HKSAR v. CHAN YICK WING

HCMA 1020/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1020 OF 2009

(ON APPEAL FROM ESCC 2890 OF 2009)

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REASONS FOR JUDGMENT

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1.  The appellant was convicted by a magistrate after trial of 3 counts of Indecent Assault, contrary to section 122(1) of the Crimes Ordinance, Cap. 200, Laws of Hong Kong, and was sentenced to 3 months’ imprisonment in total. He appealed against his conviction.

2.  After hearing, I allowed the appeal, quashed the conviction and set aside the sentence.  The appellant was awarded the costs of the appeal and the costs at the magistrate court, to be taxed by the Registrar of the High Court if not agreed.  My reasons are set out below.

Prosecution case

3.  To put it simply, the prosecution case was that the victim, a woman in her 40’s, was indecently assaulted 3 times by a qigong master (the appellant) when she was being medically treated by him.  The facts showed that the victim’s hand was injured and was painful.  She had received many medical treatments for it but still it was not cured.  On the strength of someone’s recommendation, she went to seek treatment from the appellant.  The victim received treatments from the appellant on about 10 occasions in the clinic involved in this case.  The indecent assaults allegedly took place during the last 3 occasions.

4.  According to the victim, what happened in these 3 indecent assaults was that on the first two occasions the appellant suddenly pressed her breast with his fingers, and on the last occasion besides pressing her breast, he also kneaded her nipple with his hand.

5.  The victim kept on going to the appellant for treatments because the treatments were really effective, but after she went through the last occasion she decided to call the police.

Defence case

6.  The appellant denied that he had pressed the victim’s breast or kneaded her nipple as alleged by her.  He said that at the time of the 3^rd treatment, he had already told the victim that to treat her ailment the Tianchi acupoint had to be pressed and that the Tianchi acupoint was close to her breast.  As for the 3 occasions on which the offences were alleged to have been committed, the appellant said that on those occasions he told the victim to press the Tianchi acupoint with her own fingers, while he pressed the victim’s hand with his hand to “transmit qi (energy)”, and then [he] scraped the lymph [sic] beside her breast with a scraping instrument called “ox horn” used for scraping treatment.

7.  The defence called a patient who had been treated by the appellant to give evidence.  The witness described the treatment she received from the appellant and that was similar to the treatment which, according to the appellant, was given to the victim.  The witness said she did not feel that the appellant had done anything improper to her.

8.  The defence case was that the victim, who was suffering from depression, was oversensitive and misunderstood that the appellant gave her such treatment because he deliberately intended to indecently assault her.

Decision made by the magistrate

9.  The magistrate accepted the victim’s evidence and found that the appellant did, as alleged by the victim, pressed her breast and kneaded her nipple and accordingly convicted him of the 3 counts of indecent assault.

Grounds of appeal

10.  Mr. Wong Po-wing and Mr. Tse Hon-yuen, counsel for the appellant, put forward 3 grounds of appeal.  I considered that I only needed to deal with the first ground, which was the complaint that it was demonstrated in the course of the trial that there was a real danger of bias on the part of the magistrate in the sense that he might regard unfairly or had regarded unfairly the case of the appellant.

11.  Mr. Wong relied on R v Gough [1993] AC 646 and HKSAR v Fong Chun Kwok (HCMA417/2001) to support his arguments.

Respondent’s response

12.  Miss Samantha Chiu, public prosecutor, for the respondent, cited The Queen v Yeung Mau Lam [1991] 2 HKLR 468 and HKSAR v Tsang Wai Man (CACC190/2001), saying that in the circumstances of this case, the interventions made by the magistrate were justifiable.  She submitted that even though in the course of the trial there were exchanges between the magistrate and the defence counsel which did smack heavily of “gunpowder”, the ultimate question for the consideration of the court was whether the informed bystander listening to the case would think that the appellant had not had a fair trial.

Discussion

13.  In Yeung Mau Lam, the Court of Appeal adjudicated on the propriety of a judge’s questioning of the witnesses.  Power JA made the following remarks on p.473 of the judgment of that case:

“We are satisfied that the authorities establish the following five propositions apposite to our considerations:

(1) Interruptions by their number alone are not decisive;

(2) The quantity and quality of the interruptions must be looked at as factors which react upon each other;

(3) Actual bias on the part of the judge need not be established, it being enough if by his conduct he would be thought by the informed bystander to be taking over the conduct of the case from the prosecution;

(4) Where a judge sits without a jury, the appeal court must ask itself whether a person listening to the case would justifiably have had the impression that the judge had by his questions entered the arena;

(5) The ultimate question for the consideration of an appellate court is whether the judge’s conduct was such that it would have caused the informed bystander listening to the case to say that the defendant had not had a fair trial.

We think it appropriate also to emphasize that a court, when considering the propriety of interventions by a judge, must bear in mind that it is the judge’s duty throughout to ensure that a trial is properly and coherently conducted.”

