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Online responses to Pursuable Complaints

Judiciary’s Response to Complaints (ESCC 2566/2019)

      The following is the response issued by the Judiciary concerning complaints from members of the public against Magistrate Cheang Kei-hong (“the Magistrate”) in connection with the adjudication of the case of ESCC 2566/2019.

Gist of Complaints

2.   The complaints received by the Judiciary are summarized as follows:

  1. The Magistrate accepted the evidence of the police officers but rejected the evidence of the defence out of bias and prejudice;
  2. The Magistrate convicted the defendant on evidence which was insufficient to reasonably draw an inference that he had the requisite intent to commit the offence; and
  3. The sentence imposed by the Magistrate was unreasonable and he declined to call for a Probation and Young Offenders Assessment Panel Report before passing the sentence.

 

The Panel of Judges’ Investigation Report

Outcome of investigation

3.   The complaints are not substantiated.

Summary of Investigation

I. Introduction

4.   After the conclusion of the legal proceedings relating to ESCC 2566/2019, the Panel of Judges, comprising the Hon Carlye Chu VP, the Hon Thomas Au JA and the Hon Alex Lee J, considered the case in depth and read the transcript of the audio-recording of the Magistrate’s oral reasons for verdict and sentence, and the Court of First Instance’s judgment on the appeal against conviction.

5.   The transcript of the audio-recording of the reasons for verdict and sentence as well as the Court of First Instance’s judgment have been uploaded onto the Judiciary website. For the transcript of the audio-recording of the oral reasons for verdict and sentence, please see the link (in Chinese only). For the Court of First Instance’s judgment, please see the link (in Chinese only).

II. ESCC 2566/2019 & HCMA 369/2020

6.   In ESCC 2566/2019, the defendant was convicted by the Magistrate after trial of two charges, namely, Charge 1 “Possession of instruments fit for unlawful purpose”, and Charge 2 “Possession of things with intent to destroy or damage property”. The Magistrate sentenced the defendant to detention in the Detention Centre.

7.   In HCMA 369/2020, the defendant appealed against the conviction. In respect of Charge 1, as a result of the judgment of the Court of Final Appeal in HKSAR v Chan Chun Kit, FACC 1/2022 on a legal issue, the Acting Senior Assistant Director of Public Prosecutions, on behalf of the respondent, conceded that the conviction for Charge 1 could not be upheld. In respect of Charge 1, the Court of First Instance allowed the appeal, and the conviction was quashed. In respect of Charge 2, the Court of First Instance dismissed the appeal and upheld the conviction.

III. Decision

8.   For the reasons set out below, the Panel of Judges is of the view that the complaints against the judicial conduct of the Magistrate in adjudicating the captioned cases are not substantiated.

(1)    The complaint that the Magistrate was biased and prejudiced

9.   In his oral reasons for verdict, the Magistrate had analyzed the evidence of the police officers and the defence, and articulated the basis for his findings on creditability. On appeal, the defendant did not complain that the Magistrate’s findings were erroneous or biased. Further, the Court of First Instance did not make any adverse comment on the Magistrate’s findings.

10.    In the circumstances, there is no factual basis to support the complaint that the Magistrate was biased in his analysis of the witnesses’ evidence.

(2)    The complaint that the verdict was unreasonable

11.    The verdict given by the Magistrate is a judicial decision. Whether the verdict is correct falls outside the scope of complaint against judicial conduct of judicial officers.

12.    Further, the Court of First Instance, in dismissing the appeal against conviction, held that:

“… According to the Statement of Findings, the Magistrate reached the conclusion after deliberation. He did not jump to a conclusion after considering a few facts. Nor had he given undue weight to a few facts. The Magistrate had taken into account of all the facts, which he was entitled to consider and should have considered. His judgment was reasonable.” (Paragraph 51 of the Judgment)
 
“Having considered the parties’ submissions and the evidence as a whole, I agree with the judgment of the Magistrate that the evidence as a whole supports the only reasonable inference that the appellant had the requisite intent to commit the offence.” (Paragraph 59 of the Judgment)
 
“In the result, I dismiss the appeal in respect of Charge 2 and uphold the conviction…” (Paragraph 60 of the Judgment)
 

13.    The complaint that the verdict of the Magistrate is unreasonable is not substantiated.

(3)    The complaint that the sentence was unreasonable

14.    The sentence imposed by the Magistrate is a judicial decision. Whether the sentence is correct falls outside the scope of complaint against judicial conduct of judicial officers.

15.    Further, in his reasons for sentence, the Magistrate had stated the reasons for declining to call for a Probation and Young Offenders Assessment Panel Report before passing the sentence, and articulated the relevant sentencing considerations.

16.    The Panel of Judges also notes that the defendant did not lodge an appeal against sentence on the grounds that it was wrong in principle or manifestly excessive.

IV. Conclusion

17.    The Panel of Judges emphasizes that every complaint against judicial conduct is to be handled in accordance with the established mechanism. In dealing with a complaint that a judicial officer’s expression or conduct was inappropriate or biased, factors which the Panel would take into account include the actual content and context of the relevant statement(s); whether the judicial officer did express views that indicate he/she was biased (such as indicating a political inclination); whether it was inappropriate in the circumstances surrounding the relevant conduct when viewed as a whole; and whether a case of bias is made out in accordance with the “Guide to Judicial Conduct”.

18.    In the case of a judicial decision (including a conviction or a sentence), some people may disagree with it because of their stance or political views. This should not be taken to mean that the judicial decision or the judicial officer is biased. The outcome of a case is not necessarily relevant to, or the sole consideration in, the determination of whether a complaint against judicial conduct is substantiated.

19.    The Panel of Judges further emphasizes that the verdict and sentence in a case are the independent judicial decisions of the judicial officer concerned. In accordance with the fundamental principle of judicial independence, the Panel of Judges will not, as it is inappropriate to do so, interfere with any judicial decisions. In this case (as in all other cases), any party to the proceedings who is aggrieved by a judicial decision may, in accordance with applicable procedures, seek redress from a higher court by way of appeal or review.

 

Views of the Advisory Committee on Complaints against Judicial Conduct

20.    The Advisory Committee on Complaints against Judicial Conduct (“the Advisory Committee”) has carefully examined the above investigation report from the Panel of Judges and concurs with the conclusion that the complaints should not be substantiated.

 

The Chief Justice of the Court of Final Appeal’s Decision

21.    After considering the investigation report of the Panel of Judges and the advice of the Advisory Committee, the Chief Justice of the Court of Final Appeal concludes that the complaints are not substantiated.

 

5 December 2023

 

Note: The Judiciary has received complaints against the Magistrate in five court cases. Investigation on complaints in four court cases (ESCC 1108/2020, ESCC 2460/2019, ESCC 2410/2019 and ESCC 495/2020) have already been completed upon conclusion of all relevant court proceedings. The responses have been uploaded onto the Judiciary’s website.
(ESCC 1108/2020, ESCC 2460/2019 and ESCC 2410/2019:
https://www.judiciary.hk/en/about_us/complaints_responses/responses_20201215.html;
ESCC 495/2020:
https://www.judiciary.hk/en/about_us/complaints_responses/responses_escc495.html).