HKSAR v. Cheung Kin Chung
Read the full judgment text of HCMA 192/2019 on BabelCite. This High Court CFI judgment was delivered on 31 July 2020.
1. On 11 April and 8 May 2018, the appellant applied to Ms Bernadette Woo, Principal Magistrate at Kowloon City Magistrates’ Courts (hereinafter as “the Magistrate”), for the issuance of four private summonses against three different proposed defendants for the commencement of private prosecutions against them. All four applications were refused. The appellant appealed against the determinations and the appeals were heard by Madam Justice Toh on 21 November 2018.
Cites 4 cases
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HCMA 192/2019 [2020] HKCFI 1238 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MAGISTRACY APPEAL NO 192 OF 2019 (ON APPEAL FROM KCMP 191 OF 2018) ________________ BETWEEN
________________ And IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MAGISTRACY APPEAL NO 193 OF 2019 (ON APPEAL FROM KCMP 280 OF 2018) ________________ BETWEEN
________________ And IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MAGISTRACY APPEAL NO 194 OF 2019 (ON APPEAL FROM KCMP 281 OF 2018) ________________ BETWEEN
________________ And IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MAGISTRACY APPEAL NO 195 OF 2019 (ON APPEAL FROM KCMP 282 OF 2018) ________________ BETWEEN
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________________ JUDGMENT ________________ 1.On 11 April and 8 May 2018, the appellant applied to Ms Bernadette Woo, Principal Magistrate at Kowloon City Magistrates’ Courts (hereinafter as “the Magistrate”), for the issuance of four private summonses against three different proposed defendants for the commencement of private prosecutions against them. All four applications were refused. The appellant appealed against the determinations and the appeals were heard by Madam Justice Toh on 21 November 2018. 2.Despite the appellant being absent on that day, Madam Justice Toh dealt with, and allowed, the appeals and ordered the cases to be sent “back to the magistrates’ court for a rehearing.” 3.The Magistrate did deal afresh with the four applications. Two letters were sent to the appellant on 7 January and 4 February 2019, requesting him “to submit all relevant materials and evidence in writing to support his application”. 4.The appellant wrote back in two letters dated 28 January and 18 February 2019. The Magistrate found that “no useful information nor details of the alleged incidents were provided” in those letters. 5.It is necessary for me to set out the relevant contents of the appellant’s two letters in full. 6.In the letter of 28 January 2018 that the appellant sent in reply to the Magistrate’s request for further information and material in support of the four applications, the appellant wrote this:
7.In the letter of 18 February 2019, the appellant wrote this:
8.The Magistrate considered all the submitted materials and found that the appellant had failed to provide “any material or prima facie evidence in support of his applications, and has failed to show that the essential ingredients of the alleged offences were prima facie present.” 9.The appellant was informed of the Magistrate’s said decision to dismiss all four applications by way of a letter sent on 6 March 2019. 10.The appellant now seeks to appeal against the Magistrate’s determination. THE MATTER OF SERVICE OF THE NOTICES OF HEARING 11.On 20 March 2020, the appellant was absent at the first appeal hearing. The case was originally adjourned to the following Wednesday 25 March so that the respondent can confirm with the court that service of the notices of hearing had been effected. This hearing was, however, adjourned generally under the Judiciary’s decision to adjourn all non-urgent and non-essential cases in order to safeguard the public’s safety as a result of the COVID-19 situation. 12.At the resumed hearing on 19 May 2020, I was informed that the notices of hearing that were served by way of registered post had all been returned unclaimed. All personal service attempts at the appellant’s last known address by bailiffs were also unsuccessful, with the door locked and unanswered. 13.While it is observed that the appellant is a frequent user of the court’s facilities, in particular as an appellant in magistracy appeals (this would be his 47th to 50th appeal), given the mainland and later global lockdown due to the pandemic, there is a possibility that the appellant might have been caught up in the resulting chaos and, therefore, did not have notices of the hearings. 14.That being the case, out of an abundance of caution and in the interest of fairness, the hearing of the appeals was adjourned to 15 June 2020, by which time limited movement in and out of Hong Kong should have been resumed. 15.In any event, there should be no difficulty for the appellant, should he so chooses, to contact the court by way of letter or telephone calls to inquire about the progress of his appeals. He would then be informed of the court’s inability to properly serve the notices of hearing on him, as well as be told of the upcoming hearing date. This the appellant never did. 16.Given the difficulty in service, and the appellant’s history of not showing up at his appeal hearings, I found that service of the notices of hearing for the hearing on 15 June 2020 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. 17.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. 18.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 19.The grounds of appeal stated in the appellant’s handwritten notice are identical in all four appeals and are as follows:
DISCUSSION 20.The appellant’s summons applications were made pursuant to section 8 of the Magistrates Ordinance, Cap 227. 21.Section 8 (1B)(b) governs how the Magistrate may deal with such applications:
22.The first issue in these four appeals is, therefore, whether the Magistrate had good cause to refuse the applications. 23.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:
24.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. 25.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 192 AND 193/2019 26.Both of these applications have the same proposed defendant, facing the same proposed charge of “attempt to pervert the course of justice” and I will deal with them together. 27.The applications were each supported by a one-page handwritten document entitled “Information” with a Statement of Offence and Particulars of Offence, which I set out below. HCMA 192/2019
