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Before Hon Ma CJ, Hon Ribeiro PJ, Hon Tang PJ, Hon Fok PJ, Hon. Lord Hoffman NPJ,

2 December 2016, 10.00 am

FACC 16/2016

MD Emran Hossain Appellant

v

HKSAR Respondent

Appellant's Printed Case

Definitions P. 2

Section A Introduction §§ 1 - 6

Section B Background §§ 7 - 11

Section C Comparable Practice in United

Kingdom

§§ 12 - 14

Section D Hong Kong Court of Appeal,

Criminal Jurisdiction

§§ 15 - 21

Section E Breach of s83Y CPO, s34 and

s34A HCO (analysis of statutory

provisions and constitutional

instruments)

§§ 22 - 55

Section F Pre-determination and Structural

Impartiality

§§ 56 - 64

Section G Appearance of Bias §§ 65 - 67

Section H Conclusion §§ 68 - 70

References in square brackets [A/#/#] refer to Record Part A/tab/page number. All emphases by underlining are added.

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Definitions

Art.11(4) Article 11(4) of the section 8 of Hong Kong Bill of Rights Ordinance (Cap.383): “Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law.”

BORO Hong Kong Bill of Rights Ordinance (Cap.383)

CACJ Court of Appeal, Criminal Jurisdiction

CPO Criminal Procedure Ordinance (Cap.221)

HCO High Court Ordinance (Cap.4)

ICCPR International Covenant on Civil and Political Rights

Order for Loss of Time

Pursuant to section 83W(1) CPO: “The time during which an appellant is in custody pending the determination of his appeal shall, subject to any direction which the Court of Appeal may give to the contrary, be reckoned as part of the term of any sentence to which he is for the time being subject.”

Renewed Application

Pursuant to section 83Y(3) CPO, an application for determination by the Court of Appeal following a refusal by the Single Judge – a determination by the Full Court.

Single Judge Pursuant to section 83Y(1) CPO, the exercise of specific powers of the Court of Appeal in the same manner by a Single Judge – the “Initial Application”.

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A. Introduction

1. The Appellant‟s case is a simple one, and is based on the importance of

maintaining public confidence1 in the administration of justice. A public

perception that the Judge may not be approaching the issues with an open

mind is as important as the actuality of bias. The need to uphold the public

interest in the appearance of impartiality was the very reason why the

common law swung away from the R v Gough 2 test, under which

allegations of bias were viewed subjectively through the eyes of the judge. It

was realised this set the bar far too high.

2. The eyes of the fully informed observer could not envisage a more obvious

case of apparent bias than this one. The Appellant's application for leave to

appeal against both conviction and sentence was refused by a Single Judge

of the Court of Appeal, who later presided in the Full Court and who

pronounced Orders refusing the Appellant's Renewed Application, and also

made an Order for Loss of Time against the Appellant, for having made

that same application as earlier on the same grounds. The Appellant would

not appear to have been given a genuine second chance and the court will

not appear to have acted fairly or impartially over a matter concerning

liberty.

3. There is no allegation that the Judge in this case had actual predisposition or

bias against the Appellant, nor that he did not genuinely consider the

1 See: Lawal v Northern Spirit Ltd. [2004] 1 All ER 187 (HL) at [14] per Lord Steyn that the modern Porter v Magill test has “at its core the need for „the confidence which must be inspired by the courts in a democratic society‟.”

2 [1993] AC 646 (HL).

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Renewed Application on the merits 3 . At issue is the appearance, and

whether the public confidence in the administration of justice is sullied if the

Renewed Application is to be determined by the same Single Judge who had

refused the Initial Application.

4. The certified question embraces both criminal and civil law. The answer for

criminal law is “No” – the single Judge cannot sit as part of the Court of

Appeal to determine the Renewed Application.

5. As anticipated in the Appellant‟s Application for Leave to this Court and the

Submissions filed in support dated 6 July 2016, the above conclusion can be

reached via a number of routes.

(a) That on a purposive and contextualised construction of s83Y(3)

CPO, the same Judge cannot sit to determine the renewed

application.

(b) That there is only a statutory right to appeal in civil cases; but by

A11(4) HKBORO there is by contrast, a constitutional right to

appeal in criminal cases. A10 must be read with A11(4) and with the

necessary intensity. That applying the fixed and unified standard of a

“fair…hearing before an independent and impartial tribunal” in A10

HKBOR, in view of the nature, circumstances and consequences of

the decision, at common law and by A10 read with A11(4) the

informed observer would conclude that there was a danger of bias.

The common law has always accepted that the nature, circumstances

and consequences of a particular decision are variables which the

3 In Livesey v New South Wales Bar Association (1983) 151 CLR 288, 294 (HCA): “Such a conclusion [of apparent bias] does not involve any personal criticism of the judge at first instance or any assessment of his qualities or of his ability to have dealt with the case before him fairly and without pre-judgment or bias” per Mason, Murphy, Brennan, Deane and Dawson JJ.

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informed observer may evaluate differently in different

circumstances. The impugned composition of the Court of Appeal

fails to meet the constitutional criterion of a “review” “according to

law”, as required by A11(4).

(c) That on a purposive and contextualised construction of s34(3) and

s34A(2) HCO the same Judge is disabled from hearing the renewed

application (legislation which specifically applies only to criminal

appeals in the CACJ)

5.1 Pursuant to Article 81 of the Basic Law and s82 CPO, the Hong

Kong CACJ is tasked with the enforcement of the Art.11(4) right of

review of a criminal conviction. In performing that task, the CACJ

must act consistently with principles of independence and structural

impartiality enshrined in Art.10 BORO. Where, by statute or by

practice the Art.11(4) right of review has been broken up into two

stages (the Initial Application and the Renewed Application), those

principles must follow and be adapted appropriately. In considering

leave to appeal, the CACJ is equally subject to the same

responsibilities as when considering substantively the appeal grounds,

for the consideration of such leave in itself fulfills Art.11(4).

