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Online responses to Pursuable Complaints

Judiciary’s Response to Complaints (FLCC 5275/2019)

      The following is the response issued by the Judiciary concerning complaints from members of the public against Magistrate Debbie Ng Chung-yee (“the Magistrate”) in connection with the adjudication of the case of FLCC 5275/2019.

Gist of Complaints

2.   The complaints received by the Judiciary are summarized as follows:

  1. The Magistrate was biased in favour of the police. Even though the evidence of the police officers was inconsistent and conflicting, the Magistrate said this showed they did not “fix their evidence”, and found the police officers honest and credible and accepted their evidence.
  2. The Magistrate was biased against the defendant, and rejected his evidence with unconvincing reasons.
  3. The following conduct of and words spoken by the Magistrate demonstrated that she targeted the defendant and held serious prejudice against him:
    1. The Magistrate “demanded” the defendant to take off his mask when he gave evidence, and “shouted” at the defendant to stop him supplementing his evidence.
    2. At the hearing on 12 June 2020, the Magistrate ordered psychiatrist’s reports for the defendant and revoked his bail. She also queried “whether the defendant was mentally and psychologically suited to teach”, and stated that “it was ridiculous for the defendant to think the policemen would throw him off the bridge, and the defendant must have suffered from inherent mental and personality defects that caused him to behave insanely”.

The Panel of Judges’ Investigation Report

Outcome of investigation & recommended follow-up actions

3.   The complaints are not substantiated. Although the complaints are not substantiated, the Panel of Judges finds the Magistrate had committed a serious error when discharging her sentencing function. The Panel of Judges recommends that action be taken by the Chief Magistrate to strongly advise the Magistrate to reflect on the handling of this case and not to commit errors of similar nature in future (see paragraph 36 for details).

Summary of Investigation

I. Introduction

4.   The legal proceedings relating to FLCC 5275/2019 have concluded. The Panel of Judges, comprising the Hon Thomas Au JA, the Hon Wilson Chan J and the Hon Alex Lee J, has considered the case in depth and read: (i) the transcript of the audio-recording of the oral reasons given by the Magistrate on 12 June 2020 for the verdict and the decision to call for two psychiatrist’s reports; (ii) the transcript of the audio-recording of the oral reasons given by the Court of First Instance on 18 June 2020 granting the defendant bail pending sentence; and (iii) the Court of First Instance’s judgment dated 10 September 2021 on the appeal against conviction.

5.   The abovementioned transcripts of the audio-recording of the oral reasons given by the Magistrate and the Court of First Instance as well as the judgment of the Court of First Instance have been uploaded onto the Judiciary website ((i) For the transcript of the audio-recording of the Magistrate’s oral reasons given on 12 June 2020, please see the link (in Chinese only); (ii) for the transcript of the audio-recording of the Court of First Instance’s oral reasons given on 18 June 2020 (HCCP 354/2020), please see the link (in Chinese only); and (iii) for the Court of First Instance 10 September 2021 judgment (HCMA 283/2020, [2021] HKCFI 2676, please see the link (in Chinese only)).

II. FLCC 5275/2019, HCCP 354/2020 and HCMA 283/2020

6.   In FLCC 5275/2019, the defendant was charged with one count of “assaulting a police officer in the due execution of his duty”, contrary to section 63 of the Police Force Ordinance, Cap. 232. He pleaded not guilty and was convicted after trial on 12 June 2020. On the same day, the Magistrate ordered that two psychiatrist’s reports, a psychologist’s report and a background report be called for the defendant, and remanded the defendant in custody. On 8 September 2020, the Magistrate sentenced the defendant to nine weeks’ imprisonment.

7.   In HCCP 354/2020, the defendant applied to the Court of First Instance for bail pending sentence. At the hearing on 18 June 2020, a Court of First Instance judge granted the application.

8.   In HCMA 283/2020, the defendant appealed against his conviction to the Court of First Instance. The appeal was heard by another judge of the Court of First Instance on 27 August 2021. By his judgment handed down on 10 September 2021, the judge dismissed the appeal and upheld the conviction.

III. Decision

9.   For the reasons set out below, the Panel of Judges is of the view that the complaints against the Magistrate with regard to her adjudication of FLCC 5275/2019 are not substantiated.

Complaint (1): The Magistrate was biased in favour of the police

10.   Under this complaint, it was said that the Magistrate was biased in favour of the police in that she found the policemen did not “fix their evidence” and accepted their evidence for the reason that there was inconsistency and conflict among their evidence.

