The Queen v. Lo Kwok Hung

CACC000137/1989

When judge should discharge himself from hearing a case - reasonable suspicion that a fair trial not possible.

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Coram: Hon. Yang, C.J., Hon. Silke, V.-P. & Hon. Bewley, J.

Date of Hearing: 6 October 1989

Date of Judgment: 19 October 1989

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J U D G M E N T

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Hon. Yang, C.J.:

1. The applicant seeks leave to appeal against his conviction of a charge of robbery and another charge of taking conveyance without authority.

2. On the 19th September 1988 at about 2.30 a.m. two robbers entered the premises of a dyeing factory in Yuen Long and robbed two employees there of 260 rolls of cloth and a computer. The victims were threatened with melon knives, tied up, gagged and blindfolded. At about 4.10 a.m. the police intercepted a car at a road block. The applicant was one of the two persons who emerged from the car. He was caught by the police after a short chase.

3. The case first came before Judge Rattigan on the 8th November 1988 when the applicant pleaded not guilty to the two charges. The judge then adjourned the case to the 9th - 13th of February for hearing and, at the same time, advised the applicant to obtain legal aid.

4. On the 9th February, the matter came on before Judge Baily. The applicant, Who was then acting in person, said to the judge he did not have sufficient funds to engage a lawyer privately and he would obtain the services of a Legal Aid lawyer. The judge then intimated to the applicant that he would be provided with a Legal Aid lawyer the next day.

5. On the following day, namely Friday the 10th, the following conversation took place between Judge Baily and the applicant:

"Defendant:

I went to Legal Aid Department. I was given Legal Aid and asked to produce $3,960. I was given only 2 Hours to go hone and get the bail receipt which would cover the money. Two hours was not long enough to go home to Yuen Long to get it."

Defendant:

My mother has it here now (Produced.) can go to the Legal Aid Department now, but, I want to get a private lawyer. I want an adjournment.

Court:

You have already said that you cannot afford a private lawyer. Go to Legal Aid Department with the receipt and I will begin this case on Monday."

6. The hearing was then adjourned to the following Honday, i.e. the 13th.

7. On the 13th the applicant was represented by a solicitor Mr. Terence Li who asked for a new trial judge because the applicant "feels that you think he is a liar and justice must be seen to be done". Mr. Li further indicated that the applicant's alibi witness was in court and he (Mr. Li) needed to take instructions from the witness. Counsel for the prosecution invited the judge to proceed with the trial. The judge then made the following observation:

"The Defendant seems aggrieved that, despite his efforts to delay the trial - that (sic) through the efforts of this Court he is now represented by Counsel. It is the duty of this Court to proceed with the trial."

8. The trial was then stood down for Counsel to agree evidence and to take further instructions. It commenced later that morning.

9. It is the contention of counsel for the applicant before this Court that there was in all the circumstances of this case a reasonable suspicion that the judge was even at an early stage of the hearing already biased against the applicant in such a way as to influence his assessment of the applicant's credibility.

10. The issue was touched upon by Wong, J. in The Attorney General v Ng Hok-ming, Magistracy Criminal Appeal No. 1360 of 1988, where he said (at p.5):

"It is a matter of discretion whether a judge or magistrate should discharge . himself from hearing a case. The discretion must be exercised judicially and with the greatest caution having regard to all the factors and circumstances of the case."

11. In R v Barnsley Licensing Justices (1960) 2QB 167, Devlin L.J. (as he then was) laid down a narrow test in these words (at p. 187):

"We have not to inquire what impression might be left on the minds of the present applicants or on the minds of the public generally. We have to satisfy ourselves. that there was a real likelihood of bias - not merely satisfy ourselves that that was the sort of, impression that might reasonably get abroad." .

12. Lord Denning, M.R. in Metropolitan Properties v Lannon (1969) 1QB 577, at 599 B-F set out that which is now the accepted objective test of the independent reasonable spectator apprised. of all the facts and said, "The Court looks at the impression which would be given to other people" (p 599 B).

13. This was qualified by Edmund Davies, L.J. (as he then was) when he said at p. 606 C-D):

With profound respect to those who have propounded the real likelihood' test. I take the view that the requirement that justice must manifestly be done operates with undiminished force in cases where bias is alleged and that any development of the law which appears to emasculate that requirement should be strongly resisted. That the different tests, even when applied to the same facts, may lead to different results is illustrated by Reg. v. Barnsley Licensing Justices itself, as Devlin L.J. made clear in the passage I have quoted. But I cannot bring myself to hold that a decision may, properly be allowed to stand even although there is reasonable suspicion of bias on the part of one or more members of the adjudicating body."

14. Ackner L.J. (as he then was) in the R v Liverpool JJ. exparte Topping [1983] 1WLR 119 set out that which we accept to be the correct test (at p. 123H): Would a reasonable and fair minded person sitting in court and knowing all the relevant facts have a reasonable suspicion that a fair trial for the applicant was not possible? This test was adopted by the Court of Appeal in England in R v Mulvihill (No. 606/F1/87 Criminal Division, 11th July 1989, as yet unreported).

15. With respect, we also adopt the same test.

16. Mr. Buchanan, for the applicant, accepted at a late stage in the hearing of this application that no reasonable suspicion - real bias never having been alleged – could arise from the events which led to the remarks the trial judge made when he refused to recuse himself and that on the evidence of the unchallenged transcript must be so. But, he says, by using the phraseology he did the judge set alight in the applicant's breast the reasonable suspicion of which he complains. But that of course is not itself the test: would they have engendered in the mind of the hypothetical reasonable and fairminded spectator the same feelings of suspicion the applicant claims.

17. The answer is a resounding negative: the judge's comments were fully justified, the Court has a duty to conduct its list so that all trials are determined as quickly as the dictates of justice require: by no stretch of the imagination could the judge be thought to have expressed or implied a prejudgment of the applicant's credibility.

18. The application is accordingly refused.

Representation:

Mr. Robert Buchanan (Paul Kwong & Co.) for Applicant

Mr. I.G. Cross and Mr. W.S. Cheung for Crown/Respondent