IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

MISC. CASE NO.: HAM0018 OF 2005

BETWEEN:

STATE
Respondent

AND:

YUEN YEI HA
JASON ZHONG
SHING SUM FOK
HON KEUNG LUM
YUK SANG LUI
CHAN MING CHAN
Applicant

Counsel: Mr. R. Gibson & Mr. P. Bulamainaivalu – for State
Mr. M. Raza – for Respondents

Date of Hearing: 14th & 19th April, 2005
Date of Ruling: 27th April, 2005

RULING

Each of the applicants through the first accused Yuen Yei Ha makes application that I disqualify myself from presiding over this trial. The application is based on the deponents' perception of bias in view of allegedly adverse comments made against her in various bail application rulings, the manner of bail hearings and case management.

These comments are detailed in the first accused’s affidavit dated the 14th of March 2005. While making the application on behalf of all her co-accused the affidavit focuses on the particular interests of herself and her husband the second accused.

The Threat of Bias to a Fair and Impartial Trial

The fundamental issue was eloquently stated by Cory J. in R v S. (R.D.), 1997 3 SCR 484 at 523-4 in these terms:

“A system of justice if it is to have the respect and confidence of its society, must ensure that trials are fair and that they appear to be fair to the informed and reasonable observer. This is a fundamental goal of the justice system in any free and democratic society…..”.

Fairness and impartiality must be both subjectively present and objectively demonstrated to the informed and reasonable observer. Justice must be rooted in confidence and confidence is destroyed when right-minded people go away thinking: “the judge was biased”.

Justice can only be done if there is in fact no bias. It can only be seen to be done if there is no appearance of bias. Actual bias (which will almost always be disclaimed) is notoriously difficult to prove. In practice, the most effective guarantee of the fundamental right to a hearing before an impartial tribunal is not afforded by rules which provide for the disqualification on grounds of actual bias, nor by those which provide for automatic disqualification on grounds of personal interest, but by that which provides for the disqualification of a judge in the case of a reasonable apprehension of bias. (cf Lockabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451 at 475).

The Test for Bias

The authorities require that a likelihood or a probability of bias must be demonstrated suspicion is not enough. The test to be applied in Fiji in determining whether a judge is disqualified by reason of the appearance of bias was agreed by all counsel as an objective one. The Supreme Court in Koya v State [1998] FHSC 2 followed the New Zealand Court of Appeal’s reasoning:

“Subsequently, the New Zealand Court of Appeal, in Auckland Casino Ltd v Casino Control Authority (1995) 1 NZLR 142, held that it would apply the Gough test. In reaching that conclusion, the Court of Appeal considered that there was little if any practical difference between the two tests, a view with which we agree, at least in their application to the vast majority of cases of apparent bias. That is because there is little if any difference between asking whether a reasonable and informed person would consider there was a real danger of bias and asking whether a reasonable and informed observer would reasonably apprehend or suspect bias.”

(cf also The State v Ratu Jope Seniloli & Others, HAC 028 of 2003S, ruling of Shameem J and on appeal FCA AAU 0041/2004S at pages 7 and 9 Webb v The Queen [1994] 181 CLR 41). 

In the case of Johnson v Johnson [2000] 201 CLR 488 at 492 just exactly what kind of a person this fair minded, informed, reasonable observer is and how much he or she knows was the subject of some discussion (cf pages 507-508):

“the various descriptions are a reminder that in deciding whether there is an apprehension of bias it is necessary to consider the impression which the same facts might reasonably have upon the parties and the public. It is their confidence that must be won and maintained. The fictitious bystander in courts … is not a lawyer yet neither is he or she a person wholly uninformed and instructed about the law in general or the issue to be decided.”

The bystander is assumed to be reasonable and fair minded and before making a decision important to the parties and the community would ordinarily be taken to be informed of at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances.

It must be remembered that the person being observed is a professional judge whose training tradition and oath require him to discard the irrelevant, the immaterial and the prejudicial (Vakauta v Kelly [1989] 1 67 CLR 568 at 584 per Toohey J). In the same case it was observed that while the bystander is not to be assumed to have a detailed knowledge of the law or the character and ability of a particular judge the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. 

In Livesey v New South Wales Bar Association [1983] 151 CLR 288 the court was considering a case in which two members of the Court of Appeal had expressed adverse opinions about the credit of a barrister who later came before the court on a motion to be struck off the role of counsel for professional misconduct. It was said at page 294:

“……..where there is no allegation of actual bias, the question whether a judge who is confident on his own ability to determine the case before him fairly and impartially on the evidence should refrain from sitting because of a suggestion that the views which he has expressed in his judgment in some previous case may result in an appearance of pre-judgment can be a difficult one involving matters ‘of degree and particular circumstances may strike different minds in different ways’ (per Aickin J in Shaw). If a judge at first instance considers that there is any real possibility that his participation in a case might lead to a reasonable apprehension of pre-judgment or bias, he should, of course, refrain from sitting. On the other hand, it would be an abdication of judicial function and an encouragement of procedural abuse for a judge to adopt the approach that he should automatically disqualify himself where he was requested by one party so to do on the grounds of a possible appearance of pre-judgment or bias, regardless of whether the other party desired that the matter be dealt with by him as the judge to whom the hearing of the case had been entrusted by the ordinary procedures and practice of the particular court.”

