Online responses to Pursuable Complaints

Judiciary’s Response to Complaints (TMCC700003/2020)

The following is the Judiciary’s response concerning complaints from members of the public relating to the case TMCC700003/2020 adjudicated by Magistrate Kelly Shui (“the Magistrate”):

TMCC700003/2020 (“the Case”)

The time for appeal in the Case has expired.

The Chief Magistrate has examined the Case in depth, and read the transcript of the audio-recording of the Reasons for Sentence [the link (in Chinese only)] and the judgment of the Court of Appeal on the application for review of sentence (Secretary for Justice v SWS [2020] HKCA 788 [the link (in Chinese only)]).

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 Case are not substantiated.

The defendant was convicted on his own plea of an offence of “Arson” and an offence of “Possessing items with intent to destroy or damage property”. For each offence, the Magistrate sentenced him to probation for 18 months and the sentences were to be run concurrently.

The Department of Justice applied to the Court of Appeal to review the sentence on the grounds that the sentence was wrong in principle and was manifestly inadequate. In the result, the Court of Appeal allowed the application and substituted a concurrent Detention Centre order for each charge.

The complaints are that the Magistrate was biased in that when passing sentence, she commended the defendant as a “fine kid” “full of passion”, and that the lenient sentence given to the defendant would cause the public to misunderstand that violent acts are to be encouraged.

The Magistrate said in her Reasons for Sentence:

“I wish to advise you, before you come of age, listen more to your parents, if you look at how your offending has dealt a blow to your parents, there are matters which just cannot work, whether acting on the impulse or out of passion.” (Transcript of the audio-recording, page 1 lines K-L)

“You should really understand your way of helping Hong Kong, it doesn’t work. When you yourself … your conduct leads to detention by the court, or imprisonment imposed by the court, what can bring about is nothing except a severe blow to your parents.
“Therefore, as far as the court is concerned, constantly faced with young offenders like you, and who, as in your case, in the past were really very fine kids, good kids, this to the court is no pleasure at all.” (Transcript of the audio-recording, page 1 lines P-S)

Reading the Reasons for Sentence in context, the Magistrate was pointing out that the juvenile court derives no pleasure in having to deal with young offenders with good background. Besides, the Magistrate also counselled the defendant that acting on sheer impulse and out of passion and contravening the law would only sadden and grieve his parents. What the Magistrate said did not directly or indirectly encourage any form of violence or criminal conduct.

The Chief Magistrate noted that in the judgment on the application to review sentence, the Court of Appeal stated that the Magistrate’s remark that the defendant was in the past a “fine” kid was “questionable” and might be “overrated”. This, however, is on its own insufficient to support a conclusion that the Magistrate had apparent bias. The Court of Appeal’s judgment also pointed out that “although the trial magistrate’s remark about the defendant is not a fair one, the applicant [Department of Justice] does not rely on bias as a reason for its application for review.” (paragraphs 64 and 65 of the judgment). Nor did the Court of Appeal find that what the Magistrate had said amounted to apparent bias.

The Chief Magistrate is of the view that even though the Magistrate’s remark about the defendant is not an appropriate one and that she erred in attaching inappropriate weight to the mitigating factors (paragraph 65 of the judgment), 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.

Conclusion

The Chief Magistrate emphasized that every complaint against judicial conduct will be handled in accordance with the established mechanism. For complaints that the judicial officer was biased, factors to be taken into account include the context of the relevant statement(s), whether the judicial officer had expressed any view that indicates he/she was biased (such as indicating a political inclination) etc., and whether a case of bias is made out in accordance with the “Guide to Judicial Conduct”.

The Chief Magistrate also emphasized that any judicial decision, just like the sentence given in the Case, is 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. A party who is aggrieved by a judicial decision may, in accordance with the applicable procedures, seek redress by appealing or applying for review to a higher court.

The Chief Justice of the Court of Final Appeal agreed with the Chief Magistrate.

22 October 2020