HKSAR v. Chen Keen (Alias Jack Chen) and Others
Read the full judgment text of HCCC 309/2019 on BabelCite. This High Court CFI judgment was delivered on 2 December 2020.
1. Chen Keen, Hao May and Yee Wenjye, D1, D2 and D3 respectively, face charges of conspiracy and money laundering.
Cites 16 cases
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HCCC 309/2019 [2020] HKCFI 3013 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CRIMINAL CASE NO 309 OF 2019 __________________ BETWEEN
__________________ Before: Deputy High Court Judge Bruce SC in Chambers Dates of Hearing: 17 and 24 August 2020 Date of Ruling: 2 December 2020 _______________________________________________ APPLICATION FOR RECUSAL: RULING _______________________________________________ INTRODUCTION 1.Chen Keen, Hao May and Yee Wenjye, D1, D2 and D3 respectively, face charges of conspiracy and money laundering. 2.A trial is scheduled to commence in mid-January 2021 and is expected to last something of the order of 6 months. I have been assigned to be the trial judge of this proceeding. 3.On 17 August, 2020, the prosecution applied for me to recuse myself. The grounds upon which that application was made are articulated in a little more detail later on in these reasons, but essentially it is that I represented Wu Wing Kit on a charge of what is colloquially called money laundering in the District Court. He was, at material times, the solicitor of D1 and D2 and, so the prosecution contends, must have been aware of their dishonest dealing in pursuance of the conspiracy. 4.Counsel for each of the accused in the present case submitted that the prosecution has not made out its case and that the application for recusal be dismissed. 5.Both sides agree that as the trial is a large one and involves, on both sides, the deployment of considerable resources, a decision on this application is needed quickly. PROCEDURAL HISTORY The trial of Wu Wing Kit 6.Wu Wing Kit faced a charge of what is colloquially called money laundering, contrary to section 25 of the Organised and Serious Crimes Ordinance, Cap. 455. He was tried before a judge of the District Court and convicted. I represented him at that trial.[1] I had no part in his representation prior to the commencement of the trial before the District Court and, following his conviction. Other counsel represented him on appeal to the Court of Appeal and the retrial that was ordered. The charge faced by Wu Wing Kit was that:
7.A useful Summary of the Facts and circumstances of the trial of Wu Wing Kit, which I conducted, appears in the judgment of the Court of Appeal on his appeal against conviction.[2] I have not included in the summary references to the case of Ye Fang. 8.The summary of the Court of Appeal of the facts and circumstances of the case at trial is as follows:[3]
9.The Judge convicted Wu Wing Kit. Wu Wing Kit appealed to the Court of Appeal. It appears that Wu Wing Kit was convicted upon the basis of the 2nd limb of the basis for liability under section 25 of Organised and Serious Crimes Ordinance. In other words, the issue was whether Wu Wing Kit had reasonable grounds to believe the property in question, in whole or in part, directly or indirectly, represented the proceeds of an indictable offence, dealt with that property. 10.The critical part of the appeal of Wu Wing Kit focused on the treatment by the District Judge of the issue. As a matter of legal history, the District Judge followed the judgement of the Court of Appeal in HKSAR v Pang Hung Fai CACC 34/2012. By the time that Wu Wing Kit’s case came before the Court of Appeal, the Court of Final Appeal had adopted a different approach to the Court of Appeal.[4] In the premises, the Court of Appeal allowed the appeal against conviction and ordered a retrial. 11.On the retrial, Wu Wing Kit faced what I believe to have been the identical charge that he faced at his first trial. He was represented by other counsel. He was found not guilty and was acquitted. The present trial 12.It is also of great importance to understand the issues in the present trial. In order to understand that, it has to be recognised that this proceeding also has a history. That is best summarised in the judgement of Ribeiro & Cheung PJJ in the Court of Final Appeal as follows:[5]
