Online responses to Pursuable Complaints
Judiciary’s Response to Complaints (ESCC2461/2019, ESCC700006/2019, ESS33914-16/2019, ESCC654/2020, ESCC103/2020, ESCC292/2020, ESCC722/2020 and ESCC2551/2019)
The following is the Judiciary’s response concerning complaints from members of the public against eight cases adjudicated by Magistrate HO Chun-yiu (hereinafter “the Magistrate”):
ESCC2461/2019 and ESCC700006/2019
As the Department of Justice has applied to the Court of Appeal for a review of the sentence in these two cases, the complaints will be followed up as appropriate upon the conclusion of the legal proceedings.
ESS33914-16/2019, ESCC654/2020, ESCC103/2020, ESCC292/2020, ESCC722/2020 and ESCC2551/2019
The time for appealing or applying for review of sentence in respect of the captioned cases has expired.
The Chief Magistrate had looked at each of these cases in depth, and had read the transcripts of the audio-recording of the reasons for verdict, the reasons for sentence and other relevant parts of the proceedings in the cases. The transcripts of the audio recording of the reasons for verdict and the reasons for sentence had been uploaded onto the Judiciary website.
For the reasons set out below, the Chief Magistrate is of the view that the complaints against the judicial conduct of the Magistrate in adjudicating the captioned cases are not substantiated.
ESS33914-16/2019
Each of the three defendants was convicted, after trial, of a summons of “Failing to behave in an orderly manner within the precincts of Chamber of the Legislative Council” and fined $1,000. (For the transcript of the audio recording of the Reasons for Sentence, please see link (Chinese only))
It was complained that the Magistrate imposed a lenient sentence on the three defendants, and had made the comment that the defendants should preserve their “capable bodies” since they would certainly become “pillars of society”.
The offence of “Failing to behave in an orderly manner within the precincts of Chamber of the Legislative Council” carries a maximum penalty of a fine of $2,000 and a term of 3 months’ imprisonment. The Magistrate had in his oral reasons for sentence articulated the basis for his sentence, which included the degree and duration of the disorderly conduct involved.
When giving the reasons for sentence, the Magistrate had mentioned “pillars of society” and “capable bodies”. This was in the context of warning the defendants that had an offence more serious than the one in question were committed in the course of expressing their views, they would have to face an immediate custodial sentence, the length of which would not be short. The Magistrate went on to say that the three defendants, as university students, should possess “capable bodies” and qualities to become “pillars of society”, and could make contributions to society (Transcript of the audio-recording, page 2 lines A to F).
The Magistrate had not expressed any view on the criminal conduct of the three defendants for which they were convicted that indicates a political inclination or gives rise to a perception of apparent bias.
ESCC654/2020
The defendant was convicted on his own plea of an offence of “Criminal Damage”. The Magistrate sentenced him to probation for 12 months and ordered him to pay a compensation of $1,200. (For the transcript of the audio recording of the Reasons for Sentence, please see link (Chinese only))
It was complained that the Magistrate expressly stated that he did not wish to pass a heavy sentence of deterrent and punitive effect.
The defendant was 18 years old at the time of the offence. Prior to sentencing the defendant, the Magistrate had called for a probation report and a community service order suitability report. At the hearing on 20 May 2020, the Magistrate indicated to the defendant and his legal representative that:
| “Magistrate: | That is, it is obvious that, an offence having been committed, the sentence that we are talking about must reflect a certain degree of punishment.” |
| “Magistrate: | However, at the same time, that is, having regard to his age and his background, I would also wish to put some emphasis on the aspect of rehabilitation.” |
| “Magistrate: | … that is, the court, of course, that is, having taken into account your age and your background, I do not particularly wish to, that is, impose on you a - - a sentence that is, perhaps, solely punitive, or deterrent …” |
It can be seen from the above passages that, when considering the two sentencing principles of “deterrent” and “punitive”, the Magistrate had regard to such sentencing factors and principles as the defendant’s age, background and the need for rehabilitation. The Magistrate had not expressed any view on the criminal conduct of the defendant for which he was convicted that indicates a political inclination or gives rise to a perception of apparent bias.
ESCC103/2020
The Magistrate, after trial, found each of the two defendants not guilty of an offence of “Assaulting a police officer in the due execution of his duty”. (For the transcript of the audio-recording of the Reasons for Verdict, please see link (Chinese only))
It was complained that the Magistrate, in his Reasons for Verdict, reprimanded the police witnesses for their flippant and contemptuous attitude, giving evidence as if they were in a “parallel universe” and “covering one lie with another lie” in their evidence.
The Magistrate, in his analysis of the evidence, pointed out that the video footage produced in court showed the second prosecution witness speaking to the defendants at the scene of the offence in a “flippant” and “contemptuous” manner, saying “Filming us secretly (?)” (Transcript of the audio-recording, page 2 lines P to Q). The Magistrate’s remark was not directed at the demeanour of the police witnesses when testifying in court.
