Hong Kong Judge hit for prejudice in retrial ruling, worth learning by the Mainland Chinese judges

(This article is extracted from the Hong Kong newspaper of The Standard on 22th January 2008, by Patsy Moy, with minor adjustments)

The Court of Appeal in Hong Kong yesterday ordered a retrial for three men who had been jailed for allegedly stealing Buddhist pines and accused the deputy district judge who found them guilty of prejudice, arrogance and using sarcastic and insulting remarks.

The three Chinese mainlanders – Chan Wah, Cheung Yanyau and Ko Kwan – had been sentenced to jail terms ranging from four years to 56 months after being convicted by Deputy District Judge Symon Wong Yu-wing on charges of illegal stay and conspiracy to remove and steal the Buddhist pines from a country park. They appealed to the High Court last month.

In allowing their appeal, Judge Peter Cheung Chak-yau said the conduct of the trial judge and his remarks may have given the public an impression he had not taken a neutral and unbiased stand.

“I have been reading numerous judgments during my 30 years in the legal sector. I have never come across any judgment by current judges that contained remarks as biased, sarcastic and insulting as this one,” Cheung said in his ruling, which was written in Chinese.

“Such words should not have appeared in an advanced and open legal system like Hong Kong.

“I believe the wording used by Mr. Wong failed to comply with the requirement for judges who need to analyze the facts of the case in a rational manner. So it (the judgment) is unacceptable,” Cheung said.

In the judgment, Wong was quoted as describing one of the defendants as “smart” after he chose not to testify.
Wong had also wished the defendants “good luck” after announcing their jail terms.

The other two judges on the panel, Maria Candace Yuen Ka-ning and Wally Yeung Chunkuen, shared Cheung's views. Yeung said the audio recording of the trial showed Wong to be arrogant when reading out the judgment, giving the impression he despised the defendants.

“Judges have a solemn and important duty to fulfill when they are in any trial because their rulings wold impact on the personal freedom (of defendants),” Yeung said.

“So judges should be cautious about their conduct and their remarks and any ambiguity or improper manner should not be allowed. Not only has justice to be done, it has to be seen to be done”.

The alleged offenses happened in November 2005. The defendants were arrested during an anti-illegal immigrant operation in Sai Kung during which police found 10 Buddhist pines, a saw, two blankets and some clothes.

The trio were unable to produce any travel documents when arrested.

Comments: the aforesaid Hong Kong judge report may never happen in Mainland China, for the Chinese court judgment will not be retried for such “improper attitude or stance of trial judges”, but simply by the rigid conditions as prescribed by the Chinese civil procedural law and relevant judiciary interpretations. In additions, credits or faiths of the plaintiff or defendant are also not taken into accounts while the Chinese judges try civil cases, but may widely be considered by common law Hong Kong court. That is why people sometimes say that it is easy to be a Chinese judge who just need to look at the filed evidences and written laws. Hopefully, the Chinese judges may still learn something from the Hong Kong judges via this particular case of how to maintain the fair judiciary system.