5.2 A Judge who determines a case, but is then tasked with re-

determining the exact same case, on the exact same grounds, against

the exact same party, for the exact same purpose, will therefore

appear to have pre-determined the same issue. The re-determination

would not appear to be impartial at a structural or institutional level.

The reconsideration of leave would not appear to have been

conducted with an “open mind”.

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5.3 Furthermore, s34(3)HCO applies to leave applications which come

before a Full Court without the split Single Judge procedure, having

been invoked. The Full Court sits itself to determine leave

applications, where the sentence imposed was in excess of seven

years imprisonment (the sentencing maximum of the District Court).

That subsection must be read purposively to also apply when the

Single Judge procedure is used otherwise those who are listed first

before a Single Judge will have had their benefit diluted.

5.4 And in any event, the same circumstances would give rise to an

appearance of bias, or more appropriately, an appearance that the

judge did not keep an open mind.

6. This Appeal is fundamentally predicated on the fact that the general public

would perceive this manner of dismissing an application for leave to appeal

a conviction, an exercise of the Art.11(4) right, to be unfair and, that in any

event, that conclusion follows from constitutional and legislative provisions.

B. Background

7. The Appellant‟s conviction and sentence for burglary by HH Judge

Woodcock are not directly in issue. The sole issue is the composition of

Court of Appeal when reconsidering his application for leave to appeal and

ordering loss of time of 6 weeks.

8. Macrae JA dismissed the Initial Application on 2 June 2015. In a detailed

judgment, given on the same date, he concluded at the final paragraph:

“These applications are hereby refused and the applicant is duly advised of his right to renew either or both applications to the Court of Appeal, and the consequences of so doing, which may

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include a direction for the loss of any time spent in custody pending his appeal, if the Court comes to the conclusion that there was no justification for the renewal of the application.”

The judgment amounted to stating that the Appellant's contentions and

submissions were so utterly devoid of merit that it would be abusive for him

to be given further judicial time without him being plainly on notice that he

was at risk of further loss of liberty if he persisted.

9. The Renewed Application was heard by Macrae JA (presiding), McWalters

JA and Pang JA on 2 December 2015. The Orders of the Court including

the loss of time of six weeks imprisonment were pronounced by Macrae JA

on the same date, and judgment of Pang JA (for the Court) was handed

down on 10 December 2015. Of particular note, is the substantial

referencing in that judgment to the reasoning in the judgment of the Single

Judge.

10. At §2, Pang JA stated “we adopt and reproduce below the Single Judge‟s

summary of the prosecution and defence cases as it appeared in his

Judgment.” At §§14, 15, and 16, Pang JA set out extensive citations from

the Single Judge‟s analysis and reasoning to conclude that there was no merit

in the renewed applications. In particular, Pang JA at §19 noted “the

applicant‟s grounds of appeal concern nothing that the judge and/or Single

Judge had not covered” in determining that the application for leave against

conviction should be refused. Again at §21 Pang JA stated: “As pointed out

by the Single Judge there is nothing improper about the Applicant‟s

sentence.” At §22 Pang JA concluded:

“The evidence against the applicant was overwhelming. His renewed applications were, on the other hand, completely lacking in merit. That being the case, these applications must be refused with the order that there be a loss of time of 6 weeks pursuant to section 83W of the Criminal Procedure Ordinance, Cap 221.”

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11. The Appellant was unrepresented and the Respondent represented at all

times in his attempts to obtain leave to appeal.

C. Comparable Practice in United Kingdom

12. The Royal Commission on Criminal Justice (1993) commissioned empirical

studies as to the practice and procedure of the criminal appellate jurisdiction

of the Court of Appeal. In Criminal Appeals 4 note is made of an

observation from the submissions of Glidewell LJ to the Royal

Commission:

“The Court‟s crushing case-load means that its members are continually overworked. The three-week stint in the Court is an ordeal for the judges. Each judge is allowed one reading day per week but this is totally inadequate, even for those capable of putting in eight or nine hours of continuous reading; the members of the Court must devote much of their weekend to paperwork as well. Under these conditions it is inevitable that grounds of appeal which have not been mentioned in the application could be missed. Three-judge appeal courts and the opportunity to renew an application for leave to appeal are therefore essential safeguards. One judge admitted in his submission to the Royal Commission on Criminal Justice that the need to get through cases quickly at times gives the impression, false though this may be, that justice is not being done. An appellant may feel that his case does not get the attention which it deserves.”

Only a completely fresh review by a completely different panel will qualify

as the essential safeguard, as it means the elimination of any “O not this

hopeless case again!” judicial despair.

4 Rosemary Pattenden, English Criminal Appeals 1844-1994, Appeals against Conviction and Sentence in England and Wales, Clarendon Press, Oxford (1996) at p56

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13. In the Report of the Royal Commission on Criminal Justice (1993), it

was stated at p.163 (§6 of Chapter 10):

“If the single judge refuses the application, it may be renewed. If it is renewed, the application will usually be considered by the full court, consisting of three other judges, again generally on the papers, but this time their decision will be given in open court. If, however, the applicant is legally represented, the renewed application will be considered by the full court and there may be oral argument. If leave is then granted, the appeal itself is heard by the full court.”

In the United Kingdom the Single Judge who refused leave to appeal against

conviction or sentence does not sit to determine the Renewed Application.

14. A trial judge cannot sit on the appeal5. That is prohibited by s56(1) of the

Supreme Court Act 1981, replicated in s34(3) HCO enacted in 1987.

