HKSAR v. Cheung Kin Chung

HCMA 512/2015
HCMA 513/2015
(Heard together)

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 512 OF 2015

(ON APPEAL FROM KCA 99/2015, KCMP 545/2015)

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J U D G M E N T

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1.The appellant in this case had filed two applications to issue two private prosecution summonses under section 8 of Magistrates Ordinance against Miss Yu in KCMP 545/2015 and against Miss Luk in KCMP 546/2015, both security guard of Pioneer Management Company. Magistrate Dr. K. M. Cheung dealt with both applications for private summonses on 6 August 2015 and refused both applications. The appellant then filed notices of appeal in respect of that decision.

2.It is very clear from the learned magistrate’s Statement of Findings why he refused the issue of the private summonses.  Basically he referred to the fact that he has to consider whether it is an offence known to law and what were his essential ingredients of the offence and whether it has been prima facie made out.  The learned magistrate that paragraph 10 of his Statement of Findings had set out the reason why he considered that the appellant had not met the criteria for issuing the two private summons and he said that the applicant had failed to disclose in what manner the intended defendants had concealed or failed to disclose the relevant CCTV footage even assuming that the CCTV footage was in existence and what happened between the intended defendants and him and what the conduct of the intended defendants were in regard to the attempt to pervert the course of public justice.

3.And having considered the appellant’s written submission, the learned magistrate decided that it was not appropriate to issue the private summons he sought.

4.The appellant therefore appealed against that decision and formulated two grounds, as Mr Tsui pointed out, basically that the learned magistrate was biased against him and that the decision had caused injustice by violating the Hong Kong Bill of Rights Ordinance resulting in an unfair hearing.  I cannot see how the appellant had any support for these allegations against the learned magistrate.

5.I have also in my hands the written submissions of the appellant to the learned magistrate and it is clear that the learned magistrate had fully considered everything that was said by the appellant and the learned magistrate had already set out very carefully the background and the appellant’s motives and reasons for wanting to issue the private summons and I cannot see how the learned magistrate was biased against the appellant nor how his decision had caused injustice by violating the Hong Kong Bill of Rights Ordinance or caused to an unfair hearing, so I see no grounds whatsoever in this appeal.

6.This morning the appeal was set down for 10 o’clock but it is now 11:20am, the appellant has failed to appear.  The court had sent a registered letter to the appellant informing him of the hearing today but it was returned, so obviously the appellant was not at the address he declared.  So, in the circumstances, I have no alternative but to accede to the application of Mr Tsui to dismiss the appeal and so the appeals are dismissed.

Mr Jones Tsui SPP, of the Department of Justice, for the respondent

The appellant did not appear