HKSAR v. Md Emran Hossain

Press Summary (English)

Press Summary (Chinese)

FACC No. 16 of 2016

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 16 OF 2016 (CRIMINAL)

(ON APPEAL FROM CACC NO. 330 OF 2014)

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J U D G M E N T

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Chief Justice Ma:

1.I agree with the judgment of Mr Justice Fok PJ.

Mr Justice Ribeiro PJ:

2.I agree with the judgment of Mr Justice Fok PJ.

Mr Justice Tang PJ:

3.I agree with the judgment of Mr Justice Fok PJ.

Mr Justice Fok PJ:

4.The question of law for which leave to appeal was granted in this case raises this short point of criminal procedure:

“May a single Justice of Appeal who refused leave to appeal to the Court of Appeal, lawfully sit as a member of the panel if the applicant seeks to have his application determined by the Court of Appeal?”

A.   The relevant statutory provisions

5.The statutory provisions governing criminal appeals to the Court of Appeal are contained in the High Court Ordinance (Cap.4) (“HCO”) and the Criminal Procedure Ordinance (Cap.221) (“CPO”).  In determining the question arising on this appeal, it will be necessary to consider the proper construction of those relevant statutory provisions.

6.By section 13(3) of the HCO, it is provided that:

“The criminal jurisdiction of the Court of Appeal shall consist of –

(a)   appeals from the Court of First Instance or District Court under Part IV of the Criminal Procedure Ordinance (Cap.221); ...”

7.Part IV of the CPO concerns “appeals, questions of law reserved and referred and review”.  Section 82(1) provides that a person convicted of an offence on indictment may appeal to the Court of Appeal against his conviction.[1] Unless the ground of appeal involves a question of law alone, or unless the trial judge grants a certificate that the case is fit for appeal, leave of the Court of Appeal is required: see section 82(2).[2]

8.Section 34 of the HCO concerns sittings of the Court of Appeal in the exercise of its criminal jurisdiction.  Sub-sections (2) and (3) of that section relevantly provide:

“(2) The Court shall be duly constituted for the purpose of determining any appeal –

...

(b) under Part IV of the Criminal Procedure Ordinance (Cap.221),

if it consists of an uneven number of Justices of Appeal not less than 3.

...

(3) No judge shall sit as a member of the Court of Appeal on the hearing of, or shall determine any application in proceedings incidental or preliminary to –

(a) an appeal from a judgment or order made by him; or

(b)   an appeal against a conviction before him or a sentence passed by him.”

9.There are provisions of both the HCO and the CPO which deal with the powers of a single Justice of Appeal of the Court of Appeal in its criminal jurisdiction. Thus, section 34A of the HCO provides:

“(1) Subject to subsection (2), in pursuance of the criminal jurisdiction of the Court of Appeal, any power of the Court of Appeal not involving the determination of the appeal may be exercised by a single Justice of Appeal in the same manner as it may be exercised by the Court of Appeal and subject to the same provisions.

(2)   Where a single Justice of Appeal refuses an application to exercise any power of the Court of Appeal in pursuance of subsection (1), the applicant shall be entitled to have the application determined by the Court of Appeal.”

10.These powers are reflected in section 83Y of the CPO which relevantly provides:

“(1) The powers of the Court of Appeal under this Part which are specified in subsection (2) and the power to give directions under section 156(5) of the Crimes Ordinance (Cap.200) may be exercised by a single judge in the same manner as they may be exercised by the Court of Appeal and subject to the same provisions.

(2) The said powers are the following –

(a) to give leave to appeal;

...

(3) If the single judge refuses an application on the part of an appellant or applicant to exercise in his favour any of the powers above specified, the appellant or applicant shall be entitled to have the application determined by the Court of Appeal.

(4)   The references in this section to a single judge are to a single judge of the Court of Appeal or of the Court of First Instance.”

11.Although the single judge could be a judge of the Court of First Instance or a Justice of Appeal, Practice Direction 4.2 (Criminal Appeals to the Court of Appeal) directs (at paragraph 6A(1)) that applications for leave to appeal against conviction or against sentence involving less than 7 years’ imprisonment (or in respect of which a sentence other than one of imprisonment has been imposed) will be heard and determined by a single Justice of Appeal. As this Court has held, in Chau Ching Kay v HKSAR,[3] the single judge procedure under section 83Y of the CPO serves two useful purposes: first, it aims to relieve the full Court of Appeal of some of its workload; and secondly, it also serves as a screening process for unmeritorious applications.