D. Hong Kong Court of Appeal, Criminal Jurisdiction

15. Section 13(3) HCO circumscribes the criminal jurisdiction of the Court.

The HCO is itself an Ordinance of constitutional importance. The limits of

the Court of Appeal‟s statutory functions were precisely and concisely

articulated in So Wing Keung v Sing Tao Ltd6.

16. However, the Court of Appeal is not wholly a creature of statute, akin to

mere statutory tribunals. Article 81 of the Basic Law (“BL 81”) states:

5 In R v Sharman (1913) 9 Cr App R 130 (CCA) the trial Judge, presided in the Court of Criminal Appeal in the appeal from the trial. An objection to this was refused by the Court, in dismissing the appeal.

6 [2005] 2 HKLRD 11 (CA) at §31 per Ma CJHC (as he then was).

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“The Court of Final Appeal, the High Court, district courts, magistrates‟ courts and other special courts shall be established in the Hong Kong Special Administrative Region. The High Court shall comprise the Court of Appeal and the Court of First Instance7. …”

17. By BL 80 and BL 81 the Court of Appeal is therefore a court of the

HKSAR “exercising the judicial power of the Region”. Pursuant to the

reasoning in HKSAR v Lam Kwong Wai8, per Sir Anthony Mason NPJ,

the Court of Appeal has implied powers conferred on it by the Basic Law.

It must also perform its duties consistently with the rights entrenched in the

Basic Law9, including the protection of Art.11(4), via BL 39.

18. Indeed, the consequence of the courts having both implied powers and

implied responsibilities conferred by the Basic Law was recently analysed in

Keen Lloyd Holdings v Commissioner of Customs and Excise 10 ,

holding that as a court of the HKSAR established by the Basic Law, a

Magistrate must, by implication also perform his or her duties consistently

with the Basic Law, notwithstanding the absence of any relevant specific

empowering legislative provision.

7 Also see the current s3 HCO as amended by s8 of the Hong Kong Reunification Ordinance (119 of 1997).

8 (2006) 9 HKCFAR 574 at §§69-70. 9 See also Leung v Secretary for Justice [2006] 4 HKLRD 211, 227 per Ma CJHC (as he then

was): “Here, the courts in Hong Kong are duty bound to enforce and interpret the Basic Law so that if any legislation infringes the Basic Law (or Bill of Rights), that law must be held invalid….This is all the more so where fundamental rights are involved and even more acute if a risk exists of a wrong prosecution.”

10 [2016] 2 HKLRD 1372 (CA) see §§38-40 (Lam VP, Kwan JA, and Harris J).

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19. Under the constitutional structure, the CACJ must therefore be tasked with

enforcing the relevant Art.11(4) right11.

20. It is therefore no answer to this challenge (as was implied at §§18-23 of the

Court of Appeal Judgment) that legislative provisions embodying the spirit

of structural impartiality „do not apply‟ to certain functions of the CACJ (ie.

when reconsidering the refusal of a Single Judge), especially when that

provision would have applied in a Full Court leave hearing, if there had been

no prior Single Judge hearing.

21. Simply dismissing the applicability of s34(3) HCO on the technical/literal

difference between an appeal and a renewed application is not in keeping

with the Court‟s duty to ensure that entrenched rights coalesce with the

relevant statutory regimes. It is naturally accepted that a Court of co-

ordinate jurisdiction cannot determine an “appeal” from itself. The Court

must jealously guard against any perception that the Court might be acting

without impartiality, and relevant statutes must be read consistently with

that imperative. It is plain and obvious that s34(3), which only applies in

criminal law, prohibits a Judge who has made an Order from having any

jurisdiction “to determine any application in proceedings incidental or

preliminary to” “an appeal” from that Order. The intention is manifest.

That Judge is denied any decision-making upon becoming functus officio, in

relation to an appeal from his Order (which purposively includes a renewed

application to the Full Court to obtain a different outcome from that

Order). The purpose is to debar the Judge from any further involvement

whatsoever in relation to the challenge or reconsideration of his Order. It is

11 Notably, the UK has not signed, ratified or put into effect Article 2 of Protocol No.7 of the European Convention providing for a similar right of review as Art.11(4).

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for the avoidance of doubt that the prohibition extends to and encompasses

any preliminary or incidental aspects.

E. Breach of s83Y(3) CPO and s34(3) and s34A(2) HCO (analysis of

statutory provisions and constitutional instruments)

22. A purposive construction, to avoid formalism and to be right-consistent

with A11(4) BOR, means that “appeal” in s34(3)(a) HCO includes a

renewed application for leave to appeal. Sections 34(3) read with 34A(2)

HCO and s83Y(3) CPO are consistent and imply by their language and the

intrinsic nature of the empowered role, that the Single Judge cannot be a

member of the “Court of Appeal” when the application is determined

afresh.

23. To give effect to A11(4) the “Court of Appeal” in s83Y(3) CPO cannot

include the Single Judge. This conclusion as a matter of construction is

required, in any event, in relation to s83Y(3) CPO, such that the “Court of

Appeal” (whether because of all of any of A11(4) or s34(3) HCO or the

principles of natural justice) should be construed to prohibit the same Judge

participating in any aspect of the renewed application for leave.

24. Section 34(3) HCO evidently embodies the principle of impartiality (Art.10

BORO) and only applies to the CACJ. When it considers leave to appeal, it

is performing its core function under s83Y(3), of giving effect to Art.11(4),

it must therefore apply s34(3) HCO.

25. It should be stressed that s34(3)(b) HCO does apply to those seeking leave

immediately from the Court of Appeal upon a conviction at the Court of

First Instance:

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“No judge shall sit as a member of the Court of Appeal on the hearing of, or shall determine any application in proceedings incidental or preliminary to- (a) an appeal from a judgment or order made by him; or (b) an appeal against a conviction before him or a sentence passed by him.”