13.Chen Keen, Hao May and Yee Wenjye had appeal against their conviction to the Court of Appeal. That appeal was dismissed. 14.The Court of Final Appeal allowed the appeal of Chen Keen, Hao May and Yee Wenjye on the basis that owing to defects in the manner in which the conspiracy charges were drawn, the convictions were unsafe and unsatisfactory. Even the most superficial reading of the judgement of that Court will realise that the preceding sentence is a gross oversimplification. The Court ordered that the convictions of all three appellants be quashed and that a retrial with the prosecution being at liberty to amend the indictment or to prefer a fresh indictment. The amendment has been made in the present trial, of which I am presently concerned is that which follows the orders of the Court of Final Appeal. 15.In order to properly determine the issues in this case, it is necessary to outline at least a sense of the likely case at trial. The most succinct summary can be derived from the judgment of Ribeiro & Cheung PJJ of the Court of Final Appeal. It is being used in this judgment as simply a broad outline of the case and the issues, but it is, in my judgement, sufficient to provide a basis to determine the issues arising in this application. It essentially accords with the reading in which I have done so far. That summary is as follows:[6]
16.Wu Wing Kit is not a party to the present trial. He is not listed on the back of the indictment as a witness and, as far as I am aware, there is no intention on the part of the prosecution to call him. I cannot imagine circumstances in which any of the defendants would even contemplate calling him. There is no reference to him in the summing up of Anthea Pang J. Plainly, on the evidence, there are likely to be brief references to Wu Wing Kit in the evidence in relation to, for example, the provision of BVI companies to D1 and D2. SUBMISSIONS 17.Counsel for the prosecution, Ms Draycott, SC submitted that the law deals with the apprehension of a real possibility of bias by a fair-minded and well-informed observer.[7] Ms Draycott submitted that the law is set out in Deacons v White & Case Ltd Liability Partnership & Ors (2003) 6 HKCFAR 322.[8] She then argued that: “It is respectfully submitted that where the tribunal has acted for one side in a criminal case, albeit a part that was severed for reasons of expediency, such an observer would apprehend or conclude that such a possibility [that the tribunal was biased] existed.”[9] 18.Ms Draycott submitted that there could be no question of forum shopping or impugning the integrity of the judge. She reminded the court that the court would be unlikely to countenance a judge presiding who had acted for the prosecution.[10] 19.It is appropriate also to note that Ms Draycott wrote to the Registrar, High Court inviting the Registrar to reassign the case to another judge. That letter is dated 26 June, 2020. She adopted and incorporated that letter into her submissions. In that letter, Ms Draycott argues that the nexus between the present case and the District Court case in which Wu Wing Kit was tried is “too close”. She went on: “We fear there is a real risk of unconscious bias where a Judge has defended someone for the same criminal conduct over which he is now asked to preside. He has obviously considered the same facts from the perspective of a defendant and formed a stance which he has advocated in the course of a parallel trial, seeking to persuade that Judge [that is, the District Court Judge] [that] the prosecution is wrong.” The submission goes on: “Despite the DHCJ Bruce’s best endeavours, some part of that mindset may carry over into in the current proceedings.” The letter also asserts that: “…DHCJ Bruce will also inevitably be privy to matters closely related to the present trial, but not in evidence, which he would be professionally bound not to disclose to the parties. We suggest such a connection is highly undesirable. One has but to imagine the consternation of the defence if DHCJ Bruce had prosecuted Wu Wing Kit and Ye Fang instead of defending in that trial, to appreciate the problems.” 20.The letter goes on to point out that the property, the subject of the charge in the District Court case, is part of the transaction where with the 1st accused faces a charge of money laundering. 21.It is also asserted that the case against Wu Wing Kit was severed from the original proceedings to avoid his and his co-defendant’s involvement in a long trial. 22.It was then submitted in the letter that Wu Wing Kit was aware of the relationship between D1 and D2 and, in particular, that the assertion by those accused that they were on opposite sides of the transaction. In oral submissions, it was accepted by Ms Draycott that if that had been true and Wu Wing Kit had provided the legal services he did in that context, then a conviction on the money-laundering charge was inevitable. The letter goes on to summarise the case against Wu Wing Kit at his trials (I was not concerned with the second trial and I proceed on the assumption that the case against Wu Wing Kit was, if not precisely the same as at the first trial, it was not materially different). In the letter, Ms Draycott went on to outline the close relationship that she