11.   In her oral reasons for verdict when analysing the evidence of the 2nd and 3rd prosecution witnesses, the Magistrate stated:

… in my view, the policemen who were at the time standing behind the defendant would only focus their attention on how to get hold of the defendant to prevent him from leaving the lawn, and the defendant’s move was big and fast as [he] went forward, hence even though the defendant had lifted [his] foot, that is, raised his knee and knocked at the 1st prosecution witness, given it was a fast move, it was not surprising that this did not immediately catch the attention of the policemen standing behind. I found the fact that the 2nd and 3rd prosecution witnesses both said they did not see the movement, and only heard the 1st prosecution witness said ‘you kick me, you assault police’, shows that they and the 1st prosecution witness did not fix their evidence, did not concoct evidence, the two policemen had told the truth.”

(Transcript of audio-recording of 12 June 2020, p.3 O-S)

12.   When read in its proper context, it shows the Magistrate only found that the fact that the 2nd and 3rd prosecution witnesses did not witness the defendant’s act of assault even though they were present at the scene did not cast doubt on their evidence, that owing to their position and the assault was fast, it was not surprising that they did not notice it, and this did not contradict the 1st prosecution witness’ evidence. The Magistrate did not base her acceptance of the witnesses’ evidence on the contradictions in the witnesses’ evidence.

13.   In addition, the defendant had also argued in his appeal that the Magistrate did not adequately consider the differences in the evidence of the police witnesses, preferred their evidence and wrongfully accepted their evidence. The Court of First Instance rejected this ground of appeal, and did not agree that the Magistrate’s treatment and analysis of the police witnesses’ evidence was inadequate or wrong. The Court of First Instance also considered the submission that the Magistrate preferred the police witnesses’ evidence stemmed from an improper reading of the reasons for verdict. (See paragraphs 28 and 29 of the 10 September 2021 judgement of the Court of First Instance)

14.   Accordingly, there is no objective factual basis for the complaint that the Magistrate favoured the police witnesses.

Complaint (2): The Magistrate rejected the defendant’s evidence out of bias

15.   Under this complaint, it was said that the Magistrate was biased against the defendant and rejected his evidence on unconvincing reasons, which included the defendant was disrespectful and hostile towards the police in that he called them by their service numbers, disbelieving that the defendant was unaware of the call on the internet for “jam with you” and “three suspensions”, querying whether the defendant and his friend(s) were from Africa or the third world, as well as dismissing as a lie the defendant’s explanation that he wore a mask because he had nasal allergy.

16.   The defendant had put this forward as a ground of appeal, arguing that the Magistrate rejected his evidence out of serious prejudice. The Court of First Instance did not accept this ground of appeal, being of the view that there was no cause to criticize the Magistrate’s analysis of the witnesses’ evidence and rejection of the defendant’s evidence. The judgment of the Court of First Instance stated that:

14. In addition, the appeal skeleton submission also stated aspects of the Magistrate’s prejudice. This can be seen from the Statement of Findings, in which the Magistrate said that when the defendant mentioned the three policemen for the prosecution in his evidence, he kept repeating the policemen’s number, harbouring hostility towards policemen. In fact, the appellant was indeed like this. Even though counsel for the appellant repeatedly told him not to do so, the appellant continued to call the policemen by their numbers in court. As the person to make finding of fact, the Magistrate had the opportunity to observe the appellant’s demeanour when he gave evidence, and could attach to such demeanour whatever weight she considered appropriate, and finally to decide whether to believe the appellant’s evidence. The Magistrate noticed that the appellant was hostile to the policemen at the trial; this bears direct relevance to whether the appellant, time and again, deliberately drove through the roundabout, having regard to the social sentiment at the time. Further, this point appears to be at variance with what the appellant said, that he was not in any way angry at the policemen. In any event, the Magistrate did not reject his evidence solely because the appellant called the policemen by their numbers.

15. The Magistrate in fact listed 9 reasons for disbelieving the appellant’s evidence, which included: the appellant did not know about “the three suspensions”; on the day, the appellant was stopped because he was on the phone; the appellant was stopped by the policemen as soon as he entered the roundabout; the appellant was cooperative in complying with the sergeant’s request to search the car; several policemen attacked the appellant openly in the presence of other people; the appellant did not resist and inflict violence on the sergeant and the policemen; the appellant’s account of the extent and location of his injury; the appellant did not hate the police and the policemen stole the memory card of camera in the car.

