Chan Kam Keung v. HKSAR

FAMC No. 43 of 2008

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 43 OF 2008 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM CACC NO. 440 OF 2006)

_____________________

Between:

_____________________

__________________________

D E T E R M I N A T I O N

__________________________

Chief Justice Li:

1.This is the Determination of the Appeal Committee by majority with Mr Justice Bokhary PJ dissenting.

2.On 8 September 2006, the applicant was convicted in the District Court before Deputy District Judge Symon Wong of 24 charges of fraud and sentenced to a total of 4 years and 9 months imprisonment.

3.The prosecution case was supported by, among others, nine witnesses who each gave evidence of being a victim of the fraud.  The applicant was accused of extracting a total of $1,200,000 from those persons by falsely promising to assign to each of them the right to operate market stalls in the new Tai Po Market.  The defence was that all those witnesses were lying and that receipts for the money which they produced were forged documents.  The Judge found the prosecution case proved beyond reasonable doubt.

4.On 4 March 2008, the Court of Appeal (Cheung JA, Yeung JA and McMahon J) dismissed the applicant’s appeal against conviction. 

5.The applicant has applied for an extension of time and leave to appeal on the substantial and grave injustice limb.  Two grounds are advanced by the applicant:

Ground 1

The Learned Trial Judge was biased against the Applicant throughout the trial.  The Applicant was interrupted, warned and reprimanded during his testimony in the voir dire proceedings and on the general issue.  The bias towards the Applicant was further exhibited by the fact that during delivery of the Reasons for Verdict, which lasted about 3 hours, notwithstanding the Applicant was a disabled person, he was not permitted to sit, and therefore, was forced to stand without a crutch for the entire period.

Ground 2

The Learned Trial Judge failed to properly and fairly assess the evidence of the Applicant.

These two grounds had been relied on before the Court of Appeal and were rejected.

6.To take Ground 2 first, it is our view that it does not provide a viable basis for leave to appeal.   The Judge assessed the applicant’s evidence fairly and properly and was entitled to accept the prosecution evidence.  As Yeung JA pointed out, the case against the applicant was overwhelming and justified his conviction. 

7.Ground 1 involves an allegation of bias comprising the following complaints.  The first concerns the Judge’s interventions during the applicant’s testimony both in the voir dire and the trial on the general issue, a comment made during trial and a remark made in the course of delivering the Verdict.  The second concerns his refusal to permit the applicant, a disabled person with only one leg, to sit down while the Verdict was read out over a period of some three hours. 

8.The Court of Appeal sets out some of the main interventions relied on as follows:

“Mrs Panesar had painstakingly taken us through the record of proceedings with a view to demonstrate that the judge was biased against the 1^st applicant.  In particular, Mrs Panesar relied on the following remarks made by the judge to the 1^st applicant in the course of his evidence:

1.       Would you listen to the questions and answer the questions directly, please. That way we can save a lot of time. And besides you need to give time to the learned interpreter to translate.

2.       The defendant, D1, is not answering the questions. I’m thankful to the learned interpreter to put the question directly to him again earlier on. But I am directing you, D1, listen to the question, don’t waste my time.

3.       I think it’s the right time for me to ask you again, Defendant, to listen to the questions carefully. And in fact, judging from you answers, you know precisely what you have been asked.

4.       …Right, defendant, I have been listening very carefully to questions put to you by your own counsel and questions put to you by the prosecutor. I have been equally careful listening to your answers and also the way questions have been translated to you. My view is this. The questions, which have been put to you have been clear and they have been properly and accurately interpreted to you. I have, on a number of occasions, asked you to listen to the questions carefully. How many more times do you want me to remind you of this? Because it seems to me that you do understand the questions judging from your answers and I’m telling you I have been extremely patient. And I’m telling you again, perhaps for the last time, listen to the questions.

5.       All right, yes, if you have something to add, why not? (in response to the suggestion that the 1^st applicant should be allowed to finish his answer).”

9.A number of further interventions have been placed before us, but it is unnecessary to set them out.  Along with the passages quoted above, they are relied on in support of the applicant’s submission that:

“... throughout the trial of the Applicant, the Learned Deputy Judge exhibited a level of disdain and sarcasm towards the Applicant through comments, remarks or rulings made against him which would have left an informed bystander with the impression that the Applicant did not have a fair trial.”

