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Online responses to Pursuable Complaints

Judiciary's Response to Complaints (ESCC2586/2019)

The following is the response issued by the Judiciary concerning complaints from members of the public against Magistrate Lam Hei Wei (“the Magistrate”) in connection with the adjudication of the case of ESCC 2586/2019.

Gist of Complaints

2. The complaints received by the Judiciary allege that the Magistrate was biased in that he did not adequately take into account all relevant circumstances of the case and wrongly acquitted the defendants.

The Panel of Judges' Investigation Report

Outcome of investigation

3. The complaints are not substantiated.

Summary of investigation

I. Introduction

4. The legal proceedings relating to ESCC 2586/2019 have been concluded. The Panel of Judges, comprising the Hon Thomas Au JA, the Hon Godfrey Lam JA and the Hon Keith Yeung J, has considered the case in depth and read the transcript of the audio-recording of the Magistrate’s oral reasons for verdicts and sentences, and the Court of First Instance’s judgment on the appeal against conviction.

5. The transcript of the audio-recording of the reasons for verdicts and sentences as well as the Court of First Instance’s judgment have been uploaded onto the Judiciary website. For the transcript of the audio-recording, please see the link (in Chinese only)(463 KB). For the judgment, please see the link (in Chinese only).

II. ESCC 2586/2019 & HCMA 224/2022

6. The 1st and 2nd defendants were jointly charged with one count of “Behaving in a disorderly manner in a public place”, contrary to section 17B(2) of the Public Order Ordinance, Cap. 245. On 17 August 2020, the Magistrate after trial found both defendants not guilty of the offence.

7. Aggrieved by the verdicts, the prosecution appealed by way of case stated to the Court of First Instance pursuant to section 105 of the Magistrates Ordinance, Cap. 227. On 9 June 2023, the Court of First Instance gave opinions on the relevant questions of law, and decided to remit the case with the opinions to the Magistrate for reconsideration. On 29 August 2023, the Magistrate, after reconsideration, convicted the 1st and 2nd defendants of the offence and sentenced them to 5 weeks’ imprisonment. On the same day, the Magistrate refused to grant them bail pending appeal.

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 with regard to his adjudication of ESCC 2586/ 2019 case are not substantiated.

9. The verdicts given by the Magistrate were the results of his judicial decisions. Whether judicial decisions are correct falls outside the scope of complaint against judicial conduct of judicial officers. Through the appeal process, the correctness of the judicial decisions of the Magistrate had been adjudicated upon by the Court of First Instance.

10. The Magistrate in his reasons for verdicts articulated his findings of fact, his analysis of the relevant legal principles, the factual and legal bases of, and his reasons for the verdicts. Although the Court of First Instance held that part of the Magistrate’s findings were perverse and his interpretation of the legal principles erroneous, there was no finding of bias on the Magistrate’s part, whether actual or apparent. The mere fact that the Magistrate’s judicial decision was overturned by the Court of First Instance on appeal cannot be equated with a finding of bias in his judicial conduct. Throughout the entire proceedings, the Magistrate did not express any view on the defendants’ criminal acts which may reasonably be regarded as inappropriate or indicative of any political inclination on the Magistrate’s part. Nor did any of his conduct amount to actual or apparent bias. As such, the complaints against the Magistrate are not substantiated.

IV. Conclusion

11. The Panel of Judges finds that these complaints have been 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 expressed any view indicative of bias (such as indicating a political inclination); whether the expression or conduct was inappropriate in the circumstances surrounding the relevant conduct viewed as a whole; and whether a case of bias is made out having regard to the guidance set out in the “Guide to Judicial Conduct”.

12. Personal views on judicial decisions (including an acquittal) may differ, depending upon one’s stance or political view. Difference in views however cannot be taken to mean that the judicial decision or the judicial officer is biased. In considering whether a complaint against judicial conduct is substantiated, the outcome of a case is not necessarily a relevant consideration, and definitely not the sole consideration.

13. The Panel of Judges emphasizes that the decisions and sentences made in the case were 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. As in this case, 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

14. The Advisory Committee on Complaints against Judicial Conduct (“the Advisory Committee”) has carefully examined the above investigation report from the Panel of Judges and agrees with the conclusion that the complaints should not be substantiated. The Advisory Committee further notes that there is a well-established mechanism through which appellate Judge(s) and/or the relevant Court Leader (i.e. the Chief Magistrate in this case) may provide, as appropriate, observations and constructive comments to the judge or judicial officer below about the latter’s handling of the appealed case as well as the interpretation and application of the relevant law.

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

15. 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.

13 February 2025