HKSAR v. Cheung Kin Chung
Read the full judgment text of HCMA 196/2019 on BabelCite. This High Court CFI judgment was delivered on 31 July 2020.
1. On 21 and 24 December 2018, the appellant applied to Ms Bernadette Woo, Principal Magistrate at Kowloon City Magistrates’ Courts (hereinafter as “the Magistrate”), for the issuance of three private summonses against three different proposed defendants for the commencement of private prosecutions against them. His applications were all refused. He now appeals against the Magistrate’s decisions to refuse.
Cites 4 cases
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HCMA 196/2019 [2020] HKCFI 1239 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MAGISTRACY APPEAL NO 196 OF 2019 (ON APPEAL FROM KCMP 842 OF 2018) ________________ BETWEEN
________________ And IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MAGISTRACY APPEAL NO 197 OF 2019 (ON APPEAL FROM KCMP 843 OF 2018) ________________ BETWEEN
________________ And IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MAGISTRACY APPEAL NO 198 OF 2019 (ON APPEAL FROM KCMP 849 OF 2018) ________________ BETWEEN
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________________ JUDGMENT ________________ 1.On 21 and 24 December 2018, the appellant applied to Ms Bernadette Woo, Principal Magistrate at Kowloon City Magistrates’ Courts (hereinafter as “the Magistrate”), for the issuance of three private summonses against three different proposed defendants for the commencement of private prosecutions against them. His applications were all refused. He now appeals against the Magistrate’s decisions to refuse. 2.In support of his applications and in response to the Magistrate’s request for him “to submit all documents, materials and information relevant to and in support of” his allegation against the three proposed defendants in the present three cases, the appellant wrote the following two letters in reply. 3.In the letter of 28 January 2018[1], the appellant wrote this:
4.In the letter of 18 February 2019, the appellant wrote this:
5.The Magistrate considered all the submitted materials and found that the appellant had failed to provide “any details of the alleged incident in support of his application, and failed to show the essential ingredients of the alleged offences are prima facie present”, and refused the applications accordingly. 6.The appellant was informed of the Magistrate’s said decision by way of a letter dated 6 March 2019. 7.The appellant now seeks to appeal against the Magistrate’s determinations. THE MATTER OF SERVICE OF THE NOTICES OF HEARING 8.On 20 March 2020, the appellant was absent at the first appeal hearing. Details of the issue of service of the notices of hearing are found in HKSAR v Cheung Kin Chung, HCMA 192-195/2019 judgment and will not be repeated here. 9.Given the difficulty in service, and the appellant’s history of not showing up at his appeal hearings, I ordered that service of the notices of hearing for the next appeal hearing should be by way of notices put up on the notice boards at the High Court building as well as Kowloon City Magistracy, pursuant to section 115(4)(c) of the Magistrates Ordinance, Cap 227. 10.Notices were put up on 2 June 2020 as ordered and were still on the notice boards as at the morning of the 15 June 2020 hearing, which the appellant also failed to attend. 11.Despite the appellant’s absence at the hearing of 15 June 2020, I found that service of the notices of hearing had been effected under the said section 115(4)(c), and proceeded to deal with the appeals on merits, based on the appellant’s written submissions already filed. GROUNDS OF APPEAL 12.The grounds of appeal stated in the appellant’s handwritten notice are identical in all three appeals and are as follows:
13.These grounds of appeal are also identical to the ones relied upon by the same appellant in HCMA 192, 193, 194 and 195/2019, which are appeals against the same Magistrate’s decision to refuse the same appellant’s applications for private summonses. The proposed defendant in HCMA 192 and 193/2019 is the same one in HCMA 198/2019, alleging the commission of the same offence of attempt to pervert the course of justice, which took place on a different date. 14.Given that the same materials were relied upon by the appellant in those cases in support of his applications; given that the Magistrate had decided that there was good cause to refuse the applications on the same materials; and given the identical wordings of the appellant’s grounds of appeal in the other batch of appeals, much of my analysis in that batch are applicable and thus duplicated in the present set of appeals. DISCUSSION 15.The appellant’s summons applications were made pursuant to section 8 of the Magistrates Ordinance, Cap 227. 16.Section 8 (1B)(b) governs how the Magistrate may deal with such applications:
17.The first issue in these three appeals is, therefore, whether the Magistrate had good cause to refuse the applications. 18.Although what amounts to good cause to refuse to issue a summons is not defined in the Ordinance, in the case of Tsui Koon Wah v Principal Magistrate of Kowloon City Magistrates’ Courts, HCAL 81/2006, Chu J (as she then was) held that:
19.This decision has since been applied in many other cases, in particular all the appeal cases that the appellant had been involved in. The principles are sound, and I will apply likewise. 20.The next consideration would then be whether the Magistrate did ascertain whether the essential ingredients of the offence are prima facie present. To examine this, one must look at the applications individually. HCMA 196/2019 21.The application was supported by a one-page handwritten document entitled “Information” with a Statement of Offence and Particulars of Offence, which I set out below.
