The Queen v Kwan Chung-yik

CourtHigh Court (Hong Kong)
Judgment Date08 October 1985
Judgement NumberHCMA617/1985
Subject MatterMagistracy Appeal



Magistracy Appeal

No. 617 & 838 of 1985





Coram: Hon. Kempster, J.A. (sitting as an additional High Court Judge)

Date of Hearing: 8th October 1985

Date of Judgment: 8th October 1985




1. On 16th May of this year in Kwun Tong Magistrate's Court KWAN Chung-Yik was convicted of having received a duck egg on 11th April and remanded on bail for inquiries including the possibility of a place in a Sea Training School. On 24th May at the same court and before the same Magistrate Kwan was convicted, after trial, of taking one bicycle without the consent of the owner and of stealing another; both on 16th March. Those offences were therefore antecedent to the reception of the duck egg. He was again remanded on bail for a number of reports.

2. The appellant has been allowed today, without objection from the Crown, to appeal, and I think this may well have amounted to leave to appeal out of time, against that conviction.

3. The grounds for this appeal are that the Magistrate might well have been deemed by a reasonable and fair-minded person sitting in Court on 25th May to have been aware of the conviction for receiving which had taken place only a few days before. In a sense there is a high degree of artificiality about such grounds. No one suggests that the Magistrate was in fact biased. Be that as may there is a long-established principle in our law which has been expressed in a number of ways and is relevant in the present context. For example in Metropolitan Properties Co. Ltd. v. Lannon(1) at p. 599 Lord Denning M.R. said:

".... in considering whether there was a real likelihood of bias, the court does not look at the mind of the justice himself - it does not look to see if there was a real likelihood that he would, or did, in fact favour one side at the expense of the other. The court looks at impression which would be given to other people. Even if he was as impartial as could be, nevertheless if right-minded persons would think that, in the circumstances, there was a real likelihood of bias on his part, then he should not sit. - The reason is plain enough. Justice must be rooted in confidence: and confidence is destroyed when right-minded people go away thinking: 'The judge...

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