B.   The factual background and the appellant’s trial

12.The appellant was tried in the District Court on a charge of burglary and convicted on 19 September 2014.[4] Although the underlying facts of the burglary charge are not directly material to this appeal, it is clear that the prosecution case was very strong and the defence case correspondingly weak.  The appellant was seen by a police officer in Flat 34C of a building in Tai Kok Tsui apparently trying to break out from the inside through the locked security gate.  He was subsequently discovered hiding in another unlocked flat on the same floor of the building.  Flat 34C was found to have been ransacked and a sum of RMB600 stolen from it.  The appellant’s fingerprints were found on a drawer in Flat 34C and RMB600 was found in his trouser pocket.  The defence case was that he had been framed for the burglary, so the principal issue at trial was the credibility of the prosecution evidence.  The Judge accepted the prosecution evidence and was satisfied that it had proved its case beyond reasonable doubt.  She described the evidence as “overwhelming”. 

13.Upon conviction, the appellant was sentenced by the Judge to three years’ imprisonment.

C.   The procedural history after trial

14.On 29 September 2014, the appellant applied for leave to appeal against his conviction and sentence.  This leave application was heard by Macrae JA sitting as a single Justice of Appeal under sections 83Y(1) and 83Y(2)(a) of the CPO and, on 2 June 2015, he dismissed it.[5] In his judgment, Macrae JA reviewed the prosecution and defence cases and the reasons for verdict and then considered the grounds of appeal sought to be raised, which included medical reports purporting to support the appellant’s case that he had been beaten by the police in the course of being framed for the burglary.  Macrae JA did not detect any error of law or in the Judge’s fact-finding process and did not consider that the medical evidence sought to be relied on would have made any difference to the verdict.  He commented (at [15]) that, had the medical reports been produced, he was:

“doubtful they would have had any significant impact on what is on the face of it an overwhelming case.”

15.Accordingly, Macrae JA refused leave to appeal both in relation to conviction and sentence.  He concluded his judgment (at [20]) by saying:

“These applications are hereby refused and the applicant is duly advised of his right to renew either or both applications to the Court of Appeal, and the consequences of so doing, which may include a direction for the loss of any time spent in custody pending his appeal, if the Court comes to the conclusion that there was no justification for the renewal of the application.”

16.So advised and warned, the appellant duly elected to renew his applications for leave to appeal against conviction and sentence under section 83Y(3) of the CPO.  The renewed application for leave to appeal was heard, and dismissed, on 2 December 2015 by the Court of Appeal consisting of Macrae, McWalters and Pang JJA.[6] Pang JA gave the written reasons for judgment of the court, in which he noted (at [19]) that the appellant’s grounds of appeal “concern nothing that the judge and/or Single Judge had not covered”, save for one matter which he concluded were “of no help” to the appellant.  He concluded, by way of disposition of the application, as follows (at [22]):

“The evidence against the applicant was overwhelming. His renewed applications were, on the other hand, completely lacking in merit. That being the case, these applications must be refused with the order that there be a loss of time of 6 weeks pursuant to section 83W of the Criminal Procedure Ordinance, Cap 221.”

17.The appellant then applied to the Court of Appeal (differently constituted) for leave to appeal to this Court, which dismissed the application on the basis that the questions proposed to be raised on appeal were not reasonably arguable.[7] On 17 August 2016, the Appeal Committee granted leave to appeal on the single question set out in paragraph 4 above.[8]

D.   The appellant’s contentions

18.In support of the appeal, Mr Gerard McCoy SC, counsel for the appellant,[9] contended that section 83Y(3) of the CPO and sections 34(3) and 34A(2) of the HCO must be construed purposively and in a manner consistent with the rights guaranteed under relevant constitutional instruments (which are addressed below).  He submitted that, so construed, it followed that a single Justice of Appeal who has previously refused leave to appeal cannot sit as a member of the Court of Appeal hearing the renewed application for leave to appeal.  On that basis, the Court of Appeal in the present case, consisting of Macrae, McWalters and Pang JJA, was not properly constituted because it did not consist of “an uneven number of Justices of Appeal not less than 3” as required.[10]

19.It was also contended on behalf of the appellant that, if a single Justice of Appeal who has heard the initial application for leave to appeal were to sit on the Court of Appeal hearing the renewed application, a fair-minded observer would perceive that he was not independent and impartial. On the basis of this perceived bias, it was the appellant’s case that, under section 83Y(3) of the CPO, the Court of Appeal hearing a renewed application for leave can never, as a rule of general application, consist of a single Justice of Appeal who has previously refused leave to appeal in that case.

20.Finally, it was contended for the appellant that, in this particular case, Macrae JA’s sitting in the Court of Appeal on the renewed application gave rise to the appearance of bias so that the judgment of the Court of Appeal refusing leave to appeal against conviction and sentence and the order for loss of time made by it should be set aside.

E.   The construction of sections 34(3) and 34A(2) of the HCO and section 83Y(3) of the CPO

21.In a system governed by the rule of law, it is axiomatic that adjudicative processes must be fair and impartial and observably so: justice must not only be done, it must be seen to be done.[11] This is particularly important in respect of those charged with, or convicted of, criminal offences since personal liberty will often be at stake.  These principles are firmly embedded in the laws of Hong Kong at a constitutional level and also in its domestic law: rights under the International Covenant on Civil and Political Rights (“ICCPR”) are given constitutional protection under Article 39 of the Basic Law and are applied in Hong Kong through the Hong Kong Bill of Rights Ordinance (Cap.383).

22.These rights necessarily form part of the context in which the provisions of the HCO and CPO at the heart of this appeal are to be construed. Of particular relevance are the rights contained in Articles 10 and 11(4) of the Hong Kong Bill of Rights[12] (“BOR 10 and BOR 11(4)”) which respectively provide:

“10. All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.

...

11. ...

(4)   Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law.”

23.The effect of the statutory provisions governing appeals in criminal cases, as noted above, is that a convicted person has the right to appeal to the Court of Appeal against his conviction and sentence, but that leave is required unless he relies on a ground of appeal which involves a question of law alone or unless a certificate is granted by the trial judge.  Such leave can be granted by a single Justice of Appeal or by the Court of Appeal (consisting of at least three judges of that court).

24.It is accepted in the Appellant’s Printed Case that the leave requirement imposed by section 82(2) of the CPO is lawful and does not infringe BOR 11(4).[13] This is clearly correct since the leave threshold for a full criminal appeal cannot be regarded as constituting an impermissible dilution of the right of review of a criminal conviction or sentence by a higher tribunal “according to law” as that expression is used in BOR 11(4).[14]  Nevertheless, it is the appellant’s case on this appeal that, properly construed in the context of that constitutionally protected right, the references in section 34(2) of the HCO and section 83Y(3) of the CPO to the determination by the Court of Appeal of a renewed application for leave to appeal after a single Justice of Appeal’s refusal of the initial application requires a different decision-maker and one which does not include the same single judge who refused the initial application.  It is contended that a Court of Appeal hearing a renewed application for leave to appeal which includes a Justice of Appeal who previously refused the application is not an independent and impartial tribunal and therefore infringes his rights under the BOR.

25.The wording of sections 34(3) and 34A(2) of the HCO and section 83Y(3) of the CPO do not, in my view, support the appellant’s contentions in this appeal, even when those provisions are purposively construed in their context including the rights under BOR 10 and BOR 11(4).

26.Section 34A(2) of the HCO, as reflected in section 83Y(3) of the CPO, plainly refers to the same application – in this case an application for leave to appeal but it could be any application not involving the determination of the appeal – which has been made to a single Justice of Appeal being determined by the full Court of Appeal consisting of at least three judges. This is clear from the statutory language referring to “an application” refused by a single judge and the entitlement to have “the application” (emphasis added) determined by the full court.  At the time when the single judge refuses the original application, it is not finally determined until after its review by the full court or after the applicant elects not to renew the application.

27.For this reason, the appellant’s argument that the renewed application is an appeal from the single judge’s decision and therefore one on which he is prohibited from sitting by reason of section 34(3) of the HCO is unconvincing. It is not an appeal from the single judge’s decision but instead a further hearing of the same application which will eventually lead to a final determination of the application.  Section 34(3) of the HCO is therefore not engaged in the present situation.  Instead, that section operates to exclude a judge from hearing either a substantive appeal, or an application for leave to appeal, from his own judgment or order issued in a court inferior to the Court of Appeal.

