HKSAR v. PAN PAO CHIH and Others

1997, NO. MA 301

IN THE HIGH COURT OF HONG KONG

COURT OF FIRST INSTANCE

MAGISTRACY CRIMINAL APPEAL

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REASONS FOR JUDGMENT

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1. I allowed the appeal on 4^th September, 1997 and now give my reasons.

2. The appellants appeared before a magistrate on an amended charge sheet containing 11 charges of obstructing a public officer in the lawful performance of her public duty; assault occasioning actual bodily harm; claiming to be a member of triad society; acting as a member of triad society and criminal intimidation. They were convicted after trial of the respective charges which they faced either alone or jointly with others and were each sentenced to a term of imprisonment ranging from 2 months to 4 months. I am told that the sentences have already been served. They now appeal against their convictions.

3. The case for the prosecution and the case for the defence were summarized by the magistrate in his Reasons and they are these:

"1.This case arises out of a raid by USD officers on hawkers in the early hours of the 30th August 1996 outside the New Jade shopping arcade in Chai Wan. The case for the prosecution was that D1 was hawking cooked food from a cart; she ran when the USD officers arrived, but was intercepted by PW2 and others; D2 (the son of D1) claimed that he was Lo Fuk and said that he would hit anyone who made an arrest; D5 claimed that Lo Fuk guarded the area and made a similar threat; the USD officers were then subjected to violence which included the use of metal pipes and bamboo sticks.

2. The case for the defence was that D1 was not hawking when the USD officers arrived; that she never ran and was cleaning her cart; that she asked for a chance claiming truthfully that there had been a raid the previous night when the family cart had been confiscated; that a USD officer or officers subjected her to unnecessary violence in the face of bystanders one of whom rebuked the officers using foul language, that this person (who was never identified) was then assaulted by the officers; D2 remonstrated verbally and was then set on himself and hit with a torch; D3 was likewise hit with a torch; D4 was assaulted; neither D3 nor D4 offered any violence to the USD to explain or justify the violence used upon them. The case for D5 was different: he was never at the scene, but was at home in bed. He claimed that he had been in dispute in April of 1996 with the same chief hawker control officer (PW1) and that the evidence putting him at the scene was a deliberate and false attempt to harm him in revenge."

4. D1, D2 and D5 gave evidence and called two witnesses one of whom was Mr. Tang Lai-ming, a District Board Councillor. The magistrate rejected all their evidence and had very strong words for Mr. Tang. I shall come back to this aspect at a later stage.

5. One of the grounds of appeal advanced in argument by counsel for the appellants is that the magistrate erred in law in assuming the role of an advocate and entered the arena on various occasions throughout the trial and the particulars are that:

(1) he repeatedly interrupted and took over examination-in-chief from counsel and throughout cross-examination of prosecution witnesses he indicated disapproval during speeches for defence;

(2) he suggested that defence counsel was not doing his duty during the examination-in-chief and cross-examination of witnesses;

(3) he had asked questions on their face directed to discrediting DW1 and also introduced views of his own at various points throughout the trial;

(4) he asked hostile questions and interjected DW1 while he was giving evidence at trial and

(5) he expressed strongly adverse views of D5's conduct in his questions put to him at the trial.

6. The trial occupied several days and the defendants were represented by solicitors from two firms of solicitors. The prosecution was represented by Mr. Y.H. Wong, a senior court prosecutor. The full transcript consists of 352 pages and the part relates to the evidence starts from p. 31 and finishes at p. 296. Without going into the actual number of times the magistrate intervened or interrupted, which were so numerous, it is difficult to find even on one single page that the magistrate kept silent. To give one or two examples, one can see from p. 38 that the questions or intervention by the magistrate took up the space of two third of the page. It runs like this:

"COURT: You told me already that you warded off the blow with...

A: Yes.

COURT: ...your right arm before the police got there. When did you sustain the injury, do you know? Was it before the police got there in that incident, or when the police were there?

A: Not the police came, because I...

COURT: Think about what you are answering. The injury to your arm, did it happen before the police were there or once the police were there?

A: Before that.

COURT: Before. So it happened when you warded it off in the earlier incident, right?

Q: And you....

COURT: Just take it slowly in turns. Once the police arrived, you say D2 and D4 tried to hit you again. Did they, in fact, hit you when the police were there?

A: No.

COURT: They did not.

A: Yes.

COURT: They did not hit you then?

A: Yes.

COURT: D2 - so if I write down to make sure we've got it right, "D2 and D4 did not actually hit me when the police were there", is that right?

Over the page at p.39:

"A: Yes.

COURT: But you say they tried to do so?

A: Yes."

This was the examination-in-chief of PW1, the chief hawker control officer. There were more questions on the same page and virtually the whole page 40 was taken up by the magistrate. During the cross-examination of PW1 by Mr. Cheng, who appeared for D1 and D2, exchanges took place between the magistrate, the witness and Mr. Cheng like this at P.46:

"COURT: He was asked if they carried torches, he said "no." You know what he said....

A: No, no, no. I do not notice that.

COURT: Then what's the questions you want to ask him?

Q: You don't remember saying this to the...