Decision

The application is couched very much on the personal interests of the first and second accused. In essence the remaining accused coat tail on the perceptions of the first two. Those perceptions are necessarily subjective. 

The deponent in paragraph 5(a) concludes pre-judgment as I talked about flight risk for those facing strong cases having associations with overseas countries particularly facing drugs charges.

This comment was passed in the context of a bail application. Its context has to be balanced in terms of the entire extempore decision and the findings I was able to make based on incomplete affidavit evidence. As I observed bail hearings are not mini trials. They are a summary, statute based procedure weighting the accused’s right to bail against the public rights for safety and expectation of the due administration of justice. 

The deponent goes on in paragraph 5(c) to allege bias based on a perceived credibility finding about her. Again this was in the context of a bail ruling where the deponent had first declared she did not go in or near a warehouse where the alleged drug manufacture took place but then subsequently when confronted with a visual record of her approach to those premises became embarrassed at her original statement. In that decision, for bail purposes, I observed that this contradiction must tell against bail reliability. That is only an opinion on the ultimate question of bail law. 

In point of fact I did grant this applicant bail. The fact that she has honoured the terms of bail stands to her bail credit.

In the application she criticized the harshness of the bail terms. Yet her counsel invited “any condition” for bail as acceptable. The imposition of a $100,000.00 bond was cited as unreasonable and indicative of prejudgment of the substantive case. A reasonable and informed observer any disagree. Conditions of bail go to ensuring bail is honoured by a subsequent appearance. In any event bail surety was eventually lowered from $100,000.00 to $25,000.00. The conditions were not appealed.

The deponent complains at prosecutorial delay and breach of promises to disclose documents. It is in effect said that I have demonstrated sympathy towards the prosecution by not dealing harshly with them. I reject that notion. The delay in the commencement of this trial at the beginning of this year was caused solely by the failure of outside resources to provide the State with an analysis of material discovered as a result of the drugs raid. That is not an expression of sympathy with the prosecution. It is a statement of fact. No reasonably informed bystander could properly hold a perception of bias by such a comment.

The deponent believes that her husband should have been released on bail and complains and that my failure to release him on bail is in her mind a perceived apprehension of bias. She complains about delay in progressing bail hearings. The deponent further complains that delay was not properly considered in bail hearings. That is not so. Delay was given a great deal of consideration especially in the 2005 application.

Some bail applications addressed the issue of remand conditions. No impartial evidence was offered. In the absence of such evidence the courts cannot leap to findings based on bar table speeches. The bail case law on poor remand conditions is clear. Before the Court will make a judgment on a particular prisoner’s conditions of imprisonment clear evidence is required. This has often involved the assistance of the Human Rights Commission. In the absence of such evidence the ‘prison’ conditions arguments, which must be met on a case by case basis, can be given little weight.

I am of the clear view that while accused one’s subjective belief may have validity for her it does not support the objective test for the apprehension of bias. An informed person viewing the matter realistically and practically in the context of ordinary judicial practice and conventions could not adhere to such a widely drawn subjective belief. It is noteworthy that my bail decisions have not been appealed by the second accused.

If I were to recuse myself solely on the subjective belief of the deponent alone I would be abdicating my judicial function. I have been entrusted with this case by the ordinary procedures and practices of the court and it would encourage a procedural abuse for me to automatically disqualify myself merely because I have been requested by one party to do so on the grounds of a possible appearance of pre-judgment or bias resulting from unfavourable bail decisions. If it were otherwise then most tribunals would have to disqualify themselves after a finding against one of the parties involved in litigation. That cannot be so. A professional judicial officer must be free to both make adverse findings and give reasons on bail hearings and then subsequently hear the substantive matter. Bail Act decisions are necessarily based on incomplete evidence. A judicial officer is well able to put aside such summary opinions on the substantive hearing of the subject matter. I will do so.

In my view an objection should not prevail unless it is based on a substantial ground as otherwise the system would disintegrate to a stage where for practical purposes individual parties could influence the composition of their bench and therefore call the administration of justice into disrepute.

In conclusion I echo the words of Mason J quoted by our own Chief Justice found in Re: Renaud: Ex Parte C.L.J. [1886] 60 A.L.J.R. 528 (at p.532):

“It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. …… In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias of reason by prejudgment and this must be ‘firmly established’ …. ….although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of the judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.” 

The application is declined. The trial will proceed before me.

Gerard Winter
JUDGE

At Suva
27th April, 2005