28.It is wholly plausible that the legislature would have intended that a single judge should be eligible to be part of the three-member full court to re-hear the leave application.  On the original application, which as a matter of practicality would be able to be heard sooner than would be the case if a full three-judge court had to be assembled, the applicant would have the benefit of the single judge’s view of the prospects of success of the application.  If leave to appeal were granted by the single judge, the application for leave would go no further and a substantive appeal hearing would then follow.  But if the single judge were minded to refuse the application, the applicant would have the benefit of the judge’s reasons for doing so before exercising his right to have that application for leave to appeal finally and fully determined by a three-judge court.  That full Court of Appeal would be constituted by a majority of the judges other than the single judge and would have the power and practical ability to overrule the single judge who initially refused leave to appeal.  The single judge may well change his mind on the rehearing and is not required to adhere to his original refusal.  This process would be a genuine power of review by the Court of Appeal and is similar to other statutory review processes.  For example, the legislature has seen fit to provide for a magistrate, sitting alone, to review his own decision.[15]

29.Nor do the BOR rights relied upon suggest a different construction of those provisions of the HCO and CPO.  There is no question of the right of review under BOR 11(4) being contravened by participation of the single judge on the renewal of the leave application before the full court.  As already indicated, he is free to change his mind and is not bound by his previous refusal.  In any event, the other two members of the court form a majority which could overrule the single judge.  In the present case, there is no question that the appellant has not enjoyed the right to have his conviction and sentence reviewed by a tribunal higher than the District Court where he was tried, convicted and sentenced.  The powers of that higher tribunal, the Court of Appeal, could be exercised by a single Justice of Appeal and, even if the matter had rested with his refusal of leave to appeal, there would have been no denial of the appellant’s BOR 11(4) right.  The appellant’s right to renew the application after an initial refusal by a single judge confers an additional protection of his BOR 11(4) right of review by a higher tribunal.

30.All judges are subject to the rules of disqualification for bias, either actual or apparent.[16] Since those rules will apply in respect of any single Justice of Appeal who may be listed to sit as part of a three-judge Court of Appeal hearing a renewed application for leave to appeal, I do not think that the Court of Appeal re-hearing such an application pursuant to its statutory power to do so loses its independence or impartiality – as a “competent, independent and impartial tribunal” within BOR 10 – simply because one of its members, who would be bound by the majority, has previously sat on the initial leave application and reached what, at that stage, will simply be a provisional view.  Instead, it is by the application of the rules concerning disqualification for bias that the existence of an independent and impartial tribunal for any particular case is ensured.

31.This conclusion is consistent with UK and Strasbourg jurisprudence as to the content of the right to an independent and impartial tribunal under Article 6(1) of the European Convention on Human Rights.[17] It has been authoritatively held that there is no difference between the common law test for bias and the requirement under ECHR 6(1) of an independent and impartial tribunal: see Lawal v Northern Spirit Ltd [2003] ICR 856 per Lord Steyn at [14], R v Abdroikov [2007] 1 WLR 2679 per Lord Bingham at [14] and O’Neill v HM Advocate (No.2) [2013] 1 WLR 1992 per Lord Hope of Craighead DPSC at [47].  In my view, the same conclusion follows in Hong Kong in respect of the right to an independent and impartial tribunal under BOR 10.

32.Reference was made to the provisions governing applications to the Court of Appeal for leave to appeal in civil matters.  Under Order 59 rule 2A(5) of the Rules of the High Court (Cap.4A), applications for leave to appeal may be determined on the papers.  Under Order 59 rule 2A(7), where a party is aggrieved by that determination, it may ask the Court of Appeal to reconsider it at an oral hearing and, by Order 59 rule 2A(9), it is expressly provided that the court may include a Justice of Appeal who has previously determined the application on the papers. These provisions were contrasted with the provisions concerning criminal appeals and it was contended that, had the legislature intended that a single Justice of Appeal would be eligible to sit in the Court of Appeal hearing a renewed application for leave to appeal, the legislation would have said so. However, the fact that the Rules of the High Court provide expressly for what, in my view, is clearly inherent in the proper construction of sections 34(3) and 34A(2) of the HCO and section 83Y(3) of the CPO does not militate against that construction.

