HKSAR v. ALLIANCE ENGINEERING CO. LTD. HCMA1154/2006

S’s words:-
No case authorities have been referred to in this judgment, not surprising.
What’s surprising is that the trial took for 4 days.
Also, the challenge against the Magistrate for raising questions with bias at trial has been considered, but failed to convince the Court again.
I’m not trying to say the Judge is wrong (of which I am of the view a correct decision has been reached).
On the contrary, I have heard that some Magistrates are considered whether to ask legal representatives to bear the costs if a trial runs too lengthy without purpose. I am not yet sure how often that happens. But, would it be extended to appeal cases in the future? No one knows ...

--- quote from judgment ---

Date of Judgment : 6 July 2007

This is an appeal against a conviction after trial on an information that alleged that the Appellant limited company was the contractor responsible for a construction site at a shop on the 1st Floor of Hutchison House, in Harcourt Road, in Central, saying that they failed to take all reasonable steps to ensure that a workman who was not wearing a suitable safety helmet did not remain on the site, contrary to Regulations 48(1)(b), 68(1)(a) and 68(2)(b) of the Construction Site Safety Regulations made under the Factories and Industrial Undertakings Ordinance, Cap.59. The issue was thus, really, a very simple one: had all reasonable steps been taken to ensure that a workman did not remain on the site without wearing a suitable safety helmet.

The trial lasted some four days. I note that with dismay.

The final matter that was argued in support of this appeal against conviction is set out at ground 2 of the perfected grounds of appeal and it reads as follows: “The learned Magistrate wrongly entered the arena of trial and created an impression of bias by asking an inordinate number of questions, by suggesting cases which had never been part of the prosecution cases and by advancing arguments which had never been relied upon by the prosecution both in the trial and in the cost application.”

That is a serious allegation to make against a Magistrate, especially a Magistrate who enjoys the reputation this one did and who has long sat on the Bench. I want to say straightaway that there is a full transcript, we have been through it, and there is absolutely nothing in the allegation that her conduct created an impression of bias. She did ask questions and it is as well she did because, in fact, the questions she asked were some of the sensible ones that went to the material that helped both sides in the case. What happened was, at the end of a witness’s evidence, she very politely would say, “Do you mind if I clarify some matters?” and then she asked, in a perfectly neutral way, a series of questions of the witnesses designed to elicit information that she had judged was important that she should know in order to decide the case fairly.

This is the second case I have done this week where an identical allegation has been made against a Magistrate because they asked questions. In my judgment, members of the profession, taking these points, need to think very carefully about what they are doing. It is not our law, especially in these modern days of case management, that the Bench cannot ask questions. Obviously, it cannot involve itself in the trial in the way that demonstrates bias but it certainly can ask factual questions of which it wants to know the answer.

Let me turn to the question of costs. This case took four days. One of the days resulted from having to recall a witness or the like, which was not the fault of the Appellant, so I will take it as a three-day hearing. The Magistrate prompted the prosecution below to apply for some costs. I am not surprised. I would have done exactly the same thing.