Online responses to Pursuable Complaints

Judiciary’s Response to Complaints (ESCC700006/2019)

      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 ESCC 700006/2019.

Gist of complaints

2.    The Magistrate, in stating at the hearing that the only person who might be injured was the defendant when being subdued, was expressing views that showed bias on the part of the Magistrate and a political inclination.

The Panel of Judges’ investigation report

Outcome of investigation

3.    The complaints are not substantiated.

I. Introduction

4.    After the conclusion of the legal proceedings relating to ESCC 700006/2019, the Panel of Judges, comprising Hon Au JA, Hon Andrew Chan J and Hon Wilson Chan J, has considered the case in depth and read the transcript of the audio-recording of the Magistrate’s oral reasons for sentence and other relevant parts of the proceedings in the case and the Court of Appeal’s judgment on the application for review of sentence.

5.    The transcript of the audio-recording of the reasons for sentence as well as the Court of Appeal’s judgment (Secretary for Justice v CWC, CAAR 12/2020 ,[2021] HKCA 166) have been uploaded onto the Judiciary website. For the transcript of the audio-recording of the reasons for sentence, please see the link (in Chinese only). For the Court of Appeal’s judgment, please see the link.

II. ESCC 700006/2019 and CAAR 12/2020

6.    In ESCC 700006/2019, the defendant was charged in the Juvenile Court with one charge of arson. He pleaded guilty and was sentenced by the Magistrate to three years’ probation.

7.    In CAAR 12/2020, 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 the original sentence by a training centre order.

III. Decision

8.    For the reasons set out below, the Panel of Judges is of the view that the complaints against the Magistrate with regard to his adjudication of ESCC 700006/2019 are not substantiated.

9.    According to the transcript of the hearing on 19 May 2020 (please see the link (in Chinese only)), the defence counsel, in mitigation, submitted to the Magistrate that:

"

… [I] urge the Court to accept that this, this is a very, very isolated incident, although the case is serious, fortunately it only resulted in minor property damage, with no personal injury. The defendant is very remorseful afterwards, which I trust the Court will be able to see from his letter in mitigation.”

(Transcript of the audio-recording, page 2 lines R to S)

10.    The Magistrate later made enquiry with the prosecution about defence counsel’s submission on the facts of the case, with a view to confirming circumstances in which the offence occurred. The exchanges between the Magistrate and the Court Prosecutor went as follows:

"Magistrate

[Prosecutor], from the facts of the case, I see that the situation was as submitted by the defence, it should be that no one was really injured, is it?

 Prosecutor

None.

 Magistrate

Well, of course, [as to] potentially, one can’t tell.

 Prosecutor

Yes.

 Magistrate

But, that is, during the incident, no one was injured.

 Prosecutor

None, no.

 Magistrate

Probably the only person injured was the defendant.

 Prosecutor

Yes.

 Magistrate

That is when [he was] being subdued."

(Transcript of the audio-recording, page 6 lines B to G)

11.    The Panel of Judges takes the view that the above exchanges, when read in its proper context, show that the Magistrate was confirming with the prosecution the veracity of the matter urged in the defence mitigation (namely, whether any personal injury was caused to anyone in the case). The Court Prosecutor confirmed what had been submitted by the defence.

12.    The Panel of Judges has also considered the judgment of the Court of Appeal, which stated that, “The trial magistrate was wrong in the assessment of both the overall seriousness of the present case and the respondent’s personal culpability. Therefore, even though he adopted the statutory maximum term for the probation order, it is still wrong in principle and manifestly inadequate.” (Judgment at paragraph 69)

13.    The Panel of Judges notes that the Court of Appeal, while allowing the application for review of sentence, did not find the Magistrate to be biased, whether actual or apparent. The Panel of Judges is also of the view that at the hearing, the Magistrate had not expressed any view on the acts upon which the defendant’s conviction was based which was inappropriate or indicates a political inclination. Nor does any of his conduct amount to actual or apparent bias. As such, the complaints that the Magistrate was biased and had made inappropriate statement(s) are not substantiated.

IV. Conclusion

14.    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”. 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.

15.    The Panel of Judges further emphasizes that the sentence imposed in this case is the independent decision 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 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

16.    The Advisory Committee on Complaints against Judicial Conduct (“the Advisory Committee”) has carefully examined the above investigation report from the Panel of Judges. Noting that every complaint against judicial conduct is handled in accordance with the established mechanism, the Advisory Committee concurred with the conclusion that the complaints should not be substantiated.

17.    Nonetheless, the Advisory Committee is of the view that the public has a high expectation for a judge or a judicial officer ("JJO") to maintain impartiality when exercising the judicial power. It is therefore important for a JJO to be careful to avoid giving rise to any misunderstanding or perception of partiality through his words or behaviour in court.

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

18.    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.

19.    The Chief Justice considers that the Magistrate has room for improvement in handling the case in court. He explains that a JJO has the responsibility to exercise independent judicial power fairly and impartially without fear or favour. Impartiality, being a fundamental quality required of a JJO, must exist both as a matter of fact and as a matter of reasonable perception. Arising from this complaint, the Magistrate will be reminded to be more careful in court to avoid making any remarks that are unnecessary or irrelevant to the issues before the court, particularly those which might give rise to any unnecessary perception of partiality in his judicial work.

20 May 2022