33.Reference was also made to:-

(1)   Practice Direction SL4 (Crime: Sentence: Loss of Time), paragraph 11 of which reads:

“In the case of applicants who are unrepresented and whose application first comes before a single judge, the single judge has himself the power to order loss of time. Where an application has been refused by a single judge and the application is nonetheless renewed and the court before which the renewed application is made also takes the view that the application is wholly without merit, an order for loss of time will ordinarily be made.” (Underlining added)

(2)   Practice Direction 4.2 (Criminal Appeals to the Court of Appeal), paragraph 6A(7) of which reads:

“...Where an application devoid of merit has been refused by the single judge he may indicate that the Full Court should consider making a direction for loss of time on renewal of the application. However the Full Court may make such directions whether or not such an indication has been given by the single judge.” (Underlining added)

34.It was contended that the underlined portions of the above two practice directions support the appellant’s construction of the relevant provisions of the HCO and CPO since they suggest that the full Court of Appeal will consist of judges other than the single judge who has initially heard the leave application.  However, the proper construction of sections 34(3) and 34A(2) of the HCO and section 83Y(3) of the CPO falls to be determined on the basis of their own wording read in the light of their statutory context and purpose and not by reference to practice directions which, having no statutory force, are subsidiary to, and cannot override, the proper construction of the governing legislation.

F.   Whether apparent bias because of pre-determination and structural lack of impartiality

35.The appellant’s second contention is that the participation of any Justice of Appeal who has previously refused leave to appeal in the full Court of Appeal’s consideration of the renewed application for leave to appeal gives the appearance that the single judge will have pre-determined that application and therefore of a structural lack of impartiality in the constitution of the Court of Appeal.  It is no part of the appellant’s case that there is actual bias on the part of Macrae JA in the present case, simply that the system of having the single judge who has initially refused the application sit in the Court of Appeal on the renewed application gives rise to the perception of a real possibility of bias (i.e. apparent bias).

36.The test for apparent bias in Hong Kong is the reasonable apprehension of bias test applied by the Appeal Committee in its determination in Deacons v White & Case Ltd Liability Partnership & Ors[18]at [18] to [21], namely:

“The court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility ... that the tribunal was biased.”

Although that was said in the context of a civil case, the position of a civil judge is in principle the same as that of a criminal judge in this regard and there is no reason why the same test should not apply where it is said that there is apparent bias on the part of a judge in a criminal case: see O’Neill v HM Advocate (No.2) (supra.) at [51].

37.The test of apparent bias is an objective one and the issue is considered from the viewpoint of an observer who is both fair-minded and informed.  The qualities of such an observer were described by Lord Hope in Helow v Secretary of State for the Home Department and another:[19]

“2.   The observer who is fair-minded is the sort of person who always reserves judgment on every point until she has seen and fully understood both sides of the argument. She is not unduly sensitive or suspicious, as Kirby J observed in Johnson v Johnson (2000) 201 CLR 488 , 509, para 53. Her approach must not be confused with that of the person who has brought the complaint. The “real possibility” test ensures that there is this measure of detachment. The assumptions that the complainer makes are not to be attributed to the observer unless they can be justified objectively. But she is not complacent either. She knows that fairness requires that a judge must be, and must be seen to be, unbiased. She knows that judges, like anybody else, have their weaknesses. She will not shrink from the conclusion, if it can be justified objectively, that things that they have said or done or associations that they have formed may make it difficult for them to judge the case before them impartially.

3.   Then there is the attribute that the observer is ‘informed’. It makes the point that, before she takes a balanced approach to any information she is given, she will take the trouble to inform herself on all matters that are relevant. She is the sort of person who takes the trouble to read the text of an article as well as the headlines. She is able to put whatever she has read or seen into its overall social, political or geographical context. She is fair-minded, so she will appreciate that the context forms an important part of the material which she must consider before passing judgment.”

38.In the present case, the appellant argues that the fair-minded observer will perceive the mind to have been closed if it appears that the determining judge had determined the same issue on a previous occasion.

