computerised transcription service.

(c)     Several more exchanges took place, Mr Shiu having no memory of the nature of these exchanges.

(d)     Thereafter, purely as a general comment — the comment having no relationship to the case to which the judge had earlier referred — the judge said that, in his opinion, the offence of careless driving was one he did not believe in or that it was an offence which he thought to be of little efficacy.  Mr Shiu could not recall the actual words used.  

(e)      When the judge was asked by Mr Shiu why he thought the offence of careless driving had no efficacy; that is, no capacity to produce its intended results, the judge said something about it being an insurance matter.  Mr Shiu was not sure what the judge intended by this comment and the true meaning of his comment does not appear to have been pursued.

13. At its highest, therefore, it seems to me that the prosecution complaint of apparent bias is to the following effect : that, having informed his listeners that he would be adjudicating a traffic accident trial, a trial in which, in fact, careless driving was a possible verdict, although nothing was said of that, the judge went on later in the conversation to make an entirely independent comment, one unrelated to the trial, that he had no faith in the offence of careless driving as he did not think that it had the power to achieve its intended results and that, in some way which he did not explain, he saw the issues arising out of careless driving cases to be largely insurance driven or in some way insurance related.

14. It is on the basis of these somewhat disjointed remarks (spoken in the course of a cocktail conversation at the end of the legal conference) that the prosecution has argued that there is a real danger of bias on the part of the judge if he adjudicates the trial in the sense that he might unfairly regard with disfavour the case of the prosecution to the issues under consideration in the trial; particularly, the issue, should it arise, of careless driving.

Bias

15. It is a fundamental rule of fairness, too obvious to require any litany of definition, that any court which enters upon a judicial enquiry, civil or criminal, must do so without any pre-conceived personal bias against the parties to that judicial enquiry.

16. Bias has been defined by Lord O’Brien in R (De Vesci) v. Queen’s County JJ [1908] IR at 294 in the following manner :

“By ‘bias’ I understand a real likelihood of an operative prejudice, whether conscious or unconscious.”

The relevant test

17. The authorities now make it clear that the test is one in which the court must view the matter through the prism of a fair-minded and informed observer.  It may be expressed in the following terms; namely, whether a fair-minded and informed observer would conclude that there was a real possibility or, to express it another way, a real danger that the court is biased.

18. The test is therefore an objective one.  It is important, however, to note that the hypothetical observer is not only fair-minded but is also informed; that is, acquainted with the relevant facts.

Conclusions

19. In my judgment, I fail to see how any fair-minded observer acquainted with the facts of this case could conclude that the remarks of the judge, read in context, could possibly give rise to any real perception of bias on his part.

20. The judge made no comments in favour of or against the prosecution or the defence in the trial from which he has been asked to recuse himself.  His comments were of a jurisprudential nature; to put it another way, they were philosophical.  They concerned not one of the parties and what, directly or indirectly, the judge thought of their cases but instead one of the possible offences.  His comments in respect of this possible offence were of a general nature only; that is, they were totally unrelated to any evidence to be given at trial.  The fact that the judge expressed reservations as to the effectiveness of the offence of careless driving does not mean that he would refuse to enforce that offence or find ways to avoid the need to do so and nothing was said by him that could possibly give rise to any such apprehension.

21. By way of analogy, a judge may think that sentencing for drug related offences is either too high or too low.  But it does not follow that, in respect of any drug related case that comes before him, he will refuse to impose the sentence that the law obliges him to impose.  Judges are servants of the law and not of their own personal views.

22. I have earlier spoken of the test for leave in application of this kind and the fact that the nature of the test has been open to debate; in short, that there has been disagreement as to the level that which the test should be set.  But that does not mean that the judge who puts forward one view of the matter at a conference will thereafter be obliged to recuse himself from any application for leave.  A fair-minded and informed observer will well know that the judge will be obliged, whatever his philosophical views on the matter, to apply the law. 

23. I emphasise again that the judge made his comments at a legal conference when many issues of a similar nature were no doubt formally spoken of or debated informally during breaks.  Judges are at the centre of the judicial process and it has long been accepted that they may in appropriate circumstances state their views as to deficiencies in the law and how they see those deficiencies being rectified.  The law after all is a social institution, constantly changing and demanding of change.  Judges must be able to contribute to ensuring that the law changes for the better.

24. With the benefit of hindsight it may be said that the judge would have been better advised to say nothing concerning careless driving if he knew that he was about to sit on a matter involving that offence.  But the issue is whether his observations, appropriate or not, were of such a nature as to give rise to a fair-minded and informed observer concluding that there was a real danger of bias on his part.  As I have said, I find nothing which might demonstrate an arguable case in this regard.