HKSAR v. CHEUNG CHUN YUEN BARRY

DCCC 718/2017

[2019] HKDC 889

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 718 OF 2017

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Ruling on

Application for Recusal

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1.  First of all, before I deliver my ruling, I would like to mention one thing. It is for the purpose of court record.

2.  On the last occasion when this application was heard on 19 June (and actually also today), I allowed the defendant not to sit inside the dock, even though defence counsel did not ask for leave. It is because I considered the nature of the application proceedings and the fact that the defendant has been granted bail until 2 July.

3.  But it is important to bear in mind that everyone is equal before the law. Different consideration will apply when this case goes to the trial proper. It is the duty of counsel to make sure the usual practices are followed unless leave is granted.

Background and history

4.  I think it is desirable for me to spell out the background of this case in detail so that the present application can be understood fairly and without any misunderstanding or misquote. 

5.  D1 Barry Cheung and D2 Jacky Choi were jointly charged with one count of conspiracy to defraud, and D1 was additionally charged with one count of fraud.

Chronology of events

6.  The case was first brought to the District Court on 24 August 2017. At that time, D1 was privately represented. The case was adjourned five times, from 28 November 2017 to 5 July 2018.  On 5 July 2018, D2’s case was adjourned to 6 November 2018 for plea and sentence while D1’s case was adjourned to 21 August 2018.

7.  On 21 August 2018, D1 appeared in person and applied to have the case further adjourned to 18 September 2018. On 18 September 2018, Director of Legal Aid (DLA) assigned Mr Kim McCoy of Counsel to represent D1 and the case was further adjourned to 23 October 2018. On 23 October 2018, the case against D1 was set down for trial on 2 July 2019 with 30 days reserved.

8.  I have to stress that the estimate of the trial and the scheduled dates were agreed by all parties concerned.

D2’s plea proceedings on 6 November 2018

9.  Now, Counsel for D1, Mr Kwok SC, with Mr Kim McCoy as his junior, has extensively quoted what I said on 6 November 2018 when D2’s plea was taken. They had asked the transcript of the proceedings be prepared. As such, it is prudent for me to detail what happened on the day so that there would not be any misunderstanding of my position and/or misquote of what I said out of context.

10.  I have to emphasise that it is the usual practice that defendant or co-defendant should be encouraged to cooperate with the law enforcement agencies (LEA) after his or her plea. The reasons are obvious.

11.  On 6 November 2018, I handled the plea and sentence proceedings of D2. On that occasion, D2 was not legally aided and he instructed Mr Graham Harris SC as the leading counsel of his legal team. D1 did not appear on that occasion, but DLA assigned Mr Kim McCoy to appear on watching brief.

12.  D2 has indicated his plea since May 2018 but did not indicate any signs that he was to cooperate with the police in any form. In fact, on the very day the plea was taken, both the Prosecution and the Defence took a different approach as to when D2 should be sentenced. 

13.  Mr Harris SC, counsel for D2, prepared a bundle titled “Timing of D2’s sentence” with various authorities to support their stance that “the court is invited to proceed with the sentencing of D2 without delaying it indefinitely until the end of D1’s trial”, so that D2 can make a fresh start in life.

14.  On the other hand, the Prosecution took a contrary view and invited the court to adjourn D2’s sentence to the conclusion of D1’s trial. On that occasion, presumably I was asked to make a ruling on the timing of D2’s sentence, that is, whether I should sentence D2 on the day or adjourn the sentence of D2 until the conclusion of D1’s trial.

15.  After plea was taken and the lengthy summary of facts read, I made enquiries relating to three areas.

16.  I asked the prosecutor as to the status and the role of Ms Ann Cresce, who was the general counsel and head of Compliance of the Hong Kong Mercantile Exchange (HKMEx) at the material time.  Ms Cresce was also implicated by D2 in the summary of facts that he admitted to, and might well be regarded as one of the conspirators. I asked why the licence was granted to HKMEx in June 2008. I also queried why the regulatory authority can be deceived for such a long period of time.

17.  All these questions obviously have a bearing on the sentence that D2 is about to face as the first charge of conspiracy to defraud might involve more than just two persons. Also, it is obvious that all these enquiries can or might lead to further investigations, implicating other persons, other than D1, I repeat, other than D1. 