14.  In Tsang Wai Man, Yeung JA made further elaborations on the relevant legal principles (paragraphs 13 to 17):

“13. The principal role of the judge in adversarial proceedings is to act as a listener. The judge is to make his decisions on matters in dispute on the basis of the evidence produced and the submissions made by the parties concerned. In order to avoid arousing the suspicion that he is biased towards any party, he should not excessively take part in the questioning of the witnesses.

14. This basic principle should be beyond controversy. However, being the arbiter of factual issues, the judge must receive sufficient evidence on matters in dispute in order to make his findings on the factual issues.

15. Under general circumstances and when both parties are legally represented, the legal representatives of the parties can be expected to elicit all relevant evidence from the examination-in-chief, cross-examination and re-examination of the witnesses to enable the judge to have sufficient evidence to make his findings on the factual issues.

16. However, sometimes things run contrary to one’s wishes. Sometimes, as a result of difference in the comprehension of relevant events, the employment of certain tactics in the course of the trial, the attitude of some witnesses in answering questions, or perhaps because of the ability of the legal representatives, the judge may not be able to obtain the necessary information from the examination-in-chief, cross-examination and re-examination of the witnesses conducted by the legal representatives of the parties, so that the judge himself has to ask the witnesses questions in order to have a better understanding of the matters before he makes any findings.

17.       As long as the judge, when he asks any questions of any witnesses, is impartial and does not give a reasonable and fair minded bystander knowing all the relevant facts the impression that he is biased towards any party, then the above-mentioned practice is reasonable and necessary and gives little cause for criticism, although a more appropriate alternative is to ask the questions through the legal representatives of the parties to obtain the necessary information.”

15.  As for the test to be applied for determining whether the trial judge was biased, the appellate court in Nattrass v Attorney General [1996] 1 HKC 480 and Fong Chun Kwok held that it was not sufficient to formulate the test as whether there was a “reasonable suspicion” that a fair trial of the defendant was not possible, and that the correct test should be whether there was a “real danger” that the defendant might not have had a fair trial.

16.  Before I deal with the complaint made by the counsel for the appellant, I point out that from my reading of the relevant parts in the transcript, I see that initially the magistrate did not clearly understand what the “misunderstanding” which the defence referred to meant.  The magistrate appeared to have thought that by “misunderstanding” the defence meant that even if what the victim said was true, the appellant did not commit any offence because he did not have the intention to indecently assault her.  It was not until the later stage of the trial that the defence counsel had the opportunity to state clearly that the “misunderstanding” referred to by the defence was about the treatments given to the victim, the defence’s account of which was different from the description given by the victim.

17.  Under these circumstances, at the early stage of the trial when the magistrate asked the defence counsel whether the defendant would call any defence witness, he had a lengthy discussion with the defence counsel about the defence concerning the “misunderstanding” and about the relevance of the evidence of the defence witness; and he expressed his views on these matters.  However, I can see that the magistrate simply did not allow the defence counsel to explain clearly.  He just criticized the defence counsel on the basis of his understanding of the “misunderstanding”, but in the end he said that although he disagreed with the defence counsel’s views, he would still allow the defence to call that witness if the defence counsel insisted to do so.  Such being the case, I really cannot understand why the magistrate had to argue with the defence counsel at all.  Moreover, at that stage the prosecution had not yet called their witnesses.  The magistrate should have waited until the prosecution finished proving their case and the time came for the defence to call the witness in question before he made any decision as to whether the evidence of that witness was relevant to the case and whether it was admissible.

18.  The magistrate’s misunderstanding of the “misunderstanding” referred to by the defence led to a series of unhappy exchanges and the atmosphere was, as the prosecutor said, smacked heavily of “gunpowder”.

19.  The defence case was that at the time of the 3^rd treatment, the appellant had already told the victim that later it would be necessary to press her Tianchi acupoint ——    a rather sensitive area.  Admittedly, the victim denied that but the defence case was that the victim was informed about that already and subsequently, during the 8^th treatment, there was the pressing of the Tianchi acupoint.  The appellant said that the victim used her own hand to press her Tianchi acupoint, and that the appellant did not press her Tianchi acupoint with his hand. 

20.  The magistrate was impatient at the defence counsel’s cross-examining the victim about the 1^st to the 5^th treatments.  There was the following exchange between the magistrate and the counsel (page 83I to page 85A):

“Magistrate: Mr So, I really don’t quite understand. You go through all these in respect of each treatment, but what has it exactly got to do with this case. I have very patiently listened up to the 5^th treatment, but whether her husband went there with her during the 5^th treatment, whether it was 25 August, whether [she] went into a room —— what have these got to do with this case?

MR SO: I shall be as quickly as possible….

