http://legalref.judiciary.gov.hk/lrs/common/ju/ju_frame.jsp?DIS=56250
HKSAR v. LEUNG KWOK HUNG AND OTHERS; Reported in: [2007] 1 HKLRD 797; (2007) 10 HKCFAR 148
"Turning now to the magistrate’s conduct of the trial...
During Mr Leung’s final speech, the magistrate asked him – an unrepresented defendant who had given evidence and was then making his submissions – how many cars had been obstructed. That was a matter of evidence on which Mr Leung, when he was in the witness-box, could have been cross-examined by prosecuting counsel or even questioned in an impartial manner by the magistrate himself. But it was inappropriate for the magistrate to question him on it during his final speech. That involved extracting evidence from him, perhaps in the nature of an admission against his interests, at a stage of the trial not meant for receiving evidence. Mr Leung obviously appreciated as much, for he said to the magistrate that it was a matter of evidence for the prosecution to have adduced. Undaunted, the magistrate invited Mr Leung to give an estimate of how many vehicles had been obstructed...
That was followed by Mr Leung responding, accurately, to the effect that he was not obliged to supply evidence by making the estimate which he had been invited to make. Whereupon the magistrate pronounced that everyone had to assist the court on the extent of the inconvenience caused to the public. The obvious problem with that pronouncement is simply this. By that time the magistrate was hearing final speeches. And while he could seek assistance by way of submissions, he could not gather evidence : most especially and emphatically not by extracting anything in the nature of an admission from an unrepresented defendant whose evidence had concluded and who was then making his final speech...
After Mr Robert Lee had said what he wanted to say in his final speech, the magistrate asked him when the obstructing cars had been removed. This involved supplying evidence, and Mr Robert Lee no doubt wondered how a prosecuting counsel was expected to supply evidence in his closing speech. Pressing on, the magistrate invited both the prosecution and the defence to provide him with the information which he was seeking. Mr Kwok objected to that as unfair. For making that legitimate objection, he was rebuked by the magistrate. Raising his voice, the magistrate said that as a lawyer Mr Kwok had a duty, together with his clients, to tell the magistrate what he wanted to know.
Still in a raised voice, the magistrate proceeded to insist that both the prosecution and defence tell him when the obstructing cars had been removed. And if they could not tell him that, the magistrate said, then they were duty-bound to call witnesses who could. One can readily imagine how bewildering the defendants must have found this assertion of the magistrate’s to the effect that they were duty-bound to complete the case against themselves. Matters were made worse when the magistrate said that the case could not be considered as at an end until the matter was clarified. Did this mean, one is naturally left to wonder, that the defendants would remain on trial indefinitely until the magistrate got what he wanted?
Narrating such conduct on the part of the magistrate is a painful duty...
When quashing the convictions on the basis of the magistrate’s conduct of the trial, the judge said this :
“In my judgment, unfortunately, even if justice was done, it was not manifestly seen to be done. This would constitute a material irregularity, and on this ground alone, the appeals against conviction must be allowed”.
In our view, it is plain beyond reasonable argument to the contrary that the magistrate’s conduct of the trial had lost him the appearance of impartiality...
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