HKSAR v. Cheung Kin Chung

HCMA 477/2015
HCMA 478/2015
HCMA 479/2015
(Heard together)

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 477 OF 2015

(ON APPEAL FROM KCMP 540/2015)

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IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 478 OF 2015

(ON APPEAL FROM KCMP 541/2015)

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IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 479 OF 2015

(ON APPEAL FROM KCMP 553/2015 & 554/2015)

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JUDGMENT

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1.All these three appeals the appellant appealed against the order of the learned magistrate Dr K M Cheung in refusing the appellant’s application to issue private summonses in all three cases.

HCMA 477/2015

2.In this case the appellant alleged that Ms Yip who is an assistant manager of the Housing Department did pervert the course of public justice by concealing relevant CCTV evidence of an alleged attack on him on 14 March 2015, the learned magistrate sought further information in writing from the appellant and the appellant submitted a written document where the appellant claimed that Mr Wong had hit him and Ms Yip had refused his request to provide him with the CCTV tape.  I can see from the learned magistrate’s statement of findings that the appellant had alleged that Ms Yu of Pioneer Management on 24 March 2015 told him that she had seen the relevant CCTV footage but Ms Yip had refused the request of the appellant to release the CCTV footage to him.  The learned magistrate having considered the submissions of the appellant and at the end of the day considered that there was no legal duty on Ms Yip to produce the CCTV tape.  Also, relevant is that in the appellant’s 4‑page submission to the learned magistrate, he did not say that Ms Yu confirmed that the CCTV tape actually showed an attack on the appellant by the said Mr Wong.  The learned magistrate was correct in saying that there is no positive act on the part of Ms Yip to conceal evidence as disclosed by the information supplied by the appellant so the leaned magistrate refused the issuing of the summons.

3.The appellant in court submitted that the Housing Department had not complied with its performance pledge to ensure residents’ comfort and also he said that when the police came after this alleged assault.  They had not invited him to watch the relevant CCTV tape with them and the appellant submitted that there was an abuse of his human rights.

4.The appellant alleged that the learned magistrate not only failed to address his human rights, he also failed to hold the public hearing which was against his legitimate expectation and no reasons were given by the learned magistrate’s decision in the covering letter to him although he admitted he received at the same time the learned magistrate’s statement of findings.

5.If it is not necessary for the learned magistrate to give a public hearing if he concluded that he had had already enough information for him to properly decide the matter and in this case the learned magistrate did refer to the information from the appellant in the appellant’s submissions in a 4‑page document.  I do not see that the human rights of the appellant were violated in any form and I therefore dismiss the appeal.

HCMA 478/2015

6.In this case the appellant alleged that Ms Chiu, manager of the Housing Department, had attempted to pervert the cause of public justice by concealing relevant CCTV evidence of an alleged attack on him by a male on 14 March 2015.  This alleged attack is similar is the attack which is mentioned in the previous case in HCMA 477/2015. Similarly the learned magistrate requested for further information from the defendant in writing and the appellant submitted his written submission and the information submitted is similar to that in the previous case and the learned magistrate having considered the evidence refused the application of the appellant for the same reasons.

7.The appellant before me had made the same argument as he did in HCMA 477/2015 and having considered all the evidence and the learned magistrate’s statement of findings do not find that the appellant’s rights were violated nor was the learned magistrate wrong in law.  So the appeal is dismissed.

HCMA 479/2015

8.The appellant alleged that Ms Tsang, a security guard of Pioneer Management Company Limited, on 15 December 2014 assaulted him by pushing the kitchen door against him in Room 1208 Mei Tak House, Mei Tung Estate.  In another charge, the appellant in KCMP 554/2015 alleged that Mr Wong, a security guard of Pioneer Management Company Limited, on 3 July 2015 did intentionally cause him to apprehend the application to his body of immediate unlawful force in the lobby of the ground floor of Mei Tak House, Mei Tung Estate, Kowloon.

9.The learned magistrate asked the appellant to submit further information and the appellant submitted a 4‑page document and a disc containing three audio clips.  The learned magistrate listened to the three audio clips and he described them at paragraph 7 of his statement of findings.  The first audio clip recorded a male making a call to complain which was on 1 July 2015, then on the 3 July 2015 a male alleged a security officer falling asleep with no greeting to the male.  This may have been the incident which involved Mr Wong against whom the appellant had made an allegation of assault and then the final audio clip was on 24 Feb which would be months after the alleged incident with Ms Tsang where a male voice accused the female security guard of committing an assault on him.  As the learned magistrate very correctly pointed out these are self‑serving clips even though giving the benefit of the doubt to the appellant, there was no mention whatsoever in the audio clips that Mr Wong had assaulted the appellant and the allegation made in the audio clip was two months after the alleged incident involving Ms Tsang, so the learned magistrate was correct in coming to the conclusion that there is no evidence nor legal basis for the issuing of a private summons against Mr Wong or Ms Tsang.

10.One matter I would like to raise is that at paragraph 13, the learned magistrate also observed that there was no medical report or evidence from other witness to support the allegation of the applicant.  In a case of common assault it is not necessary for medical reports to be provided, so the absence of medical reports does not mean that there was no common assault.  However having made that observation, I still consider that on a careful analysis of what the appellant said that the alleged assault by Ms Tsang was supposed to have been done by her pushing a kitchen door and the said kitchen door hit him on his waist and the alleged assault by Mr Wong on 3 July was that Mr Wong had hit the desk violently with both hands using foul language. However as I have an earlier noted the audio clip which was submitted by the appellant to the learned magistrate merely demonstrated that Mr Wong had failed to greet him and the male voice on the audio clip had asserted that Ms Tsang had assaulted him without providing any basis for such assertion.

11.Therefore on the evidence before me I cannot see that the learned magistrate had committed any error of law or facts that would justify my interfering in his decision, so the appeal is dismissed.

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

The appellant appeared in person