Barrister Daniel Fung SC (馮華健資深大律師), a Senior Counsel, was found guilty of professional misconduct on February 1 by the tribunal, chaired by Peter Ng Kar-fai SC. On June 2, he was censured and ordered to pay a penalty of HK$300,000.
He was found guilty of failing to inform the Court of Appeal in 2005 about clauses of a legislative provision that were unfavourable to his client, Hong Kong Island Development, in a tenancy lawsuit. The firm is a unit of New World Development Group. According to a note on the tribunal's judgment, Fung's failure to draw the court's attention to the point was contrary to the Bar's Code of Conduct. The full judgment has not been made public and the Bar Association says it is not its practice to do so.
(Source: http://www.scmp.com/article/719003/daniel-fung-panel-took-three-years-form)
We wish to clarify the timing with the following chronology.
The report concerned disciplinary proceedings against Barrister Daniel Fung Wah Kin (馮華健資深大律師), a Senior Counsel, which arose from a Court of Appeal hearing in 2005.
Fung received a letter from the Bar Association dated October 27, 2006, informing him the Bar Council had decided the matter be inquired into by a Barristers Disciplinary Tribunal, and that it would be submitted to the tribunal convenor.
On May 2, 2007, Tong was requested by the Bar Association to set up the tribunal. He sent Fung a notice dated June 5, 2007, informing him that a tribunal had been constituted, providing names of panel members including Peter Ng Kar-fai SC, who sat as its chairman.
On September 12, 2007, a directions hearing was held before the tribunal and the substantive hearing began on April 24, 2008.
Fung was found guilty of professional misconduct by the tribunal on February 1, this year. He was censured and ordered to pay a penalty of HK$300,000 on June 2.
(Source: http://www.scmp.com/article/719306/corrections-clarifications)
2013年9月16日 星期一
Barrister Stanley Ma (馬浩輝大律師) Suspended For 30 Months For Having Stolen a Woman's Bra
Counsel Stanley Ma also known as Barrister
Stanley H F Ma or Barrister Ma Ho Fai (馬浩輝大律師) Suspended For 30 Months For Having Stolen a Woman's Bra (因為偷女人胸圍停牌30個月).
(Source: http://www.uwants.com/viewthread.php?tid=16084089&extra=page%3D9)
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(Source: http://www.uwants.com/viewthread.php?tid=16084089&extra=page%3D9)
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2013年9月14日 星期六
Barrister Russell Coleman Guilty of Professional Misconduct (高浩文大律師專業失當罪成)
South China Morning Post, 1999
Barrister Russell Coleman (高浩文大律師) has been fined $150,000 by a disciplinary tribunal for conduct which may bring the profession of barrister into disrepute.
Russell Coleman, 37, a former member of the Bar Council, was also censured by the barristers' disciplinary tribunal and ordered to pay costs.
The fine, believed to be the highest ordered by the tribunal, was imposed after the barrister admitted breaching the barristers' code of conduct by committing a criminal offence.
He pleaded guilty at Western Court last June to helping his domestic helper breach employment conditions and was fined $4,000 by a magistrate.
The tribunal, imposing the disciplinary penalties, said: 'We have come to the conclusion that Mr Coleman's behaviour at the very least showed a reckless indifference to the relevant provision of the Immigration Ordinance and to the possible consequences of such a breach.' But it decided not to suspend him because although it was a serious breach, the circumstances were exceptional.
The tribunal ordered that its findings be circulated to the Secretary for Justice, the Director of Legal Aid and the Law Society.
For the first time, it also said copies should be made available to the media on request.
Counsel Russell Coleman, a barrister since 1986, breached immigration laws by allowing his male domestic helper to work as a caretaker at the building where he lived in Bisney Road, Pok Fu Lam.
The tribunal accepted the barrister had originally only allowed the helper to take the job so he could use the guardhouse accommodation of the building.
But the job evolved into a caretaker role and he was paid $10,500 a month, with the cost shared between tenants of the building.
Gerard McCoy SC, for the Bar Council, said it had agreed to withdraw any allegations of dishonesty against Mr Coleman.
