Aaron Patrick Nattrass v. The Attorney-general

HCMP002337/1995

1995 MP No. 2337

H E A D N O T E

(i) An allegation that there is a real danger of unconscious bias on the part of a judge is not an "objection to the conduct of the judge" so as to permit service of proceedings under Ord. 53 r. 5(3) on the judge. Nor is a judge who wishes to justify a ruling he has made to discharge himself because of such a danger "a proper person to be heard" under Ord. 53 r. 9(1).

(ii) A judge's ruling to discharge himself on the ground of bias is amenable to judicial review: R. v. Deputy District Judge Lee ex p. Chow Po Bor [1993] 3 HKPLR 101 not followed.

(iii) The test of bias in R. v. Gough [1993] AC 646 applies even where a judge is having to consider his own possible bias, but in order to determine whether there is a real danger of unconscious bias on his part, one of the factors which it is permissible for him to take into account is whether an informed and fair observer would think that such a real danger existed.

1995 MP No. 2337

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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Coram: The Hon. Mr. Justice Keith in Court

Dates of hearing: 23 and 24 November 1995

Date of handing down of judgment: 19 December 1995

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J U D G M E N T

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INTRODUCTION

1. This is an application for judicial review. It relates to the decision of a judge of the District Court to discharge himself from continuing to preside over a particular criminal trial. The ground on which he did so was that people might reasonably think that there was a real danger of bias on his part if he continued to preside over the trial. However, there are features of this application which are both bizarre and unique. The unique feature of it is that it was the Crown who applied to the judge to discharge himself, and it is the defendant in the case who now applies for judicial review of the judge's ruling. No one has found a reported case in any common law jurisdiction in which an application for a judge to discharge himself on grounds relating to bias has been made by the prosecution. The bizarre feature is that the judge himself has purported to appear by counsel on this application to justify his ruling.

THE FACTS

2. The charges. The Applicant ("Mr. Nattrass") faces a total of 35 charges. They relate to offences of dishonesty alleged to have been committed by him in the running of an immigration consultancy in Hong Kong. Its business was to assist people in Hong Kong in applying for emigration to New Zealand. The trial began on 1st May 1995 before Judge Caird in the District Court. Mr. Nattrass pleaded not guilty to all charges.

3. The defence. Part of Mr. Nattrass' defence to the charges will be that he had intended to establish genuine businesses in New Zealand. His partners in those businesses were to be Hong Kong investors. As a result, they would become eligible to emigrate to New Zealand under the Business Migrant Scheme. Moreover, once the businesses had been established, people in Hong Kong would be recruited to work in them. As a result, they would become eligible to emigrate to New Zealand under the Occupational Priority Scheme.

4. Mr. Nattrass' case is that he discussed the scheme with Miss Dorothy Smith, an official at the New Zealand Consulate-General in Hong Kong. Miss Smith had agreed to consult her superiors, and to obtain guidance from Wellington if necessary. Mr. Nattrass claims that he also discussed the scheme with Mr. Ron Burton, who was Miss Smith's immediate superior in Hong Kong. Mr. Burton agreed to discuss the scheme with Wellington, and he subsequently informed Mr. Nattrass that the scheme was acceptable. Mr. Nattrass' belief that the scheme was legal is said to be highly relevant to the question of his honesty in relation to the charges he faces.

5. The Crown intends to call Miss Smith to give evidence at the trial to rebut this part of Mr. Nattrass' case. Since the judge discharged himself, she has been interviewed by an officer of the ICAC. She told him that she had no recollection of such discussions with Mr. Nattrass, and that if such discussions had taken place, she would have remembered them. Her only dealings with Mr. Nattrass had related to specific individual cases. The matters which Mr. Nattrass claims he raised with her would have constituted an issue of policy, and she had not discussed any issue of policy with him. It is said, therefore, that her evidence is highly relevant to the question of Mr. Nattrass' honesty.

6. The application for a stay. On 8th May, Mr. Nattrass' counsel applied to Judge Caird for a stay of the proceedings. The grounds were delay in the initiation and prosecution of the proceedings which prejudiced Mr. Nattrass' defence, and what was described as "manipulation of the judicial process by the prosecution". One of the allegations was that there had been a pattern of obstruction of his defence on the part of the New Zealand Immigration Service ("the NZIS").