asserted between Wu Wing Kit and D1 and D2. She asserted that he was a joint director and equal shareholder of Progress Great Ltd which is one of the BVI companies holding 15% of the shares in one of D2’s companies. Further, counsel for the prosecution asserted that there was a close relationship between D1 and Wu Wing Kit. That Wu Wing Kit had acted as a solicitor for D1 was not in dispute, but Ms Draycott went on to further point out that on many occasions D1 had said, in Wu Wing Kit’s presence, that he was one of D1’s very best lawyer friends in Hong Kong. It was not in dispute that Wu Wing Kit also acted for D2. However she went further and suggested that he, that is Wu Wing Kit, knew that D1 and D2 were working together on opposite sides of the VSA. The closeness was also indicated, so the prosecutor asserted, because Wu Wing Kit signed the agreement as a witness and was acting for D2. 23.Ms Draycott also pointed to issues with a BVI company known as Super Worth International Limited (Super Worth). She asserted that Super Worth was incorporated in BVI by Wu Wing Kit for D2. She went on: “His bill was paid by D1 whose duty as a director of the purchasing company lay with 462. The Heads of Agreement for the VSA between D2 and 462, stipulated that Super Worth would receive part of the consideration of the VSA. D2 sent a draft of the Heads of Agreement to [Wu Wing Kit] on 16 May 2009 for him to ‘have a look and let me know your comments’. [Wu Wing Kit] was therefore aware that he had set up a BVI company for D2, paid for by D1, in order to receive the proceeds of the VSA. In the final agreement D2 nominated UBTL as the recipient, but the original purpose of Super Worth is clear.” 24.Ms Draycott concluded her letter by noting that “[Wu Wing Kit] was acquitted at his second trial and nothing in this letter is intended to go behind that verdict or to disparage him in anyway.” 25.Ms Draycott made oral submissions on 17 August 2020. I do not propose to repeat the points that she made in her written submissions and the letter, which she incorporated into those submissions by reference. In the submissions, she did say: “Well, as I say, I am concerned about the relationship between your Lordship and the personnel in this trial are matters that you may know about them and matters which you may have formed views about in the course of representing Mr Wu. And I say this: that I think all of us here when we are asked to represent somebody do so to the utmost of our ability and we perceive matters from their point of view. We push that point of view, we advocate that point of view, and it’s very difficult to step back and lose that completely. And I just don’t see why we have this risk.” She asked, rhetorically, why I wished to “cling on” - her words - to this case when there were so many able judges available to do the case. 26.D1 provided written submissions. In those submissions, it was contended by Mr Owen, QC, what is critical is to identify what the judge is required to decide. It was submitted that this must be viewed in the context of a judge presiding on a jury trial where the judge is not required to decide matters of credibility or whether Wu Wing Kit is to be accepted as a witness.[11] In this connection, he preferred to Komal Patel v Chris Au [2016] 1 HKLRD 328. He contended, citing Kwan JA in the Falcon Private Bank Case in the Court of Appeal, that an applicant must demonstrate that there was a logical connection between the asserted apprehension of bias and a particular party or issue. Mr Owen made the point that not only was the charge different in Wu Wing Kit’s case, but the legal issues were different. 27.In the course of submissions, I asked Mr Owen what sort of issues I may have to decide in the course of the trial, if I were to continue as trial judge. The submission was that there would be issues of law to determine and I would have to deliver a summing up. That proposition was picked up by Mr Derek Chan, SC in his submissions on behalf of D2. In Mr Owen’s submissions, the position might be different if I was the trial judge in a District Court proceeding, where the judge is the tribunal of fact as well as tribunal of law. Again, that was picked up by Mr Chan. It was contended by both of them that I have no role in making findings of credibility. It was submitted by Mr Owen that there was no logical connection between what I might be required to decide in the case and my representation of Wu Wing Kit in the previous proceedings. 28.Counsel for D3, Mr David Khosa, provided a very helpful summary of the evidence and contentions in the first trial of Wu Wing Kit. As far as I can see, that accords entirely with the summary I have adopted from the Court of Appeal set out earlier in these reasons. PRINCIPLES 29.The principles in this area are well-established. A judge may not hear a case if in all the circumstances, a fair-minded lay observer may reasonably apprehend that the judge may not bring an impartial mind to the resolution of the question or questions the judge is required to decide.[12] This was the test propounded by the Appeal Committee of the Court of Final Appeal in Deacons v White & Case Ltd Liability Partnership & Ors (2003) 6 HKCFAR 322. In that case, the Appeal Committee of the Court of Final Appeal made the point that it was not strictly necessary for the Court to decide the terms of the applicable test for Hong Kong.[13] Nevertheless, Ribeiro PJ for the court observed:[14]