26. As elaborated in in Chau Ching Kay v HKSAR12 per Chan PJ:

“Applications for leave to appeal against conviction or against sentence involving less than 5 years‟ imprisonment which are lodged by applicants who have been refused legal aid or are otherwise not legally represented are heard by a single judge.”

27. In other words, all applicants sentenced to less than 5 years (now 7 years

since 2015 by Practice Direction) who are deprived of the benefit of legal

aid and legal representation, would also be further deprived of the benefit of

s34(3)(a) HCO during the leave process. If s34(3)HCO is intended to

benefit an applicant during the leave hearing, it must also benefit an

applicant when the leave hearing is split into the Single Judge procedure.

28. Article 10 (Equality before courts and right to fair and public hearing):

“All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.”

29. Article 11 (Rights of persons charged with or convicted of criminal offence):

“(4) Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law.”13

12 (2002) 5 HKCFAR 540 at §57 13 Article 35(3)(o) of the Constitution of South Africa: “Every accused person has a right to a fair

trial, which includes the right of appeal to, or review by, a higher court”; Section 25(h) of the New Zealand Bill of Rights Act 1990: “Everyone who is charged with an offence has, in

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30. Article 10 and Article 11 of BORO are in fact the composite limbs of

Article 14 of the ICCPR. Art.11(4) more specifically corresponds with

Art.14(5) ICCPR. As stated in Attorney General of Hong Kong v Lee

Kwong-Kut14 per Lord Woolf:

“Part II of the Ordinance consists of s. 8 which contains the 23 Articles which constitute the Hong Kong Bill. Each of those Articles refers in terms to the equivalent Articles of the International Covenant. Article 11(1), the terms of which have been referred to earlier, is to be compared with Article 14 of the International Covenant and it should be considered together with that part of Article 10 of the Hong Kong Bill which provides that:..”

So too with A11(4) which requires that the reviewing Court act “according

to law” not only as being “established by law” as in A10.

31. Read together, the appellate tribunal required by Art.11(4) is therefore also a

tribunal which must be fair, independent, and impartial as required in Art.10

BORO but it must also meet the demands of being a tribunal “according to

law”. As was stated in the General Comment No.1315, §4:

“The provisions of article 14 apply to all courts and tribunals within the scope of that article whether ordinary or specialized.”16

32. The statutory right of appeal is provided in s82 CPO17 under the heading

“Right of Appeal” in Part IV:

relation to the determination of the charge, the following minimum rights: the right, if convicted of the offence, to appeal according to law to a higher court against the conviction or against the sentence or against both.”

14 [1993] AC 951, 965 (PC) 15 Adopted on 13 April 1984 16 See also Mennen v The Netherlands (Communication no. 1797/2008) adopted on 27 July

2010, §8.2 17 Materially the same as section 1 Criminal Appeal Act 1968 (Eng)

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“(1) A person convicted of an offence on indictment may appeal to the Court of Appeal against his conviction.

(2) The appeal may be- (a) on any ground which involves a question of law alone; and (b) with the leave of the Court of Appeal, on any ground which involves a question of fact alone, or a question of mixed law and fact, or on any other ground which appears to the Court of Appeal to be a sufficient ground of appeal; …”

33. The s82 CPO statutory right of appeal (subject to leave) is the Art.11(4)

right. Nonetheless, the validity of a leave procedure is not in doubt and

would be “according to law” (if it satisfies A10 in being institutionally and

structurally independent and impartial) and is lawfully empowered to

determine the matter has been held to be consistent with Art.11(4). The

leave procedures is the route by which the Art.11(4) right is exercised.

Indeed, this must be the case or else in cases where leave has been refused,

the applicant would not have been able to exercise his Art.11(4) right at all.

As stated by the Human Rights Committee in Lumley v Jamaica18:

“While on the basis of article 14, paragraph 5, every convicted person has the right to his conviction and sentence being reviewed by a higher tribunal according to law, a system not allowing for automatic right to appeal may still be in conformity with article 14, paragraph 5, as long as the examination of an application for leave to appeal entails a full review, that is, both on the basis of the evidence and of the law, of the conviction and sentence and as long as the procedure allows for due consideration of the nature of the case. Thus, in the circumstances, the Committee finds that no violation of article 14, paragraph 5 occurred in this respect.”

That full review is predicated on a completely fresh panel reviewing the

conviction, but that process well incorporates an examination of the Single

Judge's decision and as often occurs, the wholesale adoption of his

reasoning and findings (as here), in the Renewed Application judgment.

18 (Communication no. 662/1995) adopted on 31 March 1999 at §7.3

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34. Section 13(3) HCO, delineates the criminal jurisdiction of the Court of

Appeal.:

“(3) The criminal jurisdiction of the Court of Appeal shall consist of- (a) appeals from the Court of First Instance or District Court under Part IV of the Criminal Procedure Ordinance (Cap 221)… … (4) For the purposes of and incidental to- (a) the hearing and determination of any appeal to the Court of Appeal; and (b) the amendment, execution and enforcement of any judgment or order made on such an appeal, the Court of Appeal shall have all the authority and jurisdiction of the court or tribunal from which the appeal was brought. ”

Section 2 HCO only defines “appeal” in relation to civil appeals; there is

no definition for criminal appeals in the HCO or the CPO. But as the

CACJ is exercising the powers under the CPO, then the definition of

“appellant” therein is apt to be employed. Section 2 CPO defines

“appellant” as “includes a person who has given notice of application

for leave to appeal”.