7. Mr. Nattrass gave evidence in support of his application for a stay. Part of his evidence was that senior officials of the NZIS were motivated by bad faith against him. In support of that allegation, the defence called Mr. David Beasley and Mr. Martin Hine to give evidence. Mr. Beasley was an immigration consultant. His evidence was that in the late 1980s, the NZIS was "somewhat out of control", that there was "racism built into the system", and that "it was a sort of border guard attitude with overtones of racism". Mr. Hine gave evidence of two examples of the racism to which Mr. Beasley had alluded. First, he claimed that an official in the NZIS had once said that there were "too many bloody Chinese coming into New Zealand". That official was Mr. Michael Scrivenor, who was to be called as a prosecution witness both on the application for a stay and at the trial if the proceedings were not stayed. Secondly, Mr. Hine described an occasion on which he, Mr. Nattrass and Mrs. Nattrass, who is Chinese, met the New Zealand High Commissioner in London in connection with Mrs. Nattrass' application for citizenship of New Zealand. The relevance of that was to show that the allegations of bad faith went as far as the High Commissioner.

8. The judge's comments. The judge comes from New Zealand. He made significant comments about Miss Smith and the allegations of racism in the NZIS on a number of occasions during the hearing:

(i) On 22nd May, he announced that he had had dealings in the past with Miss Smith. He said that he had found her "singularly unhelpful", and that he "had not [had] a very good experience with [her]." He added that he had felt that she was "a poor advertisement for New Zealand". He referred to her again on 5th June, when he said that he had found her "quite unsatisfactory".

(ii) On 15th June, in the course of that part of Mr. Hine's evidence when Mr. Hine quoted what Mr. Scrivenor had said, the judge remarked that he was "married to one of these 'bloody Chinese' ". That was a reference to the fact that his wife is Chinese. And when Mr. Hine was giving evidence about Mrs. Nattrass' application for citizenship, the judge said that he had been through "a similar situation". Mr. Nattrass' counsel said that he did not wish to take any point on that matter, and the judge replied that "in some ways perhaps I am not the right judge for this case, because of my personal experiences".

(iii) On the following day, the judge saw the parties in chambers. He expressed what he had to say in such strong language that it is important to set out what he said as fully as possible. The following account of it comes from a contemporaneous note made by Mr. Eric Fletcher, the ICAC officer who had been handling the investigation into Mr. Nattrass' affairs and who was present:

"There are many matters which cause me concern. A personal matter in 1983 with Dorothy SMITH. That woman. I was getting married to a local Chinese girl and she asked me if she was from Wanchai. She is from Wanchai but not a brothel as was suggested. So far as I'm concerned NZIS displayed an unbelievable degree of racism. I was leaving Hong Kong within two weeks for London where I had nothing but the best.

I have had a sleepless night. I don't want to abort but have certain views. It's the first time in my life I have come out with an outburst such as this.

Dorothy SMITH is not being called, if she were I would have to seriously consider disqualifying myself.

The incident was before Mr. NATTRASS's troubles, September or October 1983, and does not bear directly on the present case.

The name Dorothy SMITH is engraven on my heart and I'm glad she's not a New Zealander.

It's unprecedented. The horrifying part is it's from my own country I experience racism i.e. racist remarks yet my wife has never had problems when we have been in New Zealand.

I've agonised over this. Allegations by a lawyer (HINE) in NZ. Racism in my own country."

The judge was clearly very distressed over his experiences with Miss Smith 12 years earlier, and he was disturbed about the allegations of racism against the Immigration Service of the country which he had come from.

9. Mr. Nattrass' medical condition. On 8th June, while Mr. Nattrass was being cross-examined, the judge indicated that Mr. Nattrass appeared to be seriously ill. The case was adjourned for Mr. Nattrass to be seen by a doctor. He was referred to a specialist in internal medicine, Dr. Chin, and a psychiatrist. In the light of the reports which were received on Mr. Nattrass' medical condition, Mr. Nattrass' counsel applied on 13th June for a permanent stay of the proceedings on the ground that Mr. Nattrass' life, life expectancy and health would be endangered by the continuation of the proceedings. The judge indicated that at that stage he was against the application, but that it might be renewed depending on the outcome of various hospital tests. Mr. Nattrass' cross-examination was adjourned, and Mr. Hine's evidence was interposed. Mr. Nattrass was in hospital between 20th and 24th June. Before the trial resumed on 26th June, Dr. Chin had expressed the opinion that Mr. Nattrass needed an immediate period of sickness vacation of one month in a cool climate.