Magistrate: The question is not whether you’re quick or not quick. Sometimes, the question is whether it is useful or not useful. It’s not a matter of “I shall be as quickly as possible. I have no more question after I finished asking these questions, Your Worship.” If a question is rubbish, even one is too many, right? But if the questions are useful, if they are relevant, to be honest, what does it matter if you go on asking these questions for 3 days and 3 nights?

MR SO: Your Worship…

Magistrate: I mean I hope that during the cross-examination conducted by the defence, I could throughout keep my mouth shut and that what I need to do is just to listen and take down notes, [If I could do that,] I would be very happy.

MR SO: Your Worship, why did I ask her about these things, it’s because, if Your Worship direct your attention to the defendant’s… the record of interview, he had been asked whether, during each treatment, she was alone. The defendant… what I say is that he was so frightened and confused that he gave the answer that she was not accompanied by anyone. Now I just want this witness to confirm that…

Magistrate: In fact, if you had not asked these questions, I would not have known at all whether what the defendant said in the record of interview is true or false.

MR SO: I know, but certainly……

Magistrate: After you asked these questions, now I know that the defendant had said that in the record of interview.

MR SO: Of course, but that is a part of the evidence, that is part of the evidence. I must… I believe that Your Worship…

Magistrate: Why must?

MR SO: I believe that Your Worship will read all of it.

Magistrate: No, why must [I]? Has anyone on his own initiative raised the point that the defendant said something untrue in the record of interview? If you had not asked the witness about this, such evidence would not have appeared at all. Then how could I know that the statement given by the defendant in the record of interview that all along [she] was not accompanied by anyone is not true? Correct?

MR SO: Now all the…

Magistrate: Right, Mr So? If you had not asked the witness about that, how could I have known that? Why did you, without any reason, asked her about that so that I learnt that the defendant said something in the record of interview which you think is not true?

MR SO: Your Worship, this is my only opportunity to ask this patient, this witness, after she left the witness box……

Magistrate: No, the point is why you had to ask these questions.

MR SO: Well… after she left the witness box, I won’t, I have no opportunity to recall her to ask her further questions.

Magistrate: Why do you need to recall her? I am asking you why you…

MR SO: If at any time in this case during the taking of evidence, at any time a conclusion is made that it did happen like this……

Magistrate: I am asking you under what circumstances would I possibly do this, under what circumstances would this happen?

MR SO: For example, for example, when the prosecution cross-examine him……

Magistrate: How to cross-examine him? The prosecutor himself did not ask any question about this, on what basis can he cross-examine the defendant about this? Mr So, under some circumstances, it is good to have some communication with the court, to have some discussion, so that everyone will be clear about the issues. One should know whether one should proceed or stop under certain circumstances, right? Some questions are totally irrelevant and there is no reason to ask such questions. I have been quite accommodating. I have been patient with you until you asked about the 5^th occasion, and only then did I say anything for the first time. These 5 occasions have no connection at all with the 3 occasions involved in this case.

MR SO: There is connection, particularly the 3^rd occasion. There is some connection particularly in relation to the 3^rd occasion.

Magistrate: You have finished asking questions [about] the 3^rd occasion, haven’t you?

MR SO: Yes.

Magistrate: Why can’t I see what connection there is?

MR SO: That’s because Your Worship has not yet heard all the evidence. Actually during…

Magistrate: Mr So.

MR SO: Yes.

Magistrate: Have we finished?

MR SO: No.

Magistrate: No, I mean have you finished the conversation with me just now and are you prepared to ask questions? You said that’s because I have not yet heard all the evidence, so? What are you implying?

MR SO: Well…

Magistrate: Do you mean that you did not ask your questions clearly in your cross-examination, therefore after I listened to it I still do not know what connection there is?

MR SO: Actually……

Magistrate: Or is it because I did not hear the evidence attentively, so I……

MR SO: No, no, no, no, that’s absolutely, absolutely not what I meant.

Magistrate: …do not know?

MR SO: I mean……

Magistrate: What is it in you cross-examination just now which will enable me to know there is great importance in the 3^rd treatment? Which questions and which answers in the cross-examination will draw the court’s attention to this?

MR SO: I put it to her that during the 3^rd occasion the defendant had explained to her about the Tianchi acupoint and what the ox horn was used for.

Magistrate: She disagreed with that already and the prosecutor did not ask any question about that.

MR SO: What the prosecutor concerns about is of course the prosecution case, but our case, the defence case…

Magistrate: Okay, that’s your 3^rd occasion, alright, so this is your case. I assume, I mean all the way I assume and further assume and it turns out that your case is that, the final version is that it was necessary for the defendant to press the Tianchi acupoint of the witness, because of that he touched her breast, right? If that is so, your case is that there was contact with the breast. You are not talking about exaggeration, exaggeration in the evidence, what is it?

