HKSAR v. Cheung Kin Chung

HCMA 687-691/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 687 TO 691 OF 2015

(ON APPEAL FROM KCMP 781, 800, 802, 806 & 815 of 2015)

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J U D G M E N T

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1.This is an appeal against the decision of Mr Lam Tsz Kan, Deputy Magistrate made on 26 October 2015 refusing five applications made by the appellant for the issue of private summonses.

2.The appellant filed a notice of appeal dated 30 October 2015 in respect of each refusal.  The appeals in HCMA 687/2015 & HCMA 688/2015 were listed for hearing yesterday and the appeals in HCMA 689/2015, HCMA 690/2015 & HCMA 691/2015 were listed for hearing today.  The appellant has failed to attend today’s hearing and failed to attend yesterday. 

3.The appellant was notified of both hearing dates by registered post dated 1 December 2015.  The letters were returned undelivered with the remark “unclaimed”. Further the court bailiff attended the appellant’s home to serve the appeal bundle on 23 & 31 December 2015; and 5, 7, 13 & 19 January 2016. On each occasion the door was locked and nobody answered.  A message was also left on each occasion for the appellant to contact the bailiff. 

4.I am informed by Mr Pierre Lui, counsel for the respondent, that a copy of his written submissions was sent to the appellant by post on 29 January 2016 and thatattempts to contact the appellant, both yesterday and this morning, on the mobile phone number given by the appellant in his applications for private summonses, have proved unsuccessful with no dialing tone obtained. 

5.The respondent asks that I dismiss the appeals together with an order for costs.  I am satisfied sufficient notice of the hearing of the appeal has been given to the Appellant.  I am further satisfied that in considering whether to dismiss the appeals in the absence of the appellant I should first determine whether there is any merit in the grounds of appeal so as not to shut out an otherwise meritorious appeal. 

INTRODUCTION

6.Between the 19 September 2015 and the 5 October 2015 the appellant filed five applications for the issue of private summonses.  The proposed defendants in four applications were security guards of Pioneer Management Co Ltd, who managed Mei Tak House in Mei Tung Estate, where the appellant resided.  The proposed defendant in the fifth application was a resident of Mei Tak House.  

7.On the 23 October 2015 in support of the issue of the summonses the appellant filed at the Magistrates’ Court a nine page submission setting out the reasons for the issuance of the summonses together with legal submissions.  I have read the submission which is reproduced in each of the appeal bundles.  The following is a summary of each application.

HCMA 687/2015 (KCMP 781/2015)

8.On 19 September 2015 the appellant filed in the Kowloon City Magistrates’ Court an application for the issue of a summons alleging that on 15 December 2014 Ms Lee a security guard of Pioneer Management Co Ltd, incited a Ms Tsang to attack him by pushing a kitchen door against him.

9.On 23 October the appellant applied to amend the application from incitement to aiding, abetting, counselling or procuring another to commit common assault.  In his written submission filed in support of the application the appellant contended that Ms Lee had angrily glared at him with bulging eyes.

HCMA 688/2015 (KCMP 800/2015); HCMA 690/2015 (KCMP 806/2015) and HCMA 691/2015(KCMP 815/2015)

10.On the 24 September; 29 September and 5 October 2015 the appellant filed in the Kowloon City Magistrates’ Court applications for the issue of summonses alleging security guards of Pioneer Management Co Ltd, were in contempt of court.  The appellant variously alleged that the security guards were in contempt of court by using their mobile phones or walkie-talkies to record his conversations without his consent and uttered abusive language towards him knowing that he was a prosecution witness. 

HCMA 689/2015 (KCMP 802/2015)

11.On 25 September 2015 the appellant filed in the Kowloon City Magistrates’ Court an application for the issue of four summonses. The first summons alleged that on 14 March 2015 Mr Wong, a resident of Mei Tak House, committed battery against the appellant by pushing him in the lift lobby of Mei Tak House. 

12.The remaining three summonses alleged that on 21 May 2015 Mr Wong again committed battery against the appellant by pushing him in the lift lobby of Mei Tak House and angrily glaring at him every time he walked past him, which acts the appellant alleged also amounted to contempt of court and criminal intimidation. 

13.On 26 October 2015 the magistrate refused all five applications.  On 30 October 2015 the appellant lodged notice of appeal against each refusal.  In the notices of appeal the appellant relies on the same general grounds of appeal in respect of each refusal by the magistrate, namely that the magistrate was biased and that the decision caused injustice by violating the Hong Kong Bill of Rights Ordinance, resulting in an unfair hearing. 

DISCUSSION

14.Section 8 of the Magistrates Ordinance, Chapter 227 governs the issue of summonses.   Section 8(1B)(b) provides that:

“A summons may be issued without consideration of the complaint or information by the magistrate or an officer of a magistrate’s court who is authorized under subsection (1), but, if a magistrate does consider the complaint or information, he may for good cause refuse to issue a summons.”

15.As correctly stated by Mr Lui the issue to determine is whether the magistrate had good causeto refuse to issue each of the summonses. 

16.In reaching his decision the magistrate properly directed himself on the relevant legal principles laid down in the case of Tsui Koon Wah v Principle Magistrate of Kowloon City Magistrates Courts HCAL 81/2006.

17.The magistrate considered all the material submitted by the appellant including audio clips.  The magistrate refused the applications because the information was insufficient to establish the essential ingredients of the charges alleged by reason of lack of particulars and substance.  With regard to the allegations of contempt of court the magistrate refused the applications because the Magistrates’ Courts only have power at Common Law to punish contempt in the face of the court and not other contempts.   

18.I am satisfied on the material available to the magistrate there was good cause to refuse the applications.  The magistrate having carefully considered all the material submitted by the appellant and having applied the correct law, I am satisfied that there is no basis whatsoever to say the magistrate was biased and that the appellant received an unfair hearing. 

CONCLUSION

19.I find no substance to the complaints made by the appellant.  There are no merits in the grounds of appeal.  The five appeals are accordingly dismissed. 

20.In his nine page submission to the magistrate the appellant stated he was in receipt of social welfare in the sum of about $2,000.  In the circumstances I do not propose to make an order for costs.

Mr Pierre Lui, SPP (Ag) of the Department of Justice, for the respondent

The appellant in person did not appear