18.  It was shortly after Mr Harris SC started the mitigation that I made an enquiry about the possibility of having D2 cooperating with the authority. I asked,

“Would he ever consider to implicate or cooperate with the police in respect of D1’s case?” (page 8 at K of the transcript of the proceedings on 6 November 2018)

I have to stress I deliberately used the words “in respect of D1’s case”.  I did not ask D2 to cooperate with the police to implicate D1 whatsoever. 

19.  On that occasion, Defence Counsel replied,

“His position until now has been that he did not wish to implicate D1. However, there were discussions this morning, which I will not go into, which suggest that he may consider or reconsider that position.” (page 8 at M of the transcript)

That means obviously the possibility of D2 cooperating with the police was explored by his Defence team even before I mentioned about such a possibility.

20.  I granted leave for the case be stood down for 30 minutes. Even at this stage, D2’s counsel reiterated that “his present position is he doesn’t think he will.” (page 9 at F of the transcript) even though D2 had indicated his plea long time ago, back in May 2018. 

21.  It is obvious and understandable that D2 was and is under tremendous pressure to figure out the way forward - to cooperate or not to cooperate. I am of the view that any defendant who pleads guilty to the charge or charges he faces; he should be encouraged to cooperate with the authorities. The reasons are obvious. It is not just to do justice to the defendant himself, but also to bring other culprits, be they co-defendant in the same charge or other masterminds not even named in the charge, into justice.

22.  Courts in Hong Kong encourage this kind of cooperation and, quite often, generous discount to sentence, some even up to 50% discount, is granted.  That is why I said,

“Everybody knows that there is a self-interest to serve for this purpose.” (page 9 at N of the transcript)

23.  After a short adjournment, Mr Harris SC, replied,

“...there’s been a significant development in the last half an hour. D2 has now agreed that he is prepared to cooperate, he is prepared to give statements, and if necessary, he is prepared to testify in the case of his co-accused.” (page 10 at J of the transcript)

At this point in time, I said that is “a cheerful development” (at page 10 at L of the transcript).

24.  Pause here. I need to say something more about this phrase - “cheerful development”.

25.  When D2 said he would cooperate with the police, this Court, of course, has no idea about the content of the non-prejudicial statement (NPS), if any. I also have no idea whether D2’s NPS will be accepted by the Prosecution. I have no idea if D2 would even be called to give evidence in the trial.  All these variables are accepted by Mr Kwok SC, counsel for D1.

26.  By “cheerful development”, it carries a few features. I list seven features hereunder so that a fair-minded and also informed observer knows what is going on. Otherwise, it is easy for an ordinary, but not informed, observer to misunderstand the position or even get misled.

27.  The seven features are:

(1)  By cooperating with the authority, D2 demonstrates another gesture of remorsefulness, on top of his guilty plea;

(2)  it means there will be no argument on the timing of D2’s sentence, hence no need for me to make a ruling on the day;

(3)  it can lead to more evidence, hence logically the truth of the case;

(4)  it allows the court to exercise discretion to give a generous discount on D2’s sentence, even though a promise to cooperate cannot be taken as a substantial mitigating factor until that person really testifies in court;

(5)  it might well shorten the length of the trial;

(6)  it can generate a sense of social justice as more culprits might be implicated and brought to justice;

(7)  it would not be fair for D2 to be a single ‘unsung hero’ in this incident.

28.  It was through the dialogue between the court and Mr Harris SC that D2 reconsidered his position. I think D2 needs to be encouraged.

29.  D2’s case was further adjourned to 1 March 2019. By now, it goes without saying that both parties agreed to adjourn D2’s sentence to the end of D1’s trial.

30.  Incidentally, the court was also concerned with the security of D2 and at one stage I did consider the possibility of revoking D2’s bail.  I mentioned that,  

“...it brings me to another question: security. I would have to ensure D2 would not be interfered with by anybody.” (page 11 at H of the transcript)

(Note:  I have to stress that these words are the exact words that I said as shown in the transcript. I now repeat here in verbatim.)

31.  I further said,

“Security, in my mind, is also to make sure his current wishes or intention would not be tampered with.” (page 12 at E of the transcript)

32.  It is not uncommon that accomplices who had been granted immunity from Prosecution, co-defendant who agreed to give evidence in court, or even victims of certain offences, changed their mind to further cooperate with the authority. Even if they appear in court, they may become hostile or forgetful; some even disappeared from the territory for whatever reasons.