In his analysis of the evidence, the Magistrate also pointed out that the course of events as described by the two police witnesses was completely at odds with what was shown in the exhibited video footage, and the situation was, as the defence submitted, the police officers appeared to be describing another time and space, a “parallel universe”. (Transcript of the audio-recording, page 2 lines N to O)
In his oral Reasons for Verdict, the Magistrate had analyzed the evidence of the two police witnesses for the prosecution, including the discrepancies between their testimonies in court, the records contained in the police notebooks, the witness statements and what was shown in the video footage capturing the scene, the inherent probabilities of the evidence, the explanations given under cross-examinations and so on (Transcript of the audio-recording, page 2 line B to page 5 line E). The Magistrate was entitled to comment and make findings on the credibility of the witnesses on the basis of the evidence before him.
The Magistrate’s findings of fact and analysis of evidence were based on and in accordance with the evidence in the case. He had not expressed any view that indicates a personal or political inclination, or gives rise to a perception of apparent bias against police officers.
ESCC292/2020
The defendant was charged with one count of “Assaulting a police officer”.
It was complained that the Magistrate queried the defendant did not understand the police officer’s explanation at the scene of the offence and therefore granted a binding over order.
What in fact transpired is that before the trial, the prosecution and the defence had agreed that the prosecution would withdraw the charge and the defendant would be bound over to be of good behaviour.
The defendant was deaf and mute and had to communicate by means of sign language. In the course of clarifying the Brief Facts of the case with the prosecution, the Magistrate stated hypothetically, “Well then, after a round of, I mean, explanation, of course, assuming that the defendant, I mean, at that time, I mean, certainly could not understand what he said either.”
In the end, the Magistrate accepted the proposal of the prosecution and the defence. Upon the defendant admitting the facts of the case, he ordered the defendant to be bound over on her own recognizance in the sum of $2,000 for a period of 24 months.
The Magistrate agreed to and accepted the course proposed by the parties. He did not, as the complaint letter(s) alleged, query that the defendant could not understand the warning issued by the police witness at the scene of the offence.
ESCC722/2020
The defendant was acquitted, after trial, of one count of “Possessing anything with intent to destroy or damage property”. (For the transcript of the audio-recording of the Reasons for Verdict, please see link (Chinese only))
It was complained that the Magistrate indicated that he acquitted the defendant since he did not feel safe to rely on the evidence of the police witness.
At the trial, the prosecution case was primarily adduced by way of Admitted Facts, with only one police officer called by the prosecution. As the Magistrate said in his oral Reasons for Verdict, the parties did not dispute the fact that at the material time the defendant was in possession of the items in question; the issue in the case was the defendant’s intent to possess.
The Magistrate had not made any finding on the credibility of the prosecution witness in his verdict. Nor had he doubted or commented on the credibility of the witness’ evidence as alleged in the complaint letter(s). The Magistrate also did not make any remark that indicates a personal or political inclination, or gives rise to an apparent bias against police officers.
ESCC2551/2019
The defendant was acquitted, after trial, of one count of “Possession of offensive weapon or other instrument fit for unlawful purposes”. (For the transcript of the audio-recording of the Reasons for Verdict, please see link (Chinese only))
It was complained that the Magistrate indicated that since he was unable to accept the evidence of the police witness, the prosecution had failed to prove that the defendant was in possession of the items in question, and he acquitted the defendant.
In his oral Reasons for Verdict, after analyzing the discrepancies between the police officer’s testimony in court, the contents of his witness statement and police notebook, the Magistrate had doubts about the credibility of the witness’ evidence and found the prosecution failed to prove beyond reasonable doubt that the defendant was in possession of the items in question at the material time. The Magistrate also pointed out that, as a matter of law, even if the defendant was proved to be in possession of the items in question at the material time, the purpose of the possession alleged by the prosecution did not satisfy any of the definitions of the element of “unlawful purposes”: physically restraining a person, inflicting bodily harm upon a person and trespassing upon or entering domestic premises unlawfully.
The Magistrate’s findings of fact and analysis of evidence were made on the basis of and according to the evidence in the case. He had not made any remark that indicates a personal or political inclination, or gives rise to an apparent bias against police officers.
Conclusion
The Chief Magistrate noted that, in respect of the decisions and sentences made in the abovementioned six cases, the Department of Justice had not made any application to the Magistrate, the Court of First Instance or the Court of Appeal to review the decision, review the sentence or appeal the case by way of case stated on the ground that the sentences were manifestly inadequate or wrong in principle, or the decisions were wrong in law or there was apparent bias. This is consistent with the conclusion made by the Chief Magistrate.
The Chief Magistrate emphasized that the decisions and sentences given in the abovementioned cases were judicial decisions made independently by the Magistrate. In accordance with the principle of judicial independence, the Chief Magistrate in his administrative capacity would not, and it would be inappropriate, to interfere with any judicial decisions.
The Chief Justice of the Court of Final Appeal agreed with the Chief Magistrate.
8 October 2020