A: I do not notice it. Not notice.

Q: You know that my question is that did you remember you're.

COURT: Look, he has said it to-day, hasn't he? You don't have to keep going back over his evidence-in-chief...

Mr. Cheng: Yes, sorry....

COURT: What's question you want to ask?

Mr. Cheng: Sorry, it's just...

Q: You were on duties, so to speak, in the midnight. And we do not have any form of light, and therefore it would be much dark in the midnight, is that correct?

COURT: It's dark at midnight? Yes? If this is going through an interpreter, it would be 'yes.....

A: Well, I think I'd say 'yes, yes....

COURT: Yes, yes...

A: .... 'yes...

COURT: ...yes, yes'. It class="quote" 's just wasting time, isn't it? Talk.

Mr. Cheng: Yes, very good, sir.

COURT: I don't want to be difficult, but a lot of witnesses to get through here, a lot of material. Asking questions like 'it's dark at midnight' is a waste of time.

Mr. Cheng:(Apparently has become incoherent) (Italics added) - I would told that my point in embarrassing.

COURT: All right."

The magistrate went on to ask questions or interrupt questions and answers on the same page and subsequent pages. This can go on and on and examples are too many to enumerate. One has to read the transcript to appreciate the full extent and importance of the interventions.

7. The magistrate found DW1 to be completely unworthy of belief, dishonest and a liar. His main reason for reaching this conclusion was that DW1 had not been able to satisfactorily explain why he did not make a witness statement to the police at the time of or shortly after the incident. It is clear from the transcript that at the very outset the magistrate was determined to discredit this witness as it is evident from his cross-examination of DW1 on this one simple issue which alone filled up many pages of the transcript (see p. 199-p. 204 and p. 237-p. 247). The magistrate was so persistent in pursuing this question, it is not surprising that he rejected his evidence.

8. For the purpose of this judgment, I would respectfully adopt what Cons, V-P said in The Queen v. LAU Hing On, Criminal Appeal No. 378 of 1986 (unreported) at p. 2 to p. 3:-

" Unfortunately a complaint of this nature is not unique. We have been referred to several cases in which others have been made to this Court or Courts of Appeal in other jurisdictions. For our part we are content to rely upon the judgment of this Court R. v. Tam Chi Ping & Others⁽¹⁾¹ where the Chief Justice, giving the judgment of the Court, said -

¹ (1) Unreported Cr. App. 119 of 1985, 10 July 86

" It must be made clear that there is nothing improper in interventions as such by a judge, even if they are frequent and lengthy, provided that the judge follows the principles set out in Jones v. National Coal Board⁽²⁾² by Denning, L.J. in the following terms -

² (2) [1957] 2 Q.B. 55

'The Judges' part in all this is to hearken to the evidence, only himself asking questions of witnesses when it is necessary to clear up any point that has been overlooked or left obscure: to see that advocates behave themselves seemly and keep to the rules laid down by the law; to exclude irrelevance and discourage repetition; to make sure by wise intervention that he follows the points that the advocates are making and can assess their worth and at the end to make up his mind where the truth lies. If he goes beyond this he drops the mantle of a judge and assumes the robe of an advocate and the change does not become him well. Lord Chancellor Bacon spoke right when he said that 'Patience and gravity of hearing is an essential part of justice; and an overspeaking judge is no well tuned cymbal."

The case before that court related to a jury trial and the court went on to quote, and rely upon, three principles that had been formulated by Lord Parker in R. v. Hamilton.⁽³⁾³ The first two of those principles are not appropriate to trial by a single judge and no reliance has been placed upon the third in the present instance. We find assistance however in a later passage of the judgment:-

³ (3) [1969] Crim. L.R. 486

"Nevertheless we administer an adversarial and not an inquisitorial system. Until the law is changed, as we hope it will not be, we must seek to preserve it. One of its most important rules is that the judge must continue to preserve an appearance of neutrality throughout a trial. Whatever he may think, he must not seek to impose his views on the jury, during the course of a trial, by interventions of a volume or nature which put pressure on a jury to find as the judge has shown he wishes them to do.

It would, of course, be naive to expect that every convicted defendant would acknowledge that his trial had been fair. But the judge must strive to so conduct himself during a trial that a neutral observer would be left in no doubt that the trial was conducted fairly before a judge who stood above the conflict and retained his air of impartiality throughout."

Those remarks must apply even more strongly to trial by a single judge, for should the judge assume the robe of an advocate, as Lord Denning put it, not only is the appearance of neutrality lost, but the judge being a judge of fact as well as law, there is a very real possibility that his judgment will be influenced by his conduct and the defendant genuinely deprived of a fair and impartial trial."

9. In the discharge of judicial functions, it is important for judges and magistrates always to bear in mind the maxim: "justice must not only be done but must also manifestly be seen to be done". This is the starting point. I regret to say that justice was not seen to be done in this case because the conduct of the magistrate had rendered a fair and impartial trial impossible. In the premises, the appeal must be allowed, the convictions quashed and the sentences set aside.

10. Counsel for the Government applied for a retrial. In view of the fact that all the appellants have served their sentences, it would be wrong to make the order sought and the application is accordingly refused.