The Queen v. Kwan Chung-yik

HCMA000838/1985

IN THE SUPREME COURT OF HONG KONG

BETWEEN

Coram: Hon. Kempster, J.A. (sitting as an additional High Court Judge)

Date of Hearing: 8th October 1985

Date of Judgment: 8th October 1985

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JUDGMENT

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1. On 16th May of this year in Kwun Tong Magistrate's Court KWAN Chung-Yik was convicted of having received a duck egg on 11th April and remanded on bail for inquiries including the possibility of a place in a Sea Training School. On 24th May at the same court and before the same Magistrate Kwan was convicted, after trial, of taking one bicycle without the consent of the owner and of stealing another; both on 16th March. Those offences were therefore antecedent to the reception of the duck egg. He was again remanded on bail for a number of reports.

2. The appellant has been allowed today, without objection from the Crown, to appeal, and I think this may well have amounted to leave to appeal out of time, against that conviction.

3. The grounds for this appeal are that the Magistrate might well have been deemed by a reasonable and fair-minded person sitting in Court on 25th May to have been aware of the conviction for receiving which had taken place only a few days before. In a sense there is a high degree of artificiality about such grounds. No one suggests that the Magistrate was in fact biased. Be that as may there is a long-established principle in our law which has been expressed in a number of ways and is relevant in the present context. For example in Metropolitan Properties Co. Ltd. v. Lannon⁽¹⁾ at p. 599 Lord Denning M.R. said:

".... in considering whether there was a real likelihood of bias, the court does not look at the mind of the justice himself - it does not look to see if there was a real likelihood that he would, or did, in fact favour one side at the expense of the other. The court looks at impression which would be given to other people. Even if he was as impartial as could be, nevertheless if right-minded persons would think that, in the circumstances, there was a real likelihood of bias on his part, then he should not sit. - The reason is plain enough. Justice must be rooted in confidence: and confidence is destroyed when right-minded people go away thinking: 'The judge was biased.' "

Ackner, L.J. in R.v.Liverpool City Justices⁽²⁾ at p. 494 put the matter somewhat more succinctly:

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

4. In the course of the proceedings which ended on 24th May it is apparent that a conflict of evidence arose in relation to the bicycles. The details are not before us because this appeal against conviction was only initiated this morning; as already observed. But in my opinion it is not impossible that a notional person sitting in court and knowing all the facts, which would include Kwan's conviction on 16th May by the same Magistrate, might have thought that a fair trial would not be possible on the footing that the Magistrate was prejudiced against Kwan in advance.

5. In these circumstances I think it proper to allow the appeal against the convictions of 24th May. There will be an order for trial de novo on both charges before a different Magistrate.

6. In relation to the appeal against sentence for handling the duck egg that was passed on 16th May it must necessarily be allowed having been passed on premises that no longer hold good. The matter will be remitted to a different Magistrate to pass sentence with directions to act on the basis of the Magistrate's notes taken on 16th May and to secure a fresh probation report from a different probation officer.

(1) [1969] 1 Q.B. 577

(2) [1983] 1 All E.R. 490

Representation:

Mr. John Wright (Chan Yung & Chung ) for appellant

Mr. J. Abbott for D.P.P.