10. The availability of Miss Smith as a witness. The Crown had been unaware of the relevance of the evidence of Miss Smith until the date before the trial was due to begin. On that day, counsel for the prosecution received from Mr. Nattrass' counsel a copy of a provisional skeleton argument relating to the application for a stay of the proceedings. The skeleton argument relied on the fact that Miss Smith could not be traced. Accordingly, on 1st May, Mr. Fletcher was instructed to discover the whereabouts of Miss Smith. By 5th May, Miss Smith had been traced in England, and she had informed the ICAC that she was not prepared to become involved with Mr. Nattrass, or to travel to Hong Kong to attend the Court. However, she was contacted again by an ICAC officer on 22nd June, 6 days after the meeting in chambers. She was asked to reconsider her position, and after considering the matter, she agreed to come to Hong Kong and to give evidence at Mr. Nattrass' trial.

11. The Crown's application for the judge to discharge himself. In view of Miss Smith's availability, the Crown decided to call Miss Smith at the trial (though not on the application for a stay) in the event of the application for a stay being refused. In the light of the judge's comments about her and the allegations of racism in the NZIS, the Crown decided to ask the judge to discharge himself. That application was made on 26th June when the hearing resumed. The defence argued that the judge should deal with the application for a stay on medical grounds first. The judge agreed to that course.

12. On 28th June, Mr. Nattrass' counsel applied for an immediate stay of the proceedings on medical grounds. The Crown did not want the application to be determined until it had had an opportunity to have Mr. Nattrass examined. The judge allowed the application to proceed, but said that in the absence of compelling evidence to the contrary, the Crown should have that opportunity. Dr. Chin then gave evidence. Mr. Nattrass was prepared to be examined by the Crown's doctors, so long as the examination took place before he left for his vacation. The Crown stated that it would not be possible to arrange one before the end of that week, i.e. before Friday, 30th June. The judge then ruled that in those circumstances he would hear the Crown's application that he should discharge himself.

13. Arguments on the question were addressed to the judge on 29th June. He was asked to discharge himself not merely because Miss Smith would now be giving evidence. Even if she had not decided to make herself available as a witness, he was being asked to discharge himself because of the allegations of racism in the NZIS. The judge gave his ruling on 30th June. He decided to discharge himself. He stated his conclusion as follows :

"I have been confident I could adjudicate without bias and am fortified in this by counsel's views, but considering Gough and other cases I am of the view that a reasonable man may think there is a real danger of bias, i.e. an appearance of bias. Furthermore I have considered the present application. This in itself may give rise to a danger of bias - or the appearance thereof - either as against the Crown - or in a reverse way creating an atmosphere where over-compensation in favour of the Crown could occur. As has been quoted in a number of cases referred to me by counsel, 'Justice must not only be done but must be seen to be done.' "

That is the ruling being challenged in these proceedings.

THE INTERVENTION OF THE JUDGE

14. When the hearing of the application before me commenced, Judge Caird was represented by counsel, Mr. Andrew Macrae. Mr. Macrae's presence was not unexpected. Solicitors instructed on Judge Caird's behalf had filed a Notice to Act, and Mr. Nattrass' solicitors had been in touch with them as to whether Judge Caird proposed to oppose the application and file evidence. In due course, they were informed that Judge Caird did not propose to file evidence, but the fact that Judge Caird proposed to oppose the application was plain from written submissions prepared by Mr. Macrae lodged with the Court a week or so before the hearing was due to take place.

15. Mr. Nattrass' lawyers must, I think, bear some responsibility for Judge Caird's decision to participate in the proceedings. Having obtained leave to apply for judicial review of his ruling from Sears J. on 5th September, they served the Notice of Motion on Judge Caird. They should not have done so. Ord. 53 r. 5(3) of the Rules of the Supreme Court provides for who are to be served with a notice of motion applying for judicial review:

"The notice of motion or summons must be served on all persons directly affected and, where it relates to any proceedings in or before a court and the object of the application is either to compel the court or an officer of the court to do any act in relation to the proceedings or to quash them or any order made therein, the notice or summons must also be served on the clerk or registrar of the court and, where any objection to the conduct of the judge is to be made, on that judge."

Judge Caird was not one of the persons directly affected by his ruling. The persons who were directly affected by it were the parties to the litigation in which his ruling was made, i.e. Mr. Nattrass himself and the Attorney-General who had preferred the charges against him. Undoubtedly, the Notice of Motion had to be served on the Registrar of the District Court since orders of mandamus were being sought against Judge Caird, but Judge Caird himself could only have been served with the Notice of Motion if any objection to his conduct was to be made. Whether any objection to his conduct was to be made depended on the contents of (a) the grounds on which relief was sought set out in the Notice of Application for leave to apply for judicial review, and (b) the affidavits of Mr. Nattrass and his solicitor which were relied upon in support.

