Online responses to Pursuable Complaints

Judiciary’s Response to Complaints (ESCC1108/2020、ESCC2460/2019、ESCC2566/2019、ESCC2410/2019 and ESCC495/2020)

The following is the Judiciary’s response concerning complaints from members of the public against five cases adjudicated by Magistrate CHEANG Kei-hong (“the Magistrate”):

ESCC2566/2019 and ESCC495/2020

As the defendants of the aforementioned cases have lodged appeal to the Court of First Instance, the complaints regarding these cases will be followed up as appropriate upon the conclusion of the legal proceedings.

ESCC1108/2020, ESCC2460/2019 and ESCC2410/2019

The time for appealing or applying for review of sentence in respect of ESCC1108/2020 and ESCC2410/2019 has expired.

The defendant of ESCC2460/2019 lodged an appeal against the conviction and sentence on 14 September 2020 (HCMA261/2020). Upon the filing of a Notice of Abandonment by the defendant on 27 October 2020, the appeal was dismissed.

The Chief Magistrate has looked at each of these cases in depth, and has 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 have 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.

ESCC1108/2020

The defendant was convicted on his own plea of an offence of “Assault occasioning actual bodily harm”, and was sentenced to 3 months and 6 days’ imprisonment. (For the transcript of the audio recording of the Reasons for Sentence, please see link (Chinese only))

It was complained that the Magistrate “justified” the criminal act of the defendant on the ground that it was due to differences in political views; commended the defendant for “loving society”; encouraged violent conduct; turned a deaf ear to the intimidating utterances the defendant made in court; and was biased.

The transcript of the audio recording of the part of the hearing relevant to the matters raised in the complaint shows that, after the prosecutor put the charge to the defendant for plea, there were the following exchanges between the Magistrate and the defendant:

“Defendant: I speak out for Hong Kong. They stir up trouble(s) in the territory of China. I don’t like [it]. We want everyone to have a full meal. I don’t want everyone damaging things in our Hong Kong. Can they cause trouble at our Chinese consulate?

Magistrate: Well, things that the other party did and the case that you are now being prosecuted for are two distinct matters …

Defendant: What is to admit or not admit, I can admit or I can refuse to admit. They ruin the territory of China, [so] I don’t admit. I have the right to take action. Not to mention he is Leung Kwok Hung, even if he were the emperor, I would stab [him] all the same.

Magistrate: This is not the way to reason, Mr. Wong. Whether or not you had done the act is one thing, it is another thing that he has done … he did other things, there is other way to deal with it, that is if he has breached the law …

Defendant: So this is like, okay, you can say, I can’t say, okay …

Magistrate: If he …

Defendant: I admit, I admit everything.

Magistrate: [If] you disagree with his opinion, you have another way to go about it, but should not … , if, according to the prosecution case, you had injured him, this was not right, do you understand, Mr. Wong?”

Also, in his plea in mitigation, the defendant had the following exchange with the Magistrate:

“Defendant: Even Hui Chi Fung, Wong Chi Fung, these two will die, sooner or later.

Magistrate: It can’t be like this, Mr. Wong. If you say you use violence against the other party whose opinion differs from yours …

Defendant: What should I use, if not violence? Use a pistol? [I had] no pistol, I would have fired at him if I had one.

Magistrate: Conversely, if the other side also uses violence against people on your side, you would not agree to it.

Defendant: I don’t know and I don’t agree. Anyway, if I was unlucky I would be stabbed by him, I … he was unlucky and he was stabbed by me. That’s all. I just want everyone to have a full meal.

Magistrate: Listen to me, Mr. Wong, yes, we Chinese have an old saying “do as you would be done by”, understand?

Defendant: Understand.”

At the hearing, the Magistrate, after examining the exhibit in question (a metal made chisel), viewing the video footage and considering the legal authorities, decided to call for a community service suitability report before sentence. When calling for the report, the Magistrate said, “I know Mr. Wong … from what he said, it seems he loves this society, and just did the act in question because of the different political views held by him and the other party. I believe, if Mr. Wong is physically capable of doing something to serve the community, he will not object to community service. I am minded to, because … because of this, I will call for community service order, like what I have just said, in his mind, I believe he is willing to perform community service …”

Reading the above exchanges in context, it can be seen the Magistrate did not directly or indirectly affirm or encourage violent conduct against people holding different political views. Nor did he “justify” the criminal conduct of the defendant. On the contrary, in view of the intimidating utterances made by the defendant that he would use violence against people holding different views, he repeatedly admonished the defendant saying he should not resort to violence because of difference in opinions. The Magistrate did not praise the defendant for “loving society”. What he said at the time was that according to the defendant, he loved society and committed the offence due to different political views, he therefore considered community service order to be one sentencing option.

