HKSAR v. LEE KWAI CHONG DANNY

HCMA342/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 342 OF 1999

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J U D G M E N T

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1. This is an appeal against a magistrate's refusal to rescind an order made under s.3A(1) of the Fixed Penalty (Criminal Proceedings) Ordinance, Cap.240 ("the Ordinance").

2. According to the helpful chronology produced by Ms Liang, the facts that are relevant for my consideration are as follows.

3. On 6 June 1998, the Appellant received a fixed penalty ticket under s.3(1) of the Ordinance for allegedly committing an offence of crossing continuous double white lines. On 12 June, a fixed penalty ticket demand notice dated 11 June 1998 served under s.3(3) of the Ordinance was sent to the Appellant's registered address by the police. It was alleged that the Appellant did not receive the notice until much later. On 28 August 1998, pursuant to s.3A(1) of the Ordinance, the Commissioner of Police made an ex parte application to the San Po Kong Magistracy for an order that the Appellant, by failing to pay the fixed penalty or inform the Commissioner of Police that he wished to dispute liability, had to pay the fixed penalty of $450 together with an additional penalty of $450 and costs in the sum of $440 within 14 days of service of the order granted by a magistrate.

4. As a result of the order, three points were incurred by the Appellant which increased the total of his driving offence points to 17. On 30 November 1998, a summons for disqualification from holding or obtaining a driving licence was issued by the South Kowloon Magistracy. On 30 December 1998, the Judiciary sent, inter alia, the following documents to the Appellant, namely :

a) the order made by the Magistrate on 28 August 1998; and

b) the summons for disqualification from holding or obtaining a driving licence.

It was alleged that it was only on or about 20th January 1999 that the Appellant came to notice the existence of such documents. On 2 March 1999, the Appellant sought a review of the proceedings pursuant to s.3B(1) before a magistrate.

5. Two grounds of appeal are raised, but I think for the purposes of these proceedings, I need only mention the second ground which is :

"The learned magistrate addressed all questions to the appellant when the appellant was giving evidence thereby improperly taking over conduct of the prosecution from the prosecutor to the extent that the prosecutor did not ask any question of the appellant."

6. Ms Liang referred me to the case of Or Chung Yan v. The Queen [1975] HKLR 243 where the Full Court was dealing with a ground of appeal on the basis that the trial judge had unduly interrupted the evidence of the appellant to the extent that it was impossible for the appellant to present his case fairly. The Full Court had this to say at page 245 :

"... Excessive questioning by a judge, whether it occurs in examination-in-chief or in cross-examination, may show that the judge has taken sides. It is true that in all the cases quoted before us the trial at first instance was a jury trial which is not the case in the present case, but the principle is the same : the trial must be conducted in such a way as to show that the judge has remained impartial throughout. In our view, therefore, in order to succeed on this ground of appeal, the appellant must show that the judge gave an indication of bias, for it is not alleged here that counsel was unable to present the defence adequately."

There are also various passages in the judgment of the Full Court that are important. The Court having estimated that the judge asked 291 questions in that case had the following to say :

" It is, of course, perfectly proper for the judge to ask questions of a witness to clarify what has gone before where the evidence has been left in an ambiguous state. On this occasion, however, the judge went much further than that. His questions were in the nature of cross-examination."

"... The judge clearly felt, and not without justification, that there were parts of that [the defendant's] story which seemed implausible. But even a laudable desire to come at the truth does not accord the Bench an unlimited latitude in pursuing that inquiry and an improper bias in the wider sense may be said to arise where the reins of the prosecution are taken from the hands of the prosecutor and the inquiry is directed upon an extensive excursion into areas which ought to have been left to the prosecutor to explore and which he might have been expected to explore, and may have been about to explore at the time of the interruption. Judicial zeal for the uncovering of truth must stop short of any practice which in the eyes of a detached beholder might seem to destroy the valuable distinction between the inquisitorial and the accusatorial procedures."

"... At the very end of the cross-examination the judge asked some forty-odd questions. He then invited both counsel to ask questions arising out of the answers given by the appellant. We cannot fault the judge for this. If a judge considers it necessary to interfere to this extent it should be done after counsel has finished with the witness and the judge should always consider the desirability of inviting counsel to put further questions concerning any new matter brought out by his questions.

However, looking at the case as a whole, the overall picture is that the judge entered the lists on the side of the prosecution during a lengthy cross-examination of the appellant. He took over the cross-examination from counsel on several separate occasions and for considerable periods of time. This, together with the not unimportant interruptions in the examination-in-chief of the appellant show, in our view, that the trial was not conducted with the manifest impartiality that is required of a judge. An unbiased spectator of the trial might have reached the conclusion that the judge favoured the case for the prosecution."

7. In the present case, Mr Tom Chick was Counsel for the prosecution, but throughout the 20 pages of the transcript which is a verbatim note of what went before the Magistrate, Mr Chick's name hardly appears. The Magistrate started to ask the Appellant questions about his age and address and so on; that could, in my view, not lead to an appearance of unfairness or bias being exhibited by the Magistrate. But he appeared to conduct the whole case all by himself, going on to ask the Appellant questions about whether his letter box was damaged, because apparently that would concern the crux before him whether the Appellant did or did not receive the demand notice relevant for his consideration. That, I would say, is tantamount to cross-examination.

8. There are other passages where it was recorded the Magistrate cross-examined the Appellant as to whether he knew that he had 21 days' time limit to pay the fixed penalty, and whether he failed to pay. There are also passages where the Magistrate directed his attention to whether the police was at fault.

9. Then one reads the relevant provision of s.3B of the Ordinance :

" (1) Where a magistrate is satisfied that the notice mentioned in section 3(3) has not come to the personal notice of the person to whom it is addressed without any neglect by that person, the magistrate may, on an application of which reasonable notice has been given to the Commissioner, rescind the order made under section 3A(1)..."

Whether the police was at fault in the service of the demand notice was not a relevant thing to consider unless allegation had been made by the Appellant to raise the fault of the police in the service of the demand notice. However, the magistrate in no less than three places mentioned about the fault of the police :

"...So according to the evidence before me, the police have not done anything wrong at all..."

"But through no fault of the police, he did not receive the - according to the defendant - he did not receive the demand notice, right?"

"...That's no fault of the police..."

10. In the circumstances, I am afraid that the trial was not conducted "with the manifest impartiality that is required of a judge - an unbiased spectator of the trial might have reached the conclusion that the judge favoured the case for the prosecution" as I have cited from the judgment of Or Chung Yan.

11. In the circumstances, I would allow the appeal and order that the application for a review of the proceedings under s.3B(1) of the Ordinance be remitted for a retrial before another magistrate.