28.The appellant also included at the bottom of the “Information” a note, stating his residential address, and the words “also immediately order housing dept. to let me have a copy of the relevant CCTV footages between 6:30 am and 6:45 am in the place thereof as evidence in view of the retention time of such evidence of only 2 weeks!” HCMA 193/2019
29.The appellant stated at the bottom of this “Information” that “details of this private prosecution application will be disclosed in open court”. The appellant also wrote this,
30.As mentioned above, subsequent to the first appeals being allowed and the applications sent back to the Magistrate for “rehearing”, the learned Magistrate wrote to the appellant for further information. 31.The full contents of the letters the appellant wrote in reply were set out above and they show that the appellant had merely repeated his bare allegations against the proposed defendants and did not provide any new materials in support of his applications. Those were the totality of material put forward by the appellant in support of his applications, on which the Magistrate’s decisions as to whether the essential ingredients of the offence are prima facie present had to be based. ESSENTIAL INGREDIENTS OF THE OFFENCE 32.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:
33.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. 34.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 194/2019
35.At the bottom of the “Information”, the appellant wrote that “I will disclose details in open court” and then stated his residential address. ESSENTIAL INGREDIENTS OF THE OFFENCE 36.In deciding whether to issue the summons, the Magistrate must consider whether “the person making the threat intends to cause alarm of the person to whom the threat is made or that the threat itself is of such a kind that a person of ordinary firmness would be affected by it. In deciding these matters the context of the circumstances out of which the threat has arisen are of paramount importance to be considered[1]”. 37.Despite the two requests made by the Magistrate for more information, the appellant had failed to provide any. The bare allegations in the “Information” and the two letters could not have provided sufficient material for the Magistrate. 38.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. 39.I noticed that the appellant in his first letter in reply seemed to suggest that further materials were to be found “in my attached C.D. in SCTC 10752/18 which you can check with the Small Claims Tribunal.” There is no mention in the Magistrate’s Reasons for Refusal of this “C.D.” or its contents. 40.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. 41.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, and the lack of material was such that she would have no choice but to find that there is good cause for not issuing the summons. HCMA 195/2019
42.The appellant wrote at the bottom of the “Information” that he “will disclose details in open court”. ESSENTIAL INGREDIENTS OF THE OFFENCE
43.According to the appellant’s information and letters, it would appear that the omission on the proposed defendant’s part was her possible inaction towards the appellant being supposedly criminally intimidated and assaulted by another security guard. This is, however, mere conjecture on my part since there is simply insufficient material to try to ascertain what the appellant is alleging. 44.The appellant also mentioned in his letter that the commission of the crime is “as revealed in SCTC 11413/18 Exhibit #C4 and the attached C.D. which you can approach the Small Claims Tribunal.” 45.Again, there is no mention of such a “C.D.” in the Magistrate’s Reasons for Refusal. 46.In any event, as I have said above, it is not the duty of the Magistrate in dealing with such applications to also 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. 47.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. 48.Given the paucity of material put forward by the appellant, it is right that the Magistrate found 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. 49.I deal next with the following grounds of appeal common to all four appeals. GROUNDS OF APPEAL COMMON TO ALL FOUR CASES 50.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. 51.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. 52.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 Bill of Rights Ordinance. BIAS Actual bias 53.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 54.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:
55.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. 56.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 57.Article 10 of the Hong Kong Bill of Rights reads as follows:
58.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. 59.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. 60.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”. 61.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. 62.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. 63.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. 64.The second and fourth ground of appeal, therefore, both fail. 65.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 66.Since the appellant had in his “Information” requested the Magistrate “to let me (the appellant) have the relevant CCTV footages showing the crime” as material evidence, relying on sections 21 and 22 of the Magistrates Ordinance, I would also like to deal with this. 67.Section 21 states that:
68.Section 22 grants the Magistrate the collateral power to order production of documents:
69.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. 70.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. 71.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:
72.As such, the appellant has no right to request the Magistrate to order the release of the CCTV footages under the two sections. JUDGMENT 73.For the reasons given above, all four appeals are dismissed. COSTS 74.This batch of appeals would be the 47th to 50th 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. 75.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. 76.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 192/2019