30.This test was also accepted as correct in Falcon Private Bank Ltd v Borry Bernard Edouard Charles Ltd (2014) 17 HKCFAR 281.[15] The onus of establishing that matter is on the party applying for recusal. 31.As set out by the High Court of Australia in Johnson v Johnson (2000) 201 CLR 488, Kirby J observed:[16]
In that case, Kirby J made the point that the fair-minded observer should not be confused with the complainant. 32.These principles give effect to the requirement that justice should both be done and be seen to be done.[17] The concern for the principles of the independence and impartiality of judicial officers is deeply rooted in the common law and the appearance of impartiality is essential for public confidence and the administration of justice.[18] 33.In this context, it is relevant to consider what the hypothetical reasonable observer brings to the required evaluation. Plainly, the hypothetical reasonable observer is fair-minded and hears both sides (or, perhaps where relevant, all sides) of the argument before coming to a conclusion.[19] In Helow v Secretary of State for the Home Department & Anor [2008] 1 WLR 2416, Lord Hope of Craighead observed:[20]
That passage was followed by Zervos J in Komal Patel v Chris Au [2016] 1 HKLRD 328, §11. 34.In Johnson v Johnson (above), Kirby J considered the nature of the observer:[21]
35.Further, such an observer would be aware of the judicial oath taken by both permanent and deputy Judges and Recorders.[22] Because my impartiality is impugned because of my acting for Wu Wing Kit at an earlier time, the observer would also be aware of the traditions and discipline of the legal profession and the ethical standards imposed and expected of those in the legal profession.[23] There is a similar tradition and discipline apposite to the judiciary.[24] Such an observer would also be expected to understand the obligations of lawyers as to the conduct of cases. In particular, such an observer would understand the professional obligation of a lawyer (whether solicitor or barrister) to be agnostic towards instructions given from a lay client. In HKSAR v Egan (2010) 13 HKCFAR 314, Ribeiro PJ observed:[25]
36.Obviously, in criminal proceedings where a lawyer is instructed to defend a client, such a lawyer would be required to evaluate or form a view about his client for purposes such as deciding what advice to tender as to whether or not his client should testify. While popular culture might point to a different conclusion in this context, it is professionally inappropriate for a lawyer to become, as it were, a card-carrying member of the accused’s team adopting the accused’s view of the facts. After the case is concluded, the only obligation that such a lawyer would have in those circumstances would be to observe the obligation of legal professional privilege. The obligation does not extend to advocating his former’s position or beliefs. Further, the Bar Code imposes strict rules about the conduct of barristers who are told directly by their client that they are guilty or where to represent a client would be to have a conflict-of-interest. 37.The authorities demonstrate that it is important that judicial officers should be careful not to accede too readily to suggestions of appearance of bias as such may encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide their case in their favour: Re JRL; Ex Parte CJL (1986) 161 CLR 342. In that case, the High Court of Australia was concerned that a counsel who had been dealing with one of the parties in family law proceedings making representations to the judge in the case in the absence of the other party. In the course of considering the principles which applied, Mason J observed:[26]
38.This matter was taken up by the Appeal Committee (Ribeiro and Tang PJJ and Chan NPJ) of the Court of Final Appeal in Falcon Private Bank Ltd v Borry Bernard Edouard Charles Ltd (2014) 17 HKCFAR 281. In giving the judgement of the Court, Ribeiro PJ observed:[27]
