HKSAR v. Cheung Kin Chung
Read the full judgment text of HCMA 309/2019 on BabelCite. This High Court CFI judgment was delivered on 31 July 2020.
1. On 11 and 26 April 2019, 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 each against different proposed defendants for the commencement of private prosecutions against them.
Cites 4 cases
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HCMA 309/2019 [2020] HKCFI 1240 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MAGISTRACY APPEAL NO 309 OF 2019 (ON APPEAL FROM KCMP 192 OF 2019) ________________ BETWEEN
________________ And IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MAGISTRACY APPEAL NO 310 OF 2019 (ON APPEAL FROM KCMP 214 OF 2019) ________________ BETWEEN
________________ And IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MAGISTRACY APPEAL NO 311 OF 2019 (ON APPEAL FROM KCMP 215 OF 2019) ________________ BETWEEN
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________________ JUDGMENT ________________ 1.On 11 and 26 April 2019, 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 each against different proposed defendants for the commencement of private prosecutions against them. 2.The Magistrate caused two letters to be sent to the appellant on 16 April and 3 May 2019, requesting the appellant to submit all relevant information and materials in writing to support his applications. The appellant did not reply. 3.The Magistrate proceeded to consider the available materials and, in all three applications, found that the appellant had failed to provide “any details of the alleged incident in support of his application and has failed to show the essential ingredients of the alleged offence were prima facie present”. 4.The appellant was informed of the Magistrate’s said decisions by way of a letter dated 17 June 2019. 5.The appellant now seeks to appeal against the Magistrate’s determination. THE MATTER OF SERVICE OF THE NOTICES OF HEARING 6.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. 7.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. 8.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. 9.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. DISCUSSION 10.The appellant’s summons applications were made pursuant to section 8 of the Magistrates Ordinance, Cap 227. 11.Section 8 (1B)(b) governs how the Magistrate may deal with such applications:
12.The first issue in these three appeals is, therefore, whether the Magistrate had good cause to refuse the applications. 13.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:
14.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. 15.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 309/2019
16.The appellant also stated that he “will show up in Open Court”. ESSENTIAL INGREDIENTS OF THE OFFENCE[1] 17.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:
18.Despite the Magistrate requesting the appellant to submit all documents, materials and information relevant to and in support of his case, none was forthcoming. 19.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 the bare allegations put forward by the appellant in the “Information” was wholly insufficient. 20.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. HCMA 310/2019
21.The appellant added at the bottom of the “Information” that he “will show up in Open Court”. He also wrote this: “Urgently, pl. order housing dept. furnishing me with a copy of the C.C.T.V. footage between 5:40am & 6:10am on 16.4.2019 as evidence. It is reminded that security guards here have been aiding & abetting others attacking me for more than 10 times!”. 22.For the same reasons given in relation to HCMA 309/2019 above, I find that the Magistrate was right to find that there was good cause to refuse the application, in that “the Applicant has failed to provide any details of the alleged incident in support of his application and failed to show the essential ingredients of the alleged offence are prima facie present”. 23.As for the request by the appellant for the Magistrate to order the Housing Department to furnish him with copy of the CCTV footages, the appellant did not explain under which legal provision he was seeking such an order. 24.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. 25.This point was dealt with by Madam Justice Poon in HCMA 571-3/2015 as follows:
26.I agree with the reasoning and ruling of Madam Justice Poon. The Magistrate was right to not accede to the appellant’s request in the present case. HCMA 311/2019
27.As with the earlier case, the appellant noted on the “Information” that he “will show up in Open Court… Urgently pls. order housing dept. giving me the full name, in both English & Chinese of the male attacker with his address for private prosecution & a copy of the C.C.T.V. footage between 12:40pm & 1:20pm on 20.4.2019 as evidence. It is reminded that security guards here have been aiding & abetting others attacking me for more than 10 times!” 28.Just as in the above case, upon receiving the “Information”, the Magistrate by a letter dated 3 May 2019 directed the appellant to “provide materials, information and evidence in writing to support his allegation on or before 31 May 2019.” The appellant did not comply with the request and provided no further material. 29.The Magistrate proceeded to consider the application with the material as stated on the one page “Information” and found that the essential ingredients of the alleged offence were not prima facie present. The application was then dismissed. ESSENTIAL INGREDIENTS OF THE OFFENCE
30.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. 31.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. GROUNDS OF APPEAL COMMON TO ALL THREE CASES 32.The grounds of appeal stated in the appellant’s handwritten notice are identical in all three appeals and are as follows:
33.Save for the first part, these grounds are identical to the grounds the appellant had relied upon in the other two batches of appeal cases[3] that were also heard by me. 34.The one difference is the allegation of bias based on the Magistrate “not showing the relevant date of application”. 35.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 each of 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 amount to bias against the appellant. 36.In any event, I proceed on the basis that the appellant’s accusation of the Magistrate as being biased is a ground separate to the others, and is the first ground of appeal. 37.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 38.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 39.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:
40.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. 41.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 42.Article 10 of the Hong Kong Bill of Rights reads as follows:
43.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. 44.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. 45.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”. 46.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. 47.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. 48.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. 49.The second and fourth ground of appeal, therefore, both fail. 50.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. JUDGMENT 51.For the reasons given above, all three appeals are dismissed. COSTS 52.This batch of appeals would be the 54th to 56th 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. 53.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. 54.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 | |||||||||||||||||||||||||||||||||||||
Cases cited in this judgment
Further hearings and rulings under HCMA 309/2019