16. … about the Magistrate’s reasons for refusing the appellant’s reasons, she had dealt with it at length and in detail in the Statement of Finding, from paragraphs 101 to 132, I do not intend to repeat them. Clearly, the Magistrate made her decision after careful consideration of the issues in dispute between the prosecution and the defence. After careful reading, I do not see any inherent improbabilities or illogicalities in the Magistrate’s finding of fact. …”

(Paragraphs 14 to 16 of the 10 September 2021 judgment)

17.   As the decision of the Court of First Instance shows, the Magistrate was not biased in her analysis of the witnesses’ evidence. The complaint concerning the Magistrate’s rejection of the defendant’s evidence is not substantiated.

Complaint (3)(a): The Magistrate “demanded” the defendant to remove his mask when giving evidence, “shouted” at the defendant to stop him supplementing his evidence

18.   This complaint stated that the Magistrate was rude when the defendant gave evidence, “demanded” him to remove his mask, and did not allow him to supplement his evidence.

19.   According to the audio-recording of the court hearing, it showed that when the defendant began his evidence-in-chief, his counsel asked him to raise his voice as he was wearing a mask, whereupon the Magistrate asked the defendant to remove his mask. The defendant and his counsel did not express disagreement to this. At the time, the Magistrate’s use of words was calm, and she did not “demand” the defendant.

20.   Further, in the re-examination of the defendant, his counsel had ample time to lead him to supplement and clarify the evidence. At no stage had the Magistrate “shouted” at the defendant to stop him from supplementing his evidence.

21.   The Panel of Judges also noted that the Court of First Instance, when dealing with the defendant’s appeal, did not pass any adverse comment on the trial process.

Complaint 3(b): The Magistrate remanded the defendant, obtained psychiatrist’s reports and her utterances at the time

22.   This complaint stated that the Magistrate targeted the defendant and was seriously prejudiced against him, which led her to call for psychiatrist’s reports and revoke his bail, and make utterances querying whether the defendant was insane and whether he was mentally and psychologically suited to teach.

23.   The utterances complained of took place during the plea of mitigation by the defence counsel and when the Magistrate gave explanation for calling reports for the defendant. From the transcript of the audio-recording of the 12 June 2020 hearing, the defence counsel in his plea of mitigation requested the Magistrate to consider passing a non-custodial sentence, submitting that this was an isolated incident committed out of character. At that point, the Magistrate indicated concern about the defendant's psychological and mental condition, and had the following conversation with the defence counsel:

“Defence counsel: Now for this offence under the Police Force Ordinance, a suspended sentence could be made. Your Worship, he very much hopes you could consider, [a sentence] that would allow him to continue to teach, to continue with the work that he is passionate about, if he were imprisoned in this case, there is a very, very high chance that he could no longer be a teacher. Your Worship …
Magistrate: I am also very concerned, you just mentioned about setting an example.
Magistrate: I am also very concerned whether, mentally and psychologically, he can continue to teach.
Defence counsel: … I hope Your Worship would consider this is an exceptional situation, and this was an isolated case which is out of character and incompatible with past record. I urge Your Worship to impose a non-custodial sentence on the defendant. …
Magistrate: Defence counsel, when he gave evidence, it revealed that just because he was stopped by the policeman, he became so emotional that he moved his hands and feet violently, and claimed he was afraid the police would throw him off the bridge. This kind of thinking is so ridiculous, does he not have any problem mentally and psychologically?
Defence counsel: None, Your Worship, [he] is normal.
Magistrate: I just want to know if he has no problem.”

(Transcript of audio-recording of 12 June 2020 hearing, p.10 R-T, and p.11 A-B and D-E)

24.   Later when the Magistrate decided to adjourn sentence and to call for several reports for the defendant, she gave the following explanation:

The defendant … when giving evidence, also disclosed he had this thought, [he] felt the police would throw him off the bridge, which is so ridiculous. I suspect that his thoughts, mind, or personality may have latent defects, or he has problem psychologically, something hidden, that caused him to behave like this, such insane behaviour. Two psychiatrist’s reports, a psychologist’s report, a background report to be called before deciding on how to sentence. Assaulting a police officer is a serious offence, and calls for a term of imprisonment. But I will call for reports before deciding whether [to order] treatment or other decision. Adjourned to 26 June 2020 11:00 am for two psychiatrist’s reports, a psychologist’s report, a background report. Defendant is remanded in custody.”
(Transcript of audio-recording of 12 June 2020 hearing, p.11 H-K)

25.   The Court of First Instance granted the defendant bail pending reports and sentence. The oral reasons of the Court of First Instance judge pointed out that, in general, the purpose of the Court calling for two psychiatrist’s reports is to find out whether the mental condition of a defendant requires psychiatric treatment such that the Court should impose a “hospital order”. However, the facts and evidence in the case (including the matters mentioned by the Magistrate), whether on the face of it or objectively, do not reveal the defendant to be suffering from delirium, mental disorder or even talking nonsensically. The Court of First Instance also said that whether the defendant was suited to do teaching in terms of psychological condition and personality was within the expertise of a psychologist, the Magistrate’s decision to call for two psychiatrist’s reports was thus questionable. (Transcript of the audio-recording of the 18 June 2020 hearing p.11 D-I)