16. A careful reading of these materials show that no objection to Judge Caird's conduct was to be made. The objection which was to be made was to the correctness of his decision to discharge himself from continuing to preside over Mr. Nattrass' trial. Indeed, it was made plain that no allegation of conscious bias was being made against him by anyone. Properly analysed, the complaint being made against him was that the danger of bias arose because he might have been unconsciously biased. I do not regard an allegation of the possibility of unconscious bias as amounting to an objection to Judge Caird's "conduct".

17. Two alternative consequences follow from the fact that the conditions for the service of the Notice of Motion on him had not been satisfied. The first is that the purported service on him was of no effect. The second is that it took effect, but had to be set aside. Either way, since there was no provision permitting service on him, the only route by which he can be heard in opposition to the Motion is under Ord. 53 r. 9(1), which provides:

"On the hearing of any motion or summons under rule 5, any person who decides to be heard in opposition to the motion or summons, and appears to the Court to be a proper person to be heard, shall be heard, notwithstanding that he has not been served with notice of the motion or the summons."

18. Is Judge Caird a proper person to be heard? The notion of a judge being able to be heard by counsel to justify a ruling which he has given in an inferior court is a bizarre one. Where he has given reasons for his ruling, he should allow his own words to speak for themselves. Apart from the natural wish to see his own views vindicated, a judge has no legitimate interest in the outcome of the challenge to his ruling. There may be cases in which there is understandable concern that the litigant in whose favour the ruling was made may not be in a position to advance the arguments which may be deployed in order to support the ruling. That might arise, for example, if the ruling was on a matter of law, and the successful litigant is unrepresented. But if that concern is a real one, the remedy lies in the appointment by the Court of an amicus to assist the Court. It is wholly inappropriate for an attempt to be made to meet that concern by the unseemly spectacle of the judge who made the ruling seeking to justify the stance he took.

19. What would happen if, despite the judge's intervention, the challenge to his ruling succeeded? A moment's pause reveals a series of bizarre possibilities. Would the judge be liable for part of the costs? Would the judge be able to appeal to an even higher court? And would he be able to do so even if the litigant in whose favour the ruling was originally made chose not to appeal? The possible consequences are even more extraordinary in a case such as this where the relief sought by Mr. Nattrass includes an order for mandamus requiring the judge to continue to preside over his trial. I appreciate that Mr. Macrae has told me, on express instructions from the judge, that he would abide by any order of the Court. I would not have expected anything else. But in seeking to be able to argue that an order for mandamus is not appropriate, the judge has embarked on a course of action which it is argued itself impinges on the efficacy of mandamus as an effective remedy for Mr. Nattrass in the event of the challenge to his ruling succeeding.

20. Mr. Gerard McCoy, who appears for Mr. Nattrass but who does not appear for him in the trial, has told me that his researches have revealed no reported case since 1898 in which a judge has sought to be represented on a challenge in a higher court to a ruling he made. I am not surprised. In any event, when the attempt was made in R. v. Thornton (1898) 67 L.T. (N.S.) 249, the Court of Appeal said that it should not happen, unless the judge's "character or bona fides was in question, or other very special circumstances were present". Judge Caird's character and bona fides are not question in these proceedings, of course, and I can discern no special circumstances justifying his intervention.

21. Mr. Macrae has reminded me that when proceedings before a coroner are the subject of an application for judicial review, the coroner is a party and is invariably represented. But the difference is that the proceedings over which the coroner presides are inquisitorial, there are no parties to those proceedings, and if the coroner is not a party to the judicial review in which the proceedings before him are called into question, the person aggrieved by the decision challenged would have no-one on whom the proceedings are to be served.

22. These, then, were my reasons for declaring, as I did at an early stage of the hearing before me, that it did not appear to me that Judge Caird was a proper person to be heard. When I made that declaration, Mr. Macrae withdrew, and he took no further part in these proceedings.

IS JUDGE CAIRD'S RULING REVIEWABLE?