33.  The fact that D1 used to be an influential person, in my view, is a kind of public knowledge in Hong Kong. The fact that I encouraged D2 to cooperate with the LEA or the police is another matter, which concerns about doing justice. 

34.  In my view, it is irresponsible and misleading to suggest that there is some sort of direct link between these two facts.  One obvious example is this. A person called A, who is a good friend or even a follower of the main culprit B, got aggrieved by the fact that another person C, who was to implicate B or has provided damaging evidence against B in any kind of litigation. It is possible that without the knowledge of B, A approached C in order to pervert the course of public justice. That is what I meant by saying “to ensure D2 would not be interfered with by anybody” (page 11 at H of the transcript).

Pre-trial Review relating to D1 on 30 April 2019

35.  At the PTR on 30 April 2019, Mr Kwok SC, had indicated twice that the Defence might ask for an adjournment of the trial as the defence team needs time to prepare the case. I had made it abundantly clear that unless there are special reasons or justifications, the trial against D1 will proceed as scheduled without further adjournment.

36.  The PTR questionnaire filed by D1’s legal team made no mention about any anticipated points of law likely to arise at trial. The question is - “Are there any preliminary points to be argued before trial?” The answer is - “None at this stage.” When asked in the questionnaire - “Are there any other significant matters which might affect the proper and efficient trial of the case?”, the answers so provided by D1’s legal team are “the availability of defence witnesses and the time necessary for the Defence to peruse all the unused materials.”

37.  It is to be noted that D2’s plea was taken place in November 2018 and the PTR was held in April 2019. 

38.  Before the conclusion of the PTR, when I confirmed that I would be the trial judge of the case, Defence counsel made the remark, saying that originally the Defence team thought that this case had been assigned to an expatriate Judge who was to hear this case. At no time during the PTR was there any indication of bias or any kind of potential legal applications.

The Application for Recusal

39.  Defence counsel Mr Kwok SC, filed a five-page long skeleton submission on 10 June 2019, together with three cases, two of which are civil cases and one 1994 Australian case. 

40.  I have to stress that there is no allegation of actual bias. 

41.  Defence counsel relied on the Australian case Webb v R [1994] 181 CLR 41 which related to the impartiality of a juror in a murder trial. In that case, it was said,

“...the area covered by the doctrine of disqualification by reason of the appearance of bias encompasses at least four distinct, though sometimes overlapping, main categories”.

42.  The four areas or categories are:-

Disqualification –

(1) by interest;

(2) by conduct including published statements;

(3) by association; and

(4) by extraneous information.

43.  It was submitted that in the present application, category 2 and 4 applied.

44.  Defence counsel also referred to the Hong Kong case, Superb Quo Limited (the proper name of this authority should read Superb Quo Limited v Lee Yuen Cheung Company Limited & Ors) HCMP 29/2011, a case concerning the impartiality of a member of the Lands Tribunal. Mrs Justice Le Pichon JA (as she then was) adopted a statement in an English case, saying that,

“the test for apparent bias… is that, having ascertained all the circumstances bearing on the suggestion that the judge was (or would be) biased, the court must ask ‘whether those circumstances would lead to a fair-minded and informed observer to conclude that there was a real possibility… that the tribunal was biased.’”

45.  When counsel in that case mentioned about certain superficial relationship between the member of the Tribunal and a party of the litigation, the Judge said,

“Rather, the focus should be on whether, viewed objectively, the nature and circumstances of their acquaintance could or would lead to some form of subconscious bias” (page 6 at R of the judgment).

46.  Mr Kwok SC, agrees that the concept of ‘subconscious bias’ is a relatively new concept vis-à-vis actual and/or apparent bias. At paragraph 13 of the Defence submission, it says, “The defendant is concerned that subconscious bias may operate” in the Judge’s mind. As the trial has not commenced, Defence counsel adopted what was said in Superb Quo Limited that “prudence naturally leans on the side of being safe rather than sorry”.

Original response from the Prosecution

47.  Mr Reading SC, counsel for the Prosecution, in his letter dated 17 June 2019, stated that,

“In relation to the Defence application, I have been instructed to take a neutral position.”