The tribunal was told by Graham Harris, for Mr Coleman, that the 'unfortunate events' had led to the barrister withdrawing his application to become a Senior Counsel last year. He had also stood down as a member of the Bar Council.
Mr Coleman had suffered adverse publicity, humiliation and 'become a victim of gossip and an object of ridicule', Mr Harris said.
Character references were provided by a High Court judge, a former chairman of the Bar Association, a former attorney-general and a former chairman of the Bar Disciplinary Committee.
The tribunal - Cheung Huan SC, Peter Callaghan and Professor Kenneth Young - accepted that the criminal conviction, by itself, would be 'a very severe punishment'.
(Source: http://www.scmp.com/article/311905/record-fine-barristers-code-breach)
Barrister Russell Coleman (高浩文大律師) has been fined $150,000 by a disciplinary tribunal for conduct which may bring the profession of barrister into disrepute.
Russell Coleman, 37, a former member of the Bar Council, was also censured by the barristers' disciplinary tribunal and ordered to pay costs.
The fine, believed to be the highest ordered by the tribunal, was imposed after the barrister admitted breaching the barristers' code of conduct by committing a criminal offence.
He pleaded guilty at Western Court last June to helping his domestic helper breach employment conditions and was fined $4,000 by a magistrate.
The tribunal, imposing the disciplinary penalties, said: 'We have come to the conclusion that Mr Coleman's behaviour at the very least showed a reckless indifference to the relevant provision of the Immigration Ordinance and to the possible consequences of such a breach.' But it decided not to suspend him because although it was a serious breach, the circumstances were exceptional.
The tribunal ordered that its findings be circulated to the Secretary for Justice, the Director of Legal Aid and the Law Society.
For the first time, it also said copies should be made available to the media on request.
Counsel Russell Coleman, a barrister since 1986, breached immigration laws by allowing his male domestic helper to work as a caretaker at the building where he lived in Bisney Road, Pok Fu Lam.
The tribunal accepted the barrister had originally only allowed the helper to take the job so he could use the guardhouse accommodation of the building.
But the job evolved into a caretaker role and he was paid $10,500 a month, with the cost shared between tenants of the building.
Gerard McCoy SC, for the Bar Council, said it had agreed to withdraw any allegations of dishonesty against Mr Coleman.
The tribunal was told by Graham Harris, for Mr Coleman, that the 'unfortunate events' had led to the barrister withdrawing his application to become a Senior Counsel last year. He had also stood down as a member of the Bar Council.
Mr Coleman had suffered adverse publicity, humiliation and 'become a victim of gossip and an object of ridicule', Mr Harris said.
Character references were provided by a High Court judge, a former chairman of the Bar Association, a former attorney-general and a former chairman of the Bar Disciplinary Committee.
The tribunal - Cheung Huan SC, Peter Callaghan and Professor Kenneth Young - accepted that the criminal conviction, by itself, would be 'a very severe punishment'.
(Source: http://www.scmp.com/article/311905/record-fine-barristers-code-breach)
2013年9月12日 星期四
Judge Doreen Le Pichon “Plainly Wrong” (郭美超法官明顯地是錯的)
Judge Doreen Le Pichon “Plainly Wrong” (郭美超法官明顯地是錯的)
Source: http://joycekwan20130602.blogspot.hk/2013/08/judge-doreen-le-pichon-plainly-wrong.html
http://jointarmy20130201.wordpress.com/2013/07/22/le-pichon-plainly-wrong/
Judge Doreen Le Pichon said to be “plainly wrong” in BORN CHIEF CO t/a BEIJING RESTAURANT v. TSAI, GEORGE AND ANOTHER; Reported in: [1996] 2 HKLRD 188
http://legalref.judiciary.gov.hk/lrs/common/search/search_result_detail_frame.jsp?DIS=10792&QS=%28born%2Bchief%29&TP=JU
Coram: Nazareth, V.-P., Liu and Ching, JJ.A. in Court
Date of Hearing: 12 March 1996
Date of Judgment: 10 April 1996
Nazareth VP: -
The judge (Doreen Le Pichon) was plainly wrong in directing an inquiry to be made by a Master as to damages, and that order cannot be permitted to stand.
