HKSAR v. Cheung Kin Chung

HCMA 220/2018
HCMA 282/2018
HCMA 283/2018
HCMA 284/2018
[2018] HKCFI 2642
(Heard together)

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 220 OF 2018

(ON APPEAL FROM KCMP 191/2018)

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And

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 282 OF 2018

(ON APPEAL FROM KCMP 280/2018)

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And

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 283 OF 2018

(ON APPEAL FROM KCMP 281/2018)

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And

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 284 OF 2018

(ON APPEAL FROM KCMP 282/2018)

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Before:  Hon Toh J in Court

Date of Hearing:  21 November 2018

Date of Reasons for Judgment:  5 December 2018

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R E A S O N S   F O R   J U D G M E N T

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1.As these four appeals were heard together being in person appealing against the orders of the same magistrate in refusal to issue private summonses in each case, I will therefore give my reasons for allowing the appeal against the four orders at the same time.

2.The appellant had applied for private summonses to be issued against a resident and three security guards in the housing estate in which he lived.  On each of those applications, the learned magistrate’s Reasons for Refusal was that no report had been made to the police for criminal investigations for “criminal investigation of the alleged complaints” (see para 4 of the Statement of Findings).  Therefore, the learned magistrate was of the view that without the investigations by the police, she said “in the absence of any investigation as to whether an offence has been committed, which falls within the ambit of the police force, and without any consent of the Secretary for Justice, the applications must be refused”. (see para 6 of the Statement of Findings)

3.Mr Prakash Daryanani, Senior Public Prosecutor, pointed out in his skeleton submission, a private prosecution may be instituted in certain appropriate cases without the investigations by the police or without the consent of the Secretary for Justice as it can, inappropriate cases, provide “a valuable constitutional safeguard against inertia or partiality on the part of authority.”  (see Ng Chi Keung v Secretary for Justice [2014] 5 HKC 89 at para 17(1)).  I fully agreed.

4.As the learned magistrate’s Reasons for Refusal of the application was fundamentally wrong, I will have to send these four cases back to the magistrate court for a rehearing.  I cannot accede to the suggestion by counsel for the respondent that since magistrates’ appeals are in the form of rehearing, I could deal with the matter here.  It is clear from the Statement of Findings of the learned magistrate that she considered nothing else nor did she find any factual basis in each case, apart from the fact that the appellant had failed to report the matter to the police.  So in fairness to the appellant, I will have to send the case back to the magistrate court for a rehearing.

5.The appellant was not present in court for the appeal and he did not inform the court the reasons for his absence.  I see from the papers and was informed by my clerk that the notice of the hearing has been sent to the address given by the appellant and not returned; however, subsequent notice sent by registered post was returned and when the court bailiff attempted to deliver the notice of hearing, it was unsuccessful.  I was also informed by counsel for the respondent that her department did send by registered post, the skeleton submissions of counsel for the respondent and they were not returned. Therefore, rather than wasting more public fund in adjourning the matter or asking the appellant to appear to explain the reasons for his absence, I have decided that in the interest of justice, that the learned magistrate was fundamentally in error in law that I would deal with it by allowing the appeal in the absence of the appellant.

Miss Ho May Yu Lily SPP, of the Department of Justice, for the respondent

The appellant did not appear