Online responses to Pursuable Complaints

Judiciary’s Response to Complaints (FLCC5499/2019)

The following is the response issued by the Judiciary concerning complaints from members of the public against the case of FLCC5499/2019 adjudicated by Principal Magistrate SO Man-lung Don (“the Principal Magistrate”):

FLCC5499/2019

Upon conclusion of the legal proceedings, the Chief Magistrate has looked at the captioned case in depth, and has read the transcript of the audio-recording of the reasons for sentence in the captioned case. The transcript of the audio recording of the reasons for sentence has 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 Principal Magistrate in adjudicating the captioned case are not substantiated.

On 16 May 2020, the defendant pleaded guilty to an offence of “Common assault” and an offence of “Assaulting a police officer”. The Principal Magistrate adopted 3 months and 6 months as the respective starting point for the first and second offences, applied one-third discount for the guilty plea, and sentenced the defendant to 2 months’ and 4 months’ imprisonment for the respective offences, to run consecutively. The defendant was in total sentenced to 6 months’ imprisonment. (For the transcript of the audio recording of the Reasons for Sentence, please see the link to the Reasons (Chinese only))

On 22 May 2020, the defendant lodged an appeal against sentence. On 5 June 2020, he was granted bail pending appeal by the Court of First Instance.

On 14 August 2020, the Court of First Instance allowed the appeal and reduced the sentence to enable the immediate release of the defendant. (For the Judgment of HCMA106/2020, please see the link (Chinese only))

The complaints received by the Judiciary mainly state that the Principal Magistrate was biased in favour of the police, thus “disregarded the sentence passed in similar cases”; adopted the statutory maximum of 6 months as the starting point for the second charge; always “imposed heavy sentences on ordinary citizens but lenient sentences on police officers”; and “exaggerated the seriousness of the case” and abused his sentencing power in ordering the two sentences to run consecutively.

According to the facts admitted by the defendant, he first had an argument with the victim, then left but returned to the scene and had a struggle with the victim. While waiting for the police to come, he kicked the victim’s stomach and punched his right eye three times, causing tenderness, bruises and abrasion to his right eye lid (the first charge). After the police arrived, he punched a police sergeant, causing a 1cm long laceration on his left face (the second charge).

On appeal, the Court of First Instance held that the case was not the most serious of the kind and it was inappropriate to adopt the maximum penalty of 6 months as the starting point (paragraph 23F-I of the judgment). It also held that the Principal Magistrate failed to have sufficient regard to the principle of totality in ordering the sentences to run consecutively (paragraph 27 of the judgment). The Court of First Instance however pointed out that the Principal Magistrate did not err in his dealing with the mitigating factors mentioned in the grounds of appeal (paragraphs 12-18 of the judgment), and he “could not be faulted” for imposing an immediate custodial sentence (paragraph 24 of the judgment). At the same time, the Court of First Instance stressed that mere comparison with previous cases would not assist in determining the appropriate sentence: “Though the appellant (the defendant) has specially prepared a sentencing table for both charges, I do not consider that a conclusion on what would be the appropriate sentence for this case can be drawn by comparing different or even similar cases. Ultimately, the circumstances of each case and each defendant cannot possibly be the same. The court must pass a sentence that is appropriate to the defendant in each case, and not to seek an answer by merely conducting a comparison”. (paragraph 22 of the judgment)

Through the appeal process, the correctness of the judicial decision of the Principal Magistrate had been adjudicated upon by the Court of First Instance. The focus of the Judiciary in handling the complaints lodged by the public is whether there was impropriety in the judicial conduct of the Principal Magistrate. The Principal Magistrate had, in his oral reasons, clearly explained the basis and reasons for the sentence he passed, which included factors such as the number and area of attack, and expressly indicated that he was aware of the statutory maximum penalty for the second charge and the fact that different victims were involved in the charges. Although the Principal Magistrate’s judicial decision was overturned by the Court of First Instance on appeal, this is not to be equated with a finding of bias in his judicial conduct. The reasons for sentence given by the Principal Magistrate and his conduct in the case do not reveal any expression of views that indicate a personal or political inclination, or give 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. In dealing with 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), and the circumstances involved as a whole, whether the relevant conduct was inappropriate and whether a case of bias is made out in accordance with the “Guide to Judicial Conduct”. In the case of judicial decision (including conviction or sentence), people may disagree with it because of their perspective or political view, but this cannot be taken to suggest that the judicial decision or the judicial officer is biased. The outcome of the case is not the sole considering factor in determining whether a complaint against judicial conduct is substantiated.

The Chief Magistrate also emphasized that the sentence given in the captioned case is made independently by the Principal 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 decision. 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 is further of the view that the circumstances of the captioned case as a whole do not support the complaints against the judicial conduct of the Principal Magistrate.

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

10 March 2021