(G P Nazareth) (B Liu) (Charles Ching)
Vice President Justice of Appeal Justice of Appeal
Source: http://joycekwan20130602.blogspot.hk/2013/08/judge-doreen-le-pichon-plainly-wrong.html
http://jointarmy20130201.wordpress.com/2013/07/22/le-pichon-plainly-wrong/
Judge Doreen Le Pichon said to be “plainly wrong” in BORN CHIEF CO t/a BEIJING RESTAURANT v. TSAI, GEORGE AND ANOTHER; Reported in: [1996] 2 HKLRD 188
http://legalref.judiciary.gov.hk/lrs/common/search/search_result_detail_frame.jsp?DIS=10792&QS=%28born%2Bchief%29&TP=JU
Coram: Nazareth, V.-P., Liu and Ching, JJ.A. in Court
Date of Hearing: 12 March 1996
Date of Judgment: 10 April 1996
———————-
J U D G M E N T
———————–
Nazareth VP: -
The judge (Doreen Le Pichon) was plainly wrong in directing an inquiry to be made by a Master as to damages, and that order cannot be permitted to stand.
(G P Nazareth) (B Liu) (Charles Ching)
Vice President Justice of Appeal Justice of Appeal
裁判官黃汝榮遭上訴庭狠批 - Magistrate Symon Wong Criticized Heavily by the Court of Appeal
上訴庭狠批黃官的措詞偏頗，以致作出不公正的裁決，下令撤銷涉案3 名上訴人的控罪。
http://leehangkei.mysinablog.com/index.php?op=ViewArticle&articleId=974735
裁判官言詞偏激再被轟
嘲被告棄自辯做法「聰明」 上訴庭狠批未審先判 2008年1月22日
【明報專訊】曾多次在法庭上「語出驚人」的裁判官黃汝榮，繼早前被上訴庭批評在判決時用詞不當後「重蹈覆轍」，在審理一宗偷竊羅漢松案時，直指被告選擇不自辯是「聰明」的做法，黃官又在審訊期間多次使用偏激的言詞，甚至有嘲諷和侮辱被告的成分。上訴庭狠批黃官的措詞偏頗，以致作出不公正的裁決，下令撤銷涉案3 名上訴人的控罪。
一被告撤罪 兩人須重審
上訴庭法官張澤祐直言，在近代判決書中從未見過如此偏激的用詞，其餘兩名上訴庭法官楊振權及袁家寧，亦花了不少篇幅批評當時為暫委區院法官黃汝榮的做法。3名上訴人陳華、張仁有和高軍，陳及張雖獲撤罪，但案件須發還重審；至於高則由於已完成大部分刑期，毋須重審。
「剝削被告享公平審訊權」
張澤祐昨在判辭中，振領提綱直斥黃汝榮早前審理串謀偷竊羅漢松串謀的案件時，在庭上的言詞和態度及予人不持平、不中立的印象，甚至剝奪了眾被告享有公平審訊的權利。
張官引述當日審訊期間，案中被告合法地選擇不自辯，黃官以「聰明」作諷刺回應，使人覺得被告若選擇作供即屬不智，不但自討沒趣甚至多言多敗，整體予人未審先判的不良印象。
上訴庭又指出，黃汝榮的判辭偏頗激進 (見圖) ，他在庭上指被告作供把自己塑造成行屍走肉，是「字字虛言，句句妄語」，又形容被告的證供言之無物，任君隨意演繹、不值一信。黃官又斬釘截鐵地描述多名被告的辯護理據「數位一體，目的一致，全是一丘之貉」。