Together with this letter, the prosecution submitted four cases for my consideration:  Hon Ming Kong & Anor v Secretary of Justice HCAL 47/2008, HKSAR v Md Emran Hossain (2016) 19 HKCFAR 679, HKSAR v Cheung Man Choi CACC 43/2016, and Lai Yiu Mun v Tsang Kai Choy [2019] 2 HKLRD 359. There is no reply or any kind of written submission from the Prosecution in response to the Defence’s skeleton submission.

48.  At the PTR, it was confirmed that the Prosecution is ready to proceed with the trial.

The Relevant Test

49.  In the present case, my concern is the issue of apparent bias, even though Defence counsel said they would stick to the concept of ‘subconscious bias’ which, as they suggested, will trigger apparent bias in the end.

50.  It is accepted by parties concerned that the proper test for apparent bias is that 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 reasonable, fair-minded and well-informed observer to conclude that there is a real possibility that the judge would be biased in dealing with the matter (see Ng Yat Chi v Max Share Limited & Anor (2005) 8 HKCFAR 1 at 45-J).

51.  In Deacons v White & Case Limited Liability Partnership & Ors (2003) 6 HKCFAR 322 at 330-F, the Court of Final Appeal stated that,

“the view of the fair-minded and informed observer as to whether a reasonable apprehension of bias arises may differ from the reviewing court’s own view, and that it is through the prism of such an observation’s perception that the court should consider whether the case is one of apparent bias.”

52.  In Davidson v Scottish Ministers [2004] UKHL 34, the House of Lords in the UK at paragraph 7 held that, 

“In maintaining the confidence of the parties and the public in the integrity of the judicial process it is necessary that judicial tribunals should be independent and impartial and also that they should appear to be so. The judge must be free of any influence which could prevent the bringing of an objective judgment to bear or which could distort the Judge’s judgment, and must appear to be so… The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.”

Discussion

53.  First of all, I think the proper test of apparent bias has been promulgated quite clearly in the above-said authorities that I mentioned. The concept of ‘subconscious bias’ in my view does not come to play in these cases.

54.  In my view, I do have reservation about the applicability of ‘subconscious bias’ in criminal trials. It was said subconscious bias is something that “operates subtly and imperceptibly” (see paragraph 14 of the judgment in the case of Superb Quo Limited).  If something is being operated subtly, I have reservation whether a fair-minded and informed observer can notice or detect such bias at all.

55.  For example, in a trial involving say, ten defendants, five defendants plead guilty to the charges and the remaining five continue their fight. It would be easy to say the trial judge who took the plea and then convicted the five defendants who pleaded guilty, could have some sort of ‘subconscious bias’ when the trial of the remaining five continues.

56.  In my judgment, when counsel suggests the possibility of apparent bias, it is prudent for the court to use the traditional test, namely the fair-minded and informed observer test. I have to stress that when we describe the observer ‘informed’, it must mean the observer knows what is going on and is not being misled.

57.  Hence, it is important that what happened on 6 November 2018 and 1 March 2019 when D2 took the plea and eventually offered to assist the police be looked at in the context of the development of the case.

58.  As I said, it is reasonable and understandable to see that D2 was and is subject to tremendous pressure when he was arrested in May 2013. When being cautioned, apart from confirming his personal background, he remained silent.

59.  Even when D2 had indicated his plea on 5 July 2018, D2 did not show his willingness to cooperate with the police, not even on the very day (6 November 2018) when he was about to be sentenced. He even asked the court to sentence him right away without waiting until the end of D1’s trial.

60.  As said by Hartmann J (as he then was) in Hon Ming Kong v Secretary for Justice HCAL 47/2008, of which I was the trial judge, the court said, 

“It must itself consider the relevant circumstances and then determine whether those circumstances would, or would not, lead a reasonable, fair-minded and informed observer to conclude that there is a real possibility of bias. A perception of bias is not a discretionary matter, one to be weighed in the scale of convenience. In this regard, I can do no better than cite the headnote of AWG Group Limited v Morrison [2006] 1 All ER 967: ‘There was either a real possibility of bias, in which case the judge was disqualified by the principle of judicial impartiality, or there was not, in which case there was no valid objection to trial by him. Inconvenience, costs and delay did not count in a case where the principle of judicial impartiality was properly invoked…’” (paragraph 28 and 29 of the judgment).

