HKSAR v. Tsang Hing Cheung Thomas

HCMA 283/2021

[2023] HKCFI 3197

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 283 OF 2021

(ON APPEAL FROM KTCC 1644 OF 2019)

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BETWEEN

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J U D G M E N T

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1.The applicant applies for certification of points of law for appealing to the Court of Final Appeal after his appeal against conviction was dismissed by this court in a Judgment delivered on 25 May 2023.

Questions for Certification

2.The applicant submits that the point of law of great and general importance consists of two parts:

Question 1:  In an appeal under section 113 of the Magistrates Ordinance (Cap 227) (“the MO”), does the appellant have a right to oral hearing, whether pursuant to section 118 of the MO and/or otherwise?

Question 2:  If the answer to Question 1 is yes, under what circumstances can a right to oral hearing be curtailed?

3.The respondent opposes the application and submits that Question 1 and 2 either do not arise in the instant appeal and/or are not reasonably arguable.

4.I have considered the full submissions made by the applicant and the respondent.

Discussion

Question 1: In an appeal under section 113 of the Magistrates Ordinance (Cap 227) (“the MO”), does the appellant have a right to oral hearing, whether pursuant to section 118 of the MO and/or otherwise?

5.In my judgment, the applicant’s contention that under section 113 of the MO, the appellant has a right to oral hearing, whether pursuant to section 118 of the MO and/or otherwise is not reasonably arguable.

6.The history of the appeal shows that after direction was given to all parties that this appeal was to be determined on paper submissions without an oral hearing, parties filed their written submissions in accordance with the direction.  In the written submissions filed by the applicant, there was no request/representation made to the Court that an oral hearing should be held in addition to the written submissions.

7.In my judgment, the interpretation of sections 116 to 118 of the MO does not give an applicant a right to oral hearing in a magistracy appeal, such construction is consistent with the decision of the Court of Final Appeal in Chow Shun Yung v Wei Pih & Another [2004] 1 HKLRD 1:

“19. Reliance was placed on s. 18(2) of the Ordinance which states:

The power of the court to hear and determine any application for leave to appeal … shall be exercised by the Appeal Committee.

20. It was argued that since the Appeal Committee’s powers in relation to leave applications is a power delegated to the Court to ‘hear and determine’ such applications, it must hold oral hearings.

21.  This argument is made on the assumption that the term ‘hear’ in the contest of a power to ‘hear and determine’ inevitably involves an oral hearing and that written representations do not suffice. Plainly, this is not necessarily the case, whether in respect of a statutory provision requiring the ‘hear and determine’ of appeals: eg, R v Immigration Appeal Tribunal, ex p Jones (Ross) [1988] WLR 477; in relation to the right to a fair hearing in administrative law: see De Smith, Woolf and Jowell, Judicial Review of Administrative Action (5^th ed., 1995); Wade and Forsyth, Administrative Law (8^th ed., 2000) pp.511-512; or as laid down in the international jurisprudence regarding the right to a fair and public hearing, discussed below.”

8.In P v Commissioner of Independent Commission Against Corruption (2007) 10 HKCFAR 293 which was decided subsequent to Chow Shun Yung v Wei Pih & Another, on the issue of the validity of an ex parte order authorising the Commissioner of ICAC to require non-subject to produce documents under section 14(1)(d) of the Prevention of Bribery Ordinance (Cap 201), the Court of Final Appeal applied the principles in Chow Shun Yung v Wei Pih & Another and held that the absence of oral hearing was consistent with Order 119 rule 3 of the Rules of the High Court, Cap 4A did not invalidate the ex parte order.  The Court of Final Appeal held that a judge could deal with the application on the papers and call for an oral hearing if necessary or desirable. 

9.In my Judgment, the term “hearing” in sections 116 and 118 of the MO should be interpreted in the same manner as the term “hear and determine” was interpreted in Chow Shun Yung v Wei Pih & Another.