39.The English Court of Appeal expressly followed the observations of Mason J in Re JRL; Ex Parte CJL (above) followed in Locabail (UK) Ltd v Bayfield Properties Ltd & Another [2000] QB 451.[28] 40.In ZN v Secretary for Justice [2016] 1 HKLRD 174, Zervos J discussed the position where the applicant is an arm of the Hong Kong government. He observed that “When the litigant is the HKSARG, it should be rare indeed that it would make an application for the recusal of a judicial officer, and if it does it should be only in the most obvious cases: The HKSARG should be more reluctant to do so than the ordinary litigant, and thereby display greater confidence in and respect for the workings of the judiciary.”[29] In my judgement, if those observations I have just quoted are meant to imply a limitation on the right of the Secretary for Justice to apply to recuse a judicial officer, then I respectfully disagree. If it is a statement of aspiration, I wholeheartedly agree. The reason I am concerned about the limitation on the right of the Secretary to apply is, unlike the position of an accused person, the appellate review options available to the Secretary are distinctly limited. Accordingly, from that procedural standpoint alone, it is incumbent on the judge to whom the application is made to take, perhaps, especial care in dealing with such an application. 41.On any view, an application to a judge for recusal places that judge in an invidious position. The judge has to determine the application. Most of the authorities that I have considered, when considering the principles to be adopted, are appellate decisions reviewing the decision of the First Instance judge, who had to make the decision to recuse or otherwise. As to the appropriate considerations to bring to bear on such a decision, of great assistance to this court was the approach adopted by Zervos J in Komal Patel v Chris Au (above). RESOLUTION 42.As Zervos J in Komal Patel v Chris Au (above) identified, the first task that a judge facing an application for recusal must consider is to identify how or why the judge is or may be biased by reference to the issues that the judge must consider in the case. In short, in the present case, the contention must be that there is a reasonable apprehension on the part of a reasonable and well-informed observer that I could possibly be biased against the prosecution in relation to its case against the 3 accused. The basis on which the prosecution says that such an observer may have such an apprehension is that I acted for Wu Wing Kit in his trial for money laundering. 43.While it is certainly true that the conspiracy charges faced by the 3 accused in this case are different charges, the practical reality is that there is some common evidence as between Wu Wing Kit’s trial and the present trial. D1 in the present case also faces a money laundering charge. However, while the prosecutor in the present case confidently asserts knowledge of Wu Wing Kit as a pertinent fact germane to both cases, the plain fact is that certainly at the trial that I conducted on his behalf, he denied knowing these facts. Indeed, I cannot conceive of circumstances in which there could be anything other than a verdict of guilty on the money laundering charge that Wu Wing Kit faced, if it were proved that he knew the facts that the prosecutor asserted. At the trial that I conducted as counsel, the learned trial Judge convicted Wu Wing Kit on the basis of the second limb of liability under section 25 of the Organised and Serious Crimes Ordinance. The issue before the Court of Appeal was whether the learned trial Judge adopted the correct test. I understand that Wu Wing Kit was never charged with the conspiracy charges faced by the accused in the present case. 44.It is said by the prosecutor, and these are her exact words, that “Well, as I say, I am concerned about the relationship between your Lordship and the personnel in this trial are matters that you may know about them and matters which you may have formed views about in the course of representing Mr Wu.” First of all, I have no relationship, professional or otherwise, with the accused in this case. I have a relationship with Mr Khosa and I will return to that topic in due course. My relationship and obligations (legal professional privilege aside) to Mr Wu are over. 45.What I “know” or what I have been told by Wu Wing Kit could only be relevant if it could conceivably affect the decision or decisions I was required to make in the present trial. Further, as was my professional obligation, I remained (and remain) agnostic about the instructions given to me by Wu Wing Kit. Whilst I am not permitted to reveal my instructions in Wu Wing Kit’s case, it is only right that on no account was I ever instructed that Wu Wing Kit knew of the dishonest activities alleged against, particularly D1 and D2. D3 had no real part to play in the issues at trial. If those had been my instructions, I would have recused myself a long, long time ago. Under the Bar Code, it is at least doubtful that I could have acted for him in the first place. 