Online responses to Pursuable Complaints

Judiciary’s Response to Complaints (ESCC 180/2020)

      The following is the response issued by the Judiciary concerning complaints from members of the public against Magistrate Veronica Heung Shuk-han (“the Magistrate”) in connection with the adjudication of the case of ESCC 180/2020.

Gist of Complaints

2.   The gist of the complaints received by the Judiciary is that the judicial temperament of the Magistrate was poor in that she was impatient and impolite to the defence counsel, interrupted the defence speeches and impatiently uttered “the court had accepted him” in response to the defence submission; she was biased in her findings of fact in that she failed to adequately consider the defendant’s circumstances when she accepted the testimony of the police officer(s) and unreasonably inferred that the defendant deliberately walked slowly to the road in order to provoke the police officers; and she disregarded the defendant’s plea in mitigation and imposed an immediate custodial sentence.

 

The Panel of Judges’ Investigation Report

Outcome of investigation

3.   The complaints are not substantiated.

Summary of Investigation

I. Introduction

4.   After the conclusion of the legal proceedings relating to ESCC 180/2020, the Panel of Judges, comprising the Hon Carlye Chu and the Hon Thomas Au JJA and the Hon Wilson Chan J, has considered the case in depth and read the transcript of the audio-recording of the Magistrate’s reasons for verdict and sentence and other relevant parts of proceedings in the case, and the Court of First Instance’s judgment on the appeal against conviction and sentence.

5.   The transcript of the audio-recording of the relevant parts of proceedings as well as the Court of First Instance’s judgment have been uploaded onto the Judiciary website. For the transcript of the audio-recording of the relevant part of proceedings, please see the link (in Chinese only). For the Court of First Instance’s judgment, please see the link (in Chinese only).

II. ESCC 180/2020 & HCMA 250/2020

6.   In ESCC 180/2020, the defendant was convicted by the Magistrate after trial of an offence of “Assaulting a police officer”, and was sentenced to one month’s imprisonment.

7.   In HCMA 250/2020, the defendant appealed against the conviction and sentence. The Court of First Instance dismissed the appeal against conviction and sentence.

III. Decision

8.   For the reasons set out below, the Panel of Judges is of the view that the complaints against the judicial conduct of the Magistrate in adjudicating the captioned case are not substantiated.

(1) The complaint against the judicial temperament of the Magistrate

9.   On 31 July 2020, the Magistrate delivered her reasons for verdict and sentence of the case. According to the transcript of the audio-recording of the proceedings, the words said by the Magistrate which were being complained of took place during defence counsel’s mitigation. At the time, the defence counsel submitted that it was just the statement of one police officer that when the police were restoring the order on the road, the defendant ignored police advice and walked slowly from the pavement to the road. At that juncture, the Magistrate responded, “[this is] the evidence accepted by the court”. (Transcript of the audio-recording of the proceedings at page 8O)

10.    Reading the above exchanges in context, the remark made by the Magistrate is to point out that the court had made findings of fact and had accepted the evidence adduced by the prosecution. The Panel of Judges is of the view that defence submissions in mitigation should not contradict the findings of fact made by the Magistrate in the reasons for verdict.

11.    The Panel of Judges had listened to the audio-recording of the proceedings. They show that the Magistrate was patient in allowing the defence counsel to make submissions in mitigation, and her tone was calm and courteous, showing no sign of impatience. Neither did she interrupt the speech of the defence counsel. Throughout the entire proceedings, the Magistrate was not biased nor was any of her conduct inappropriate.

(2) The complaint against the findings of fact and sentence imposed by the Magistrate

12.    The Magistrate is entitled to comment on the creditability of each witness and make findings of fact based on the evidence adduced before the court. Findings of fact and sentencing are judicial decisions. The correctness of the judicial decisions made by the Magistrate had been adjudicated by the Court of First Instance in the appeal process, and this falls outside the scope of complaint against the judicial conduct of judicial officers.

13.    The Panel of Judges notes that on appeal, one of the defendant’s grounds of appeal was that the Magistrate wrongly accepted the testimonies of the police officers. The Court of First Instance, in disposing of this ground, held that: “In any event, the Magistrate had stated the reasons upon which she accepted the evidence of the two police witnesses. There is neither error in her logic nor inherent improbabilities in the findings of fact that she made.” (Judgment at paragraph 20)

14.    As to the sentence, the Court of First Instance held that the Magistrate had adequately considered the defendant’s plea in mitigation and all the circumstances of the case. The Court of First Instance dismissed the defendant’s appeal against conviction and sentence.

IV. Conclusion

15.    The Panel of Judges emphasizes that every complaint against judicial conduct is 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); the circumstances involved as a whole, whether the relevant conduct was inappropriate; and whether a case of bias is made out under the “Guide to Judicial Conduct”.

16.    In the case of judicial decision (including conviction or sentence), some people may disagree with it because of their stance or political view. This cannot be taken to mean that the judicial decision or the judicial officer is biased. The outcome of a case is not necessarily relevant to, nor is it the sole considering factor in, the determination of whether a complaint against judicial conduct is substantiated.

17.    The Panel of Judges further emphasizes that the decisions and sentence made in the case are the independent decisions of the Magistrate. 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 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

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

 

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

19.    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.

 

26 July 2022