35. The CACJ is under a statutory and constitutional mandate to consider

applications for criminal appeals and is therefore tasked with protecting the

Art.11(4) right, as implied by virtue of being a Court of the HKSAR defined

in the Basic Law. By definition, the Court of Appeal, Civil Jurisdiction, is

not required to perform this responsibility.

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36. Order 59, rule 2C(3) of the Rules of the High Court (made by the Rules

Committee) is therefore of no relevance or application 19 . That rule is

essentially aimed at interlocutory appeals in the Court of First Instance and

also at appeals from the District Court, where the Judge has refused leave to

appeal after trial. When the Civil Court considers an application for leave to

appeal, it is not in the process of determining the applicant‟s civil rights and

obligations20, and is most certainly not concerned with the rights of persons

charged with or convicted of criminal offence. As stated at §46 of General

Comment No.3221 of the Human Rights Committee:

“Article 14, paragraph 5 (ICCPR) does not apply to procedures determining rights and obligations in a suit at law or any other procedure not being part of a criminal appeal process, such as constitutional motions.”

Criminal law is inextricably linked to the issue of liberty and separate

constitutional provision recognises that by a specific additional right.

37. In other words, a Civil Court considering an application for leave to appeal,

is not simultaneously engaging Art.11(4). But when the CACJ is in the

process of considering an application for leave to appeal a criminal

conviction, Art.11(4) is directly engaged. It is performing the core function

for which it was created, ensuring that a criminal conviction is not flawed

and remedying any injustice, and not just assessing whether an interlocutory

or minor civil matter from an inferior court is deserving of an appeal.

38. As stated in Van Rooyen v The State22 per Chaskalson CJ:

“In dealing with these issues it must be kept in mind that judicial impartiality and the application without fear, favour or prejudice by

19 cf. §§24-25 of the Court of Appeal. 20 see the note at Hong Kong Civil Procedure (2016) Vol 2, p.183, E1/34B/2. 21 CCPR/C/Government Counsel/32 23 August 2007. 22 2002 (5) SA 246 at §35 (Sth Af: Const Ct).

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the courts of the Constitution and all law, as postulated by s165(2) of the Constitution, are inherent in an accused‟s right to a fair trial under s35(3) of the Constitution. One of the main goals of institutional judicial independence is to safeguard those rights.”

39. Therefore, once Art.10 and Art.11(4) rights are at issue, the highest

standards of impartiality are also required. The flexibility of the intensity

with which the A10 standard is applied varies, just as at common law23 with

the nature, circumstances and consequences of the decision. What may

suffice in the Small Claims Tribunal or Labour Tribunal (where, for example

counsel and solicitors have no right of audience) for the purposes of A10,

will not necessarily suffice for criminal law.

40. Pursuant to s83Y(2)(a) CPO, the exercise of the powers to give leave to

appeal under Part IV is expressly conferred on a Single Judge. Pursuant to

s83Y(3) CPO:

“If the single judge refuses an application on the part of an appellant or applicant to exercise in his favour any of the powers above specified, the appellant or applicant shall be entitled to have the application determined by the Court of Appeal.”

41. Section 34A HCO is in fact a more general reference to the exercise of

power by a Single Judge under s83Y, but nevertheless grants the same right

to have the refusal by a Single Judge re-determined by the Court of Appeal:

“(1) Subject to subsection (2), in pursuance of the criminal jurisdiction of the Court of Appeal, any power of the Court of Appeal not involving the determination of the appeal may be exercised by a single Justice of Appeal in the same manner as it may

23 Russell v Duke of Norfolk [1949] 1 All ER 109, 118E (CA) per Tucker LJ “The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter that is being dealt with, and so forth.”

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be exercised by the Court of Appeal and subject to the same provisions. (2) Where a single Justice of Appeal refuses an application to exercise any power of the Court of Appeal in pursuance of subsection (1), the applicant shall be entitled to have the application determined by the Court of Appeal.”

That right to a redetermination is, even on the ordinary language of the sub-

section, referenced to a different decision-maker.

42. The above statutory provisions, are therefore the modalities by which the

Art.11(4) right is incorporated domestically and the CACJ is the court

responsible for carrying out the obligation. As stated at §45 of the General

Comment No.3224:

“The expression „according to law‟ in this provision is not intended to leave the very existence of the right of review to the discretion of the States parties, since this right is recognised by the Covenant, and not merely by domestic law. The term according to law rather relates to the determination of the modalities by which the review by a higher tribunal is to be carried out, as well as which court is responsible for carrying out a review in accordance with the Covenant.”

The Art.11(4) refers to a review by “a” higher tribunal, and not tribunals.

By s82 CPO, that higher tribunal is the CACJ, not this Court. The purpose

of leave to appeal and an appeal to the Court of Final Appeal, is not to fulfill

the Applicant‟s right of review, since this second appeal is outside the

jurisdiction of the Court of Final Appeal (see So Yiu Fung v HKSAR25 per

Bokhary PJ).

24 CCPR/C/Government Counsel/32 23 August 2007. 25 (1999) 2 HKCFAR 539, 541I-543G.

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43. Section 34(3) HCO must be read purposively. The leave procedure, by

which a Single Judge‟s refusal is, by right, entitled to be reviewed by the Full

Court of Appeal, is the modality by which the Art.11(4) right is exercised.

By s34(3) HCO that principle of structural impartiality is intended to apply

when the CACJ is performing its Art.11(4) duties.

44. As opined in Oberschlick v Austria26:

“Article 489(3) of the Code of Criminal Procedure, which lays down that the Court of Appeal shall not comprise, in a case like this, any judge who has previously dealt with it in the first set of proceedings, manifests the national legislature‟s concern to remove all reasonable doubts as to the impartiality of that court. Accordingly the failure to abide by this rule means that the applicant‟s appeal was heard by a tribunal whose impartiality was recognised by national law to be open to doubt.”

