HKSAR v. John Terence Hung

CACC 235/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL 

CRIMINAL APPEAL NO. 235 OF 2009 

(ON APPEAL FROM DCCC 1047 of 2008 ) 

----------------------

----------------------

Before: Hon Yeung JA in Chambers

Date of Hearing:  3 May 2010 

Date of Decision:  3 May 2010

----------------------

DECISION

----------------------

1.The appellant was a voting member of the Hong Kong Jockey Club and the Chairman of the Hong Kong Cricket Club. He was convicted and sentenced for the offences of soliciting and accepting an advantage in sponsoring someone to become a full member of the Jockey Club. He is appealing against conviction.

2.This hearing, scheduled under s 34A of the High Court Ordinance, is to determine if judges, who are full members (“members”) of the Jockey Club and/or the Cricket Club, should recuse themselves from hearing the appeal.

3.It is fair to point out that a significant percentage of judges of the High Court and above are members of the Jockey Club.  If judges, who are members of the Jockey Club, were to recuse themselves from hearing the appeal, it will be difficult to have a panel of judges to hear the appeal, both in the Court of Appeal and if the matter does not end there, in the Court of Final Appeal.

4.Nevertheless, the question has to be resolved as a matter of law, whatever difficulty or inconvenience that it may lead to.

5.The parties agree that there is no reason to disqualify judges, who are members of the Cricket Club, from hearing the appeal. However, the appellant, through his legal representatives, objects to judges, who are members of the Jockey Club, to hear his appeal.

6.Mr B Barlow SC, leading Mr K Egan, for the appellant points out that the appellant had been ordered to pay restitution of $350,000 to the Jockey Club, and that he had also been expelled and was subjected to confiscation decisions in relation to certain horses that he owed.

7.Mr Barlow suggests that every member of the Jockey Club has an indirect pecuniary interest and a direct non-pecuniary interest in the outcome of the appeal and should therefore be disqualified from hearing the appeal, as no one should be a judge of his own cause. He suggests that there is a substantial risk that judges, who are members of the Jockey Club, would be influenced by his/her own experiences in terms of the Jockey Clubs’ membership and joining procedures – which would not be fair to the appellant. Mr Barlow submits that there would be apparent bias.

8.Mr Barlow relies on R v Bow Street Metropolitan Stipendiary Magistrate and others, ex parte Pinochet Ugarte [2002] 1 AC 119.

9.The matter in issue is facts-sensitive and it is important to examine the facts in the Pinochet case.

10.Senator Pinochet was the head of state of Chile between 1973 and 1990. It was alleged that during that period there took place in Chile various crimes against humanity for which he was knowingly responsible. The government of Spain sought his extradition and the proceedings went all the way to the House of Lords. Amnesty International was granted leave to intervene in the proceedings. The interest of Amnesty International in the litigation was not financial; it was its interest in achieving the trial and possible conviction of Senator Pinochet for crimes against humanity.

11.One of the Law Lords, Lord Hoffmann, was a director and chairperson of Amnesty International Charity Ltd, which had been incorporated to carry out the charitable purposes of Amnesty International.

12.It was held that a judge, who is involved, whether personally or as a director of a company, in promoting the causes in the same organization as is a party to the suit, should be automatically disqualified. As Lord Hoffmann was a director of Amnesty International Charity Ltd, which is wholly controlled by Amnesty International, he was in effect closely connected with a party to the proceedings. Lord Hoffman should be automatically disqualified even though there was no suggestion of any actual bias.

13.The Pinochet case is unique when a judge was closely connected to a body that was not only a party to the proceedings, but opening supportive of the consequences that a respondent in an extradition proceeding had tried to avoid.

14.I do not accept that the Jockey Club has a stance in the matter, as suggested by Mr Barlow, namely to see that the appellant is convicted. The prosecution of the appellant was initiated and sustained by an independent body.

15.Whilst the Jockey Club can be said to have a pecuniary and non-pecuniary interest in the outcome of the appeal by reason of the restitution order and its decision to expel the appellant, although the pecuniary interest is of little tangible value, members of the Jockey Club cannot be said to have such an interest.

16.Members of the Jockey Club pay a fixed monthly subscription fee for the privilege of enjoying the recreational facilities it provides. Members of the Jockey Club, not being stewards and/or voting members, do not take part in its management and could not be said to have any common interest with the Jockey Club relating to the outcome of this appeal. 

17.The suggestion that a judge, who is a member of the Jockey Club, sitting in judgment of this appeal, is a judge of his own cause is unfounded. Members of the Jockey Club, in my view, do not any direct or indirect interest, pecuniary or otherwise, in the outcome of the appeal.

18.A fair-minded and informed member of the public would not have any reasonable apprehension or suspicion that judges, who are members of the Jockey Club, might have been biased against the appellant.

19.I have considered the facts of the case and the grounds of appeal raised on behalf of the applicant. I have also taken into consideration the leading authorities on the issue in dispute referred to by Mr Barlow and Mr Zervos SC, counsel for the prosecution.

20.In my view, the appellant’s right to a fair hearing by an independent and impartial tribunal established by law will not be violated if the appeal is heard by judges who are members of the Jockey Club. The objection raised by the appellant is not a valid one.

21.Therefore, in the deployment of judges to hear the appeal, the appellant’s objection to judges, who are members of the Jockey Club, will be disregarded.

Mr Barrie Barlow, SC leading Mr Kevin B. Egan instructed by Messrs Robertsons for the Applicant.

Mr Kevin P Zervos, SC, DDPP and Mr Jonathan Man, SPP of the Department of Justice for the Respondent.

Court of appeal dismissed applicant's appeal on the point of law and refused the application for leave. Please refer to CACC235/2009 dated 8 July 2010