HKSAR v. TSANG PING TAK

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 980 OF 1997

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J U D G M E N T

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1. The Appellant appeals against conviction in the Magistracy on one charge of assaulting a police officer in the due execution of his duty. The charges arose from an incident in the Kwai Fong MTR station. The Appellant, his brother (who was D2 in the proceedings before the Magistrate) and another man were at the station when Appellant's brother, the 2nd Defendant used the escalator button to stop the MTR escalator. When the matter was investigated by MTR staff, the 2nd Defendant assaulted one of those staff members. The assault was seen by an off-duty police officer who came to make enquiries (P.W.4). During the course of his doing so, Appellant was alleged to have assaulted him. The witnesses were two MTR employees, an off-duty Customs and Excise officer who was at the scene and the victim of the first charge, the off-duty police officer. No witnesses were called for Appellant who elected not to give evidence. His brother, the 2nd Defendant who pleaded guilty did not give evidence.

2. The first ground of appeal against conviction was that the Magistrate repeatedly intervened during the examination of the witnesses. As an example, it was stated that in PW1's evidence the transcript shows some 284 interventions by the Magistrate.

3. The second ground was that the Magistrate failed to give proper weight to the evidence of PW3, the Customs and Excise officer who was the only fully objective and independent witness produced at the trial. There was criticism of the way the Magistrate dealt with his evidence and how he dealt with it in his findings. The third ground was that as a result of the matters relating to ground 2 the Magistrate failed to give proper consideration to the defence case and, in particular, failed to reconcile what were alleged to be irreconcilable differences between the evidence of the Customs officer, PW3, and the police officer PW4, who was the victim of the assault.

4. Counsel for the Appellant referred me to the case of R. v. Yeung Mau-lam [1991] 2 HKLR 468 where the Court of Appeal, hearing an appeal against conviction, was concerned to discover whether the judge's questioning of the witnesses overstepped the bounds of propriety. The authorities on this matter were looked at and it was held that they established the following propositions:

1) that 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 was 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, and

5) the ultimate question for the consideration of an appellate court was whether the judges' 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.

5. Mr. Haynes, for the Appellant, submitted that in this case the Appellate Court would have to answer the question whether a person listening to the case would justifiably have had the impression that the judge had by his questions entered the arena in the affirmative. In fact Mr. Haynes indicated that in this case the Magistrate having entered the arena at an early stage never left it.

6. Because of the allegations made by the Appellant, I spent some time examining the transcript related to the case and also the reasons for the Magistrate's verdict which he gave orally at the hearing and then faired in writing at a later stage. I was able to dispose of the two latter grounds as not having been substantiated. The Magistrate paid careful attention to the evidence and examined it at some length in his Reasons for Verdict. He dismissed, as he was entitled to do, the evidence of PW3. This was not that he dismissed it without considering his as the only independent evidence, but he considered with some justification that his evidence was of a minor and unhelpful nature as the witness did not take part in the incident and witnessed events at a distance of about 30 feet.

7. The Magistrate was well aware of the importance of PW3's evidence to the defence and he did examine it carefully. Further, he was under no illusions as to the importance of PW4's evidence. He examined it and made findings in relation to PW4 which indicates that he accepted his evidence in part only. At paragraph 12 of his Reasons for Verdict, the Magistrate said,

"Having heard all the evidence, I have no doubt, despite PW4's claim that he had not heard the Appellant swearing or claiming to be a police officer, that he must have witnessed this if such things occurred as PW1 and PW2 were adamant they did."

8. Certainly, it was never in dispute that the Appellant had taken a card of some sort from his wallet after speaking with PW4. Such a finding does not lead the court to consider that the Magistrate was not endeavoring to reconcile PW4's evidence with that of other witnesses where it was in conflict.

