HKSAR v. Cheung Kin Chung

HCMA 198/2021

[2022] HKCFI 863

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 198 OF 2021

(ON APPEAL FROM KTMP 186, 188 & 213 OF 2021)

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BETWEEN

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Before: Hon Campbell-Moffat J in Court

Date of Judgment: 31 March 2022

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JUDGMENT

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Introduction

1.The appellant filed three applications to issue private summons on 10, 16 and 24 March 2021 under KTMP 186, 188 and 213/2021 respectively[1] (“the summons”). All three applications were refused by the learned Magistrate, Mr Andrew Mok, on 21 April 2021.

2.For the reasons given below, this appeal must be dismissed. However, for the benefit of the appellant, this Court will identify the essential characteristics of the procedure sought to be adopted by the appellant and, in accordance with the judgment of Poon CJHC in HKSAR v Kwok Tak-ying HCMA 216/2020; [2021] HKCA 1491, explain why it cannot succeed.

Analysis

3.The right to bring a private prosecution is enshrined in the common law and was given statutory effect by way of s14 Magistrates Ordinance, Cap 227 (“the Ordinance”), which states under s14(1):

“A complainant or informant who is not acting or deemed to act on behalf of the Secretary for Justice may if he so wishes and without any prior leave conduct in person or by counsel on his behalf the prosecution of the offence to which the complaint or information relates…”

4.That right remains a fundamental feature of the criminal justice system in Hong Kong[2]. In order to give effect to such right, someone who wishes to bring a private prosecution must lay an information or make a complaint to the Magistrates’ Courts under s10 or s72 of the Ordinance dependent upon whether the offence in question is a summary or indictable offence.

5.Having laid an information or made a complaint, it is for a magistrate[3] to issue a summons to the person against whom an information has been laid or a complaint has been made[4]. However, a magistrate has the power under s8(1B)(b) of the Ordinance to refuse to issue a summons. That section reads:

“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)[5], but, if a magistrate does consider the complaint or information, he may for good cause refuse to issue a summons.”

6.In practice, complaints by private citizens are subject to scrutiny by the courts and may be refused for good cause. That scrutiny may be with or without a hearing. Such an exercise must be undertaken by the magistrate judicially[6]. A summary was provided in R (Kay) v Leeds Magistrates’ Court [2018] 4 WLR 91 at [22][7]:

(1) The magistrate must ascertain whether the allegation is an offence known to the law, and if so whether the essential ingredients of the offence are prima facie present; that the offence alleged is not time-barred; that the court has jurisdiction; and whether the informant has the necessary authority to prosecute.

(2) If so, generally the magistrate ought to issue the summons, unless there are compelling reasons not to do so – most obviously that the application is vexatious (which may involve the presence of an improper ulterior purpose and/or long delay); or is an abuse of process; or is otherwise improper.

(3) Hence the magistrate should consider the whole of the relevant circumstances to enable him to satisfy himself that it is a proper case to issue the summons and, even if there is evidence of the offence, should consider whether the application is vexatious, an abuse of process, or otherwise improper.

(4) Whether the applicant has previously approached the police may be a relevant circumstance.

(5) There is no obligation on the magistrate to make inquiries, but he may do so if he thinks it necessary.

(6) A proposed defendant has no right to be heard, but the magistrate has a discretion to: (a) require the proposed defendant to be notified of the application; (b) hear the proposed defendant if he thinks it necessary for the purpose of making a decision.”

7.The learned Magistrate dealt with all summons. He provided the appellant with an opportunity to make good his several complaints. He considered the underlying criminal allegations and was of the view that either there was no or insufficient evidence to support a prima facie case of an allegation[8], or the facts did not support the allegation in law[9] and, rightly, he refused to issue the summons.

Procedure on Appeal from a Decision to Refuse to Issue a Summons

8.Although not specifically stated within the homemade grounds of appeal, this appeal is by way of s113 of the Ordinance. Where a magistrate refused to issue a summons, it is not open to an aggrieved party to appeal that refusal to a Judge of the High Court by way of s113 of the Ordinance, which states:

“(1) Any person aggrieved by any conviction, order or determination of a magistrate in respect of or in connection with any offence, who did not plead guilty or admit the truth of the information or complaint, may appeal from the conviction, order or determination … to a judge.

(2) Any person who after pleading guilty or admitting the truth of the information or complaint is convicted of any offence by a magistrate may appeal to a judge against his sentence…

(3) After the hearing and determination of any complaint or other proceeding which a magistrate has power to determine in a summary way other than a determination or proceeding relating to or in connection with an offence either party thereto may appeal from such order or determination of such magistrate to a judge.”

That is because s113 applies only to an appeal against a conviction, order or determination. A conviction, order or determination are found only at the conclusion of the proceedings before a magistrate: R v Cheung Chi Keung [1986] HKC 653, per Roberts CJ at p.655B-D. An ex parte application for the issuance of a summons to bring proceedings against a defendant is not the exercise of a magistrate’s summary jurisdiction in which it is envisaged that there will be parties on either side. A refusal to issue a summons brings proceedings to an end before they have truly begun. There is no proposed party.

9.How then does an aggrieved party in the circumstances of this case, seek redress? Where a magistrate exercises his statutory powers other than in the exercise of his summary jurisdiction, that exercise may be the subject of judicial review: R v Hereford Magistrates’ Court, Ex parte Rowlands [1998] QB 110 per Lord Bingham at p. 125C-D. This would include the power of a magistrate to refuse to issue a summons under s8(1B)(b) of the Ordinance.

Conclusion

10.This appeal must be dismissed as improperly constituted[10]. Even so, and if it had been properly brought, it would have been dismissed in any event for the reasons given at paragraph 7 above.

11.Owing to the continuing COVID-19 situation, this matter was dealt with on the papers. The appeal is dismissed. There will be no order as to costs.

Ms Claudia Ko, SPP of the Department of Justice, for the respondent

The appellant acted in person