R. v. CHAN WAI FONG

1996, NO. MA 466

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL

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J U D G M E N T

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1. The appellant was convicted on 5^th March 1996 of assaulting a police officer, common assault and careless driving. The appellant was represented by leading counsel in the court below. It is unnecessary to go into the facts of this matter, they were not particularly serious offences as they turned out and that is fully illustrated by the penalties which were eventually passed by the learned magistrate.

2. What is complained of in this appeal is that the magistrate entered the arena and intervened so much in the conduct of the trial that it would be proper to allow this appeal.

3. I have had the benefit of Mr Chandler's argument on this matter and he has taken me through a very extensive interventions on the part of the magistrate. Mr Chandler, very properly, argues no malice on the part of the magistrate and does not seek to establish bias. He relies upon the case of R. v. Yeung Mau-lam [1991] 2 HKLR 468 where Power J.A. said :

"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. And further, 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 the defendant had not had a fair trial."

I find Mr Chandler to have made out both these grounds in this case.

4. By his intervention an informed bystander would have taken the view that the magistrate had usurped the function of the prosecution and although I am satisfied that there was no intention on the part of the magistrate to support the prosecution by an intention to achieve a conviction, an informed bystander listening to the case would say that a fair and proper trial had not been conducted. The appeal is allowed and the sentence is set aside.