Judge failed to ensure Hongkonger’s right to fair trial in firebomb case 4 years ago, appeal court rules
- Court of Appeal overturns arson, possession of illegal articles charges against waitress after judge Ernest Michael Lin failed to offer her chance to defend herself
- It also finds Lin made remarks, such as ‘what on earth are you saying?’ and ‘why, you do not understand?’ during trial
A Hong Kong judge who previously faced misconduct complaints failed to ensure a waitress he jailed for 34 months in a firebomb case four years ago received a fair trial, a court has ruled.
Three Court of Appeal jurists quashed two charges of arson and possession of illegal articles against Lam Tin-wing on Friday, saying District Judge Ernest Michael Lin Kam-hung named her an accomplice while sentencing her co-defendants when she was not yet found guilty, and did not offer her a reasonable chance to defend herself.
They highlighted various instances during the trial where Lin usurped the prosecutor’s role to challenge the defendant when she gave evidence and rejected her claims as incomprehensible and incredible without giving sufficient reasons.
The bench was also taken aback by the trial judge’s refusal to let the accused rest when she became emotionally unstable during the proceedings.
Mr Justice Derek Pang Wai-cheong, who penned the judgment, said the prosecution’s case was strong and Lam’s conviction would have stood had the irregularities appeared as separate, unrelated incidents.
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“But, putting them altogether, an informed bystander can hardly dispel the suspicion that the court believed the case was already proved beyond doubt, and that the applicant who chose to plead not guilty and contest [the charges] was merely wasting time, so it was unnecessary to pay heed to her impression on the entire proceedings and examine her defence seriously,” Pang said.
The court ordered Lam to remain behind bars pending submissions from prosecutors and defence lawyers on whether the case should be remitted for a retrial.
Two men involved in the case were each jailed for 50 months, while three secondary school students were given hard labour in a detention centre.
Lam, the only defendant contesting the allegations, maintained she was merely accompanying her boyfriend when she appeared at the scene of the attack in Yau Ma Tei and spent long hours inside a hotel room which the group used to store petrol bombs and related material.
Lin, who sentenced four of the five men pleading guilty, decided that no harm would be done to Lam if he penalised her co-defendants first before her trial started.
The judge, however, categorised Lam as an accomplice when he sentenced the quartet.
The appellate court noted Lin was substantially involved in cross-examining Lam when she tried to establish a defence in the witness box.
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It also found the judge’s remarks, such as “what on earth are you saying?” and “why, you do not understand?”, stood in stark contrast to how he had handled the evidence of three police officers serving as prosecution witnesses.
An advisory committee on judicial conduct cleared Lin of wrongdoing but noted he should not have made serious allegations against anyone not allowed to explain themselves in court.