MR SO: Your Worship, this, this…” (my emphasis)

21.  First of all, the defence counsel’s questioning of the witness about whether her husband was present on the 5^th occasion was relevant to the evidence which the appellant was going to give.  What the appellant said was that although he took part in the video-recorded interview voluntarily, some content about whether the victim was in the company of anyone was not entirely correct.  The defence counsel did nothing wrong when he asked the victim whether she was in the company of anyone at that time.  It was also necessary for the defence counsel to cross-examine the victim about what happened on the 3^rd occasion. The question of whether the appellant had told the victim about the Tianchi acupoint was very important.

22.  The magistrate had basically misunderstood the defence case.  Owing to this misunderstanding, he suspected that there was some meaning behind the defence counsel’s words; and even though he “assume and further assume” he still thought that the defence case was that the appellant had touched the victim’s breast.

23.  Shortly afterwards, when the magistrate asked the defence counsel whether he had finished asking questions about the 5^th treatment, there was the following exchange (page 86G-S):

“Magistrate: ……You have finished asking questions [about] the 5th occasion, haven’t you, Mr So?

MR SO: Yes.

Magistrate: Are you… I am talking to you, are you not going to answer me?

MR SO: I’m … I’m checking whether I’ve finished answering, finished asking questions about the 5^th occasion.

Magistrate: What is it?

MR SO: Your Worship, notwithstanding how many mistakes there were in my cross-examination earlier on…

Magistrate: No, just now I was talking to you, you must answer me.

MR SO: I would like, Your Worship, I would like to sincerely apologize to Your Worship. Notwithstanding how inappropriate, how improper my earlier cross-examination was, I hope that Your Worship would allow me to start again now to endeavour to carry on with my cross-examination appropriately and properly.

Magistrate: No, I am not saying what you did earlier was improper, but let us go back to… To be honest, Mr So, we, I have tried again and again to understand the defence of the defendant. Now, the impression I got is that at least, I’ve heard that there are at least 2……

MR SO: Your Worship…

Magistrate: ……or even 3 versions of the defence. How the court is to assess, to consider whether a particular piece of evidence is relevant, no matter it is elicited by the defence during cross-examination or by the prosecution during examination-in-chief, is actually very much dependent on what my understanding of your defence is, i.e. on what basis do you conduct your defence. If your defence, say, is that it is entirely a fabrication, i.e. for some reason this was fabricated to frame up, to falsely accuse the defendant, then what is crucial is the witnesses’ credibility, and the scope of the cross-examination will be very wide. However, this is not the impression I got in this morning. That’s why I told you long ago that I didn’t understand why you asked certain questions —— I mean if the scope is narrow. But now, according to what you told me, it is in fact very wide; then I’ll hear the evidence on this wide basis. However, when I heard the description of, of your case, it appears that it is not like this. Thus, I am actually quite confused. I mean I hope that I could as soon as possible understand what the defendant’s defence is, what it actually is. But I will not go on any further. Mr So, please continue. I have already expressed too many of my opinions. Please continue.” (my emphasis)

From the above extract, it can be seen that the magistrate was not happy that the defence counsel did not answer him.  The transcript showed that at that time the defence counsel had already explained that he was “checking [whether he had finished] the 5^th occasion”, but the magistrate still criticized the defence counsel for not answering him. Furthermore, because the magistrate misconceived the defence about “misunderstanding”, he poured out his opinions, and finally he himself was aware that he had expressed too many of his opinions.

24.  Another area which caused me concern is this:  The prosecuting counsel asked the victim whether she was sure that the appellant indecently assaulted her on the first two occasions.  The victim did not agree that on the first two occasions she “did not feel anything special”, the defence counsel thereupon pointed out to her that in her written statement given to the police she had told the police officers that she was not sure whether the appellant did indecently assault her on the first two occasions and based on this, he put it to her that what she said earlier contradicted what she said later.

25.  When the defence counsel was conducting his cross-examination, the magistrate had the following exchange with him (page 94A to page 96B):

“Magistrate: In fact, surely that must be so. If she was sure about that, she would not have gone there the second time, right, Mr So?”

MR SO: I am telling her that now she says she was sure. I pointed out to her that previously, she all along felt that … but now you want to strengthen your allegations, so you say that on that occasion……

Magistrate: No, actually whether she was sure about that or not is not material, right?  We are not talking about the intention of this witness; we are talking about the intention of the defendant.

MR SO: No, my witness…

Magistrate:    Whether she thought that on the 1^st occasion, the 2^nd occasion…  I mean I know what it is about.  It is all about credibility, I understand.  It is like the situation where an ordinary man says he is sure or not sure about something, and you are cross-examining her from this angle.  Now, witness, let me ask you.  On the 1^st occasion, were you 100% sure that the defendant indecently assaulted you, at that moment?

Answer: On the 1^st occasion I was not sure, but I felt something.

Magistrate: Right, then why did she later make a complaint to the police?  That’s because after it happened consecutively on 3 occasions, she became more sure about it.  Right, one can never know what another person is thinking.

