HKSAR v. Cheung Kin Chung

HCMA 443/2015
HCMA 444/2015
HCMA 445/2015
(Heard together)

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 443 OF 2015

(ON APPEAL FROM KCMP 496/2015)

------------------------

------------------------

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 444 OF 2015

(ON APPEAL FROM KCMP 528/2015)

------------------------

------------------------

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 445 OF 2015

(ON APPEAL FROM KCMP 529/2015)

------------------------

------------------------

-------------------------

JUDGMENT

-------------------------

1.All three appeals are appeals from the refusal of the learned magistrate Dr K M Cheung to allow the applicant to lodge private summonses against three separate individuals.

HCMA 443/2015

2.The applicant filed an application for private summons under section 8 of Magistrate Ordinance Cap 227 against a senior manager of Pioneer Management Company Limited.  The learned magistrate invited the applicant to supply details of the allegation of “attempt to pervert the course of public justice, contrary to Common Law”.  The applicant submitted a 4‑page document on 29 June 2015 (See AB p 3‑6).

3.In the particulars of offence the applicant alleged that Ms Luk, the senior manager “did pervert the cause of public justice by concealing the relevant CCTV evidence for my investigation of my attack by a male on 14 March 2015”.  On 9 July 2015, the learned magistrate refused the appellant’s application.

HCMA 444/2015

4.The applicant filed an application on 22 June 2015 for a private summons to be issued against PC 33609 for the offence of attempting to pervert the cause of public justice, contrary to Common Law.  The allegation is that the policeman on “21 May 2015 did pervert the cause of public justice by failing to prosecute Mr Wong (who previously did attack me on 14 March 2015 for which I initiated the private prosecution in this magistracy) for attacking me on 21 May 2015 at the lobby on ground floor, Mei Tak House, Mei Tung Estate, Kowloon.”  The learned magistrate requested for more detail of the allegation and on 30 June 2015 the applicant submitted an 8‑page document and a disc containing one audio clip to the court, the learned magistrate subsequently refused to issue the private summons sought.

HCMA 445/2015

5.On the same day as HCMA 444/2015, the applicant filed an application for private summons in HCMA 445/2015 against PC 14933 for the offence of aiding and abetting by omission, contrary to Common Law and the particulars were that the applicant alleged that this officer on 21 May 2015 did aid and abet by omission PC 33609 to pervert the cause of public justice by failing to prosecute Mr Wong (who previously did attack me on 14 March 2015 for which I initiated the private prosecution in this magistracy) for attacking me on 21 May 2015 at the lobby on ground floor, Mei Tak House, Mei Tung Estate, Kowloon.  Similarly the learned magistrate asked for more detail of the allegation in writing and after receiving the 8‑page document from the appellant (see AB p 3‑p 10).  The learned magistrate similarly refused the application.

6.The appellant now appeals against the refusal in the abovementioned three cases.

7.In all three cases the appellant filed similar general grounds of appeal in that he alleged that the learned magistrate was biased against him and that his decision had caused injustice by violating the Hong Kong Bill of Rights Ordinance resulting in an unfair hearing.

8.At the commencement of the appeal, the appellant applied to me to recuse myself on the grounds of bias as I had refused his request for a transcript of the hearing before me in HCMA 842/2012.  I refused his application as I explained to him that I determine each case and each defendant who appeal before me separately and my refusal of his earlier request for a transcript was limited to the facts at that time.

9.The appellant then complained that he was informed of the magistrate’s decision by letter in all three cases but were not given reasons in the letters addressed to him.  However he agreed that he had also at the same time received in each of the three cases statement of findings prepared by the learned magistrate for each case.  That’s why I explained to him that it was not necessary for the learned magistrate to repeat his reasons in the covering letter.

HCMA 443/2015

10.In that case the appellant sought to prosecute Ms Luk, a senior manager of Pioneer Management Company Limited, for perverting the cause of public justice by concealing relevant CCTV evidence of an alleged attack on him on 14 March 2015.  The appellant himself had not seen the requested CCTV footage but expected that it would reveal the alleged attack on him.  As the learned magistrate correctly observed, her refusing the request of the appellant to produce the said CCTV tape does not constitute an act of perverting the cause of public justice nor concealing the relevant tape and there is no evidence whatsoever to show that Ms Luk had done any act to constitute such offence.  Therefore the learned magistrate had correctly refused to issue the requested summons.

HCMA 444/2015 & HCMA 445/2015

11.In HCMA 444/2015, the appellant wanted to issue a private summons claiming two charges against PC 33609 alleging that on 21 May 2015 that he did pervert the cause of public justice by failing to prosecute Mr Wong for attacking him and the second charge alleged that PC 33609 assaulted him by putting his left hand around his left shoulder without his consent.

12.In HCMA 445/2015, the appellant wanted to issue a private summons against PC 14933 for aiding and abetting by omission PC 33609 to pervert the cause of public justice by failing to prosecute Mr Wong.

13.The learned magistrate quite correctly asked for further particular in writing of the allegations and the appellant submitted an 8‑page document and a disc containing one audio clip.  The learned magistrate did proceed to listen to the audio clip which lasted for about one hour and two minutes.

14.The learned magistrate when listening to the audio clip gave the appellant the benefit of the doubt and assumed that the clip recorded a conversation between the appellant and the police officers and it was clear to the learned magistrate that from the conversation the police officers did examine the relevant CCTV footage which showed that there were pushing between the applicant and the person called Mr Wong.  However after viewing the CCTV footage the police officers found the appellant’s allegation untrue and that the appellant’s allegation that Mr Wong used his hand to attack the appellant’s left eye was inconsistent with the CCTV footage.

15.The learned magistrate having considered all the evidence as revealed in the 8‑page submissions made by the applicant considered that a public hearing was not necessary.  In the circumstances as the allegations of the appellant had not been made out or supported by any evidence apart from the mere assertion of the appellant and having considered the law, the learned magistrate found that the information made by the applicant did not disclose any criminal offence or any prima facie case against the police officers.

16.I have myself gone through the submissions made by the applicant and the allegation made by the appellant that the learned magistrate acted contrary to Article 10 of the Bill of Rights had not been borne out. The appellant also accused the learned magistrate of applying a “Confucian approach to law” which was unfair to him and that allegation is totally without foundation nor logical.  Therefore there is no reason to interfere with the learned magistrate’s decision in HCMA 443, 444 & 445 of 2015 and so the appeals are dismissed.

Mr Prakash L Daryanani SPP, of the Department of Justice, for the respondent

The appellant appeared in person