HKSAR v. Cheung Kin Chung

HCMA 549/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 549 OF 2016

(ON APPEAL FROM KCMP NO 651 OF 2016)

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J U D G M E N T

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Introduction

1.The appellant applied for the issue of a private summons against a Madam Wong Pun Ling (黃品玲) before a magistrate.  His application was refused and he now appeals against that order of refusal by the magistrate. The only issue is whether the magistrate refused to issue the summons for good cause.

2.The conduct which was the subject matter of the appellant’s complaint against Madam Wong was that she had allegedly aided and abetted an unknown male assault the appellant on 13 July 2016.  There were no particulars of the allegation (Appeal Bundle, page 2).  There was a note to ask the court to order the Housing Department hand over CCTV footage of the assault and disclose the name of the man who assaulted the appellant.

3.The appellant failed to attend the first scheduled hearing date of this appeal, 2 February 2017.  He sent a fax after the scheduled hearing time asking for an adjournment because he had not received the respondent’s submission until the day before the hearing.  However, during that hearing in his absence the respondent informed the court they had sent their submissions to the appellant at his last known address by registered post on 23 or 24January 2017.  Despite his absence, the hearing was adjourned to a date to be fixed.

4.At the hearing of 28March 2017 the appellant said, in contradiction to his earlier fax, he failed to attend that first hearing date because he had no information of the appeal case and then said he had insufficient funds to travel to the Court of First Instance.

The Magistrate’s Decision

5.The Decision is at pages 5 and 6 of the Appeal Bundle.  I quote from it:

“2. Under s8(1B) (b) of the Magistrates Ordinance:

‘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 course refuse to issue a summons.’

3. The principles were laid down in Tsui Koon Wah v Principal Magistrate of Kowloon City Magistrates’ Courts (HCAL 81/2006), Chu J (as she then was) held that:

(1) it is within the power of a magistrate in dealing with an application for issue of a summons to have regard to the contents of the information; and

(2) in performing this judicial act, the magistrate should ascertain whether the allegation is of an offence known to the law and if so whether the essential ingredients of the offence are prima facie present.

4. The applicant attached a disc with some audio recordings, in spite of my request, he declined to provide either a copy of all relevant evidence in writing or a transcript of the audio as I was unable to identify the speakers therein; furthermore, the disc was inadmissible in the absence of evidence for foundations.  Therefore, the disc was with no value as to his application.  What was left was 1 page of document stating something he believed to be the law and some facts; that was when he was facing some fearful abusive language from a third party, the defendant (黃品玲), who was a security guard present there but refused to take action to control the situation that render her as an accomplice.  When I studied his applications in Chambers, that factual was completely empty in disclosing any criminal offence even prima facie whatsoever.  There was no basis to support the application, I therefore dismissed the application.”

Grounds of Appeal

6.The appellant’s notice of appeal to a judge against determination is at page 1 of the Appeal Bundle and I quote:

“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 22.9.2016 by Mr Peter Law, a magistrate at the said court for my earlier Information involving a female 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.”

The Appeal Hearing

7.During the appeal the appellant made extensive oral submissions and often repeated himself.  Much was irrelevant to this appeal or the magistrate’s decision.  He kept referring to other previous failed similar applications, not only those heard by this same magistrate.  He quoted from books and cases without providing the court proper and complete copies.  It appears from reading other appeals by this appellant that he often quotes texts, legislation and cases.  There was an allegation the magistrate took a “Confucian approach to the law”.

8.The appellant referred to the many occasions, other than the offence date related to this appeal, he has been assaulted, threatened and abused by police, security guards or others related to his housing estate.  He made much of the fact he has not had any legal remedies or justice from the courts, be it the Magistracy or the High Court; nothing to protect him.  His personal safety is, it seems, always in danger.

9.He submitted there was bias because the magistrate did not invite him to appear before him in court as he had done on other occasions when he had applied for private prosecutions.  He argued he was denied “open justice”.

10.For this application the appellant supplied the magistrate with a disc containing some audio recordings.  The appellant agreed during the appeal hearing that he did receive a letter from the magistrate asking for transcripts and further evidence relating to the audio tape.  The magistrate did not receive a response to his letter.

11.The appellant submitted that he had in the past on several occasions for his numerous applications for private prosecutions submitted audio tapes but not been asked for transcripts or further information.  He offered this up as an explanation as to why he ignored this request.

12.He stressed he had a “legitimate anticipation” he would be invited to appear before the magistrate before a decision was made.  He expected such an invite as there was precedent.  The magistrate had committed an “inconsistent fallacy” because he had not performed his legal duty to invite the appellant to appear before him.  The bias was denying the appellant a public hearing to which he was legally entitled.

13.He also submitted the bias came from the fact the appellant had written to the Chief Magistrate and complained about the magistrate; as a result, the magistrate must hate him.  He surmises this must be the reason he did not ask the appellant to appear before him to hear him in open court.

14.The bias was clear from the fact the magistrate did not order the Housing Department to hand over CCTV footage of the incident.  If he had then there would have been conclusive proof.  The omission was deliberate because of bias against the appellant.

Respondent’s Reply

15.The respondent submitted there was no bias against the appellant.  In fact, the magistrate requested more information from him when he could have simply determined the application based on the information before him without asking for more.  There was no obligation on the magistrate to give the appellant further opportunities to better his application yet he did.  This shows the magistrate did not lightly dismiss this and in fact wanted more information to consider before making a decision.

16.The respondent submitted there was no breach of the Hong Kong Bill of Rights Ordinance, Cap 383. In fact, the refusal was based on a lack of particulars and substance to the draft charge of the application. The magistrate had good cause in refusing to issue the summons; his reasons were fair and proper. In addition, the magistrate is legally entitled to refuse such an application without a hearing. There is no law that requires him to conduct an open hearing before making such a decision. 

17.The respondent attached a list of authorities; five unsuccessful appeals by the appellant against decisions to refuse private prosecution summons.

My Judgment

18.A citizen has the ability and avenue to initiate a private prosecution against another person for a crime committed by that person but clearly it is the legislative intention that such action be scrutinized by the court as prescribed by the law.  The magistrate applied the correct approached as set out in Tsui Koon Wah v Principal Magistrate of Kowloon City Magistrates’ Courts, HCAL 81/2006.

19.On the papers before me I find no merit in this appeal.  The magistrate refused the application to issue a summons because there was no substance and a lack of particulars to the draft charge in the application.  The audio tape itself with nothing more was not admissible evidence so all the magistrate was left with was the draft charge and an alleged offence in the form of particulars of a charge.  The magistrate was told the appellant was verbally abused and it seems assaulted but the security guard present, Madam Wong, did nothing and was therefore an accomplice.  Therefore, the magistrate quite rightly found no actionable criminal offence disclosed or even a prima facie case against Madam Wong.

20.I find no evidence of bias and the magistrate was not under any legal duty to hear the appellant before a decision is made.  He may take that course of action but it is not a legal requirement or precedent as suggested.  The magistrate did not even need to request more information but he did.  The allegations of bias are completely unfounded and groundless.  The accusation of a Confucian approach to the law is obtuse.

21.There is no substance to the ground there was a breach of the Hong Kong Bill of Rights Ordinance nor an unfair hearing.  The magistrate has no duty to order any evidence on behalf of the appellant as requested.

22.I have gone through the papers and the magistrate reached the only decision he could have reached; there was good cause to refuse to issue a summons.  The appeal is accordingly dismissed.

Mr Prakash L Daryanani Senior Public Prosecutor, of the Department of Justice, for the respondent

The appellant appeared in person