Question: On the 2^nd occasion, you were still not sure, right?

Answer: I was sure.

Magistrate: Mr So, sometimes when I said something to you, you… is it right and proper that you should not continue until after we have finished the conversation between us?  It appears that sometimes when I said something to you, you turned your face away and continued to ask questions.

MR SO: I don’t know how to answer Your Worship.  To be honest, I can say……

Magistrate:    Have you ever… Have I ever turned my face away and did not say anything to you when you said something to me?  Have I today done anything like this?

MR SO: Your Worship, I am sorry, if I spoke in such a manner that made Your Worship……

Magistrate: No, in fact I know that you are not……

MR SO: I really want to apologize; I really want to apologize; I do want to apologize.

Magistrate: No, I do not feel that you are particularly……

MR SO: I did not intend to make Your Worship angry, nor did I want to do anything against Your Worship.  I just want to do my job properly.

Magistrate: You can’t do anything against me, Mr So.  What I mean is that I do not feel that you are particularly impolite, so although it happened several times I am not complaining that you turned your face away.  No, it’s not like that.  I’m just asking you why you behaved in this way.  I mean……

MR SO: Because I do not agree with Your Worship’s views.

Magistrate: Alright, but you can, well, I mean you can, well… Perhaps you could have asked me whether you could continue to ask your questions or whether I still had something to say to you.  It is perfectly normal to do it in that way, right?  I have never criticized you in an agitated manner, but I don’t understand why is it that when you’re asking me about something and when I was talking to you, you ignored me.  I feel that’s very strange.

MR SO: Your Worship has not criticized me in an agitated manner, but…

Magistrate: For example, just now when I was discussing with you this matter, i.e. you asked the witness about the 1^st occasion … No, in fact the question you put just now was not very accurate.  The question should be whether she had said those things to the police officers.  I mean I know you asked her about that, but did the witness understand your question?  You heard … From her answer you can see that the witness did not understand your question. In answering your question, she mixed up whether she had said those things to the police with what she thought and what she felt.  Therefore it, it is not helpful to anyone when it was mixed up in this way.  Please ask your next question.

MR SO: I … could I have a few moments to … …

Magistrate: Yes.

MR SO: … … to take instructions.

Magistrate: Yes.

MR SO: Your Worship, the instructions which I’m waiting for are about my personal feeling that today there are some areas in my performance that Your Worship disapproves.  The impression I got is that a very …a very high standard is set for me and it appears that there is fault finding in a certain way.  Therefore I am concerned about whether I can perform my duty in such a way that I can fairly represent the defendant.

Magistrate: Mr So.

MR SO: Yes.

Magistrate: Do you feel that it is fault finding when I asked you to ask your question more clearly?

MR SO: No, the question is not whether it is clear, but I … …

Magistrate: Don’t you think that … …

MR SO: In relation to most of my questions, as regards whether I could ask a certain question, or the purpose for which a certain question was asked, Your Worship expressed your opinions that you disagreed or were displeased.  I think that such expressions of disagreement and displeasure are signs of fault finding.

Magistrate: Mr So, if you listen to the audio-recording, you will surely regret what you have said.  I tell you I have been very, very, very patient today.

MR SO: I understand; I understand.

Magistrate: I have tried my best not to interrupt your cross-examination.  I hope that this case could be finished as soon as possible.  I very much hope so, because this case is about something happened in 2007 and in 2009 we are still … It’s only now that PW1 is being cross-examined.

MR SO: That’s because one whole year was spent on investigation.

Magistrate: If you are minded to make certain applications to me, I will hear your application but I am not interested in listening to your criticism about how I try this case.

MR SO: I am not, I am not criticizing Your Worship.

Magistrate: Well, if you think that… Okay, hold on, are you making a formal application?

MR SO: I would like to take some instructions… …

Magistrate: If you do make an application, I will hear your application.  If you don’t, please continue with your cross-examination.

MR SO: I would like to ask for a short moment to see whether my client would continue to retain me.  I would ask for 5 minutes.

Magistrate: Mr So, do you always behave in this way?

MR SO: No.

Magistrate: For me, I always hear cases in this way and this is the first time I have ever heard anyone say such thing to me.

MR SO: Then I … Alright, in this incident from the beginning to the end, it is me who is wrong.

Magistrate: Don’t say anything like this.  Both of us know very well what our respective positions are. It is pointless to say such thing.

MR SO: Right, I fully understand.

Magistrate: I just want to understand.  If you ask an irrelevant question, then I … …

MR SO: I have explained to the court … …

Magistrate: ……Then I will stop you.  You said you would call a witness.  My opinion was different [from yours], but did I tell you not to call the witness?

MR SO: I have explained for what purpose I asked the questions … …

Magistrate:    But did I then stop you from asking the questions?  You asked the questions anyway, right?  What I did stop you was that you did not ask about the 6^th and 7^th occasions. You jumped to the 8^th occasion.  What happened was just like that.  Which were the questions you wanted to ask but I did not allow you to do so?