23. Mr. Nicholas Bradley for the Attorney-General takes the preliminary point that Judge Caird's ruling to discharge himself is not amenable to judicial review. He relies on the decision of Mayo J. (as he then was) in R. v. Deputy District Judge Lee ex p. Chow Po Bor [1993] 3 HKPLR 101. In that case, the defence had applied for a stay of criminal proceedings in the District Court, mainly on the ground that the prosecution had failed to comply with the Attorney-General's guidelines for disclosure of information to the defence. The defence argued that it faced considerable difficulties in preparing a defence which would take into account the material which had belatedly been made available by the prosecution. The prosecution resisted the application for a stay. It proposed that the defendants be tried before another judge, a suggestion opposed by the defendants on the ground that, if they were subsequently acquitted, they would not be able to recover the costs of the defence to date. The judge acceded to the prosecution's request and ordered a trial before another judge. The practical effect of that was, as here, that the judge discharged himself from continuing to preside over the trial.

24. Mayo J. held that that decision was not reviewable. The only reason he gave for taking that view was that the Court of Appeal in England in R. v. Gorman (1987) 85 Cr. App. R. 121 had held that the exercise by a judge presiding over a criminal trial of his discretion to discharge a jury from giving a verdict was not reviewable. Although Mayo J. did not say so in terms, he presumably thought that a decision by a judge to discharge a jury was analogous to a decision by a judge to discharge himself in circumstances where the judge tries the case without a jury.

25. I do not regard the situations as analogous at all. The rationale underlying the well-established judicial reluctance to review a decision to discharge a jury can only be that such a review is an exercise in futility. Even if the judge should not have discharged the jury, there is not much that one can do about it some time later when that decision is reviewed. There is no guarantee that the members of the jury can be reassembled, and even if they could it is far too much to expect them to remember the evidence which they heard months earlier. These considerations do not apply to a judge sitting alone. Provided that he still holds judicial office, he is available to continue to preside over the trial. Cases are frequently adjourned part-heard, and judges are used to picking up the reins again after the lapse of perhaps many months. It is a burden for the judge to have to read himself into the case again, but it is a task which any conscientious judge is able to perform.

26. For these reasons, I am unable to go along with the only reason which caused Mayo J. to reach the view that he did, and I therefore do not regard his ultimate decision as one which I am obliged to follow. Mr. Bradley did not wish to advance any other reason why Judge Caird's decision to discharge himself was not amenable to review, and I therefore propose to treat his ruling as one which is susceptible to challenge by an application for judicial review.

THE TEST TO BE APPLIED

27. In R. v. Lo Kwok Hung [1990] 1 HKLR 351, the defendant was tried and convicted in the District Court. On appeal, it was contended that the judge should have discharged himself, because remarks made by the judge had caused the defendant reasonably to suspect the judge of bias. The Court of Appeal ruled at p. 354B-C that the test to be applied was :

"Would a reasonable and fair minded person sitting in court and knowing all the relevant facts have a reasonable suspicion that a fair trial of the applicant was not possible?"

28. The "reasonable suspicion" test was rejected by the House of Lords inR. v. Gough [1993] AC 646. Lord Goff identified the correct test at p. 670E-F as follows:

"... having ascertained the relevant circumstances, the court should ask itself whether, having regard to those circumstances, there was a real danger of bias on the part of the relevant member of the tribunal in question, in the sense he might unfairly regard (or have unfairly regarded) with favour, or disfavour, the case of a party to the issue under consideration by him."

He added that he preferred "to state the test in terms of real danger than real likelihood, to ensure that the court is thinking in terms of possibility rather than probability of bias." He also added at p. 670D-E that

"it was unnecessary ... to require that the court should look at the matter through the eyes of a reasonable man, because the court ... personifies the reasonable man; and in any event the court has first to ascertain the relevant circumstances from the available evidence, knowledge of which would not necessarily be available to an observer in court at the relevant time."

The "real danger" test now binds the courts of Hong Kong. That is because the cases which led the Court of Appeal in Lo Kwok Hung to adopt the "reasonable suspicion" test were all considered in Gough, and because Gough has now been applied to Hong Kong by the decision of the Privy Council in Panel on Takeovers & Mergers v. Cheng Kai Man William [1995] 3 HKC 517.

29. However, in Gough, the House of Lords was addressing the question of the test to be applied by a superior court when it was alleged that the inferior court may have been affected by bias. In the present case, the issue is what test should be applied by a judge determining whether he might be affected by bias. In my view, the "real danger" test should still be applied by a judge having to rule on his own alleged bias, though it will inevitably have a different focus. I say that for two reasons:

(i) Lord Goff himself said that it was "desirable" that "the same test should be applicable in all cases of apparent bias" (p. 670C), and Lord Woolf added that the "real danger" test "is quite capable of producing the right answer and ensure that the purity of justice is maintained across the range of situations where bias may exist" (p. 673G). The tenor of the speeches of Lord Goff and Lord Woolf therefore require the "real danger" test to apply to those situations in which a court is called upon to determine whether it may be affected by bias, such as an application of the kind made to Judge Caird to discharge himself.