45. Ultimately, the provisions of Art.14 ICCPR were always intended to be „in

dialogue‟ with the existing statutory provisions so that the domestic

jurisdiction is given sufficient margin to design its “modality” of giving

effect to those rights without diluting the qualitative nature of the right.

This was recognized in Koon Wing Yee v Insider Dealing Tribunal27:

“The General Comments are a valuable jurisprudential resource which is availed of by the Committee in its adjudicative role. While the General Comments are not binding on this Court, they provide influential guidance as to how the ICCPR is applied and will be applied by the Committee when sitting as a judicial body in making determinations. In A-G of Hong Kong v Lee Kwong Kut, the Privy Council regarded General Comment No 13 as indicating that the standard of proof beyond reasonable doubt was the general standard applicable for the purposes of art.14 of the ICCPR and art.11(1) of the BOR. The

26 (1991) 19 EHRR 389 at §50. 27 (2008) 11 HKCFAR 170 per Sir Anthony Mason NPJ at §§101-102.

21

judgment of the Privy Council delivered by Lord Woolf makes it plain that art.14 of the ICCPR and art.11(1) of the BOR permit a degree of flexibility which allows a balance to be drawn between the interest of the person charged and the state so that sensible and reasonable deviations in certain situations are not proscribed. Lord Woolf is not to be understood, however, as suggesting that the substitution of the civil standard of proof for the criminal standard of proof in a proceeding classified as criminal would be a sensible or reasonable deviation.”

46. The Hong Kong statutory mechanism to implement Art.11(4) has been

designed to include a leave mechanism rather than an automatic right of

appeal. But just because leave must be sought first does not mean that

associated rights (impartiality) must also be diluted. If the Court of Appeal

cannot be comprised of the trial judge in a system of automatic leave, then

in a system of required leave, the Court of Appeal reconsidering that

application cannot be comprised of the Single Judge who refused the Initial

Application.

47. A similar analysis, on the dialogue between the constitutional provision for a

right of review based on Art.14(5) ICCPR and the domestic statutes

providing for a right of appeal, was conducted in Petryszick v R28, at the

end of which Elias CJ emphasized that domestic statutory provision for the

right of appeal was “intended to be an effective right of appeal which so far

as is reasonably possible will ensure that justice is done in the appeal

process”.

48. The Court of Appeal failed to recognize that in considering leave to appeal a

criminal conviction, it was performing its Basic Law duty of protecting that

Art.11(4) right. Indeed, it opined that there was no difference between its

28 [2011] 1 NZLR 153 (NZSC) at §§1-2.

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function in the civil jurisdiction when considering leave to appeal (§25).

Once it is recognized that the CACJ, when considering leave to appeal, is in

fact putting into effect Art.11(4) as much as when it considers grounds of

appeal during a substantive appeal, then it must follow that s83Y must be

construed to make that right effective and not compromised by expediency

and that s34(3) HCO must also apply or at least reinforce the primary

argument.

49. The appearance of predetermination and lack of institutional impartiality is

ironically aggravated by the principles by which an Order for Loss of Time

is made. As stated in §11 of Practice Direction-SL4:

“Where an application has been refused by a single judge and the application is nonetheless renewed and the court before which the renewed application is made also takes the view that the application is wholly without merit, an order for loss of time will ordinarily be made.”

50. Reference to the use of the loss of time power is also made at §6A(7) of

Practice Direction 4.2, dated 30 October 2014:

“Where an application devoid of merit has been refused by the single judge he may indicate that the Full Court should consider making a direction for loss of time on renewal of the application. However the Full Court may make such directions whether or not such an indication has been given by the single judge.”

In practice the Single Judge in refusing leave always give the loss of time

warning.

51. An Order for Loss of Time by the Full Court after a refusal by the Single

Judge is therefore usually, if not invariably, made following institutional

dialogue between the Single Judge via his or her judgment and the Full

Bench, resulting in the same conclusion that the same meritless grounds

were raised on the renewal and therefore liable for an Order for Loss of

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Time. It is exactly because there is a repetition of hopeless grounds, and a

consensus of view between the Single Judge and the Full Court that an

Order for Loss of Time is made. Indeed at §19 of the Judgment of the Full

Court dated 10 December 2015, Pang JA made it clear that the Court

considered there to be no material difference in the grounds in the Renewed

Application.

52. In the context of this case, the Order for Loss of Time merely aggravates

the perception predetermination, for there would appear to be an air of

inevitability that the Single Judge now sitting in the Full Court will “also”

share the view that the initial leave application meritless, having followed the

earlier detailed reasons provided by himself.

53. The Privy Council judgment in the case of R v Taito 29 examined and

condemned a system adopted by the New Zealand Court of Appeal of

determining the grant of criminal legal aid for criminal appeals which had

become inextricably linked with the grant of leave to appeal itself. There the

Court of Appeal would by legislation (now repealed) determine whether to

grant or refuse legal aid to an applicant appealing against conviction or

sentence to the Court of Appeal (a merits determination). Upon refusing

legal aid it would then refuse leave to appeal (a merits determination). As per

Lord Steyn (giving the Judgment of their Lordships) at p.598(10-35):

“A delivery Judge was always in an impossible position: he either had no knowledge of the dossier of available information or he was parti pris because he had advised against the granting of legal aid. In Nicholls Tipping J, at p 443, with the agreement of Smellie J at p 461, expressed doubts about this last feature of the practice. In the circumstances the participation of a Judge who had concluded that legal aid should not be granted would have suggested to a fair-minded and informed observer that the Judge was not independent:

29 [2003] 3 NZLR 577 (PC)

24

Porter v Magill [2002] 2 WLR 37 at pp 83 – 84, per Lord Hope of Craighead. The requirement that a judgment of the Court of Appeal must be “in accordance with the opinion of the Judges present” was incapable of fulfilment: s 59 of the Judicature Act 1908. Relying on the fact that three Judges of the Court of Appeal had earlier concluded that legal aid should not be granted, the ex parte decisions were purely formalistic or mechanical acts involving no exercise of judicial judgment. It was the phenomenon of tabulated legalism against which Lord Wilberforce had warned in Fisher.”