39.A significant flaw in the appellant’s argument is that, contrary to Mr McCoy’s submission, the single judge who refuses leave to appeal is not finally determining the application for leave.  That is because, pursuant to section 83Y of the CPO, the applicant is entitled to renew the application before the Court of Appeal consisting of three judges.  That hearing, as explained above, is not an appeal from the single judge but a rehearing of the same application for leave to appeal.  Whilst it is true that the issue before the single judge is the same issue as that on the renewed application before the full court, namely whether to grant leave to appeal, the issue on the renewed application is a reconsideration of the initial, and necessarily provisional, refusal of leave by the single judge and may involve additional grounds and, if admissible, new evidence.  The single judge is not bound by any views previously expressed and can change his mind as to the outcome.  The decision by the Court of Appeal on the rehearing is a fresh and final determination of the leave application.

40.It is also contended by the appellant that the participation of the same single judge in the Court of Appeal will give the appearance of a closed mind, when it should instead have been open to reconsideration.

41.This contention, however, ignores the important fact that, in applying the test for apparent bias, the consideration by the fair-minded observer is necessarily informed by objective appreciation of the qualities of a judge and the essential characteristics of the judicial function and process.  As the High Court of Australia said in Johnson v Johnson:[20]

“12. ... At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is ‘a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial’.

13.   Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. ...”

42.The significance of the judicial oath, which in Hong Kong (like in other jurisdictions) imposes on judges a duty to “safeguard the law and administer justice without fear or favour, self-interest or deceit”,[21] is not to be overlooked: it is an important bulwark of judicial impartiality.  It expresses the “general rule of the common law ... that judges must apply the law as they understand it to the facts of individual cases as they find them without fear or favour, affection or ill-will, that is, without partiality or prejudice.”[22]  The fair-minded and informed observer will be aware of the oath and that judges will generally “try to live up to the high standard which it imposes”: see Davidson v Scottish Ministers [2004] HRLR 34 at [18].

43.That the participation of the same judge in a subsequent hearing involving the same parties and subject matter does not necessarily give rise to an appearance of bias is illustrated by the case of Sengupta v Holmes [2002] EWCA Civ 1104.  That case involved a single judge (Laws LJ) who had refused leave to appeal on the papers and who then sat on the Court of Appeal hearing the substantive appeal after a renewed application for leave to appeal was successful.  It was suggested that Laws LJ should recuse himself from sitting in the substantive appeal, having previously refused leave to appeal.  The English Court of Appeal rejected this contention and held that there was no apparent bias in the circumstances.  Laws LJ considered what would be known to the fair-minded and informed observer, which included the following features.  He regarded it as material that, in the ordinary case, a single judge having initially refused leave to appeal will have done so “in the knowledge that, at the option of the applicant, his view may be reconsidered at an oral hearing” and that there was, in the circumstances, no reasonable basis for supposing he might not bring an open mind to bear on the substantive appeal if he subsequently sat on the full court.[23] He regarded a readiness to change one’s mind on an issue to be “a commonplace of all the professions, indeed of the experience of all thinking men and women” and the fact that judges do change their minds under the influence of oral argument to be a central feature of the adversarial system.[24]  Another important feature of the English legal culture which Laws LJ considered important was the expectation that a judge would be positively expected to alter an earlier expressed view if objectively persuaded by his colleagues that it should be altered.[25]

44.In my view, all these features of the English common law system described by Laws LJ apply equally to Hong Kong and inform the view of the fair-minded observer in this jurisdiction.  So informed, that observer will expect that a single judge who has previously refused leave to appeal will hear the renewed application for leave under section 83Y(3) of the CPO with an open mind and with a readiness to grant leave to appeal if persuaded by the arguments advanced to the full court and the deliberations of his judicial colleagues.  Although Sengupta v Holmes concerned an initial refusal of leave on the papers before a substantive appeal hearing, I do not consider there to be any material distinction between that and the circumstances of the present case involving an initial refusal of leave at an oral hearing followed by a renewed application of that same application before the full court. 