46.The prosecutor, in the course of her submissions, asked rhetorically why I wished to “cling on” to this case where there were so many able judges available to do the case. Plainly, there are many able judges serving Hong Kong. No doubt at least some are available. I have not enquired. I reject as absurd the suggestion that I am “clinging on” to this case. 47.Agnosticism as to instructions is a critical part of what a barrister is expected to do. Barristers are expected to provide objective advice. Agnosticism is a prerequisite of objective advice. That advice may be unpopular or unwelcome, but that is the obligation. If a barrister is not agnostic as to his or her instructions, that barrister runs the risk of failing in one of his or her principal duties. In my experience, leaving aside the need to render independent legal advice, counsel who lose their objectivity run the real risk of diminishing their ability to conduct a case. 48.I perfectly accept that being agnostic as to instructions has obvious limitations in the analysis of whether it is necessary for me to recuse myself. For example, agnosticism as to instructions would be of no relevance if Wu Wing Kit was an accused person in the present trial. 49.As I made plain in exchanges between myself and the prosecutor in oral argument, I did form views about Wu Wing Kit. As with virtually every trial I have ever done, I consider that my professional obligation means that I am required to form views. However, those views are limited to making an assessment of an accused for the purpose of the trial. The most striking example of that is an assessment of what sort of a witness the accused might make, if he or she was to go into the witness box. That is highly relevant to the advice that I am professionally obliged to render in the event that in the case I am instructed to defend the court holds that there is a case to answer. I try to avoid forming any emotional feelings about an accused and almost without exception I have been successful in that. (I have been conducting trials since 1977). I formed no emotional feelings about Wu Wing Kit. Even if I had, I cannot see how such emotions might affect any decision I might be called to make in the present trial. 50.I indicated that I would return to the topic of the fact that Mr Khosa who was my junior at the trial of Wu Wing Kit. Mr Khosa is a senior and respected member of the Bar. He is a person with whom I have enjoyed friendly relations with for many, many years. In that regard, he is to be regarded as in common with a fairly large portion of the Bar. As Sir Anthony Mason once observed at the talk that I attended, the Bar produces great friendships and great rivalries. It ought not to be surprising that this was my experience having been in practice as government counsel and as a barrister in this jurisdiction since 1982. Mr Khosa, and many other persons of his seniority, have regularly appeared before me since I started sitting as a Deputy Judge some years ago. Some of them I count as friends. Some of them I do not. Some of them have assisted me as Junior Counsel. Some have been opponents. So far, when they have appeared before me, the record clearly demonstrates they have all been treated the same. Counsel for the prosecution appeared to resile from a submission that the fact that Mr Khosa was my junior in the trial where I represented Wu Wing Kit was a relevant factor either for me or, presumably, the fair-minded lay observer acting reasonably. I make these points in case I have misapprehended her position. 51.Counsel for the prosecution also says “…I say this: that I think all of us here when we are asked to represent somebody do so to the utmost of our ability and we perceive matters from their point of view. We push that point of view, we advocate that point of view, and it’s very difficult to step back and lose that completely. And I just don’t see why we have this risk.” The central core of that submission is that it is contended that counsel as a generality and, perhaps me in particular, cannot step back after a case after having pushed that case before a tribunal as far as professionally appropriate. I fundamentally disagree. In my opinion, that completely misses the point about what we as counsel do. That said, I could readily see how if a person learned of their concept of what barristers do from watching legal dramas in popular culture, how the submission of the prosecutor might have a proper basis. However, it has none in the day-to-day world of the Bar. Even if I was