張官昨指出，若法官作出偏激、嘲諷和侮辱味濃的判辭，顯示他對被告存有偏見，這已構成上訴的理由。
上訴庭法官楊振權和袁家寧亦認同張官的批評，重申法官在審訊及判決程固然要履行公義，但執行公義的過程必須彰顯於人前，否則不能服眾。楊官更引用另一宗同由黃汝榮當「主角」的案件作案例，指黃官當時以「非人非鬼」形容被告，說明黃官未能以專業態度審案。
以被告為笑柄 官失尊嚴
袁官認為，在嚴肅的法庭程序中，偶爾插入富幽默感的語句「未嘗不可」，然而黃官卻以被告為笑柄，既失去法官應有的尊嚴，又令人覺得他沒有鎮靜持平的心態。
上訴庭又援引由司法機構編製的《司法文書製作淺談》，指文學性言語與司法文書大異其趣，前者務求引起讀者無限想像，後者則旨在教育大眾，使人理解明瞭，以說明司法文書因寫作目的不同，其措詞、風格亦應跟其他文書有分別。
本案上訴人陳華、張仁有和高軍，去年在裁判法院被黃汝榮裁定非法留港罪成、串謀盜竊及無許可證在郊野公園內切割植物罪成。
【案件編號：CACC344/06】
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語出驚人欠莊重 黃汝榮屢遭狠批
2008年1月22日
【明報專訊】裁判官黃汝榮經常「語出驚人」，時有出位語句，其撰寫的判辭不時夾用四字成語，或把案情描繪得如小說一樣。他曾把摸胸說成「撫弄其嶺上雙梅」，又形容搶劫案的被告「非人非鬼」，又曾揚言「大炮」(有資歷的大律師)遇覑他便要「倒楣」。去年黃官曾先後遭高院及上訴庭狠批，指他在判辭中用字欠缺莊重。
描繪案情如小說
黃官於06年裁定一名被告非禮罪成，他在判決書中羅列接納受害女童證供的理由，指其「縱有仙人點路，指點迷津，還得配合自然演繹，及經得起盤問，才可瞞天過海」，故不可能說謊。黃又指被告「敲鑼擊鼓，高調地反覆強調」其清白，但被盤問後，「整條狐狸尾巴，已展露無遺」。
案中被告去年9月向高院提出上訴，法官湯寶臣指黃官「這種誇張的形容，在一份嚴肅的法律文章裏出現，難免會令人覺得有欠莊重」。
曾指被告「非人非鬼」
此外，黃於06年出任區院暫委法官其間，審理一宗搶劫案時以「非人非鬼」來描述被告，及後上訴庭直指出，黃在判辭採用感性措詞，難免令閱讀判辭的人覺得黃已失去應有的專業態度。
黃官曾於02年與資深大律師清洪於庭上「針鋒相對」，清洪指黃汝榮曾說過身為裁判官，時時要面對很多「大炮」(有資歷的大律師)，又指這些「大炮」遇覑他便要「倒楣」，當時黃官不排除自己曾說過這番話。
~~~~~~~~~~~~~~~~~~~~~~~~
終身委任法官 犯錯仍保飯碗
2008年1月22日
【明報專訊】案件的主角——區域法院暫委法官黃汝榮，原為裁判官，處理本案期間於區域法院當暫委法官 (Deputy Judge)。雖然黃汝榮已非首次被上級法院批評，但對其仕途未必會造成影響，最低限度，其法官「飯碗」就未必會因而失掉。
行為不檢可被免職
據了解，目前的裁判官 (Permanent Magistrate) 分為終身委任或者合約制，終身委任的裁判官只有在極罕有的情下才會被解除法官身分，否則就可以一直留任至60歲退休。
根據《基本法》，法官只有在無力履行職責或行為不檢的情下，行政長官才可以根據由終院首席法官任命的獨立審議庭的建議將其免職，至於合約制的裁判官，其任命年期則按合約而定。
司法機構昨日沒有回應黃汝榮屬終身委任還是按合約聘任，但有法律界人士表示，黃獲委任為裁判官的年代，絕大部分裁判官均屬終身委任制。
~~~~~~~~~~~~~~~~~~~~~~~
判辭天書：忌文學修辭
2008年1月22日
【明報專訊】司法機構發言人表示，判辭中提及的《司法文書製作淺談》(下稱《淺談》) 乃供司法人員內部使用，不會公開給公眾參閱。資料顯示，本案主審的上訴庭法官之一楊振權，亦曾向本港執業律師講授上述《淺談》。楊官亦對推動香港司法界使用中文不遺餘力。
根據司法機構年報，司法機構會不定期舉行由本地及內地大學主辦的判辭寫作課程及講座，供司法人員參加。
判辭引述了《淺談》部分內容，指司法文書應以事實及法律解決問題，教育大眾，司法文書不應選用文學言語，或藝術修辭手法，例如以誇張、諷刺、比喻或影射方法描述，因這與司法文書莊嚴的風格不配合。