MR SO: If I can listen to the audio recording … I can’t say for sure.

Magistrate: You do dare to say listen to the audio recording.

MR SO: I think … … ” (my emphasis)

26.  First of all, the magistrate should not have said that if the witness was sure about that, she would not have gone there the second time.  At that stage the magistrate was still hearing the evidence and should not express his opinions.  Furthermore, after he expressed his opinions, the defence counsel asked the victim whether on the 2^nd occasion she was sure and the victim’s answer was that she was sure.  However, after the victim “was sure” about that, she went there the third time to receive treatment from the appellant.  This evidence was relevant to whether the victim was credible and reliable, but what followed was that the magistrate criticized the defence counsel for “turning his face away”.  As a result, the defence counsel worried that he might not be able to fairly represent the appellant.  However, in the end he did not apply for ceasing to act for the appellant.

27.  After the defence counsel finished his cross-examination but before the prosecuting counsel’s re-examination, the magistrate asked the victim a series of questions about, among other things, her marriage and reasons for her divorce.

28.  When the magistrate asked the defence counsel whether he had any follow-up questions, they had the following exchange (page 105 A-M):

“MR SO: Let me think about it but, well, I can’t figure out what connection there is between the reasons for her divorce and the present case, so I am thinking about what additional questions I should ask and how I should phrase the questions.

Magistrate: Mr So, do you think that my questions are irrelevant and so you are being sarcastic against me?

MR SO: Oh, no, no, no, I am just trying to explain why I was slow to react. It’s just my explanation of why I was slow to react.

Magistrate: Actually, in order to understand a person’s state of mind, it is very important to know his personal background. When an 18 year old girl and a 60 year old woman, who is well versed in the ways of the world, face with a given state of affairs their reactions will be different, certainly will be different. If you thought that you could make sarcastic remarks against the court in this way, I ……

MR SO: I did not; this…

Magistrate: I have received your message, but you have failed to achieve your purpose.

MR SO: The court has misunderstood me. I stood up because the court asked me whether I had any questions and I hesitated, so I ……

Magistrate: It doesn’t matter. We … After all, in the trial of this case, how I think and how you think… It does not matter how I think of you and how you think of me.

MR SO: Well, if …

Magistrate: What matters is to find out whether what the witness said is true. Yes, just now my question was whether you had any questions arising from mine. Actually you have no need at all to say you didn’t know what connection there was. Anyway, finally, do you have any questions for her?

MR SO: No questions, but I would like to say clearly that I absolutely did not intend to say anything sarcastic against Your Worship.

Magistrate: Mr So, if you didn’t mention it I might as well forget about it. I asked you whether you had any questions for her. How come you would comment on whether my questions had any connection with this case? What I asked you was whether you had any follow-up questions. If you thought that my questions were irrelevant, you had no need to make any comment at all, you could just say you had no follow-up questions.

MR SO: At that time I …

Magistrate: Assuming that you’re correct, my questions were really irrelevant; then, how could the defence case be affected in any way by my irrelevant questions? In that case, there would be even less reason for you to do anything to follow up, right?

MR SO: I have nothing else to say, Your Worship.” (my emphasis)

29.  I have only read the transcript, yet I can still be able to see that at that time what the defence counsel did was only to directly explain to the magistrate in a frank and straightward way why he could not ask any questions immediately.  However, the magistrate said categorically that the defence counsel made sarcastic remarks against him. Even though the defence counsel repeatedly apologized, the magistrate still refused to let the matter drop.

30.  Later, when the defence counsel asked the appellant about the fact and circumstances of the appellant’s explanation to the victim concerning the Tianchi acupoint, the magistrate told the defence counsel that he did not put to the victim that at the material time the victim’s mother was present.  The exchange between them was as follows (page 111J to page 113E):

“Magistrate: Mr So, your case is that when the defendant explained to PW1 about the Tianchi acupoint, or when … when [he] showed her exhibit D2, this witness was present.

MR SO: This person was present.

Magistrate: Yesterday, you didn’t put it to PW1, why?

MR SO: At that time when we were talking about whether she was accompanied by anyone, I met with some difficulties.

Magistrate: What are you talking about?

MR SO: I know that I did not put it to her that “when [you] asked about this matter, your mother was also present”. I didn’t put it to her, didn’t put it to her. I put it to … …

Magistrate: No, what is the meaning of your earlier sentence? What did you mean by “met with some difficulties”?

MR SO: I mean I didn’t put this question.

Magistrate: No, what were those difficulties?

MR SO: I mean that at that time I did raise the point as to whether she went there in the company of anyone… …

Magistrate: I am asking you what you referred to when you mentioned difficulties just now.

MR SO: I mean when I was considering whether I should ask those questions, I hesitated.