In his oral Reasons for Sentence, the Magistrate articulated the basis for the sentence passed, which included the background of the case, the facts, the injuries sustained by the victim, etc. According to the community service order suitability report, the defendant was not suitable to perform community service. In the result, the Magistrate sentenced him to 3 months and 6 days’ imprisonment. The Magistrate further admonished him not to use violence because of difference in opinions.

The Magistrate has not expressed any view that indicates a personal or political inclination, or gives rise to a perception of apparent bias.

ESCC2460/2019

The defendant was convicted after trial of an offence of “Assaulting a police officer in the due execution of his duty” and an offence of “Possessing things with intent to damage property”. The Magistrate took a starting point of a sentence of 50 days for the first charge and that of 5 months for the second charge. Owing to the previous good character of the defendant, the Magistrate gave a sentencing discount of about 10% to each charge.

Having considered the principle of totality, the Magistrate ordered one month of the sentence for the first charge to run consecutively to the sentence for the second charge. In the result, the defendant was sentenced to 5 months and 15 days’ imprisonment. [For the transcripts of the audio recording of the Reasons for Verdict and Reasons for Sentence, please see the link (Chinese only)]

The defendant lodged an appeal against conviction and sentence (HCMA261/2020) on 14 September 2020. Upon the filing of Notice of Abandonment by the defendant on 27 October 2020, the appeal was dismissed.

It was complained that the Magistrate’s reasons for conviction were unconvincing, contrary to the common law principles of “presumption of innocence”, “convicting the innocent is far more abhorrent than letting the guilty go free” and “the benefit of the doubt should go to the defendant”. In addition, the Magistrate, in passing sentencing, described the criminal conduct of the defendant as “selfish” and “deplorable”, which amounted to bias.

In his oral reasons for verdict, the Magistrate had analyzed the testimonies of the two prosecution witnesses and the defendant, considered the exhibits adduced at trial including the medical report of the prosecution witness, the video footage adduced by the defence, etc. The Magistrate was entitled to, on the basis of the evidence before him, comment on the credibility of the witnesses and make findings of fact.

The Magistrate also, in his verdict, expressly reminded himself of the applicable legal principles including the burden of proof. There was nothing to indicate a contravention of applicable basic legal principles. (Transcript of the audio recording of the Reasons for Verdict- paragraphs 2-3)

The part of the oral reasons for sentence relevant to the matters raised in the complaint states:

“The act intended to be carried out by the defendant was selfish, had no regard for the overall public order, it is deplorable. The result of such act(s) is that what used to be neat and tidy streets in Hong Kong now have graffiti everywhere. Owner(s) of the graffitied property or voluntary workers have to spend time, effort, resources and money to reinstate them, to cover the slogans, catchwords, drawings. Some of the slogans and catchwords in the graffiti contained hate messages and promoted violence, which are repugnant. These acts only serve to destroy, alienate the community of Hong Kong. In my view, the act of graffiti that the defendant intended to carry out was worse and more malicious than the two English graffiti cases and Australian case I mentioned just now.” (Transcript of the audio recording of the Reasons for Sentence – paragraph 13)

When the Magistrate mentioned “selfish” and “deplorable”, his aim was to point out the seriousness of the case in terms of criminality and comparing it to other cases, with a view to explaining the underlying sentencing considerations.

In his Reasons for Verdict and Sentence, the Magistrate has not expressed any view that indicates a personal or political inclination, or gives rise to a perception of apparent bias.

ESCC2410/2019

The defendant was convicted after trial of an offence of “Possession of offensive weapon in public place”, and was sentenced to 10 months’ imprisonment. [For the transcripts of the audio recording of the Reasons for Verdict and Reasons for Sentence, please see the link (Chinese only)]

It was complained that the Magistrate was biased in his sentence and had targeted the defendant who possessed a political stance.

Before passing sentence, the Magistrate called for a Detention Centre suitability report for the defendant. The report showed the defendant was physically not suitable to be admitted to Detention Centre. Having regard to the facts of the case, its seriousness, the authorities and all the circumstances of the case, the Magistrate adopted a starting point for sentence of 12 months. Owing to the previous good character of the defendant, the Magistrate gave a sentencing discount of 2 months and sentenced him to 10 months’ imprisonment.

The Magistrate’s oral reasons for sentence had articulated the basis and reasons for the sentence passed. He has not expressed any view that indicates a personal or 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 has 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 verdicts and sentences given in the captioned cases, 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 Magistrate noted that the defendants in the above cases either had not appealed, or had abandoned his appeal, on the ground that the conviction was unsafe or the sentence was manifestly excessive. The Department of Justice had also not applied for a review on the ground that the sentence was manifestly inadequate.

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

15 December 2020