22.The appellant, at the bottom of the “Information”, wrote “Pl. let me obtain the relevant evidence of the record of proceedings under s.44 Cap.200 from the Small Claims Tribunal.” ESSENTIAL INGREDIENTS OF THE OFFENCE 23.The relevant parts of section 31 of the Crimes Ordinance are as follows:
24.In order for the proposed defendant’s lie, if made, to amount to perjury, the prosecution will have to prove beyond reasonable doubt that the false statement was material in that proceeding. 25.For the Magistrate to consider whether the alleged lie was material in that proceeding, she must be provided with much more information and materials than what the appellant had. Such information would no doubt include the nature of the small claims tribunal proceedings, so that one might gauge how the credibility of the proposed defendant might affect the outcome of the proceedings, and hence decide whether the alleged lie is material or not. 26.Yet, the appellant had provided no such information despite the Magistrate’s two requests. In his letter of 28 January 2018 set out above, the appellant merely repeated what was stated in the Particulars. 27.He merely repeatedly voiced his opinion that the magistrate court should find out the matters, in essence asking the magistrate to undertake the work of the Police. 28.One would think that the first thing that the appellant might be able to provide to the magistrate in support of his application would be the transcripts of proceedings in the Tribunal. They can be easily obtained by the appellant. If costs were an issue, he could request for an audio recording of the proceedings, which would be helpful for the Magistrate to ascertain if there had been such utterance in the first place. 29.The Statement of Claim, Defence filed in the Tribunal would also be material information for the Magistrate, perhaps accompanied by the appellant’s note to explain how such a lie is material to those proceedings. 30.The appellant had done none of that. 31.I notice that the appellant did mention that such use of abusive language against him by the proposed defendant was recorded in an attached “C.D. and Exhibit #C4 in SCTC 11413/18”. There is no mention of such a C.D. in the Magistrate’s Reasons for Refusal, nor is there any such compact disc in the appeal bundle. 32.In any event, it is not the duty of the Magistrate in dealing with such applications to take up the role of an investigation body. It is for the appellant to provide such material as is necessary in support of his applications. The material in question was already in the possession of the appellant and he could easily have made a copy for the Magistrate. This he did not. 33.Without the disc, it was not open for the Magistrate to speculate what the contents might be, she could only proceed on the materials already before her. Section 44, Crimes Ordinance record of proceedings 34.As to the appellant’s request to the Magistrate for obtaining the record of proceedings in the Small Claims Tribunal under section 44 of the Crimes Ordinance, I find that this section does not empower the Magistrate to so obtain. 35.Section 44 reads as follows:
36.Section 44, therefore, governs the evidential status of such record of proceedings only, it does not provide for the obtaining of the record. 37.Given the dearth of material, the Magistrate was correct to find that there was a good cause to not issue the summons. The essential ingredients of the offence are not prima facie present. HCMA 197/2019
38.The appellant, at the bottom of the “Information”, wrote “Pl. let me obtain the relevant evidence of the record of proceedings under s.44 Cap.200 from the Small Claims Tribunal”. 39.For the same reasons given in relation to HCMA 196/2019 above, I find that there was insufficient material put forward by the appellant to support this application, in particular how the proposed defendant’s alleged lie of not having received a packet might be material to the Small Claims Tribunal proceedings. The Magistrate was right to decide that there was good cause to refuse this application. The essential ingredients of the offence are not prima facie present. HCMA 198/2019
40.The appellant wrote this in the note at the bottom of the “Information”:
41.The relevant paragraph of the appellant’s 28 January 2018 letter is paragraph 8, where he stated that the proposed defendant “most probably… did interfere me as the witness in SCTC 10752 & 11413/18 by showing hostility towards me… by scolding me and chasing me like assaulting me, with the knowledge that on those dates I was such a witness.” (my emphasis) ESSENTIAL INGREDIENTS OF THE OFFENCE[2] 42.In the case of HKSAR v Wong Chi Wai (2013) 16 HKCFAR 539; FACC 10/2012, the Court of Final Appeal set out the elements of the offence of perverting the course of public justice that are required to be proved:
43.Given the above matters that are required to be considered by the Magistrate in order to decide if the essential ingredients of the offence are supported by prima facie evidence, it is clear that what had been put forward by the appellant was totally insufficient. 44.The Magistrate was right to find that there was a good cause to not issue the summons on the ground that the essential ingredients of the offence are not prima facie present. GROUNDS OF APPEAL COMMON TO ALL THREE CASES[3] 45.I deal next with the following grounds of appeal common to all three appeals. 46.The appellant alleges that the Magistrate “was biased against me by offering me no public hearing, no public pronouncement of decision, no sufficient rationale for such decision and it caused injustice by violating Article 10 of the HK Bill of Rights Ordinance resulting in an unfair trial” in all four of the appeals. 47.The grounds as worded are muddled and difficult to understand. As best I could, I proceed on the basis that the appellant’s accusation of the Magistrate as being biased is a ground separate from the others, and is the first ground of appeal. 48.The second ground of appeal is that there was no public hearing. The third ground of appeal is that the Magistrate did not provide sufficient reasons for her decisions. The fourth ground is that there has been a breach of Article 10 of the Hong Kong Bill of Rights Ordinance. BIAS Actual bias 49.The appellant had put forward no evidence as to how the Magistrate was actually biased. There is no suggestion that the Magistrate had a direct interest in the outcome of the applications or allegations to similar effect. The appellant merely made a bare assertion. Apparent bias 50.As for apparent bias, the test to be applied is as confirmed by the Court of Final Appeal in the case of Deacons v White & Case Limited Liability Partnership and Others (2003) 6 HKCFAR 322:
51.In the present case, the appellant had not put forward any material that would suggest that there is a danger that the learned Magistrate would be biased. 52.I find that, having looked at all the available facts and the circumstances of the case, no fair-minded and informed observer would conclude that there was such a possibility or danger. This ground of appeal fails. NO PUBLIC HEARING 53.Article 10 of the Hong Kong Bill of Rights reads as follows:
54.In the magistracy appeal case of HKSAR v Cheung Kin Chung [2018] 2 HKLRD 597, the same appellant sought to appeal the decision of a Magistrate to refuse three summonses as applied by him for private prosecution. 55.One of the grounds of appeal put forward in that case was also that the decision was made without hearing the applicant in open court, and that the appellant’s rights as guaranteed under Article 10 of the Bill of Rights Ordinance had been breached, resulting in him not having had a fair trial. 56.Deputy High Court Judge CP Pang ruled that, since the appellant was not facing a criminal charge, the Magistrate’s decision to not issue the summonses was not a “determination of any criminal charge against him” as stipulated in Article 10. Neither were the decisions a determination of “his rights and obligations in a suit at law”. 57.That being the case, Article 10’s requirement for a public hearing would not cover the Magistrate’s exercise of her jurisdiction to decide under section 8 of the Magistrates Ordinance whether there is good cause to refuse to issue the summonses applied for. 58.I agree with my learned brother’s reasoning and ruling. The appellant’s rights under Article 10, as far as they are applicable, have not been breached. The fact that the applications for the summonses were dealt with without a public hearing does not render the procedure unfair. 59.Since there is no requirement for an open hearing in dealing with the applications, there would also be no requirement for a public pronouncement of the decision in open court. Article 10 is thus also not breached. 60.The second and fourth ground of appeal, therefore, both fail. 61.As for the ground of there being “no sufficient rationale” for the refusals, I find that, for the reasons already given above when dealing with the individual applications, and upon reading the Magistrate’s Reasons for Refusal, ample reasons had been given and the decisions were all made correctly. This ground of appeal also must fail. SECTIONS 21 AND 22 OF THE MAGISTRATES ORDINANCE 62.Since the appellant had, in his letter of 18 February 2019, referred to requests he had made for the provision of CCTV footages “for my investigations & ensuring prosecutions – same as police duty”, I will also include here my findings on the use of sections 21 and 22 of the Magistrates Ordinance as suggested by the appellant in his other applications[4]. 63.Section 21 states that:
64.Section 22 grants the Magistrate the collateral power to order production of documents:
65.When read together, it is clear that the powers under the two sections are exercisable only when a summons has been issued, or a charge has been brought against a defendant. 66.In the present case, a summons was as yet to be issued when the appellant made the request. Sections 21 and 22 would, therefore, have no application to the appellant’s applications for the summons. 67.In the case of HKSAR v Cheung Kin Chung, HCMA 571-3/2015, another of the appellant’s appeals, M Poon J dealt with the exact same point put forward by the appellant and said the following:
68.As such, the appellant has no right to request the Magistrate to order the release of the CCTV footages under the two sections. JUDGMENT 69.For the reasons given above, all three appeals are dismissed. COSTS 70.This batch of appeals would be the 51st to 53rd magistracy appeals that the appellant has been involved in. All of the other appeals also originated from the appellant being dissatisfied with a magistrate’s decision to refuse his application to issue a private summons. The bulk of the proposed defendants were security guards of the building that the appellant was residing in. 71.It is clear that the appellant should consider obtaining some help, perhaps in the form of proper legal representation, to assist him in deciding how best to proceed with his situation in the future. 72.There be no order as to costs.
Ms Ho May Yu Lily, SPP, of the Department of Justice, for the respondent The appellant acting in person, being absent [1] This is the same letter the appellant relied upon in his applications in HCMA 192, 193, 194 and 195/2019. [2] This part of my judgment is identical to that in HCMA 192 and 193/2019, since the alleged offence as well as the material relied upon by the appellant in both those cases are the same as in the present case. [3] This part is identical to my judgment in HCMA 192-5/2019. [4] This part is identical to the judgment in HCMA 192-5/2019. | |||||||||||||||||||||||||||||||||||||
Cases cited in this judgment
Further hearings and rulings under HCMA 196/2019