The thrust of this reasoning is in point here. The Single Judge is not

independent when again sitting on the same matter.

54. By s34(2) HCO, the Court of Appeal must be comprised of not less than

three judges, in an odd number. This must necessarily require a bench who

are all independent and impartial (also of each other), who appear to be

impartial and would appear not to have a predetermined mindset and can

therefore act judicially.

55. Section 34(3) HCO must therefore also be read with s34(2) HCO and vice

versa. A Court of Appeal in which one appears to have predetermined the

issue would be inquorate under s34(2) HCO. A Court of Appeal in which

one of the judges had a prior role refusing the Initial Application must also

be prohibited pursuant to s34(3) HCO.

F. Pre-determination and Structural Impartiality

56. Whether a tribunal is in fact independent and impartial, depends on whether

it is perceived to be. As in Valente v The Queen30:

30 [1985] 2 SCR 673 per Le Dain J at p.689c-h; See also Porter v Magill [2002] 2 AC 357 (HL) at §88 per Lord Hope of Craighead.

25

“Although judicial independence is a status or relationship resting on objective conditions or guarantees, as well as a state of mind or attitude in the actual exercise of judicial functions, it is sound, I think, that the test for independence for purposes of s11(d) of the Charter should be, as for impartiality, whether the tribunal may be reasonably perceived as independent. Both independence and impartiality are fundamental not only to the capacity to do justice in a particular case but also to individual and public confidence in the administration of justice. Without that confidence the system cannot command the respect and acceptance that are essential to its effective operation. It is, therefore, important that a tribunal should be perceived as independent, as well as impartial, and that the test for independence should include that perception.”

57. Le Dain J also defined impartiality as:

“a state of mind or attitude of the tribunal in relation to the issues and the parties in a particular case.”31

58. It is therefore not essential (and is not the Appellant‟s case) that the same

judge had indeed predetermined the Renewed Application. It is sufficient

that the Court of Appeal is perceived to have already closed its mind.

59. By s83Y(3) CPO, the applicant is expressly given a right to have his

application reconsidered. That reconsideration of leave to appeal must not

be a mechanical exercise, and it must create an effective right of appeal.

The appearance of the same Single Judge on the Court of Appeal will

therefore give an appearance that the mind was “closed,” when it should in

fact have been “open” to a genuine reconsideration. As stated by Richards

LJ in R (on the application of Condron) v National Assembly for

Wales32 :

“We were referred to various cases in which the distinction has been drawn between a legitimate predisposition towards a particular

31 At p.685h. 32 [2007] 2 P & CR 4 (CA) at §43

26

outcome (for example, as a result of a manifesto commitment by the ruling party or some other policy statement) and an illegitimate predetermination of the outcome (for example, because of a decision already reached or a determination to reach a particular decision). The former is consistent with a preparedness to consider and weigh relevant factors in reaching the final decision; the latter involves a mind that is closed to the consideration and weighing of relevant factors.”

60. The fair-minded observer will perceive the mind to have been closed if it

appears that the determining judge had determined the same issue on a

previous occasion33.

61. For example, in Livesey v New South Wales Bar Association34, Mason,

Murphy, Brennan, Deane and Dawson JJ said:

“In the light of the foregoing, the situation which existed at the commencement of the hearing of the proceedings against the appellant can be shortly summarized. A central issue in the main charge against the appellant was whether the money which Ms. Bacon lodged as bail was her own money. Two of the three members of the Court of Appeal, which was hearing the proceedings as a court of first instance, had already held in a previous case that it plainly was not. Another central issue in the main charge was whether, if the money lodged were not Ms. Bacon‟s, the appellant knew that that was so. Again, two members of the Court had held in the previous case that he clearly did. Ms. Bacon was a possible and critical witness on the appellant‟s behalf and was in fact called to give evidence. Two members of the Court had, in the previous case, expressed the strong view that she was a witness without credit whose evidence on the matters relevant to the proceedings against the appellant should be rejected. The question which arises is whether, in these circumstances, either the appellant or a fair-minded observer might have entertained a reasonable apprehension that the views which the two members of the Court of Appeal had formed and expressed in the Bacon Case might result in the proceedings against the appellant being affected

33 Livesey (1983) 151 CLR 280, 299: “But the reasonable observer is not presumed to reject the possibility of pre-judgment or bias.”

34 (1983) 151 CLR 280, 300

27

by bias by reason of prejudgment. With due respect to the members of the Court of Appeal who saw the matter differently, it follows from what we have said that we consider that that question must be answered in the affirmative.”

62. The same type of analysis was conducted in Ferrantelli v Italy35, where a

presiding judge of an appellate court had made (and to which he referred

and readopted) a previous decision of his involving the same subjects and

regarding the same incidents, was held to have been a breach of Article 6(1)

of the European Convention.

