HKSAR v. Wan Yim

HCMA000609/2000

HCMA609/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.609 OF 2000

(ON APPEAL FROM NKCC 817 OF 2000)

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Coram: Deputy High Court Judge Tong in Court

Date of Hearing: 4 August 2000

Date of Handing Down Reasons for Judgment: 22 August 2000

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REASONS FOR JUDGMENT

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1. The appellant was charged with a total of five offences, four alleged that she had lived on the earnings of prostitution and one related to her having kept the premises in question as a vice establishment, contrary to section 139(1)(a) of the Crimes Ordinance. The appellant pleaded not guilty to all these. After the trial, she was convicted of the offence of keeping a vice establishment and was acquitted of the other charges. The learned magistrate sentenced her to 18 months of imprisonment. At first, she sought to appeal against both the conviction and sentence, however, at the commencement of the hearing, Mr Pickavant, acting for the appellant, had informed the court that the appeal on sentence would be abandoned.

2. There were a number of grounds raised in relation to the findings by the learned magistrate. One of the complaints was against the conduct of the trial. It was argued that the magistrate had entered the arena and intervened to such an extent that there was no fair trial. Mr Pickavant had listed out, in his written skeleton argument, all the relevant interventions made by the magistrate. He hastened to explain that some of the interventions were clearly made for the purpose of clarification, however, the others were not.

3. A reading of the trial transcript revealed that the learned magistrate had indeed intervened quite extensively. That happened during the evidence of PC45282 who was the main witness on the special issue. The same occurred when the appellant and her witness gave evidence. Mr Pickavant complained that after the defence witness had completed the evidence-in-chief, the learned magistrate went on to question the witness at length and at the end he did not even invite the prosecution to do the cross-examination.

4. In this particular case, the learned magistrate might have adopted a somewhat casual attitude in his interventions. I do not think it useful to quote any examples here. In relation to the evidence of the appellant and her witness, Mr Pickavant even argued that the interventions had the effect of stifling the defence. Denning LJ (as he then was) stated in the case of Jones v. National Coal Board [1957] 2 Q.B.55 at p.64 that :

"... So also it is for the advocates, each in his turn, to examine the witnesses, and not for the judge to take it on himself lest by so doing he appear to favour one side or the other : see Rex v. Cain, Rex v. Bateman, and Harris v. Harris, by Birkett L.J. especially. And it is for the advocate to state his case as fairly and strongly as he can, without undue interruption, lest the sequence of his argument be lost : see Reg. v. Clewer. 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. Of course, Jones is a civil case but the principle regarding the role of the judge must be the same as in a criminal trial. The leading authority in Hong Kong on such issues is The Queen v. Yeung Mau Lam [1991] 2 HKLR 468. The Court of Appeal pointed out that the following principles could be deduced from the authorities in this area of the law :

"(i) (Judicial) 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."

6. Gall J in The Queen v. Chan Wai Fong, MA No.466/1996 applied the principle and found that :

"By his [the magistrate's] intervention an informed bystander would have taken the view that the magistrate had usurped the function of the prosecution and although I am satisfied that there was no intention on the part of the magistrate to support the prosecution by an intention to achieve a conviction, an informed bystander listening to the case would say that a fair and proper trial had not been conducted. The appeal is allowed and the sentence is set aside."

7. Despite the respondent's attempt to argue otherwise, having read the transcript, I fear I could only reach the same conclusion regarding the present case as Gall J did in Chan Wai Fong. I would allow the appeal on this ground. In fact, apart from this problem of intervention; the learned magistrate had given a well-reasoned judgment in support of his decision. I considered that the other grounds of appeal were not really meritorious.

8. I would order that the conviction be quashed and the sentence set aside. As the prosecution did not ask for a retrial, no such order would be made.

Representation:

Ms Catherine Ko, SGC of DPP, for HKSAR

Mr John Pickavant of Messrs John M. Pickavant & Co., for the Appellant