HKSAR v. Cheung Kin Chung

HCMA 609/2018

[2019] HKCFI 961

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 609 OF 2018

(ON APPEAL FROM KCMP 725/2018)

------------------------

------------------------

Before: Hon Toh J in Court

Date of Hearing: 28 February 2019

Date of Judgment: 28 February 2019

_______________

J U D G M E N T

_______________

1.The appellant in this case Mr Cheung Kin Chung has not appeared. He was given the notice of hearing by the court and by letter. According to our record, he had received the notice of hearing, so it is clear that he knew the hearing would be today, but he did choose apparently not to appear.

2.I understand from respondent’s counsel, Mr Lee, that the skeleton submission was sent to him by registered post unsuccessfully and a notice was put in his mailbox to inform him that the document was awaiting his collection.  And to this day, he has not collected the document.

3.This is a very simple appeal against an order of the learned magistrate for her refusal to issue a private summons in this case against a security guard in the Mei Tung Estate.

4.The applicant lodged an information against the security guard and provided very scant detail in the particulars.  The learned magistrate having considered the matter then refused the application and said that there was no police report, and therefore no criminal investigation of the alleged complaint and she then proceeded to refuse the application on the basis that because there has been no investigation by the police and therefore no consent of the Secretary for Justice, the application must be refused.

5.As Mr Lee very correctly pointed out, the learned magistrate was wrong to say that there has to be a report to the police and a criminal investigation by the police.  As Mr Lee said in his submissions a private prosecution may be instituted in appropriate cases without an investigation by the police or without the consent of the Secretary for Justice and he cited the very hopeful case of Ng Chi Keung v Secretary for Justice [2014] 5 HKC 89 at paragraph 17(1) where the court said it is a valuable constitutional safeguard against inertia or partiality on the part of authority and also that section 8 of the Magistrate Ordinance, Cap 227, does not mention the pre‑condition of either a police investigation or consent of the Secretary for Justice to issue such a private summons, so the learned magistrate was wrong when she said as part of her refusal to issue the private summons that there needs to be a report to the police.

6.Mr Lee had asked me to deal with it as a rehearing and consider whether in the rehearing, I can refuse the order or grant an order for private summons, the fact of the matter is, as he said, the information which was hand‑written by the applicant in the court below did not give sufficient particulars which would support the charge in the private summons that he wished the learned magistrate to issue.  He prayed in aid the case of the same appellant, HCMA 411/2015.  In that case, Madam Justice D’Almada Remedios in paragraph 33 had said that in the case before her, the magistrate had conscientiously and fairly after the appellant had filed the application for two private summonses on 23 May 2015 requested the additional information which was provided by the appellant on 15 June 2015 and he learned judge then went on to cite the words of Deputy High Court Judge A Wong (as he then was) in HKSAR v Cheung Kin Chung, HCMA 335/2014, that the magistrate was entitled to determine the matter upon the whole of the information put before him, he gave the appellant further opportunities to supply additional information as he considered it is appropriate to do so and the learned judge in that case then dealt with it as a rehearing and considered that there was no merits in appeal and dismissed the appeal.

7.The learned judge, however, at paragraph 38, said that the magistrate had carefully considered the information and assessed the evidence available before her and had applied the correct text and made her decision, so therefore what the learned judge said was that the learned magistrate had therefore good cause to refuse to issue the private summons, but in this present case before me, I note that the learned magistrate here had not asked for further particulars.  Despite the fact that in page 2 of the appeal bundle at the bottom of the page of the hand‑written information, the appellant had said that he will disclose details in open court, the problem here, as Mr Lee said, is that the learned magistrate does not have to give an applicant an opportunity in open court to give particulars, that is true.  However, in view of the note that was written down, I consider that the just thing to do was for the learned magistrate to issue a letter to the applicant asking for further particulars before deciding whether there were sufficient grounds in this case to issue the private summons but she had failed to do so and merely dismissed the application on the grounds that there had been no criminal investigation by the police and therefore no consent given by the Secretary for Justice which as I have said is in error.

8.I do not feel that it would be just therefore for me to merely dismiss the appeal even though the appellant had not appeared in court, I would therefore in the circumstances allow the appeal remit the case back to the magistrate’s court to be dealt with.

Mr Charles Lee PP, of the Department of Justice, for the respondent

The appellant did not appear