(ii) However, the judge who is asked to rule on his own alleged bias is in an invidious position. He may believe himself to be wholly free from bias, but he may well not be the best person to assess whether there is a real danger of it. As Lord Goff said at p. 659F, "bias is such an insidious thing that, even though a person may in good faith believe that he was acting impartially, his mind may unconsciously be affected by bias." It is necessary, therefore, for a judge who is being asked to rule on his own alleged bias to take a step back, and to look at himself as objectively as he can. In my view, if, in doing so, he asks himself whether a reasonable man might think that there is a real danger of bias, he is doing no more than attempting to look at himself with as great a degree of objectivity as is possible. It is true, as Lord Goff says, that the court personifies the reasonable man, but in such a case the attribute of reasonableness with which the judge is deemed to be embodied has to be seen against the possibility that he may be deluding himself into believing that he is not actuated by bias. What a reasonable man might think is, therefore, a factor which the judge is entitled to take into account in determining the ultimate question of whether there is a real danger of bias on his part.

THE TEST WHICH JUDGE CAIRD APPLIED

30. Having regard to the language which Judge Caird used when he gave the reasons for his ruling, the questions are:

(i) Was Judge Caird saying that the question which he had to decide was whether a reasonable man might think that there was a real danger of bias on his part?

(ii) Alternatively, was he recognising that the question which he had to decide was whether there was a real danger of bias on his part, and merely saying that the view of the reasonable man on that question was simply a factor which he was entitled to take into account?

If his approach was the former, it was erroneous. If his approach was the latter, it was not.

31. I have come to the conclusion that Judge Caird's approach was the former. In the passage in which he stated his conclusions, he himself referred twice to the "appearance of bias". He also referred to the famous statement of Lord Hewart C.J. in R. v. Sussex Justices ex p. McCarthy [1924] 1 KB 256 at p. 259 that "justice should not only be done, but should manifestly and undoubtedly be seen to be done." Those references are far more consistent with the judge regarding the view of the informed and fair observer as being decisive of the issue he had to decide, rather than merely a factor which he was entitled to take into account. The judge took on board the point that it was the real danger of bias on his part which was at issue, but he erroneously gave conclusive weight to what the informed and fair observer might have thought on that question. It follows that the judge applied the wrong test.

32. In my view, the judge made two further errors:

(i) The judge treated his conclusion that a reasonable man might think that there was a real danger of bias on his part as decisive of the ultimate question which he had to decide, namely whether he ought to discharge himself. In the overwhelming majority of cases, of course, a judge's conclusion that there was a real danger of bias on his part would inevitably lead to a judge deciding that he can no longer preside over the trial. But in the final analysis, what the judge is having to do is to exercise a discretion. It does not automatically follow that a real danger of bias on his part should result in a judge discharging himself, if, for example, despite that danger, the overall interests of justice require the judge to continue to preside over the trial. What the judge had to weight up was whether continuing the trial when there was the possibility of unconscious bias on his part was more damaging to the interests of justice than discharging himself with the consequences it would have for Mr. Nattrass in terms of (a) costs, (b) the availability again of his witnesses, (c) the impact on his health, and (d) the disadvantage of the Crown knowing what his evidence on the application for a stay was. Although the judge was aware of what he described as the "possible consequences", it does not appear to me, when I read the passage in which he stated his conclusions, that he put those consequences into the balance at all.

(ii) The judge appeared to be saying, in the second sentence of the passage in which he stated his conclusions, that the very fact that he had been asked to discharge himself on the ground of bias could result in there being a degree of bias if he did not accede to that application. That was not a permissible consideration for the judge to take into account. I cannot improve on the language of Mr. McCoy's skeleton argument:

"It would create a loophole in the law which would be exploited by unscrupulous defendants to prolong proceedings indefinitely, and it would mean that any party to a case who disliked the judge for whatever reason could simply challenge them for bias and be sure of their withdrawal."

THE EFFECT OF THE JUDGE'S ERRORS

33. What is the effect of these errors? In the normal course of events, the judge's ruling would be quashed, and the case remitted back to him so that he could reconsider the question of discharging himself, applying the right test this time, taking into account all relevant considerations, and ignoring all irrelevant ones. However, that is not the course which I propose to take. That is because, in my judgment, there was only one course open to the judge in the light of the arguments which he had heard, and that was not to discharge himself for the time being, to continue to hear the application for a stay, to adjudicate upon it, and if he decided that it was not an appropriate case for a stay of the proceedings, then to decide whether, in all the circumstances of the case, the trial of Mr. Nattrass should proceed before another judge. What follows are my reasons for that conclusion.

