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Online responses to Pursuable Complaints

Judiciary’s Response to Complaints (ESCC 495/2020)

      The following is the response issued by the Judiciary concerning complaints from members of the public against Magistrate Cheang Kei-hong (“the Magistrate”) in connection with the adjudication of the case of ESCC 495/2020.

Gist of Complaints

2.   The complaints were that the Magistrate:

  1. wrongly convicted the defendant when there was insufficient evidence because of his bias and wrongly relied on the video footage;
  2. did not give the benefit of the doubt to the defendant; and
  3. imposed an unreasonable sentence by not calling for pre-sentence reports because of his bias towards the defendant.

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 495/2020, the Panel of Judges, comprising the Hon Anthea Pang JA, the Hon Andrew Chan J and the Hon Alex Lee J, has considered the case in depth and read the transcript of the audio-recording of the Magistrate’s oral reasons for verdict and sentence and the judgment of the Court of First Instance on the appeal against conviction and sentence.

5.   The transcript of the audio-recording of the reasons for verdict and sentence 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 oral reasons for verdict and sentence, please see the link (in Chinese only). For the Court of First Instance’s judgment, please see the link (in Chinese only).

II. ESCC 495/2020 & HCMA 368/2020

6.   In ESCC 495/2020, the defendant was convicted by the Magistrate after trial of one count of “assault occasioning actual bodily harm”, and was sentenced to 9 months and 2 weeks’ imprisonment.

7.   In HCMA 368/2020, the defendant appealed against the conviction and sentence. The Court of First Instance allowed the appeal, quashed the conviction and set aside the sentence accordingly.

III. Decision

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

The complaint against the verdict given by the Magistrate

9.   The crux of the captioned case is whether the evidence adduced by the prosecution can prove beyond reasonable doubt that the defendant was the assailant. The Magistrate, having analyzed and considered the video footage and photographs adduced by the prosecution, the personal items seized from the defendant’s residence, the facial features and clothes of the defendant, found that the defendant must have been the assailant. (The transcript of the oral reasons for verdict at page 12 E-G)

10.   On appeal, the defendant complained that the identification evidence adduced by the prosecution was so weak that the Magistrate’s conviction should not be upheld. The Panel of Judges notes that this complaint of weak evidence is also the basis on which the allegation of bias is premised. However, the Court of First Instance, in disposing of this ground of appeal, held that:

“ 55. I agree with the Magistrate’s observation. The person in question depicted in all the footage was the same person and he was the appellant. The question remains whether the totality of the evidence is such that one can be sure that the person in question (ie the appellant) was the assailant.

 …

58. I have carefully studied the footage immediately before and after the assault, taking into account the time of the recordings and location of the cameras and also the appearance, clothes and the items on and carried by the person in question - the person in question was seen to be with a female at some time; I have also taken into account the Magistrate’s observation, the submissions advanced by the parties. If the person in question depicted in the footage was the same person and if this masked person was the same person who showed his face in the footage (ie the appellant), then while that person’s right wrist had a string bracelet and he had an oblique bag (to which a thin piece of string was attached) on his back, the bag at different times was not the same. Also, I have had regard to the fact that there was a lapse of a few hours between the time of the footage and the time of the offence as well as that there was no item on the person in question with clear identifying features. After careful consideration, I am of the view that there is indeed substantial evidence pointing to the conclusion that the appellant was the assailant in this case but I have doubt as to whether it is adequate to make one sure that the appellant must have been the assailant.

59. I disagree with the appellant’s submissions that the Magistrate erred in law in his approach or in the process of his deliberation. The Magistrate had diligently and thoroughly evaluated and considered the evidence. Having carefully assessed the evidence, I am of the view that it is probable that the appellant was the assailant. However, by reasons of the above, I cannot be sure that the Magistrate’s verdict on conviction is safe. As a result, the appellant’s appeal against conviction is allowed and the sentence is set aside.”

 

11.   Further, the Court of First Instance, in allowing the appeal against conviction, observed that there was substantial evidence to support the prosecution case that the defendant was the assailant. It was also the assessment of the Court of First Instance that the Magistrate had approached the case diligently and thoroughly, without committing any error of law.

12.   The Panel of Judges notes that, bias, whether actual or perceived, on the part of the Magistrate was never advanced by the defendant as a ground of appeal. There is nothing to suggest that the Magistrate, in convicting the defendant, was biased and, in any event, the verdict given by the Magistrate is a judicial decision; whether it is correct falls outside the scope of complaint against judicial conduct of judicial officers.

The complaint against the sentence imposed by the Magistrate

13.   In his oral reasons for sentence, the Magistrate had articulated the relevant sentencing considerations, citing cases for reference. In particular, the Magistrate noted that while there were no sentencing guidelines for the offence, this case was a serious one in that the defendant, together with others, committed the offence in his university campus in broad day light while a lot of people were present in the discussion forum and that, despite the intervention by the security officers, the defendant and his accomplices still circled the officers and the unarmed victim to continue the assault. The Magistrate was also of the view that the offence was motivated by prejudice as there was no suggestion that the defendant knew his victim, not to mention any animosity between them. Further, the Magistrate found that the assault was pre-planned as the defendant was wearing a Balaclava mask at the time, clearly intending to conceal his identity. In the end, given the seriousness of the case and despite the relatively minor injury caused, the Magistrate considered that a deterrent sentence was called for. However, taking into account the defendant’s background and clear record, the Magistrate exercised his discretion to reduce the sentence by half a month, resulting in a term of 9 months and 2 weeks. (The transcript of the oral reasons for sentence at pages 13J to 14L)

14.   The Court of First Instance, having allowed the appeal against conviction, did not have to consider the propriety of the sentence. That said, the Panel of Judges notes that there is no legal requirement in this case to call for reports before sentencing the defendant. In the circumstances and quite the contrary, the established principle is that pre-sentence reports should not be sent for as a matter of course. Having read the Magistrate’s oral reasons for sentence, the Panel of Judges opines that there is no factual basis to conclude that the Magistrate, in not calling for reports and in passing the sentence, was biased as a matter of fact or a matter of reasonable perception.

15.   In addition, the sentence imposed by the Magistrate is a judicial decision, falling outside the scope of complaint against judicial conduct of judicial officers.

IV. Conclusion

16.   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”.

17.   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, or the sole considering factor in, the determination of whether a complaint against judicial conduct is substantiated.

18.   The Panel of Judges further emphasizes that the decisions and sentence in the case were made independently by 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

19.   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

20.   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

Note: The Judiciary has received complaints against the Magistrate in five court cases. Investigation on complaints in three court cases (ESCC 1108/2020, ESCC 2460/2019 and ESCC 2410/2019) have already been completed upon conclusion of all relevant court proceedings. The responses have been uploaded onto the Judiciary’s website ( https://www.judiciary.hk/en/about_us/complaints_responses/responses_20201215.html). The complaints relating to the remaining court case (ESCC2566/2019) will be dealt with upon conclusion of all relevant court proceedings.