Magistrate: Let us listen to the audio recording, alright?

MR SO: No, no, I …

Magistrate: Yesterday, when you asked questions up to the 3^rd occasion, I did not interrupt at all. What did you mean by “met with some difficulties”? Only when you got to the 5^th occasion did I ask you what’s going on, Mr So. I asked you whether you’re going to ask her about the 6^th and the 7^th occasions as well. Then you jumped to the 8^th occasion. During the 3^rd occasion when the Tianchi acupoint was mentioned, when did I stop you, stop you by saying you’re not allowed to put it to her? You have never put it [to her] that there were other people at the scene besides the defendant and PW1.

MR SO: Your Worship, I …

Magistrate: Let me ask you, are you still making sarcastic remarks against me? I’ve just asked you one question: why didn’t you put it [to her]. I wanted to know whether you have any reason for that, but you gave me this answer: “I met with some difficulties”. What did you mean?

MR SO: Your Worship, I confirm that I didn’t put it to her that her mother……

Magistrate: I don’t need you to confirm that. I remember that.

MR SO: Then I would like to carry on with my cross-examination today.

Magistrate: No, Mr So, what kind of attitude is this?

MR SO: I have no other explanation; I have no other explanation.

Magistrate: No, what explanation do you have in respect of the sentence you said just now?

MR SO: As for the sentence I said just now, I meant that at that time when I was thinking whether I should put it to her, I made a wrong decision and did not put it to her.

Magistrate: No, you said you met with some difficulties, what were they? What did you mean? This is the 4^th time I ask you.

MR SO: I can’t explain.

Magistrate: Why is it that when some people are doing their work, they always put the blame on others. Why can’t they reflect on their own words and conduct first? Why is it that the first response was “I didn’t do that because you got in my way”, and not “I’ve omitted to do that”. Is that something related to the character? I really find it strange. Just now I really simply asked you why you didn’t put it. Just now if I did not raise this point, I would absolutely … You did not make any indication to me. Just now it seemed that you’re just asking a question. If I had not asked you about that, I would not have known that on the 3^rd occasion … you alleged that when she came to seek treatment for the 3^rd time, PW2 was present. When you were [dealing] with PW1, you said nothing about that, then how would I be able to learn about that? When I asked you, I really knew nothing about that, but you gave me such an answer. Mr So, you might not notice this: Before I came out this morning, I told myself I hoped that I could say nothing during the cross-examinations. When you were conducting your cross-examination, you asked many questions which had little relevance and I did not say anything about that, but regarding this point, I really couldn’t understand, so I asked you that question, but you gave me such an answer. What did you mean, Mr So?

MR SO: I cannot explain.

Magistrate: No, what were those, those difficulties? What did you mean? When you said this sentence, what did you want to express?

MR SO: I withdraw this sentence.

Magistrate: How can you withdraw that? You have already said that.

MR SO: Your worship, I have no further submission to make about this point.

Magistrate: No, when you said this sentence, there must be some meaning in it. In what way did I offend you?

MR SO: I do agree that……

Magistrate: Did I have any conversation with you this morning? It seemed that I did not have any conversation with you this morning, except saying things like “Cross-examination, please”, but you didn’t respond to me. Why is it that once you opened your mouth you said this sentence to me. It’s baffling. In what way did I offend you, Mr So?

MR SO: Your Worship, if I have in any way offended Your Worship,……

Magistrate: No, I’m not, I’m not ……

MR SO: ……I sincerely apologize. I do not want to quarrel or what with the court.

Magistrate: I’m not quarrelling at all.

MR SO: I only want to carry on with my cross-examination today.

Magistrate: I just want to find out what you meant by saying that sentence.

MR SO: When I put questions to that witness, I did omit the point concerning whether her mother was present. Yes, I omitted it.

Magistrate: Yes, so I would not be able to know that, right?

MR SO: Right.

Magistrate: Right? After I heard PW1’s evidence, I would not know that, so I … Earlier, you didn’t put it to that witness. You just asked her questions. That’s why I felt strange, so I asked you about that. Then did you consider that this question from me again gave you trouble?

MR SO: I have never said that.

Magistrate: Just now you … in response to my first question, you said you met with some… In response to the question why you didn’t put it to her , you said something like you met with some difficulties. What meaning did you want to express?

MR SO: I met with some difficulties in deciding whether I should put it.

Magistrate: I really don’t like this. I mean if you really have certain feelings about certain things, just say it out. Forget it, please continue.

MR SO: Yes, thank you Your Worship.” (my emphasis)

31.  Even though the magistrate thought that there was some hidden meaning in the defence counsel’s words, the defence counsel had apologized more than once and admitted that he had made a mistake, but the magistrate still would not leave it at that and kept on asking him what he meant when he said “met with some difficulties”.  It is obvious that throughout the trial process, the magistrate was very unhappy about what the counsel had said or done, or even about his integrity.