34. There were two reasons why Judge Caird felt uncomfortable about continuing to preside over Mr. Nattrass' trial. The first related to his own experience of Miss Smith. She clearly left a deep impression on the judge. Some people might say that Judge Caird was being over-sensitive about a casual and off-hand remark which had been made 12 years earlier, but the fact is that, rightly or wrongly, Judge Caird remains to this day very upset about it. In those circumstances, the judge acted entirely correctly in disclosing his feelings about Miss Smith to the parties. To have kept quiet about his own opinion of someone whose name was going to come up in the trial would have been quite wrong. In my judgment, Judge Caird should be applauded for his candour in baring his soul, even though many people might be surprised at the strength of his feelings after all these years.

35. However, the fact remains that, when Judge Caird was asked to discharge himself, he knew that Miss Smith was only going to be a witness at the trial. She was not going to be called by the Crown until then. It was only at the trial that the judge would have had to assess her reliability and credibility as a witness. The judge's feelings about Miss Smith had no relevance at all to the issues which the judge had to decide on the application for a stay - certainly not in relation to Mr. Nattrass' medical condition, and not even to the allegations of institutionalised racism in the NZIS. Miss Smith was not connected with the NZIS at the time, nor has she been connected with it since. As the judge himself noted, she does not even come from New Zealand. In my judgment, it is quite impossible to say that Judge Caird's distress over what Miss Smith said to him many years ago could result in there being a real danger of unconscious bias on his part in determining (to the extent that it is necessary for him to do so to dispose of the application for a stay) an issue which has nothing whatever to do with Miss Smith - namely whether there has been such institutionalised racism in the NZIS as prevents Mr. Nattrass from getting a fair trial in Hong Kong of the charges he faces.

36. The second reason why Judge Caird felt uncomfortable about continuing to preside over Mr. Nattrass' trial related to his own distress that allegations of racism could be made against the Immigration Service of the country from which he comes. Although the judge expressed himself to be shocked by the allegations being made, it is plain, I think, from the way he expressed himself in chambers that his distress over the allegations had nothing like the impact which Miss Smith's remark had left on him. Indeed, reading Mr. Fletcher's note of what the judge said in chambers, his disgust at the allegations being made against the NZIS was almost an afterthought. I do not find that surprising. Unlikely the remarks of Miss Smith, the judge had not encountered racism in the NZIS himself. He was simply shocked at what he was discovering about the NZIS if the allegations being made against it were true.

37. In my judgment, that point cannot be over-emphasised. Since Judge Caird had not himself experienced any racism in the NZIS, he was doing no more than expressing his personal revulsion about what he was being told. But judges frequently have to listen to evidence about things which they regard as unpalatable. Judges who try criminal cases cannot avoid that. They cannot shrink from their responsibility simply because they do not like what they are being told. Listening to evidence of conduct which they regard as reprehensible is one of the things they are paid to do. That is an essential part of their job. In my judgment, to suggest that this experienced and respected judge might not be able to perform his duty to adjudicate on the allegations of racism simply because they were levelled at the Immigration Service of the country from which he comes is entirely fanciful. The fact that he was on his own admission distressed at the allegations did not begin to mean that he might not be able to adjudicate on them impartially. The danger of unconscious bias on his part was so remote that it could have been discounted for all practical purposes.

38. The fact of the matter is that the judge should be applauded for his attempts to ensure that (a) Mr. Nattrass had a fair trial, and (b) the Crown's allegations against him would be determined by an impartial tribunal. Understandably, the judge did not want the Crown to think that his revulsion over the allegations of racism in the NZIS might tempt him to find that the allegations were true, nor did he want Mr. Nattrass to think that he might over-compensate for that revulsion by finding that the allegations were false. However, in bending over backwards to be fair, the judge, I am sure, exaggerated the extent to which his ability to act impartially might have been affected, or be seen to have been affected, by his distress at what was being alleged.

39. I make no apologies for taking a different view from that of Judge Caird. Although the ruling as to whether he should continue to preside over the trial had to be made by him, he was, by definition, not in the best position to decide whether there was a real danger of unconscious bias on his part. I believe that I am in a better position to do that than him. That is not to say that I am entitled to usurp his function in the decision-making process, but I am permitted to substitute my view for his if I conclude, as I do, that, on the application of the right test, and taking all relevant, and only the relevant, considerations into account, the view I have reached as to the real danger of unconscious bias on his part is the only possible view which can be taken.