“Like the Commission, the Court notes that in the instant case the fear of a lack of impartiality derived from a double circumstance. In the first place, the judgment of 2 June 1988 of the Caltanisetta Assize Court of Appeal presided over by Judge P contained numerous references to the applicants and their respective roles in the attack on the barracks. In particular, mention was made of the „co-perpetrators‟ of the double crime and of „the precise statement by V that G together with Santangelo had been responsible for physically carrying out the murders‟, and it was affirmed that F had helped to search the barracks and to transport material belonging to the carabinieri. Secondly, the judgment of the Juvenile Section of the Caltanisetta Court of Appeal of 6 April 1991 from the decision of the Assize Court of Appeal concerning G. In the Juvenile Section it was once again Judge P who presided, and indeed he was the reporting judge. These circumstances are sufficient to hold the applicants‟ fears as to the lack of impartiality of the Juvenile Section of the Caltanisetta Court of Appeal to be objectively justified. There has accordingly been a breach of Article 6(1) on this point.”

63. In a system where there is a judicial investigation before a prosecution, the

investigating judge is not be allowed to sit as the trial judge. As stated in

Pfeifer and Plankl v Austria36:

35 (1997) 23 EHRR 288 at §§59-60 36 (1992) 14 EHRR 692 at §36

28

“In the Court‟s opinion, the complaint of the lack of an „impartial‟ tribunal and that of the lack of a tribunal „established by law‟ coincide in substance in the present case. Article 68(2), under which a judge is disqualified from hearing a case if he has already had to deal with it as investigating judge, manifests the legislature‟s concern to remove all reasonable doubt as to the impartiality of trial courts. Its non-observance means that Mr. Pfeifer was tried by a court whose impartiality was recognised by national law itself to be open to doubt. In this respect, it is unnecessary to define the precise role played by the judges in question during the investigative stage.”

64. It is not a redeeming feature, as suggested by the Court of Appeal below37 in

its decision, that the Renewed Applications was a “re-hearing” and not an

appeal. Pursuant to s83Y CPO, the Single Judge is exercising exactly the

same powers and determining the exact same issue on the same material as

the Court of Appeal. The risk that the public might perceive that the Judge

already had a closed mind considering the Renewed Application is

insuperable.

G. Appearance of Bias

65. Natural justice is a single but flexible concept whose content may vary

according to the nature of the power in question and the circumstances of

its use and including the consequences of the decision. The test for bias has

been definitively stated in Deacons v White & Case38. Its requirements

though are adaptable and context -specific and cannot be neatly tabulated,

37 at §19 and §23 38 (2003) 6 HKCFAR 322 per Ribeiro PJ.

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being an area of broad principle rather than of precise rules. To prescribe

prescriptive rules of universal application would introduce, as was said of a

different context, “a new formalism” – a “recipe for judicialisation on an

unprecedented scale”.39

66. While A10 HKBOR prescribes for civil and criminal law a constitutional

standard “of a fair…hearing…independent and impartial tribunal” the

intensity with which the standard applies, depends on an evaluation of the

nature and consequences of the decision and of the impugned relevant

conduct as seen through the eyes of an informed observer. That does not

involve the introduction of a differential standard. See analogously, as to a

fixed standard requiring sufficiently cogent evidence proportionate to the

seriousness of the allegation40. A paramount objective must be to maintain

public confidence in the integrity of the judicial system, so that the threat is

directed at the perception, not actuality, of bias.

67. And it is exactly because the fair-minded observer is an inquisitive one, as

described in Helow v Secretary of State for the Home Department41

that having discovered the factors, that observer would conclude that there

existed an unacceptable risk that the Court of Appeal approached the

Renewed Application with an apparently closed mind. Apart from the

present appeal, only one other example is known of the impugned

composition issue. The practice of listing the Renewed Application to

include the Single Judge is a very recent one – which has now stopped.

Even if, contrary to the Appellant's submission, the Single Judge could sit;

39 R (SB) v Governors of Denbigh High School [2007] 1 AC 100 at [31] per Lord Bingham of Cornhill.

40 Re H & Others (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563, 586D-G (HL) adopted in Solicitor (24/07) v Law Society of Hong Kong (2008) 11 HKCFAR 117, 146 at [65], per Li CJ.

41 [2008] 1 WLR 2416 (HL(Sc)) per Lord Hope of Craighead at §§1-3

30

he should not have sat in the Renewed Application. The cumulative factors

are:

a) an oral hearing as Single Judge;

b) a detailed judgment delivered same day characterising the applications

as hopeless and devoid of any merit;

c) the Single Judge gave the loss of time warning;

d) the Appellant advanced the same grounds for the same reasons at the

Renewed Application;

e) the Single Judge presided in the Full Court;

f) the Single Judge now as President pronounced the Orders of the

Court including the loss of time;

g) the judgment of the Court of Appeal adopted by incorporation the

exact passages and reasoning of the Single Judge.

H. Conclusion

68. Notwithstanding whether this case can be rationalized as a breach of s34(3)

HCO, or as having breached principles of impartiality, or having given an

appearance of bias, the simple answer is that the arrangement of having the

same Single Judge who refused the application for leave to appeal a criminal

conviction sit (and preside) in the Court of Appeal to reconsider that

application gives the impression that a person is not given a genuine chance

of having his case reconsidered.

31

69. Whether the imperative for courts to be seen demonstrably as being fair,

independent, and impartial is inherited from the Basic Law, the BORO,

historical context, or inherent jurisdiction42, the failure to appear impartial

will always be fatal to that process.

70. All counsel and solicitors appear on a pro bono basis.

Disposition sought

1. Appeal allowed.

2. Judgment of Court of Appeal refusing Renewed Applications for leave to

appeal and Order for loss of time be set aside.

Dated this 27th day of September 2016.

Gerard McCoy SC

Albert N. B. Wong

Kim J. McCoy

42 See Van Rooyen & Others §35

32

Counsel for the Appellant

Ho Tse Wai & Partners Solicitors for the Appellant

To : Registrar, Court of Final Appeal : Respondent, by Counsel