裁判官言詞偏激再被轟
嘲被告棄自辯做法「聰明」 上訴庭狠批未審先判 2008年1月22日
【明報專訊】曾多次在法庭上「語出驚人」的裁判官黃汝榮，繼早前被上訴庭批評在判決時用詞不當後「重蹈覆轍」，在審理一宗偷竊羅漢松案時，直指被告選擇不自辯是「聰明」的做法，黃官又在審訊期間多次使用偏激的言詞，甚至有嘲諷和侮辱被告的成分。上訴庭狠批黃官的措詞偏頗，以致作出不公正的裁決，下令撤銷涉案3 名上訴人的控罪。
一被告撤罪 兩人須重審
上訴庭法官張澤祐直言，在近代判決書中從未見過如此偏激的用詞，其餘兩名上訴庭法官楊振權及袁家寧，亦花了不少篇幅批評當時為暫委區院法官黃汝榮的做法。3名上訴人陳華、張仁有和高軍，陳及張雖獲撤罪，但案件須發還重審；至於高則由於已完成大部分刑期，毋須重審。
「剝削被告享公平審訊權」
張澤祐昨在判辭中，振領提綱直斥黃汝榮早前審理串謀偷竊羅漢松串謀的案件時，在庭上的言詞和態度及予人不持平、不中立的印象，甚至剝奪了眾被告享有公平審訊的權利。
張官引述當日審訊期間，案中被告合法地選擇不自辯，黃官以「聰明」作諷刺回應，使人覺得被告若選擇作供即屬不智，不但自討沒趣甚至多言多敗，整體予人未審先判的不良印象。
上訴庭又指出，黃汝榮的判辭偏頗激進 (見圖) ，他在庭上指被告作供把自己塑造成行屍走肉，是「字字虛言，句句妄語」，又形容被告的證供言之無物，任君隨意演繹、不值一信。黃官又斬釘截鐵地描述多名被告的辯護理據「數位一體，目的一致，全是一丘之貉」。
張官昨指出，若法官作出偏激、嘲諷和侮辱味濃的判辭，顯示他對被告存有偏見，這已構成上訴的理由。
上訴庭法官楊振權和袁家寧亦認同張官的批評，重申法官在審訊及判決程固然要履行公義，但執行公義的過程必須彰顯於人前，否則不能服眾。楊官更引用另一宗同由黃汝榮當「主角」的案件作案例，指黃官當時以「非人非鬼」形容被告，說明黃官未能以專業態度審案。
以被告為笑柄 官失尊嚴
袁官認為，在嚴肅的法庭程序中，偶爾插入富幽默感的語句「未嘗不可」，然而黃官卻以被告為笑柄，既失去法官應有的尊嚴，又令人覺得他沒有鎮靜持平的心態。
上訴庭又援引由司法機構編製的《司法文書製作淺談》，指文學性言語與司法文書大異其趣，前者務求引起讀者無限想像，後者則旨在教育大眾，使人理解明瞭，以說明司法文書因寫作目的不同，其措詞、風格亦應跟其他文書有分別。
本案上訴人陳華、張仁有和高軍，去年在裁判法院被黃汝榮裁定非法留港罪成、串謀盜竊及無許可證在郊野公園內切割植物罪成。
【案件編號：CACC344/06】
~~~~~~~~~~~~~~~~~~~~~~~~
語出驚人欠莊重 黃汝榮屢遭狠批
2008年1月22日
【明報專訊】裁判官黃汝榮經常「語出驚人」，時有出位語句，其撰寫的判辭不時夾用四字成語，或把案情描繪得如小說一樣。他曾把摸胸說成「撫弄其嶺上雙梅」，又形容搶劫案的被告「非人非鬼」，又曾揚言「大炮」(有資歷的大律師)遇覑他便要「倒楣」。去年黃官曾先後遭高院及上訴庭狠批，指他在判辭中用字欠缺莊重。
描繪案情如小說
黃官於06年裁定一名被告非禮罪成，他在判決書中羅列接納受害女童證供的理由，指其「縱有仙人點路，指點迷津，還得配合自然演繹，及經得起盤問，才可瞞天過海」，故不可能說謊。黃又指被告「敲鑼擊鼓，高調地反覆強調」其清白，但被盤問後，「整條狐狸尾巴，已展露無遺」。
案中被告去年9月向高院提出上訴，法官湯寶臣指黃官「這種誇張的形容，在一份嚴肅的法律文章裏出現，難免會令人覺得有欠莊重」。
曾指被告「非人非鬼」
此外，黃於06年出任區院暫委法官其間，審理一宗搶劫案時以「非人非鬼」來描述被告，及後上訴庭直指出，黃在判辭採用感性措詞，難免令閱讀判辭的人覺得黃已失去應有的專業態度。
黃官曾於02年與資深大律師清洪於庭上「針鋒相對」，清洪指黃汝榮曾說過身為裁判官，時時要面對很多「大炮」(有資歷的大律師)，又指這些「大炮」遇覑他便要「倒楣」，當時黃官不排除自己曾說過這番話。
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終身委任法官 犯錯仍保飯碗