THE RELIEF

40. In my view, the following orders should be made:

(i) an order of certioriari quashing Judge Caird's ruling to discharge himself from continuing to preside over Mr. Nattrass' trial, and

(ii) an order of mandamus requiring Judge Caird to continue to hear Mr. Nattrass' application for a permanent stay of the criminal proceedings against him.

I also declare that there is no real danger of bias on the part of Judge Caird continuing to hear Mr. Nattrass' application for a permanent stay of the criminal proceedings against him.

41. If Judge Caird decides that this is not an appropriate case for a permanent stay of the proceedings, he will then have to decide again whether he can continue to preside over the trial itself. Different considerations will then apply if the Crown is still intending to call Miss Smith as a witness at the trial. Judge Caird would than have to decide, amongst other things, whether the hostility and animosity which he feels towards her would result in there being a real danger of bias on his part in impartially assessing her reliability and credibility as a witness, and in determining the guilt or otherwise of Mr. Nattrass.

42. I should make 3 final comments on the relief sought:

(i) Mr. Bradley contended that I have no power to make an order of certioriari quashing Judge Caird's ruling because leave to apply for an order of certioriari was refused by Sears J. I disagree. In The Association of Expatriate Civil Servants of Hong Kong v. The Secretary for the Civil Service (HCMP 3037/94), I said:

"...since the relief to be granted is in the discretion of the court, and since the court's view of the relief sought may will be different at the end of a full hearing, it would be wrong to say that the court cannot grant such relief as it then thinks is appropriate, merely because, on the material before the court at the leave stage, the court declined to give leave to permit a particular form of relief to be claimed."

(ii) Mr. McCoy sought a declaration pursuant to section 6 of the Hong Kong Bill of Rights Ordinance (Cap. 383) ("the BORO") and Art. 10 of the Bill of Rights ("the BOR") that Mr. Nattrass can no longer have a fair hearing before any judge other than Judge Caird of either the application for a permanent stay or the criminal trial itself if a stay is not granted. Now that I have ordered Judge Caird to continue the hearing of the application for a permanent stay, the first limb of such a declaration is academic. As it is, I do not grant a declaration in the terms of the second limb. If the stay is not granted, and if Judge Caird concludes that he cannot preside over Mr. Nattrass' trial, why cannot Mr. Nattrass get a fair hearing before any other judge? If he cannot get a fair hearing before any other judge, he cannot get a fair hearing at all. Since the complaint that he cannot get a fair hearing at all is the subject of the only other order sought, it is to that order that I now turn.

(iii) The order sought is that the criminal proceedings against Mr. Nattrass be stayed permanently because he can no longer receive a fair hearing either at common law or pursuant to section 6 of the BORO and Art. 10 of the BOR. Mr. McCoy argues that there is a threatened violation of Mr. Nattrass' right to a fair hearing. Two arguments were put forward. The first was that Judge Caird's attempts to justify his ruling, and his own belief, erroneous though I have held it to be, that there is a real danger of unconscious bias on his part, have themselves had an impact on his ability to continue to adjudicate impartially on the application for a stay. This argument was not presented particularly forcibly by Mr. McCoy. I am not surprised. Judge Caird knows where his duty lies. This judgment will, I hope, have served to remove his worry that he may unconsciously be affected by bias. He can now put that possibility out of his mind altogether, and proceed to determine the application for a stay on its merits. The second basis of the argument was that since Judge Caird's ruling, it has become more apparent that Mr. Nattrass' health is being affected by the prolongation of the criminal proceedings against him. I can only adjudicate upon that issue if I heard all the medical evidence myself. That would be absurd, since that is the very exercise which Judge Caird is himself conducting. When Judge Caird makes his ruling on the application for a stay, he will not be limited to the evidence relating to Mr. Nattrass' medical condition at the time when he made his ruling to discharge himself. For these reasons, I decline to make the order sought.

43. Finally, at present I see no reason why costs should not follow the event. I therefore make an order nisi that the Attorney-General pays to Mr. Nattrass his legal costs of these proceedings to be taxed if not agreed.

Representation:

Mr. Gerard McCoy & Mr. Paul Harris, inst'd by Messrs. Clarke & Liu, for the Applicant.

Mr. Nicholas Bradley, Senior Crown Counsel, for the Respondent.