HKSAR v. Cheung Kin Chung

HCMA 571/2015
HCMA 572/2015
HCMA 573/2015
(Heard together)

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 571 OF 2015

(ON APPEAL FROM KCA 116/2015 (KCMP 580/2015))

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And

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 572 OF 2015

(ON APPEAL FROM KCA 117/2015 (KCMP 581/2015))

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And

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 573 OF 2015

(ON APPEAL FROM KCA 118 (KCMP 582/2015))

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J U D G M E N T

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1.The appellant applied for the issue of 3 private summons against a Madam Wong Kwai Lin before a magistrate. His application was refused and he now appeals against that order of refusal by the magistrate.

2.The conduct which was the subject matter of his complaint against Madam Wong, was that she had allegedly assaulted him on 3 occasions, particulars as follows (AB page 4):

“At about 19:10 pm on 3.3.2015 defendant (Madam Wong) threatened to assault me by chasing after me in the lobby on G/F of Mei Tak House with bulging eyes from security guard post near the main entrance to the lift area where I wanted to board a lift after my returning home! At about 7:15 pm on 5.3.2015 in the lobby on G/F of Mei Tak House defendant again threatened to attack me with bulging eyes after refusing to answer me his name on my coming back home! Then at about 8:15 pm on 20.3.2015 defendant in the third time threatened to attack me with bulging eyes by uttering abusive language at me and loudly and impolitely telling me to eat shit!”

Grounds of appeal

3.The appellant’s notice of appeal to a judge against determination reads:

“I, CHEUNG Kin Chung, of Rm 1208 Mei Tak House, Mei Tung Estate, Kowloon do hereby give you notice that it is my intention to appeal to a judge of the Court of First Instance of Hong Kong against a determination on 9.9.2015 by SO Wai‑tak, a magistrate at the said court for my earlier Information, applied on 16.7.2015, involving a security guard of Pioneer Management Co Ltd. And that the general grounds of this appeal are that the magistrate was biased against me and that the decision has thus caused injustice by violating the Hong Kong Bill of Rights Ordinance, resulting in an unfair hearing.”

4.During the hearing of the appeal, the appellant stressed that being a citizen of Hong Kong, he was entitled to look to the courts for protection of his rights as his safety was at stake.  He also asked for time to file supplementary written submission and to peruse the two judgments (where he was also the appellant and the court had ruled against him; HCMA 411/2015 and [2015] 3HKLRD 310)

Respondent’s reply

5.The respondent submitted that the magistrate has in fact demonstrated no bias against the appellant, as can be seen from the fact that he had requested for more information from the appellant, when he could have simply proceeded to determined the matter upon all the information placed before him without asking for additional information; and that the magistrate is entitled to refuse to issue the private summons without a hearing. (see HKSAR v Cheung Kin Chung [2015] 3 HKLRD 310)

6.It was further submitted that the magistrate’s reasons for refusing to issue the private summons was fair and proper.

My judgment

7.During the appeal hearing, I acceded to the appellant’s request to allow him time to file supplementary grounds.  Just before the deadline, on or about the 19 November 2015, the court received a letter from him asking that “the appeal be suspended until further notice”, alleging that he was assaulted by the attacker Wong 2 days after the appeal hearing.  Thereafter, nothing further was heard from the appellant.

8.On 1 March 2016, the respondent had drawn to my attention by way of a letter 2 further appeals initiated by this appellant, also against the refusal of a magistrate to issue private summons on his behalf, which were dismissed by Deputy Judge Dufton on 4 and 23 February 2016 respectively: HCMA 687‑691/2015; HCMA 27‑31/2016.  A copy of the letter had been sent to the appellant’s address.  The Deputy Judge, having been satisfied that sufficient notification of the hearing of the appeals had been given to the appellant, dismissed the appeals in the absence of the appellant.  The respondent invited this court to decide the present appeal on the existing grounds submitted and to dismiss the appeal.  I am satisfied that enough time has been awarded to the appellant and there must be a finality to these proceedings.

9.To quote Zervos J in an earlier appeal by this appellant, HCMA 490/2014:

“8. The underlying allegations of the private prosecutions concern his complaints against the conduct of security guards, in particular a female security guard, which amount to impoliteness and mistreatment by them towards him which have spawned a litany of complaints and litigation.”

10.I find likewise that the appellant’s allegations lack substance and disclose no actionable criminal offence.  It is entirely appropriate for the magistrate to refuse to issue the summonses and he had good cause to do so.

11.It is clear that the appellant is “not new to this sort of application (per A Wong J, HCMA 335/2014, para 30).  His “litany of complaints and litigation” revolved around security guards, Housing Department Staff, or management company staff.  To quote a few:

(1) The security manager of Choi Hung Estate, 2012, HCMA 362/2011;

(2) Housing manager, assistant housing manager and housing officer, Choi Hung Estate, 2012, HCMA 619, 620/2012;

(3) An assistant housing manager at Tsui King House, Choi Hung Estate, 2014, HCMA 335/2014;

(4) A security guard at Tsui King House, Choi Hung Estate, 2014, HCMA 490/2014; and

(5) An assistant manager performing management service at Mei Tung Estate, 2015, HCMA 267/2015.

12.This is obviously an unmeritorious application as well as an unmeritorious appeal.

Request for an order of disclosure

13.The appellant’s request for a court order to compel those in charge to produce CCTV footage which might show the alleged 3 incidents under s 21 and 22 of the Magistrates Ordinance is misconceived. These sections derive from the institution of proceedings to ensure the attendance of witnesses and production of relevant documents.  On failing to apply for private summons, no proceedings would be instituted and thus these sections do not come into play at all.

14.This appeal is dismissed.

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

The appellant appeared in person