HKSAR v. Cheung Kin Chung

HCMA 516/2019

[2020] HKCFI 1241

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 516 OF 2019

(ON APPEAL FROM KCMP 469 OF 2019)

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BETWEEN

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JUDGMENT

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1.On 12 August 2019, the appellant applied to magistrate Mr Raymond Wong for the issuance of a private summons for the commencement of private prosecution against a proposed defendant.

2.By a letter dated 27 August 2019, the magistrate requested the appellant to submit all the relevant documents, materials and information in writing on or before 25 September 2019 to support his application. 

3.The appellant neither made a reply nor provided any of the requested materials. 

4.The magistrate proceeded to consider the application with the available information and found that the appellant had failed to provide any details of the alleged incident in support of his application and also failed to show that the essential ingredients of the alleged offence were prima facie present.

5.By a letter dated 2 October 2019, the appellant was informed of the magistrate’s decision to refuse his application.

6.The appellant now seeks to appeal against the magistrate’s determination.

The matter of service of the notices of hearing

7.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 the HKSAR v Cheung Kin Chung, HCMA 192-195/2019 judgment and will not be repeated here.

8.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. 

9.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. 

10.Despite the appellant’s absence at the 15 June 2020 hearing, 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.

Discussion

11.The appellant’s summons applications were made pursuant to section 8 of the Magistrates Ordinance, Cap 227.

12.Section 8 (1B)(b) governs how the magistrate may deal with such applications:

“(b) 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 cause refuse to issue a summons.” (emphasis added)

13.The first issue in this appeal is, therefore, whether the magistrate had good cause to refuse the applications.

14.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:

(1) it is within the power of a magistrate in dealing with an application for the 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.

15.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.

16.The next consideration would then be whether the magistrate was correct in deciding that the essential ingredients of the offence are not prima facie present.

17.The only material that the magistrate had to work on are found on a one-page document entitled “Information”.  On it is stated the following:

“Statement of offence: aiding & abetting a man assaulting me, contrary to Common Law. Particulars of offence: 容海桐, a security guard of pioneer mgnt. ltd., working at 3/F, mei tak house, mei tung est., kln., on 6.8.2019 did commit the crime for the 8th time on the G/F of the said building by aiding & abetting the man for the 5th time assaulting me!”

18.The appellant stated in the note at the bottom of the “Information” that he “will appear in Open Court”.  He also “demand CCTV footage evidence between 2:30pm and 3:05pm on 6.8.2019, same as usual initial law enforcement evidence-gathering procedure, and address & Eng. & Chin., the full name of the man assaulting me!”

Essential ingredients of the offence

“The words “aid and abet” are apt to refer to the actions of a person who is present at the time of the commission of an offence and takes some part by assisting or encouraging its commission.”

“Briefly stated, an aider and abettor need not be proved to have acted with the same mens rea that required for the principal offender. Instead, it must be proved he acted: (i) with intention by his conduct to aid or abet another to commit an offence, ie intention to do acts which he knew to be capable of assisting or encouraging the commission of the offence; and (ii) with knowledge of the relevant circumstances, ie with knowledge of the facts which constitute the principal offence[1].”

19.It is not clear at all from the information provided by the appellant as to how the proposed defendant had assisted the man to assault him. The law on aiding and abetting is so wide and so full of permutations that it is impossible to decide what the proposed crime is alleged based on the particulars stated by the appellant.

20.The magistrate was right to find that there is good cause to refuse the application.  The essential ingredients for the offence are not prima facie present.

Demand for CCTV footage

21.As for the “demand” made by the appellant for CCTV footages, the appellant did not explain under which legal provision he was seeking such an order.

22.In the appellant’s previous appeals, he had made similar requests of the magistrate, and had stated specifically the statutory provision he was relying upon, being sections 21 and 22 of the Magistrates Ordinance.

23.This point was dealt with by Madam Justice Poon in HCMA 571-3/2015 as follows:

“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.”

24.I agree with Madam Justice Poon’s reasoning and ruling.  The magistrate was right to not accede to the appellant’s request in the present case.

Other grounds of appeal

25.The grounds of appeal stated in the appellant’s handwritten notice are as follows:

“The grounds of this appeal are that the magistrate was prejudiced against me by not showing the relevant date of application, by not providing public hearing, public pronouncement of decision and sufficient and clear rationale for this decision therefore it caused injustice by violating Article 10 of the HK Bill of Rights Ordinance resulting in an unfair trial.”

26.These grounds are almost identical to the grounds put forward by the same appellant in HCMA 309-311/2019, which were heard by myself.

27.Save for the first part, these grounds are also identical to the grounds the appellant had relied upon in the other two batches of appeal cases[2] that were also heard by me.

28.The one difference is the allegation of prejudice, instead of bias, against the appellant based on the magistrate “not showing the relevant date of application”.

29.It is not clear what the appellant meant by this ground of appeal.  In any event, the date of application is clearly stated by the appellant himself on the document entitled “Information”, with a bar-coded case number attached on top by way of a label.  I do not see how “not showing” the date anywhere would prejudice the appellant in any way.  I would treat this as the first ground of appeal, and find the appellant unsuccessful.

30.The second ground of appeal is that there was no public hearing and public pronouncement of the decision.  The third ground of appeal is that the magistrate did not provide sufficient and clear reasons for his decisions.  The fourth ground is that there has been a breach of Article 10 of the Bill of Rights Ordinance resulting in an unfair “trial”.

No public hearing

31.Article 10 of the Hong Kong Bill of Rights reads as follows:

“Article 10

Equality before courts and right to fair and public hearing

All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgment rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children.” (emphasis added)

32.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.

33.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.

34.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”.

35.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.

36.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.

37.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.

38.The second and fourth ground of appeal, therefore, both fail.

39.As for the third ground of appeal of there being “no sufficient rationale” for the refusals, I find that, for the reasons already given above when dealing with whether there was good cause to refuse the application, and upon reading the magistrate’s Reasons for Refusal, ample reasons had been given and the decision to refuse the application was made correctly.  This ground of appeal also must fail.

Judgment

40.For the reasons given above, the appeal is dismissed.

Costs

41.This appeal would be the 57^th magistracy appeal 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.

42.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.

43.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