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Judiciary’s Response to Complaints (ESCC2461/2019)

The following is the response issued by the Judiciary concerning complaints from members of the public against Magistrate Ho Chun-yiu (“the Magistrate”) in connection with the adjudication of the case of ESCC2461/2019.

ESCC2461/2019

ESCC2461/2019 and the application for a review of sentence arising therefrom have been concluded. The Panel of Judges (Hon Au JA, Hon Andrew Chan J, Hon Wilson Chan J) has investigated the case in depth, and read the transcript of the oral 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 Chung Ka Ho [2020] HKCA 990 [the link]).

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

The defendant originally faced two charges, namely Charge 1 “Possession of offensive weapon” and Charge 2 “Taking part in an unlawful assembly”. Before the commencement of the trial, the prosecution and the defence reached an agreement whereby the prosecution would withdraw Charge 1 upon the defendant being convicted of Charge 2 on his own plea. Pursuant to the parties’ proposal, the Magistrate granted leave to the prosecution to withdraw Charge 1 upon the defendant admitting and being convicted of Charge 2. The Magistrate sentenced the defendant on Charge 2 to a community service order of 120 hours.

The Secretary for 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. The Court of Appeal allowed the application and substituted an immediate custodial sentence of 3 months’ imprisonment.

The complaints received by the Judiciary allege that the Magistrate, in stating that the conduct of the defendant was “not very violent”, and his frank admission of responsibility “is to be encouraged”, was expressing views that showed bias and a political inclination, to the extent of misleading the public into thinking that difference in opinion could justifiably be expressed through illegal or even violent acts.

According to the transcript of the oral Reasons for Sentence, what the Magistrate said at the time was: “…According to the facts of the case, the people who assembled only shouted slogans, made hand gestures, pointed laser pen at police officers, etc., acts that are relatively mild. More importantly, as the prosecution had earlier confirmed in court, this case does not involve the kind of violent acts referred to by the Court of Appeal. I also do not see any person having sustained injury as a result of the unlawful assembly. Nor any property having been damaged.” (Transcript of the Reasons for Sentence at p.1 O-Q) (Emphasis supplied)

As the transcript shows, the Magistrate was only stating that based on the facts put forward by the prosecution and as “confirmed” by the prosecution, the case did not involve the kind of violent acts referred to by the Court of Appeal in a previous decision.

At the hearing on 4 June 2020, the Magistrate said, “Under these circumstances, coupled with the fact you are a person of decent background, have no previous [criminal] record, you have frankly admitted your responsibility today, this is very much to be encouraged.

Read in its proper context, the Magistrate’s remark of “to be encouraged” was clearly a reference to the defendant’s decision to admit his responsibility by pleading guilty, and not the criminal act upon which his conviction was based.

The Panel of Judges has also considered the Judgment of the Court of Appeal which held the Magistrate’s sentence to be wrong in principle as follows:

“The Magistrate’s assessment that the unlawful assembly in question was ‘mild’, or even ‘peaceful’, was too superficial. Out of his misunderstanding of the decision in the Wong Chi Fung case, he considered unlawful assembly that did not involve actual violence or involve low level of violence to be not serious (pointing laser pen directly at people’s eyes could amount to assault). In view of this court’s analysis under each of the headings above (in fact, to a large extent a recapitulation), this is plainly wrong.” (paragraph 75 of the Judgment)

“The Magistrate did not fully grasp the public harm of unlawful assemble, the gravamen of the offence, the preventive nature of the offence and the risk in this case of the unlawful assembly evolving into violent conflicts, which led him to seriously underestimate the seriousness of the case. By focusing only on the fact that the respondent had no intention to attack the police and did not put up resistance when being arrested, the Magistrate also seriously underestimated the culpability of the respondent.” (paragraph 76 of the Judgment)

The Panel of Judges is of the view that even though the Magistrate had erred in law in his decision, he had not expressed any view on the criminal acts upon which the defendant’s conviction was based which was inappropriate, or indicated a political inclination, or amounted to apparent bias. Accordingly, the complaints that the Magistrate made inappropriate or biased comments are not substantiated.

Conclusion

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 judicial officer’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 judicial officer 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 it 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), 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 concerned is biased. The outcome of a case is not the sole factor for consideration in determining whether a complaint against judicial conduct is substantiated.

The Panel of Judges also emphasizes that the sentence imposed in the captioned case was an independent judicial decision made by the Magistrate. In accordance with the principle of judicial independence, the Panel of Judges 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 Panel of Judges is further of the view that, having regard to the content of the complaints and the circumstances of the captioned case as a whole, the complaints that the Magistrate had made inappropriate expressions or was biased are not made out.

After considering the investigation report of the Panel of Judges and the advice of the Advisory Committee on Complaints against Judicial Conduct, the Chief Justice of the Court of Final Appeal concludes that the complaints are not substantiated.

29 October 2021