2008年1月22日
【明報專訊】案件的主角——區域法院暫委法官黃汝榮，原為裁判官，處理本案期間於區域法院當暫委法官 (Deputy Judge)。雖然黃汝榮已非首次被上級法院批評，但對其仕途未必會造成影響，最低限度，其法官「飯碗」就未必會因而失掉。
行為不檢可被免職
據了解，目前的裁判官 (Permanent Magistrate) 分為終身委任或者合約制，終身委任的裁判官只有在極罕有的情下才會被解除法官身分，否則就可以一直留任至60歲退休。
根據《基本法》，法官只有在無力履行職責或行為不檢的情下，行政長官才可以根據由終院首席法官任命的獨立審議庭的建議將其免職，至於合約制的裁判官，其任命年期則按合約而定。
司法機構昨日沒有回應黃汝榮屬終身委任還是按合約聘任，但有法律界人士表示，黃獲委任為裁判官的年代，絕大部分裁判官均屬終身委任制。
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判辭天書：忌文學修辭
2008年1月22日
【明報專訊】司法機構發言人表示，判辭中提及的《司法文書製作淺談》(下稱《淺談》) 乃供司法人員內部使用，不會公開給公眾參閱。資料顯示，本案主審的上訴庭法官之一楊振權，亦曾向本港執業律師講授上述《淺談》。楊官亦對推動香港司法界使用中文不遺餘力。
根據司法機構年報，司法機構會不定期舉行由本地及內地大學主辦的判辭寫作課程及講座，供司法人員參加。
判辭引述了《淺談》部分內容，指司法文書應以事實及法律解決問題，教育大眾，司法文書不應選用文學言語，或藝術修辭手法，例如以誇張、諷刺、比喻或影射方法描述，因這與司法文書莊嚴的風格不配合。
Magistrate (now District Judge) Josiah Lam 林偉權裁判官 (現為區域法院法官林偉權)
Magistrate (now District Judge) Josiah Lam 林偉權裁判官 (現為區域法院法官林偉權)
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 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...
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...
Barrister Derry Wong (Wong Hak Ming of Counsel) Guilty of Professional Misconduct
王克明大律師專業失當行為罪成 - By a Statement of Findings dated 28 June 2011, the Barristers Disciplinary Tribunal (BDT) found Barrister Derry Wong (Wong Hak Ming of Counsel) (王克明大律師) guilty of three complaints of Professional Misconduct.
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On 28 June 2011, the BDT ordered inter alia that:
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| The suspension ordered by the BDT takes effect from 1 July 2013 to 31 December 2013 (both dates inclusive) following Wong’s resumption of practice on 1 July 2013. (Source: http://www.hkba.org/the-bar/discipline/bdt/index.html) |
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