26.   The Court of First Instance further pointed out, although the Magistrate stated immediate custodial sentence was unavoidable, and she had the power to remand the defendant pending the reports, in the absence of objective basis to show the defendant was mentally unstable or mentally incapacitated, remanding the defendant in Siu Lam Psychiatric Centre to obtain psychiatrist reports might give rise to the impression that the calling of reports was a pretext to deprive the defendant of his liberty. (Transcript of the audio-recording of the 18 June 2020 hearing p.11 K-N)

27.   At Annex 1 to the Statement of Findings, the Magistrate explained that the authorities showed that assaulting police officer normally called for custodial sentence, hence she refused to continue his bail. However, on reflection, she considered that the preferred course was to allow the defendant to remain on bail.

28.   The Panel of Judges first deals with the complaint that the Magistrate was prejudiced against the defendant. It is noted that the defendant actually relied on what the Magistrate said during mitigation as a ground of appeal contending that she was seriously prejudiced against him. The Court of First Instance, however, did not accept it. The judge pointed out that at the stage of sentence, the court would invariably speak of the facts of the case and the gravity of the offence. The fact that the Magistrate commented on and had regard to the defendant’s criminality, attitude and background did not mean that she must be biased and unfair in handling the case. (See paragraph 13 of the judgment dated 10 September 2021.) The Panel of Judges agrees with the judge’s observation.

29.   However, the Panel of Judges strongly disagrees with the Magistrate’s order of calling for two psychiatrist’s reports and revoking the defendant’s bail, which had led to his being remanded in Siu Lam Psychiatric Centre. First, it was never the defendant’s case or plea of mitigation that he suffered any mental problem when he committed the offence. Further, the Magistrate’s observation that the defendant’s thinking at the time was ridiculous did not objectively provide any factual basis for her to doubt his mental or psychological condition. Lastly, the Magistrate’s concern whether the defendant was fit to continue to teach could have been properly addressed by referring the case to the Education Bureau for any follow up action as appropriate. Even the Magistrate now admitted that on reflection, the preferred course was to allow the defendant to remain on bail. See paragraph 27 above.

30.   With the benefit of hindsight, the Panel of Judges considers that the Magistrate was led astray by her persistent but erroneous view that the defendant’s thought was so ridiculous that he must have some mental problem, which clouded her judgment when she made the order. It was plainly a wrongful exercise of her judicial power and must have caused considerable stress to the defendant. Although there is no sufficient basis to objectively support a conclusion that the Magistrate had deliberately abused her judicial power or acted maliciously, this decision fell short of the high standard expected of her for discharging the important function of sentencing in committing the serious error.

31.   Subject to the above, the Panel of Judges concludes that the complaint that the Magistrate was prejudiced against the defendant because of, among other things, her decision to call for two psychiatrist’s reports and to revoke the defendant’s bail, as well as what she said during mitigation, is not substantiated.

IV. Conclusion

32.   In conclusion, the Panel of Judges finds the complaints about the decisions and conduct of the Magistrate and the words said by her, as well as the claim that she was biased and had targeted the defendant, are unsubstantiated.

33.   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”.

34.   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, nor is it the sole consideration in, the determination of whether a complaint against judicial conduct is substantiated.

35.   The Panel of Judges further emphasizes that the verdict and 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.

36.   Although the complaints are not substantiated, the Panel of Judges repeats the observations at paragraph 30 above and for those reasons finds that the Magistrate had seriously erred. Although the Magistrate seemed to have realized that she had made a mistake (see paragraph 27 above), the Panel of Judges suggests that it is still necessary for the Magistrate to be strongly advised by the Chief Magistrate that:

  1. She had made a serious error in calling for two psychiatrist’s reports and revoking the defendant’s bail, which had led to his being remanded in Siu Lam Psychiatric Centre.
  2. She is expected to reflect on the handling of this case and not to commit errors of similar nature in future.

Views of the Advisory Committee on Complaints against Judicial Conduct

37.   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 are not substantiated. The Advisory Committee also supports the follow-up actions suggested by the Panel of Judges (see paragraph 36 above).

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

38.   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. The Chief Justice endorses the Panel of Judges’ conclusion that the Magistrate has committed a serious error and that she should be strongly advised by the Chief Magistrate to reflect on her handling of the case so as to avoid committing errors of similar nature in future.

26 July 2022