10.Counsel also complained about a comment made by the Judge when acceding to the request of prosecuting counsel to release two defence exhibits to the prosecution for investigation.  These documents had been put to a prosecution witness by defence counsel and one of them contained an alteration.  The Judge commented that the authorities should look into the matter and ascertain who was responsible for the documents.  Counsel further complained about the Judge’s remark, in delivering his Verdict, that “the defence should not put the prosecution to proof of everything”.

11.As is accepted by the applicant, the test generally applied where curial interventions are alleged to be such as to call into question the fairness of the trial is that enunciated by the Court of Appeal in  R v Yeung Mau-lam [1991] 2 HKLR 468 at 473.   While the Court was there dealing mainly with judges descending into the arena by asking too many questions, the broad principle is stated in the following terms:

“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.”

The Court of Appeal added:

“We think it appropriate also to emphasize that a court, when considering the propriety of interventions by a judge, must bear in mind that it is the judge’s duty throughout to ensure that a trial is properly and coherently conducted.”

12.The Court of Appeal below examined the written transcript and also listened to relevant parts of the audio recording of the hearing and concluded (applying R v Yeung Mau-lam)that the informed bystander would not have reached the conclusion that the applicant had not had a fair trial.  They did not think the Judge could be faulted for pressing the applicant to listen to the questions and to answer them directly or for trying to ensure that time was not wasted.  This was in line with his duty to take control of the trial and to ensure its smooth progress.  The Court noted that counsel for the applicant “did not suggest that the judge acted in an aggressive manner and it was not even suggested that the judge raised his voice.”  As to the Judge’s comment on the two defence exhibits, the Court of Appeal pointed out that the Judge had noted that he was not implying any impropriety or that the documents were invented but that he just wanted the authorities to look into it.  They found the Judge’s remark that the defence should not have put the prosecution to proof of everything to be unnecessary but held that it was understandable and did not support the suggestion that the trial was rendered unfair since much of the evidence relating to the system of tenancies in the market and the like was not actually in dispute. 

13.Assessments of judicial interventions must be made recognizing the court’s duty to exercise proper management over the proceedings in what often are difficult conditions.  Many, if not most, of the criticised interventions self-evidently appear to be justifiable in terms of firm case management.  Taken as a whole, we do not consider them to raise a reasonably arguable case of bias applying the relevant test. 

14.We turn next to the complaint regarding the Judge’s refusal of the request of the applicant, a disabled person, to be allowed to sit during the verdict, when he did not have access to his crutch.  The Court of Appeal described that conduct as “perhaps not charitable and even unkind”.  We would go further.  We consider the Judge’s refusal to be wholly unjustified.  It is conduct which must be deprecated in the strongest terms.  It is of the greatest importance that judges treat all persons who appear before them with courtesy and deal with them in a way which respects their human dignity.[1]

15.However, it does not follow that such lamentable conduct inevitably means that a reasonably arguable case exists for concluding that the applicant was denied a fair trial.  We do not think that the discourteous affront to the applicant’s dignity in the course of delivering the verdict can reasonably be said to undermine the entire trial process which preceded the verdict.  We note in this context that counsel for the applicant states with regard to this complaint:

“... Whilst this matter alone does not vitiate the verdict, it does manifest the level of disdain the Learned Deputy Judge exhibited towards the Applicant.”

16.Taking all the complaints cumulatively, they do not, in our view, make out an arguable case of bias on the part of the Judge, applying the relevant test.  The application for leave to appeal is accordingly refused.

17.While dissenting from the refusal of leave to appeal, Mr Justice Bokhary PJ has indicated as follows.  He naturally agrees with everything said in this Determination deploring the fact that a severely disabled person had been made to stand while the verdict was being delivered.  And he likewise agrees with everything said in this Determination about the fairness, consideration and dignity with which people should be treated in court.

Mrs M. Panesar (instructed by Messrs Tsang, Chan & Woo and assigned by the Legal Aid Department) for the applicant

Mr Alain Sham and Mr Jonathan Man (of the Department of Justice) for the respondent

[1]          See the Guide to Judicial Conduct, paras 27 and 28:

“27.      Judges should conduct themselves with courtesy to all and require similar courtesy from those who appear before them.  Unjustified reprimands of counsel, offensive remarks about litigants or witnesses and intemperate behaviour by a judge may undermine the perception of impartiality. 

28.       All who appear in court, legal practitioners, litigants and witnesses, are entitled to be dealt with in a way that respects their dignity.  Judges must ensure that all who appear in court are protected from any display of prejudice based on racial, gender, religious or other discriminatory grounds.”

This is essential for the maintenance of public confidence in the Judiciary and the administration of justice.  Regrettably, the Deputy Judge has fallen short of these standards.