HKSAR v. Lee Ka Ming and Another

HCMA223/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 223 OF 2006

(ON APPEAL FROM KCCC 5884 OF 2005)

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BETWEEN

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Before : Hon Nguyen J in Court

Date of Hearing : 8 August 2006

Date of Judgment : 22 August 2006

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JUDGMENT

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1.The eight appellants who were respectively in the court below D1, D2, D3, D5, D7, D8, D9 and D11 were convicted on 13 December 2005 by a magistrate sitting in Kowloon City Law Courts of the offence of “assisting in the management of a vice establishment” and sentenced to terms of imprisonment ranging from 4 months to 6 months.  They had been charged with the more serious offence of managing a vice establishment, contrary to section 139(1)(b) of the Crimes Ordinance, Cap. 200 but convicted of the lesser offence of assisting.  The premises in question were a sauna bathhouse situated in Jordan, Yaumatei.

2.The appellants had all been employed in the premises in various capacities.  The main witness for the prosecution was an undercover police officer who posed as an employee of the sauna and worked there for 13 months.  

Grounds of appeal

3.The first ground of appeal advanced by Mr M.K. Wong, SC was that the learned magistrate acted in an unjudicial manner, such that an impartial observer would feel that the magistrate was biased towards all the appellants.  What had happened was that on 6 December 2005, the 7^th day of the trial, after submissions of no case were made on behalf of all 11 defendants, the magistrate ruled that each of them had a case to answer.  The defence indicated there would be no defence evidence and there were then discussions of when the trial should be adjourned to, to enable counsel to prepare their written final submissions.  It was agreed that the trial should be adjourned to 9 December, three days later.  The magistrate then, without any prior warning or indication, revoked the bail of all the defendants and immediately rose from the bench.  Twice, the counsel acting for the defendants requested the court clerk to request the magistrate to return to court so that they could make submissions to the magistrate in respect of bail.  On both occasions, the magistrate refused to return to court.  Ms Sin for the respondent concedes that procedurally the magistrate was wrong.  

4.On 9 December, after the magistrate heard final submissions, he found D4 and D10 not guilty and acquitted them.  Bail for the other defendants was reinstated.  Judgment was reserved till 13 December.

5.On 13 December, the magistrate acquitted D6.  The nett result of the court’s decisions was that D4, D6 and D10 were kept in custody unnecessarily for three days.  The submission by Mr Wong was that the magistrate’s actions showed that he was already biased against all the defendants; Ms Sin for the respondent however submitted that the fact that three defendants were acquitted shows quite clearly that the magistrate was not biased against the defendants.  Mr Wong in reply retorts that that was not so, because the magistrate must have found that the evidence against those three defendants was so weak that even though he was biased against them, he had no choice but to acquit them.

6.Mr Wong relies on the case of R. v. Muk To Wai, HCMA637/1996 where in a reckless driving case, the magistrate also revoked the defendant’s bail after she decided to adjourn the trial for one day for verdict.  Mayo JA said :

“It is evident from a perusal of Miss Chow’s statement of findings that this was not a particularly serious case of reckless driving and it is difficult to conceive how any magistrate properly discharging their duties could revoke bail in such circumstances.

I have regrettably come to the conclusion that any reasonable person attending at the trial would have formed the view that the magistrate must have formed a bias against the appellant for her to revoke his bail in such circumstances.”

The conviction was set aside.

7.In HKSAR v. Ngai Wan Cheung, CACC198/2005, Stock JA with reference to the judge in that case revoking bail after closing submissions and prior to her adjourning the trial for three weeks for verdict, said :

“… Whilst the revocation of bail at that stage of a trial is not unusual, it nonetheless always behoves a judge to afford an opportunity for representations before any deprivation of liberty.”

That of course was exactly what the magistrate in the instant appeal failed to do on two occasions when requested by counsel to return to court.  The time when the magistrate rose was 10:18 a.m. so there was no question of the magistrate being in a hurry to leave for lunch or leaving for home.

8.“Bias” was considered by Hartmann J in HCAL143/2004, Secretary for Justice v. Li Chau Wing.  At page 7 of his judgment, Hartmann J said :

“It is a fundamental rule of fairness, too obvious to require any litany of definition, that any court which enters upon a judicial enquiry, civil or criminal, must do so without any pre-conceived personal bias against the parties to that judicial enquiry.

Bias has been defined by Lord O’Brien in R (De Vesci) v. Queen’s County JJ [1908] IR at 294 in the following manner :

‘By “bias” I understand a real likelihood of an operative prejudice, whether conscious or unconscious.’

…

The authorities now make it clear that the test is one in which the court must view the matter through the prism of a fair-minded and informed observer.  It may be expressed in the following terms: namely, whether a fair-minded and informed observer would conclude that there was a real possibility or, to express it another way, a real danger that the court is biased.

The test is therefore an objective one.  It is important, however, to note that the hypothetical observer is not only fair-minded but is also informed; that is, acquainted with the relevant facts.”

9.At the stage when the magistrate revoked bail in this case, he had only ruled that there was a case to answer.  He had not heard counsel’s final addresses.  In the event, after he heard those addresses, he immediately acquitted two defendants and after he had deliberated on the evidence, he acquitted another one.  In respect of the eight that he did convict, he only convicted them of the lesser charge of “assisting in the management of a vice establishment”.

