HKSAR v MD Emran Hussain: When Should a Justice of Appeal sit as a Justice of Appeal? (Update)

In September 2016, we reported on the decision by the Appeal Committee of the Court of Final Appeal (“CFA”) to grant leave to appeal to the CFA on the following question:

“May a single Justice of Appeal who refused leave to appeal to the Court of Appeal, lawfully sit as a member of the panel if the applicant seeks to have his application determined by the Court of Appeal?”

The CFA issued its decision on the question on 16 December 2016 considering the proper construction of the relevant provisions in the High Court Ordinance (Cap. 4) and the Criminal Procedure Ordinance (Cap. 221).

The Appellant had contended that properly construed in the context of the Bill of Rights Ordinance (Cap. 383), the determination by the Court of Appeal of a renewed application for leave to appeal after a single Justice of Appeal’s refusal of the initial application requires a different decision-maker and one which does not include the same single Judge who refused the initial application. The Appellant reasoned that if a single Justice of Appeal who heard the leave application were to sit on the Court of Appeal hearing the renewed application, a fair-minded observer would perceive that he was not independent and impartial. In this particular case, the Appellant argued that since the single Justice of Appeal had in fact sat on the Court of Appeal hearing, this gave rise to the appearance of bias so that the judgment of the Court of Appeal refusing leave to appeal against conviction and sentence and the order for loss of time made by it should be set aside.

In dismissing the Appeal, the CFA, adopting a purposive construction, held that a renewed application is not an appeal from the single Judge’s decision but instead a further hearing of the same application which will lead to a final determination.  This statutory process provided a genuine power of review, since the single Judge may change his mind upon the rehearing.  The full Court of Appeal benefited from the single Judge’s reasons for provisionally refusing the initial application.  The other two members also formed a majority which could overrule the single Judge.

The CFA stated that all Judges are subject to the rules of disqualification for actual or apparent bias.  The latter depends on whether a fair-minded and informed observer would conclude that there was a real possibility that the tribunal was biased.  It is by the application of the rules concerning disqualification for bias that the existence of an independent and impartial tribunal is ensured.

The CFA explained that in the ordinary judicial reconsideration of an issue such as leave to appeal or a bail application, the observer would not consider there to be a real possibility of bias.  He is aware of the qualities of a Judge, the essential characteristics of the judicial process, and the judicial oath which judges generally try to live up to.  He will expect that a single Judge who has previously refused leave to appeal will hear the renewed application with an open mind, and consider the arguments advanced to the full court and the deliberation of his judicial colleagues.

Although apparent bias might arise in an individual case depending on its particular circumstances, the CFA held that in the circumstances of the present case, the fair-minded and informed observer would not think there was any risk that the Single Justice of Appeal had been biased when he sat on the Court of Appeal hearing the renewed application for leave. 

Jurisdictions: