Justice must not only be done, but must also be seen to be done. The Court of First Instance reiterated the importance that all defendants should be given a fair trial.

The Appellant was charged with, inter alia, indecently assaulting his daughter X. He pleaded not guilty and stood trial before a Magistrate. He was subsequently convicted and sentenced to 12 months’ imprisonment. In January 2024, the Appellant was granted bail pending appeal by Hon Anna Lai J.

DHCJ E Lee allowed the Appellant’s appeal against conviction on the ground that the trial magistrate had entered into the arena. On appeal, the Appellant made three complaints: (1) the Magistrate asked almost 60 questions after the prosecution indicated that they had no re-examination. Subsequently, the trial magistrate used X’s answers to these questions as “ammunition” for him to eventually dispel the Appellant’s defence and convict the Appellant (following 𝑯𝒐 𝑾𝒂𝒊 𝑳𝒂𝒎 (何煒林) [2022] HKCFI 1736 𝑾𝒐𝒏𝒈 𝑯𝒊𝒏 𝑾𝒂𝒊 (黃騫緯) [2022] HKCFI 2935); (2) the Magistrate substantially interjected/interrupted when the Appellant gave evidence. Arithmetically, the Magistrate intervened 41.94%, 35.03%, and 37.6% during the Appellant’s Examination-in-Chief, Cross-examination, and Re-examination. On the other hand, the Magistrate did not interrupt at all during X’s evidence; (3) the Magistrate’s judicial temperament leads to a reasonable bystander to doubt whether he was afforded a fair trial. Amongst other things, the Magistrate said (in the course of the Appellant’s evidence) “Can you not use the phrase “normally” when giving evidence? I am not sure whether you are normal or not” (可唔可以唔好講『正常』呢兩個字!我唔知你正常定唔正常!); “Even your counsel cannot understand your answers. You are probably the only person in this world will understand what you say…I won’t need you to clarify if I understand. We know how to read! Don’t we?” (你律師都唔明嘅，係全世界得你一個明㗎啫!明就唔洗你澄清啦! 唔識字咩我哋!係咪?!). The Court agreed that the cumulative effect of the three complaints is that the Appellant had been deprived of a fair trial (applying 𝑳𝒂𝒎 𝑻𝒊𝒏𝒈 𝑾𝒊𝒏𝒈 (林天詠) [2022] HKCA 240).

Having allowed the appeal, the Court also ordered the Respondent to pay costs of the appeal to the Appellant.

Simon So (with Herman Ho) representend the Appellant in obtaining bail pending appeal before Hon Anna Lai J. Simon So (with Herman Ho and Jack Hui) representend the Appellant in the appeal against conviction. The Full Judgement was published on https://legalref.judiciary.hk/lrs/common/search/search_result_detail_frame.jsp?DIS=162331&QS=%2B%7C%28%282024%29%2CHKCFI%2C2113%29&TP=JU&currpage=T