Online responses to Pursuable Complaints

Judiciary’s Response to Complaints (FLCC3419/2019)

The following is the response issued by the Judiciary concerning complaints from members of the public against Principal Magistrate So Man-lung Don (“the Principal Magistrate”) in connection with the adjudication of the case of FLCC3419/2019.

I. Introduction

After the conclusion of the legal proceedings relating to FLCC3419/2019, the Panel of Judges, comprising Carlye Chu JA, Anthea Pang JA and Alex Lee J, has considered the case in depth and read the transcript of the audio-recording of the Principal Magistrate’s oral reasons for verdict and sentence and the Court of First Instance’s judgment on the appeal against conviction and sentence.

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

The thrust of the complaints received by the Judiciary is that the Principal Magistrate was biased in favour of the police witness(es) and prejudiced against the defendant, and the verdict and sentence were unreasonable.

II. FLCC3419/2019 and HCMA137/2020

In FLCC3419/2019, the defendant was convicted by the Principal Magistrate after trial of one charge of “Obstructing a police officer in the due execution of his duty”, and was sentenced to 12 months’ imprisonment.

In HCMA137/2020, the defendant appealed against the conviction and sentence. The Court of First Instance dismissed the appeal against conviction, but allowed the appeal against sentence and reduced the sentence to 8 months’ imprisonment.

III. The Panel of Judges’ decision

For the reasons set out below, the Panel of Judges is of the view that the complaints against the Principal Magistrate with regard to his adjudication of FLCC3419/2019 are not substantiated.

(1) The complaint that the Principal Magistrate was biased in favour of the police witness(es)

In his oral reasons for verdict, the Principal Magistrate had described the evidence of the police officer(s) and considered the defence advanced by the defendant. In disposing of the appeal, the Court of First Instance pointed out that, at the trial, the prosecution and the defence had adduced several audio-video recordings of what happened at the scene, and further took the view that: “The course of events could be seen clearly from the footages whereas the witnesses’ testimonies are of less importance. Hence, the Principal Magistrate did not give an account of the witnesses’ evidence in the Statement of Findings, but he had given a detailed description of what was seen on the footages …” (Paragraph 6 of the Judgment) The Court of First Instance did not make any adverse comment on the accuracy or completeness of the Principal Magistrate’s description of the relevant footages.

In the circumstances, there is no factual basis to support the complaint that the Principal Magistrate was biased in favour of the police witness(es) when dealing with the testimonies of the witnesses.

(2) The complaint that the verdict is unreasonable

The verdict given by the Principal Magistrate is a judicial decision; whether the verdict is correct falls outside the scope of complaint against judicial conduct of judicial officers.

Further, in relation to the factual and legal arguments put forward by the defendant in the appeal against conviction, the Court of First Instance held that: “None of the grounds of appeal against conviction is substantiated. Having examined the evidence as a whole and evaluated the Principal Magistrate’s reasons for verdict, I find the conviction safe and well supported by the evidence. Accordingly, the appeal against conviction is dismissed and the conviction is upheld.” (Paragraph 83 of the Judgment)

The complaint that the verdict of the Principal Magistrate is unreasonable is not substantiated.

(3) The complaint that the sentence is unreasonable

The sentence imposed by the Principal Magistrate is a judicial decision; whether the sentence is correct falls outside the scope of complaint against judicial conduct of judicial officers.

Further, the Principal Magistrate had, in his reasons for sentence, articulated the relevant sentencing considerations. The Court of First Instance held in the Judgment that:

“In gist, the societal circumstances at the time of the offence, the actual situation at the scene, and the latent impact of the defendant’s conduct could not be overlooked.” (Paragraph 103 of the Judgment)

“I agree that the sentence should have a deterrent effect.” (Paragraph 104 of the Judgment)

“On the facts of this case, immediate custodial sentence is inevitable. There is insufficient ground, in fact none, to order a suspended sentence. The appellant had pleaded not guilty; he could not be said to be fully remorseful. Therefore, community service order is not an appropriate option; it cannot adequately reflect the nature and seriousness of this case.” (Paragraph 108 of the Judgment)

“After careful deliberation, balancing all the factors and taking into account the fact that the appellant is a first offender, I am of the view that a term of 8 months’ imprisonment will be sufficient to reflect the overall circumstances of the case and the culpability of the appellant.” (Paragraph 109 of the Judgment)

(4) The complaint that the Principal Magistrate was prejudiced against the defendant

It was complained that the Principal Magistrate did not obtain relevant reports for the defendant before passing sentence. In this regard, the Court of First Instance’s judgment stated that:

“111. Mr Pang SC pointed out that, in any event, the Principal Magistrate should have obtained the background report first.

112. Whether to do so depends on the needs in each case. The appellant is an adult, and was legally represented at the trial. There is nothing to show he has special personal or family circumstances that public funds should be incurred on calling for reports; the defence counsel should have been able to fully articulate to the court the background relevant to the appellant and sentence. In the circumstances, the Principal Magistrate’s decision not to call for background report cannot be faulted.” (Paragraphs 111 and 112 of the Judgment)

(5) Conclusion

The Panel of Judges notes that the Court of First Instance, while allowing the appeal against sentence and reducing the sentence imposed by the Principal Magistrate, did not find the Principal Magistrate to be biased, whether actual or apparent. The Panel of Judges is also of the view that at the trial, the Principal Magistrate had not expressed any view on the acts upon which the defendant’s conviction was based, which is inappropriate or indicates a political inclination. Nor does any of his conduct amount to actual or apparent bias. As such, the complaints against the Principal Magistrate are not substantiated.

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

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

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