9. The main ground and the one that I have had to consider most carefully is whether or not the court intervened too much throughout the course of this case and whether, concomitant with that, the defence was prohibited, or precluded, or inhibited in presenting its defence as it wished. It should be stated at the outset that a fairly unusual combinations of circumstances related to the trial itself. The defence counsel, though experienced, had a tendency to ask convoluted, incomplete and confusing questions which caused difficulties both to court and to the interpreter. The Court Prosecutor and the interpreter do not appear to have been highly experienced. Some of the interjections, by the Magistrate were necessary to make sense of the interpretation. There is also the factor that must be present in almost all Magistracy cases that a Magistrate, of necessity, has the passing of time very much at the forefront of his thoughts and particularly when attempting to juggle or manage cases or to bring cases to a comparatively speedy conclusion.

10. A large number of the Magistrate's interjections related to the rephrasing of questions or answers, or the interpretation of particular words, or phrases, or answers. It should be stated that throughout the hearing there was no question of the Magistrate showing any actual bias, although I accept that from R. v. Yeung Mau-lam such need not be shown. The Magistrate appeared to be fairly even-handed in his interjections and interventions. They were made in respect of both prosecution and defence matters. It was suggested by Mr. Haynes when dealing with this point that the Magistrate interfered at pivotal points and crucial stages of the evidence.

11. However, I note that throughout the defence counsel did not appear to take any exception to the Magistrate's interventions, indeed in certain cases, judging from the discussions that ensued, he appeared to welcome them. I did not ignore the fact that there were a large number of interruptions, but having looked at their quality I do not consider that a person listening to the case would justifiably have had the impression that the judge by his questions entered the arena for one side or the other. The ultimate question I have to answer is whether the judge's, in this case the Magistrate's, conduct was such that it would have caused the informed bystander listening to the case to say the Defendant had not had a fair trial.

12. I cannot say that the answer to the question is 'Yes'. For these reasons I dismiss the appeal against conviction. For the avoidance of doubt, it should be made quite plain that the Court does not condone constant interruption of a case by a Magistrate; however an appellate court has a responsibility to look and see what the reasons were behind those interruptions.

13. I agree with the comments of my learned brother, Pang J., in Magistracy Appeal No.268 of 1997 HKSAR v. LAI Kwai-Wah, NG Siu-kong and LAM Ka-yeung at p3 where he says:

"As for the interruptions from the bench during cross-examination, Mr. Liu argues that they were genuine efforts by the learned magistrate to clarify ambiguities in the evidence and it was so referred to by the magistrate as such in his statement of findings. I think it was not a matter of how those questions were labelled but the substance of those questions which is important. If they had the effect of obstructing the flow of cross-examination, then it would be ground for concern. By looking at the transcript of proceedings, one is left with the distinct impression that, by the way in which the questions were put to witnesses by the learned magistrate and the number of interruptions from the bench, I cannot help but have the feeling that the learned magistrate had descended into the arena. A judicial officer must be seen to be impartial in all the cases coming before him for trial and he must not suffer himself to be criticised as being biased or having a preconceived idea about guilt or innocent of the Defendant in any way. It is with some regret that the criticism levelled against the learned magistrate in the present case is to a large extent justified."

14. A Magistrate or judge has the very difficult task of holding the ring during a trial, he or she should take special care that any interventions are necessary and justified. A judge or Magistrate should be very aware that however reasonable their interventions may appear to themselves they may often have the effect of stopping either the prosecution or defence from proceeding along a planned course in presenting their case. What the Magistrate or judge should have in mind is whether the informed bystander would regard the interventions as necessary or justified, or whether the informed bystander would think that the Defendant was not receiving a fair trial. It is unfortunate that the Magistrate in this case felt constrained to make as many interruptions as he did, even though most, if not all, interventions can be justified as necessary.

15. The question had to be asked whether or not defence counsel was precluded from putting the matters that he needed to put in cross-examination for the benefit of his client. On balance, I am satisfied that he was not precluded from so doing. Accordingly, I am not satisfied that this ground of appeal has been substantiated.

16. This appeal against conviction is dismissed.