32.  In my judgment, if the magistrate believed that there was anything improper in the counsel’s handling of his case, the correct thing to do is to indicate to him what thing said or done by him was improper, and if necessary, that could be directly pointed out to him. If such improper conduct did not desist, then after the trial concluded the magistrate could complain to the Bar Association about what happened and a disciplinary hearing may be held, if appropriate.  What should not have been done was to continually criticize the defence counsel in the course of the trial, because it would give one the feeling that the magistrate had lost his impartiality in the trial of the case.

33.  My view is that at the outset the magistrate misunderstood the appellant’s defence about “misunderstanding”, and subsequently he was displeased by the defence counsel’s failure to answer him or “turning his face away ” from him.  The result was that he was very unhappy with the defence counsel.  The magistrate did not afford the defence counsel the opportunity to clearly explain the meaning of the “misunderstanding” referred to by the defence, and further, he repeatedly criticized the defence when they intended to call other witnesses.  Even the magistrate himself was aware that he had expressed too many of his opinions during the trial; but what is more important is that he, instead of allowing the defence counsel to conduct his cross-examination properly, expressed his views and opinions when the victim was still giving evidence.

34.  Actually, there were especial features in this case.  The victim was an adult and she went to the appellant to be treated by him again and again.  According to her, she had been indecently assaulted by the appellant on 3 occasions.  She was under no compulsion to receive the treatments; moreover, she had to pay for the treatments.  It was not a case in which the victim was a small girl and was molested at home by a family member of hers in circumstances under which she had no way to escape.  In this case, why the victim repeatedly went to the appellant to receive treatments after she already had been indecently assaulted by him was one of the crucial issues.  However, before the end of the trial, when the witness was still giving evidence, the magistrate already expressed his views.

35.  Having scrutinized the whole process of the trial, I find that an informed bystander listening to the case would think that the appellant had not had a fair trial.  Judging it in another perspective, I find that, after considering all the circumstances, there was a real danger that the appellant had not had a fair trial.

36.  For the above reasons, I quashed the conviction and set aside the sentence.

Ruling on costs

37.  The appellant, his appeal being allowed, should have the costs of the appeal.  Miss Chiu, for the respondent, did not object to that but she objected to awarding to the appellant the costs at the magistrates’ court.  Her reason was that the conduct of the appellant, particularly the fact that in his cautioned statement he admitted having touched the victim’s body and only denied touching her vital parts, brought suspicious upon himself.  Miss Chiu submitted that the prosecuting of the appellant was justifiable, so that the appellant should not be awarded costs.

38.  In Tong Cun Lin v HKSAR (1999) 2 HKCFAR 531, the Court of Final Appeal laid down the principles pertinent to the awarding of costs, Litton PJJ pointed out on page 535:

“… When a defendant has been brought to trial upon particular charges and is then found not guilty it is clearly right that he should normally be compensated out of public revenue for the costs incurred in defending those charges. In considering whether, despite this general rule, he should be deprived of all or part of his costs, the judge exercising the discretion must obviously look to his conduct generally, so long as such conduct is relevant to the charges he faced. This cannot be confined to any particular period of time. Since, however, the discretion is being exercised in the context of an acquittal – the averments constituting the charges having been found by the jury as not amounting to the crimes alleged – it follows that, generally speaking, the conduct most relevant to the matters under consideration must be the defendant’s conduct during the investigation and at the trial: How he first responded to the investigators, the answers he gave when confronted with the accusations, the consistency of those answers with his subsequent defence, etc. Wrapped up with this is the strength of the case against the defendant and the circumstances under which he came to be acquitted. These too are relevant to the exercise of the discretion to deprive him of his costs, so long as the judge is not, indirectly, thereby punishing him by taking a view of the facts palpably different from that taken by the jury and reflected in the not-guilty verdict. The person in the best position to weigh those matters is clearly the judge himself.”

39.  In Tong Cun Lin, the defendant was acquitted but the principles are applicable to the present case. I did not agree with the respondent’s submission that the appellant’s conduct brought suspicion upon himself.  The undisputed facts of this case were that the victim went to the appellant to receive qigong treatments from him and that in the course of the treatments there were bodily contacts, but that the contacts were made outside the clothings.  The appellant denied that there were any intimate contacts as alleged by the victim.

40.  According to the facts of this case, after the victim was allegedly molested, she still on more than one occasion went to receive treatments from the appellant; and at the time of the commission of the offence, only two of them were present.  The prosecution’s evidence against the defendant could not be said to be strong and convincing.

41.  I also took into consideration the fact that the reason for allowing the appeal was that the appellant did not receive a fair trial.  The appellant was not the party at fault.  It would be unfair to him if he should be made to bear the costs under these circumstances.

42.  I therefore found that the appropriate order was that the appellant’s costs at the magistrate court should be paid out of public revenue.