45.However, that is not to say that there might never be circumstances in which a single judge who has refused leave to appeal would be in a position in which the fair-minded and informed observer would consider there to be a real possibility that the judge might be biased on a subsequent hearing of the underlying merits of the case.  In Sengupta v Holmes, Laws LJ gave as examples: (i) where a judge of first instance has committed himself to a view of the facts which he had the responsibility to decide (at [32]); (ii) where he had decided that a party or witness was a crook or a rogue (at [33]); and (iii) where he had expressed himself in such vituperative language that any reasonable person would think him unable to take a fair view of the case if called on to revisit it (at [34]).[26] Since cases of apparent bias are necessarily fact sensitive,[27] this list is not closed and there may be other particular instances in which apparent bias may be shown.  Other than in these types of case, though, there is no reason to think that, in the ordinary case of judicial reconsideration of an issue such as leave to appeal, the fair-minded and informed observer would harbour any misgivings as to the ability of the judge to bring a fair and open mind to bear on the issue before him.

46.This conclusion in respect of section 83Y of the CPO is not limited to that particular procedure and other analogous circumstances can be called to mind.  For example, a single permanent judge of this Court, may have to express a view on the merits of an underlying application for leave to appeal when faced with a bail application, but, absent unusual circumstances, there would normally not be any question of apparent bias on his part if he were to sit as a member of the Appeal Committee hearing the subsequent application for leave. Similarly, it would be an unusual case where a single permanent judge of this Court, having refused leave to appeal when sitting as part of the Appeal Committee,[28] would be required to recuse himself from sitting on the substantive appeal to the Court on the grounds of apparent bias arising from his prior refusal of leave to appeal.

47.The appellant’s reliance on R v Taito [2003] 3 NZLR 577 in support of the contention that there was structural impartiality in the present case was misplaced.   There, on an appeal from the Court of Appeal of New Zealand, the Privy Council concluded that the practice of the Court of Appeal in sitting to determine substantive appeals with a member of the court who had previously sat as part of the court refusing legal aid on the merits of the prospective appeal gave rise to a breach of the New Zealand Bill of Rights Act 1990 section 25.[29] The material part of the Privy Council’s judgment, delivered by Lord Steyn, at [14] reads as follows:

“... A delivery Judge was always in an impossible position: he either had no knowledge of the dossier of available information or he was parti pris because he had advised against the granting of legal aid. In Nicholls Tipping J, at p 443, with the agreement of Smellie J at p 461, expressed doubts about this last feature of the practice. In the circumstances the participation of a Judge who had concluded that legal aid should not be granted would have suggested to a fair-minded and informed observer that the Judge was not independent: Porter v Magill [2002] 2 WLR 37 at pp 83 - 84, per Lord Hope of Craighead. The requirement that a judgment of the Court of Appeal must be ‘in accordance with the opinion of the Judges present’ was incapable of fulfilment: s 59 of the Judicature Act 1908. Relying on the fact that three Judges of the Court of Appeal had earlier concluded that legal aid should not be granted, the ex parte decisions were purely formalistic or mechanical acts involving no exercise of judicial judgment. It was the phenomenon of tabulated legalism against which Lord Wilberforce had warned in Fisher. Moreover, the system of ex parte decisions was not authorised by the legislation. It follows that the dismissal of all the appeals under consideration pursuant to the ex parte procedure was of no force or effect.”

48.The position in Taito is distinguishable from the circumstances of the present case in a number of respects.  First, the determination of the legal aid application there was, unlike the initial application to a single judge here, a conclusive one and not one subject to review by the full court consisting of three judges who would revisit the same decision.  Secondly, the subsequent appeal in Taito was simply a “formalistic or mechanical” act, unlike the full hearing of the renewed application for leave here.  Thirdly, the subsequent appeal process in Taito was in any event not authorised by the domestic legislation, unlike the position here (on the basis of the proper construction of the relevant provisions of the HCO and CPO set out in Section E above).

G.   Whether apparent bias for Macrae JA to sit in renewed application for leave in this case

49.In the CA Leave Judgment, the Court of Appeal said (at [31]):

“In our view, there is no risk that a reasonable, fair-minded and well-informed observer would conclude that there is a real possibility, or a real danger that the single Justice of Appeal who has previously determined the leave application would be biased.”

With respect, this does not state the law accurately insofar as it may suggest that a single Justice of Appeal could never be disqualified by reason of apparent bias from sitting in the Court of Appeal on a renewed application for leave.  On the contrary, despite the conclusion (in Section F above) that there is no structural lack of impartiality in a single Justice of Appeal who has refused an application for leave to appeal under section 83Y of the CPO sitting on the Court of Appeal hearing the renewed application for leave, it remains essential that the application is determined by an independent and impartial tribunal.  A judge who may give the appearance of being biased is not such a tribunal and may not sit on the Court of Appeal on the renewed application for leave.