wrong about that, even if, for example, I thought that Wu Wing Kit was, with respect to the first trial, be wrongly convicted or was unlucky to be convicted, I fail to see how that could influence me in making any determination against the prosecution germane to the accused in the present case. 52.I am not sure I wholly agree with the submissions of Mr Owen and Mr Chan as to certain aspects of what the judge in a jury trial is required to determine. In particular, issues of admissibility which are issues of law almost always depend on facts being found as a precondition to admissibility. In that regard, a judge in a jury trial has a fact-finding responsibility. However, I cannot conceive of any ruling of that kind which I may be called upon to give where I made rule against the prosecution out of some misplaced belief in or loyalty to Wu Wing Kit. (In making that observation, I am assuming Wu Wing Kit was not a witness.) Of course, some issues of admissibility may have an uncontroversial or accepted factual base. What the prosecution’s submissions come to must be that there is a perception that there is a real risk that I would skew my decision either as to law or as to facts because of that misplaced belief or loyalty to Wu Wing Kit. 53.Further, as Mr Owen and Mr Chan submitted, the judge has an important role at the conclusion of the prosecution case to determine whether or not there is a case to answer. The legal discipline in determining that issue is based on settled law. 54.It has always been my approach in the conduct of criminal trials that if there are any rulings, other than minor short-term matters as to whether counsel for a particular party is improperly asking leading questions or matters of that kind, that I give a reasoned decision. This is an obligation recognised by the Court of Appeal in HKSAR v Okafor [2012] 1 HKC 427, [2012] 1 HKLRD 1041.[30] It is my invariable practice that when giving reasons in recognition of those obligations, the reasoned decision is to be reduced to writing. In other words, there is open scrutiny of any decision I make. 55.Of course, I would be obliged to sum-up the case and its conclusion in the event that I hold that there is a case to answer. It is elementary that the obligation of the judge in such a circumstance is to sum-up not only the prosecution case, but to put the defence case as well. In this jurisdiction, prosecuting counsel are obliged in law to take exceptions where an error is made in the summing-up, whether it be of fact, law or emphasis. While there is no such obligation on defence counsel as presently the law stands, I suspect that the time is not far off when that may become an obligation imposed on defence counsel as well. Be that as it may, there is ample opportunity for scrutiny of the summing-up. Although it is not my invariable practice to do so, I cannot imagine circumstances in this specific case in which I would not consult with counsel prior to the summing-up. I cannot imagine circumstances in this case where those consultations would not be extensive, not just as to the applicable law (which, while somewhat tricky, is probably reasonably easy), but as to aspects of the facts as well. It is my invariable practice to invite counsel to make submissions in advance of a summing-up except in the most basic trials. 56.The point of all of this is simply to focus on what I will be required to consider (I use the word “consider” in contradistinction to “decide” quite deliberately) in the trial. That will be focused and counsel will have the opportunity at all stages to make submissions, particularly, by reference to a case such as the present one, I cannot imagine it being anything else. 57.However, even though I am wholly and utterly sure that I will bring an open mind, as opposed to a biased mind to this case, in many respects that is only part of the issue. The real issue then becomes whether a fair-minded lay observer may reasonably apprehend that the judge may not bring an impartial mind to the resolution of the question or questions the judge is required to decide. I make the point that such an observer, consistent with Kirby J in Johnson (above), in order to be a fair-minded observer, would have to know about aspects of how barristers go about their business and how judges go about their business. In many ways, that fair-minded lay observer is, in a sense, required to get the basics of a legal education starting with things that were learned in the first few classes of first year law school. In my judgement, I am sure that such a fair-minded lay observer would not reasonably apprehend that I may not bring an impartial mind to the resolution of the question or questions that I am required to decide. 58.Accordingly, I refuse this application.
