SHENG WEI CHUNG v. THE SECRETARY FOR JUSTICE

1998 HCAL No. 107

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

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J U D G M E N T

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The facts

1. In July 1998, the Applicant ("the Defendant") was charged with a number of offences contrary to the Immigration Ordinance (Cap. 115). He was tried in the District Court. The trial began on 25th September 1998. The Defendant pleaded not guilty to all charges. The prosecution called four witnesses, and shortly after 11:00 a.m. on 29th September (which was the third day of the trial) the prosecution closed its case. There was no submission that the Defendant did not have a case to answer, and the Defendant then gave evidence.

2. In the course of the Defendant's cross-examination after lunch, the judge hinted that she was not feeling well. The transcript records her as saying:

"I'm not feeling ... it's hard for me to concentrate on ..."

She told counsel to press on, indicating that if she felt she could not concentrate, she would stop the case. The Defendant then completed his evidence, and prosecuting counsel made his closing speech. Counsel for the Defendant then began to address the judge. In the course of doing so, he requested and obtained permission for the Defendant to answer some further questions, and counsel for the Defendant then continued his closing speech. At one stage during his speech, the judge said:

"I don't feel well. I don't understand what you're saying and I'm trying to find what you said."

A few minutes later, she asked to see both counsel in her chambers. It was by then a few minutes before 4:00 p.m.

3. After about five minutes, the court reconvened, and the judge said:

"Defendant, I had called the counsels into chambers for this reason: perhaps, as you know, I have not been well but I felt pressure on myself that we should try and finish this case before the holidays came up, so I came to court. But I have to say I don't know whether it's the medication I have taken, but I have not been following the evidence today which came from you as clearly as I would have liked. I found myself at the end of this day quite confused, whether it's because of all the names and, therefore, in the interest of justice, for your own sake, I feel that I could not give a fair judgment unless I fully understood what you want me to understand of your case. And I think in the interest of justice, even though it might mean going through the whole process again, that it would be much better for you that there is a trial de novo. I even found it difficult to understand what [counsel for the Defendant] was putting forward. So for that reason, I am ordering a trial de novo."

Inquires were immediately made as to when the Defendant could be retried, and within a few minutes the case had been fixed for trial before a different judge the following week on 5th October. In this application for judicial review, the Defendant applies for an order which would have the effect of requiring the judge to continue hearing the case.

The order for a retrial

4. It goes without saying that it would have been much more convenient for everyone concerned if the judge had been able to continue to hear the case. A new trial would have resulted in more legal costs being incurred, and the witnesses would have been put to the trouble of having to give their evidence again. The interests of justice would also have been better served if the judge had been able to continue to hear the case. If there was a new trial, the prosecution would know what the Defendant's defence was, and the evidence of the witnesses would lack the spontaneity which is the hallmark of a witness giving evidence on a particular topic for the first time. In other words, their evidence in any new trial could be affected by the questions which they had been asked in the first trial.

5. It also goes without saying that a judge cannot continue to preside over a trial when he is unwell. However, in the normal course of events, adjourning the trial - for a few days if necessary - gets over the problem, at any rate in a trial by judge alone. That is particularly the case in a court like the District Court where the proceedings are recorded. The judge will be able to remind himself of the evidence, either by listening to the tape or by ordering that the tape be transcribed. Thus, even if the judge fears that he might not have understood a particular part of the evidence, he can subsequently listen to or read the evidence at his own pace until he understands it properly. Unless the judge is likely to be unable to continue the trial for many months, or unless the trial has only just started, it will rarely, if ever, be appropriate for the judge's ill-health to warrant an order for a new trial, especially in a court where the proceedings are recorded. There is an echo of thinking of that kind in Nattrass v. The Attorney-General [1996] 1 HKC 480. At p.491A-B, it was said:

"Provided that [the judge] still holds judicial office, he is available to continue to preside over the trial. Cases are frequently adjourned part-heard, and judges are used to picking up the reins again after the lapse of perhaps many months. It is a burden for the judge to have to read himself into the case again, but it is a task which any conscientious judge is able to perform."

6. The situation could, I suppose, be different if a judge believes that his ill-health prevented him at the time from even forming an impression of what the witness was like as a witness. But that concern is, I believe, more theoretical than real. Even if the judge is feeling unwell, he is likely to have formed some impression of the witness, and as was said in The Secretary for Justice v. Chan Hung Yip (HCAL 85/98),

"... the transcript will not reveal the appearance of the witnesses, but it will, at least to some extent, disclose any uncertainties or hesitations in their evidence, and my experience is that reading the transcript of a witness's evidence tends to bring back really quite easily one's impression of what the witness was like as a witness."

In any event, in the present case, the judge's reasons for ordering a retrial were that she had "not been following the [Defendant's] evidence [that day] ... as clearly as [she] would have liked", that she had "found [herself] quite confused", and that she had "found it difficult to understand what [counsel for the Defendant] was putting forward". None of that related to her impression of the witnesses, and the problems which she identified could have been entirely remedied by an adjournment for a few days to allow her to listen to the tapes, or to read the transcript, of the Defendant's evidence and his counsel's submissions. Ordering a retrial was not, in the circumstances, a course which was reasonably open to the judge.

Conclusion

7. For these reasons, I make an order of certiorari quashing the decision of the judge to order a retrial, and I make an order of mandamus requiring her to continue to preside over the trial to its conclusion. I hope that the conclusion which I have reached will not be read as criticism of the judge. On the contrary. She should be applauded for her candour in revealing how she felt. It would have been easy for her not to mention it, and simply to allow the trial to proceed to its conclusion in the normal way.