50.It is therefore necessary to consider the appellant’s fallback contention that the circumstances of the present case are such that a fair-minded and informed observer would conclude that there was a real possibility that Macrae JA was biased when sitting on the full Court of Appeal hearing the renewed application for leave.  The appellant’s contention is a specific allegation of apparent bias related to the facts of this particular case and, again, Mr McCoy emphasised that it is no part of the appellant’s case that Macrae JA was actually biased.

51.Applying the reasonable apprehension of bias test to the specific facts of this case, I have no doubt that the fair-minded and informed observer would not think that there was any risk that Macrae JA was biased when he came to sit in the Court of Appeal hearing the appellant’s renewed application for leave to appeal.

52.A review of the Single JA Judgment shows that Macrae JA expressed himself in a measured and objective manner and did not use pejorative language in refusing leave to appeal.  Contrary to the submission in the Appellant’s Printed Case,[30] Macrae JA did not characterise the applications as “hopeless” and “devoid of any merit”, nor was he required to do so in order to refuse the initial application for leave.  He did not make a loss of time order himself (although it should not be thought that it would automatically follow that, had he done so, he could not have sat on the renewed application for leave since the Court of Appeal would have power to revisit his loss of time order and to set it aside).  In giving the loss of time warning, he did not indicate that the Court of Appeal should make such an order but merely gave a neutral warning that it might impose such an order if it were to come to the conclusion there was no justification for renewing the application.  The context of the decision as a provisional refusal of leave was clear to the single judge since he advised the appellant of his right to renew the application to the Court of Appeal.

53.When the application was renewed before the Court of Appeal, although Macrae JA was, by dint of seniority, the presiding judge, his was but one equal voice amongst three on the court.  The CA Judgment was delivered by Pang JA speaking for the court, rather than Macrae JA, indicating that the court’s views were collective.  Mr McCoy criticised Pang JA for quoting Macrae JA’s conclusions on the new medical evidence sought to be introduced by the appellant and his conclusion on the application for leave to appeal.  This, however, does not indicate a lack of impartiality on the part of Macrae JA or a lack of independence on the part of McWalters and Pang JJA.  The fact that McWalters and Pang JJA both agreed with those views simply means that nothing said on the hearing of the renewed application persuaded any of the court that Macrae JA’s initial views were wrong.  Indeed, given the strength of the case against the appellant and the weakness of his grounds of appeal, this is hardly surprising. It is important to note that the CA Judgment contained separate discussion of the merits of the application for leave (at [19] and [21]) and a separate and independent conclusion with its order of loss of time (at [22]).  There is no suggestion this was simply an adoption of Macrae JA’s earlier views.  Pang JA’s comment (at [19]) that the grounds of appeal concerned “nothing that the judge and/or Single Judge had not covered” does not mean that the Court of Appeal did not collectively reconsider afresh those grounds to determine if there was anything new or different to say about them.  The brevity of the Court of Appeal’s treatment of the appellant’s grounds of appeal in the CA Judgment was appropriate in view of the weakness of those grounds.

54.For all these reasons, there is no basis for suggesting that the fair-minded and informed observer would think that there was a risk Macrae JA was biased and no reason to interfere with the CA Judgment.

H.   Answer to certified question of law and disposition of appeal

55.Accordingly, I would answer the certified question of law as follows. Subject to the rules concerning disqualification of a judge from sitting by reason of bias, whether actual or apparent, a single Justice of Appeal who has refused leave to appeal to the Court of Appeal under section 83Y of the CPO may lawfully sit as a member of the panel if the applicant seeks to have his application determined by the Court of Appeal.

56.There being no apparent bias on the part of Macrae JA in sitting on the renewed application for leave, I would dismiss this appeal.

Lord Hoffmann NPJ:

57.I agree with the judgment of Mr Justice Fok PJ.

Mr Gerard McCoy SC, Mr Albert N B Wong and Mr Kim J McCoy, instructed by Ho Tse Wai & Partners, for the Appellant

Mr William Tam SC, DDPP and Ms Janice Cheuk, SPP (Ag.), of the Department of Justice, for the Respondent