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Online responses to Pursuable Complaints

Judiciary’s Response to Complaints (DCCC 153/2020 and 453/2020)

      The following is the response issued by the Judiciary concerning complaints from members of the public against District Judge Ernest Michael LIN Kam-hung (“Judge Lin”) in connection with the adjudication of the case of DCCC 153/2020 and 453/2020.

Gist of complaints

2.    There were four defendants in DCCC 153/2020 and 453/2020. The 1st Defendant pleaded guilty to one charge of wounding and two charges of unlawful assembly whereas the remaining three defendants each pleaded guilty to one charge of unlawful assembly.

3.    The complaints received by the Judiciary concerning these proceedings were essentially these: (1) the instructions given by Judge Lin for three persons wearing yellow face masks to change their masks before continuing to attend the proceedings in the courtroom lacked justification; and (2) while viewing the video footage in court, Judge Lin’s remarks that the journalists who were conducting the recording at the scene had become part of the riot were unreasonable and biased.


The Panel of Judges’ investigation report

Outcome of investigation

4.    The complaints are not substantiated.

5.    After conclusion of the judicial proceedings relating to DCCC 153/2020 and 453/2020, the Panel of Judges, comprising Hon Anthea Pang JA, Hon Andrew Chan J and Hon Wilson Chan J, has considered the captioned case in depth, and has read the transcript of the audio-recording of relevant parts of the court proceedings and the Reasons for Sentence. (For the Reasons for Sentence of DCCC 153/2020 and 453/2020, please see the link (in Chinese only))

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

(1) On the changing of face masks

7.    In paragraphs 27-30 of the Reasons for Sentence, Judge Lin provided the reasons for his instructions concerning the change of face masks. In essence, Judge Lin’s concern was that while the court should not be used as a venue for expressing political demands, the yellow face masks worn by the three persons carried a political slogan. Moreover, Judge Lin did provide, through the clerk, alternative face masks for the said persons for use, and those who did not want to change their face masks could go to the adjacent courtroom to observe the hearing through live broadcast.

8.    The Panel of Judges is of the view that the instructions given by Judge Lin were, in the circumstances, appropriate as the court is not a platform for political campaigns1. The panel is further of the view that the rights of the court users were fully protected as they could continue to observe the proceedings in the adjacent courtroom if they were not minded to change their masks.

(2) On the remarks made while watching the video footage in court

9.    Apart from providing the court with the summary of facts, the prosecution, in the course of the proceedings, also played the video footage taken at the scene. It was recorded in the transcript of the audio-recording of relevant parts of the proceedings that Judge Lin made the following observations while watching the video footage:

(Continue playing digital audio-recording)

Ms Shum
Your Honour, the prosecution is going to show some photographs and video footages in court and has for this purpose prepared a table which has already been submitted to the clerk.

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.
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Court
Stop, stop. What was he shouting about? He heard -- did all of you hear that? Did anyone manage to catch what he was shouting about?
Mr Cheng
Your Honour, the major utterance I heard just now was “back to the mainland”. That’s what I heard.
Court
Thank you. Please continue.

(Continue playing digital audio-recording)

Court
Hold on. This is the first defendant, right?
Ms Shum
That’s correct. The one with a grey face mask on.
Court
Go on.

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.
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Court
Hold on. As seen from the screen, the convenience store-branded umbrella held by the fourth defendant was opened, and others -- someone nearby also opened theirs (--) the aim of which appeared to be preventing others from taking photographs (of them). Well, perhaps that’s what was meant by the so-called opening umbrellas or putting up umbrellas.
Ms Shum
Yes.
Court
Go on.
Ms Shum
Please.

(Continue playing digital audio-recording)

Court
Hold on. The screen also shows the two assaulted persons were man and woman, both middle-aged or young-old. They were being surrounded, and -- and there were people who prevented other assailants from charging towards (them). But then I also notice that laser pointer(s) were being shot at them. Continue.

(Continue playing digital audio-recording)

"Court
Stop here. Besides, in the part that can be seen from the scene, there are many people in yellow vests. As far as I understand, yellow vests, generally speaking, indicate the newspaper industry. However, their standing there have become part of the riot. Also, they were in other people’s way, and they hindered the victims from leaving. Continue.”

(The remarks within the quotation marks are the remarks under complaint: “the subject remarks”)


(Continue playing digital audio-recording)

10.    Judge Lin, in paragraphs 16-18 of the Reasons for Sentence, further explained the subject remarks made.

11.    Having considered the Reasons for Sentence and all the relevant circumstances, the Panel of Judges is of the view that:

  1. It is within the discretion of a judge, when viewing in court a video footage produced as an exhibit, to provide a verbal description of what is depicted thereon so as to put on record the observations made and so that parties, if deemed necessary, could provide their views on the same and/or could draw to the attention of the court any other relevant observations;
  2. What Judge Lin did in this case was no more than providing such a verbal record or a running commentary of the salient parts of the video footage viewed; and
  3. The subject remarks were not meant to be general observations and were not made on a stand-alone basis deliberately targeting at the media. They were made, without further observations or objections from the parties, as part of the running commentary in relation to that particular video footage.

12.    When the matter is viewed in its proper context, the complaint that the remarks were unreasonable and biased is not substantiated.

Conclusion

13.    The Panel of Judges emphasizes that every complaint against judicial conduct is handled in accordance with the established mechanism. In dealing with complaints that a judge’s expression or conduct was inappropriate or biased, factors to be taken into account include the actual content and context of the relevant statement(s); whether the judge did express views that indicate he/she was biased (such as indicating a political inclination); the circumstances surrounding the relevant conduct viewed 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”.

14.    The Panel of Judges further emphasizes that the decisions and sentence given in the case is the independent decision of the judge. 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 decision. Any party to the proceedings 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.


Views of the Advisory Committee on Complaints against Judicial Conduct


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


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

16.    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.

17.    While the complaints against Judge Lin are not substantiated, the Chief Justice considers that, in general, a judge or a judicial officer should be very slow in court in making any suggestions of serious wrongdoing on the part of anyone who is not before the court and who has not been given an opportunity to explain himself or herself to the court. Judge Lin should be reminded accordingly.

20 May 2022


  1. In R v King(1973) 57 Cr App R 696, the English Court of Appeal, when dealing with an appeal against sentence, stated, "This Court wishes to state in the clearest possible terms that courts are not sounding boards for anybody's political views."