HKSAR v. WAI MEI LING

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 962 OF 1997

(ON APPEAL FROM SKC-700217 OF 1997)

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J U D G M E N T

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1. The Appellant was convicted of shop lifting. The prosecution called a police officer and a staff of Park & Shop to give evidence.

2. The only complaint by counsel in this appeal is that during examination-in-chief of the 2nd witness, the learned magistrate took a dominant role in posing questions to that witness.

3. The 2nd witness is the main witness. Her examination-in-chief started from line M at p.17 of the deposition to line E at p.22. Apart from the introductory questions which were asked by the prosecution, the learned magistrate virtually took over the examination-in-chief. Out of 16 questions at p.18 the prosecution only asked 8 questions. At p.19 the learned magistrate asked all but one question. At p.20 the learned magistrate asked all but 2 questions. Similarly at p.21 the prosecution asked only 2 questions. At p.22 the magistrate asked all the questions. The effect is after the introductory questions, the magistrate had taken over and the prosecution had only asked fewer than 10 questions.

4. It is an adversarial and not an inquisitorial system that we administer in Hong Kong. So the trial judge has to be neutral throughout the trial. No doubt judges are entitled to ask questions but such questions are limited for the purpose of clarification. The principles set out Denning MR in Jones v. National Coal Board [1957] 2 QB 55 at 64 are as follows:-

"The judge's 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 the advocates behave themselves seemly and keep to the rules laid down by law; to exclude irrelevancies 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 over-speaking judge is no well-tuned cymbal."

5. At p.18 the learned magistrate started taking over the examination-in-chief. He posed leading questions. In this case whether the appellant was stopped is of vital importance to the case. At p.20 line M he asked a very material leading question: "okay 即係過咗你個公司個門嘞?"

6. Admittedly the number of questions alone is not decisive. In fact in R. v. Yeung Mau-lam [1991] 2 HKLR 468 it was held

"3. The following five propositions are established by the authorities:

(i) Interruptions by their number alone are not decisive.

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

(iii) 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.

(iv) 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.

(v) 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. (See p.473C-E.)"

7. From reading of the transcript one could not help but feel that the magistrate had by his questions entered into the arena because he did not leave the evidence in chief to the prosecution and his questions were not for the purpose of clarification. By doing so I am of the view that the magistrate's conduct was such that it did not appear to an informed bystander that the appellant had a fair trial.

8. For those reasons, in my judgment, it is unsafe to convict. The appeal is allowed. Conviction quashed and sentence set aside. I do not order a retrial because the offence is not a serious one in which a custodial sentence would be imposed on conviction and also in view of the fact that the appellant is only 15 years old.