61.  In that case, the Judge further said (at paragraph 39 of the judgment),

“As the trial judge recognised, there is ample authority to the effect that courts must always view applications for recusal with care and caution. The judge must therefore be satisfied not that there is simply some possibility of an appearance of bias but that there is a real possibility of it. That possibility, it has been recognised, must be firmly established.”

62.  I have to stress that the hurdle has to be firmly established. Three messages so elicited in the above-said case are loud and clear: 

(1) some possibility of an apparent bias is not enough;

(2) there must be a real possibility of bias; and

(3) that possibility must be firmly established.

63.  I am a professional judge, acting both as a tribunal of fact and law in District Court. Naturally and professionally I am duty bound to assess evidence and credibility of all witnesses, be they Prosecution or Defence witnesses, strictly in accordance with the law.

64.  Mr Justice Stock JA (as he then was) in the case of HKSAR v Ewan Launder CACC 147/2000, said rightly that,

“the courts must always view applications of this kind with care and caution. As has on a number of occasions been pointed out, there is a duty upon judges to sit… and should not too readily accede to suggestions of appearance of bias.” (page 500 at H of the judgment).

65.  The High Court in Australia has said in Re JRL ex parte CJL [1986] 161 CLR 342 at 352, 

“It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. … In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of pre-judgment and this must be ‘firmly established’. … Although it is important that justices must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.”

66.  Also, as stated by Mr Justice Hartmann J (as he then was) in Secretary for Justice v Li Chau Wing, HCAL 143/2004,

“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” (page 6 of the judgment).

“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” (page 7 of the judgment).

67.  In my judgment, through the prism of a reasonable, fair-minded and well-informed observer who is acquainted with the facts of this case, I find that the reasonable apprehension of bias or even subconscious bias, if any, cannot be firmly established.

68.  In my judgment, the grounds of the present recusal application are flimsy.  But this is not the end of the story.

Change of stance of the Prosecution

69.  The Prosecution maintained their neutral position even up to the stage when this Court invited Mr Reading SC, to make a reply to the submission made by the Defence counsel. 

70.  However, when specifically asked to state their position unequivocally, the Prosecution said they now support the recusal application made by the Defence.

71.  That effectively means the recusal application now becomes a joint application which inevitably adds ‘weight’ to the Defence’s position.

72.  It is to be noted that both counsel for the Prosecution and Defence are funded by public coffers. D1’s legal team is now led by Mr Kwok SC, an experienced criminal silk. 

73.  The Court has a duty to ensure the trial be proceeded with without further delay. I am also of the view that the trial should not be side-tracked to further litigations like what had happened in the case of Hon Ming Kwong, HCAL 47/2008, when the party sought leave to apply for judicial review seeking an order of certiorari to quash my ruling and an order of prohibition.

74.  I will not speculate whether this application is an attempt to secure an adjournment of the trial. Also, I will not speculate whether this application is an attempt to recuse a judge for some other reasons.

75.  The estimate of the length of the trial is 30 days. As such, if this case is to be refixed, the new trial dates will be in 2020.

76.  Be that as it may, both counsel now make a joint application for recusal before me. In order to avoid the chance of joint application to take the case further, and as said by Mr Justice Rogers VP (as he then was) in the case of Superb Quo Limited, to be “err on the side of caution”, I reluctantly have to grant leave to the application to recuse myself from hearing D1’s trial so that the main trial can be proceeded with without further delay and/or without incurring further legal costs.

Conclusion

77.  I grant leave to the joint application by both parties, and order that the original trial dates be vacated. I have checked with my listing staff and was informed that the earliest dates for trial are from 7 January 2020 to 19 February 2020, with 30 days reserved. I will allow time for counsel to check their diary, but as I said, this case should be proceeded with without further delay. Unless counsel from both sides have a special reason for not adhering to these trial dates, I would order that the trial be commenced on 7 January 2020 at 9:30 am.

78.  As such, I would extend D1’s bail on the same terms.

79.  D2 will be sentenced after the conclusion of D1’s trial.  I would let the Prosecution to liaise with counsel for D2 as to the feasibility and desirability of D2 to be sentenced by the trial judge who is to handle D1’s trial.