10.A review of previous cases of assisting in the management of a vice establishment, as Mr Wong did with me by taking me through the cases, shows that in no reported case was any defendant convicted of assisting in the management sentenced to a term of immediate imprisonment.  In R. v. Leung Lim-man and Mak Heung-tung, HCMA214/1985, Jones J in referring to a chart of sentences for the period 1 April 1984 to 30 November 1984 produced by the prosecution, observed that in respect of the lesser offence of assisting, no case out of 13 cases resulted in an immediate custodial sentence.  Jones J commented that for offences of assisting the normal sentence for a first offender appeared to be a short suspended sentence and or a fine.  In a subsequent case, R. v. Yuen Fung Lin, HCMA679/1995, Leong J was informed that there had been no more recent authority on sentences in respect of assisting in the management than the case of Leung Lim Man (supra).  In a more recent authority, HKSAR v. Sung Kwong Ngai & Others, HCMA1160/2004 Line DJ in dealing with charges of managing a vice establishment, reduced the sentences imposed of 8 months’ imprisonment to 4 months and suspended the sentence for two years.

11.I mention the sentences that these appellants should have received to try and make the point that, despite the charge here being managing a vice establishment, because of the low likelihood of immediate custodial sentences, the revocation of bail in the present case brings it more in line with the case of R. v. Muk To Wai (supra) where the charge of reckless driving should not have attracted a term of imprisonment.

12.The revocation of bail was not the only act by the magistrate during the trial that counsel relies upon.  He quotes three other incidents :

(1) On 29 November 2005 at 11.15 a.m., when D3 needed to obey a call of nature, the magistrate gave him 5 minutes and ordered him to return immediately saying that the court was not a kindergarten and he should not need to remind the defendants to go to the toilet before attending court every day;

(2) On 29 November 2005 at 4.32 p.m. in the middle of the trial, the magistrate asked D5 why he was so happy and said to him “If I were you, I would be very frightened.”

(3) When D11 was in the witness box giving evidence in the voir dire, the tone of what the magistrate said to D11 was hostile.

I have listened to the relevant tape of this part of the trial and I do not agree with this contention.  The magistrate only raised his voice once with D11 and that was simply to tell him not to put his mouth too close to the microphone.

Other grounds of appeal

13.The second ground of appeal is a complaint that even though the magistrate accepted identification evidence given by the prosecution witnesses, he never reminded himself of the dangers of such evidence, as enunciated in R. v. Turnbull.  Ms Sin who appeared for the respondent replied that in the second paragraph on page 111 of the bundle, in the magistrate’s Statement of Findings he did refer to the fact that PW1 had worked on the premises for 13 months and so had many opportunities to observe the appearance of the people concerned.

14.The third ground is that there was no identification parades held for the prosecution witnesses to properly pick out the defendants, to see if they could under proper identification procedures.  This complaint is confined to the evidence of PW5 who picked out D11 some 4 hours after they saw each other, from a group of persons present in the sauna.

15.The fourth ground of appeal only in relation to D11 is the complaint that in the magistrate’s Statement of Findings (page 116 of bundle) in relation to the identification by PW5 of D11, the magistrate wrongly stated that the lapse of time was only in excess of one hour.

16.The fifth ground of appeal only in relation to D1 and D11 was that they were wrongly refused at the scene to have access to a lawyer who turned up at the sauna after the arrests were made.  What had happened was a solicitor arrived at the premises at 3 a.m. and told the police that he wanted to see all the persons arrested but was not able to give the names of his “clients”.  He was told that he could not see his clients because some 30 people had been arrested and the police had insufficient manpower to arrange for the interviews by the solicitor to be done.  The solicitor again turned up at the premises at 4.20 a.m. and was again refused access to his clients.  Counsel’s submission was that insufficiency of police manpower was not a legitimate reason for denying suspects access to their lawyer.

Conclusion

17.Having considered the matter most carefully, I have come to the conclusion that when the magistrate revoked bail in the manner that he did, he had no good reasons for doing so.  The appellants had all along complied strictly with the terms of their bail and on that day the magistrate had not even heard final addresses from counsel.  The matter was compounded by the magistrate twice refusing to return to court to hear submissions from counsel about the question of bail.  Stock JA in HKSAR v. Ngai Wan Cheung (supra) reminds us that “it nonetheless always behoves a judge to afford an opportunity for representations before any deprivation of liberty.”  I have also come to the conclusion, regrettably that any fair-minded and informed observer would conclude that either there was a real possibility or a real danger that the court was biased against the appellants.  In my view, the magistrate’s comment to D5 that if he (the magistrate) were D5, he would feel very frightened could well add to the anxiety of the impartial observer.  It must be borne in mind that the magistrate was in the trial sitting as both judge and jury and he as the jury was the person who decided the facts.  The remark could well have led to the suspicion that at that stage he had already decided the facts either as against D5 himself or against all the defendants.  The appeals against convictions are allowed and the convictions are quashed.

18.I mention in passing that all the appellants had served a period of imprisonment of one month and three days before they were admitted to bail pending appeal.

Ms Mary Sin, SADPP of the Department of Justice, for HKSAR

Mr M.K. Wong, SC and Ms Manyi Tsang, instructed by Messrs Anthony Kwan & Co., for all Appellants