Ms Charlotte Draycott, SC, on fiat, and Miss Ng Oi-lam Joycelyn, SPP of the Department of Justice, for HKSAR Mr Tim Owen, QC, leading Mr Tsoi Y M Benson, instructed by Boase Cohen & Collins, for the 1st accused Mr Chan C L Derek, SC, leading Mr Cao Yuan-shan, instructed by Haldanes, for the 2nd accused Mr David A S Khosa, instructed by Hobson & Ma, for the 3rd accused [1] Junior Counsel representing Wu Wing Kit was Mr David Khosa Barrister at Law. [2] HKSAR v Wu Wing Kit & Ye Fang (No 2) [2016] 3 HKLRD 533. [3] HKSAR v Wu Wing Kit & Ye Fang (No 2) [2016] 3 HKLRD 533, §11-26, 28-32, 34-37. I have not included the footnotes to the summary by Lunn VP. [4] HKSAR v Pang Hung Fai (2014) 17 HKCFAR 778. Perhaps as a matter of further legal history, the Court of Final Appeal has refined the test and the last word on the topic is now to be seen in HKSAR v Harjani Haresh Murlidhar (2019) 22 HKCFAR 446, [2019] HKCFA 47 [5] HKSAR v Chen Keen & Ors (2019) 22 HKCFAR 248, §2. Footnotes omitted. [6] (2019) 22 HKCFAR 248, §4-25 [7] Prosecution Submissions dated 14 August, 2020, §10. [8] Prosecution Submissions dated 14 August, 2020, §11. [9] Prosecution Submissions dated 14 August, 2020, §13. [10] Prosecution Submissions dated 14 August, 2020, §14. [11] Submissions by 1st Accused dated 16 August, 2020, §1.1(2). [12] Porter v Magill [2002] 2 AC 357, 494. [13] That because there was a concurrent between the parties to the appeal as to the applicable test. [14] (2003) 6 HKCFAR 322, §20-24. [15] (2014) 17 HKCFAR 281. See also ZN v Secretary for Justice [2016] 1 HKLRD 174, §28-32, 36-37 [16] (2000) 201 CLR 488, §12. [17] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, §6 per Gleeson CJ, McHugh, Gummow & Hayne JJ. The phrase is attributed to Hewart CJ in R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256, 259. [18] Komal Patel v Chris Au [2016] 1 HKLRD 328, §3. [19] Helow v Secretary of State for the Home Department [2008] 1 WLR 2416, §2. [20] [2008] 1 WLR 2416, §2-3 [21] (2000) 201 CLR 488, §53. Footnotes omitted. This was cited w approval in Komal Patel v Chris Au [2016] 1 HKLRD 328, §13. [22] The content of the oath is to be found in the Oaths and Declarations Ordinance, Cap. 11, section 17, Schedule 2, Part V. [23] Ameyaw v McGoldrick & Ors [2020] EWHC 1787 (QB). [24] See: Guide to Judicial Conduct published by the Judiciary of Hong Kong in 2004. In Part B, in §18, the guide notes “Impartiality is the fundamental quality required of a judge.” In §19 the Guide asserts “Justice must be done and must be seen to be done. Impartiality must exist both as a matter of fact and as a matter of reasonable perception. If partiality is reasonably perceived, that perception is likely to leave a sense of grievance and of injustice having been done, which is destructive of confidence in judicial decisions.” [25] (2010) 13 HKCFAR 314, §185. This was followed in Vivien Fan v HKSAR (2011) 14 HKCFAR 641, §101 [26] Re JRL; Ex Parte CJL (1986) 161 CLR 342, 352 per Mason J. [27] (2014) 17 HKCFAR 281, §38. As Zervos J observed in ZN v Secretary for Justice (above) §38-40, pair claims of bias were not sufficient to mount a recusal application. However, as will shortly appear, I respectfully disagree with the observations of Zervos J about the position where the applicant is an arm of the Hong Kong government: §1, 60-61. [28] [2000] QB 451, §22. [29] [2016] 1 HKLRD 328, §61. [30] This decision has been followed and reinforced in HKSAR v Kong Pui Lam [2012] 4 HKC 551, [2012] 4 HKLRD 167 and HKSAR v Ngoma Juma Shabani [2015] HKCU 2049 (unreported, CACC 214/2014, 2 September 2015). | |||||||||||||||||||
Cases cited in this judgment
Further hearings and rulings under HCCC 309/2019