10.In P v Commissioner of Independent Commission Against Corruption, the Court of Final Appeal held:

“55. …. In Chow Shun Yung v Weh Pih & Another (2003) 6 HKCFAR 299 at p.310A-D, the Appeal Committee was concerned with s.18 (2) of the Hong Kong Court of Final Appeal Ordinance (Cap.484) which provides that the powers of the Court to ‘hear and determine’ applications for leave to appeal shall be exercised by the Appeal Committee. It held (at p.310A-D) that the term ‘hear and determine’ in that provision does not necessarily involve an oral hearing and does not preclude it from dealing with applications, which have no reasonable grounds of success or are frivolous or fail to comply with the rules, on the papers without an oral hearing. Whether a phrase such as ‘hear’ or ‘hearing’ in a particular statutory provision requires an oral hearing to be held depends on its context. …” (Italics added)

11.I agree with the respondent that sections 113 to 118 of the MO, properly construed, are provisions which empower the Court of First Instance to exercise the power to “hear and determine” magistracy appeals.  The object of these provisions is not to set a requirement that an oral hearing must be held for magistracy appeals.  In my judgment, a paper hearing, for the purpose of proper disposal of a magistracy appeal, is a hearing that can satisfy the requirements in section 118(1)(b) and section 118(2) of the MO.  There is nothing in the phrases “shall be heard” in section 118(1)(b) and “may be heard” in section 118(2) that the hearing must be conducted orally.  The above construction that sections 113 to 118 of the MO do not oblige the Court of First Instance to hold an oral hearing in every Magistracy Appeal is also consistent with the absence of any provision in the MO that confers a right/requires the appellant to be present at an oral hearing of a magistracy appeal. 

12.The object of sections 113 to 118 of the MO is to give the Court of First Instance full powers to deal with Magistracy Appeals.  It is a matter of judicial discretion for the Court of First Instance to decide whether an oral hearing is necessary or desirable.  It is always open for the parties to ask for an oral hearing be held and make submissions on the matter if they so wish.

13.I have considered the submissions of the parties on the Hong Kong Bill of Rights Ordinance (“HKBORO”).  The right to a “fair and public hearing” is enshrined by Article 10 under section 8 of the HKBORO. In Chow Shun Yung v Wei Pih & Another, the Court of Final Appeal said “… where there has been a fair and public hearing at first instance, relatively little is required to give effect to the right at the appellate stage.”  In my Judgment, in the absence of any complaint that an appellant did not receive a fair and public hearing at first instance and given that it is open for an appellant to ask for an oral hearing of the appeal, giving the Court a discretion to determine whether to hold a hearing on papers without an oral hearing is consistent with the right to a “fair and public hearing” guaranteed by Article 10 under section 8 of the HKBORO.  For the applicant’s submissions that “Hong Kong courts are currently left unguided by principles on whether protection of public health in view of pandemic is sufficient to justify paper disposal of a Magistracy appeal”, given that the COVID pandemic ended in early 2020, the matter raised is not a point of law of great and general importance.

14.The respondent is right in the submissions that, given the nature of a magistracy appeal is a “rehearing on the papers” where the parties have been afforded the opportunity to address the court on any point by way of written submissions and a reply by the appellant, the task of rehearing of the Court of First Instance is different from a first instance hearing.

15.In the reply submissions, the applicant submits that “… a magistracy appeal is a substantive appeal made to an intermediate court of appeal, where there have been public hearings with reasoned Judgments in courts of only one level below, and where the appeal by its nature of rehearing involves wide questions of whether the charge(s) has(have) been proven beyond reasonable doubt…”  It can readily be seen in the reply submissions that the applicant acknowledges the public nature of the hearing in the court below.  Absent the need to hear fresh evidence on appeal, a magistracy appeal is a rehearing on the papers, as the Court of Final Appeal held in Raymond Chen v HKSAR (2010) 13 HKCFAR 728, the wide questions envisaged in the applicant’s reply submissions can be addressed in full in written submissions by counsel.  As said, if the parties saw the need to have an oral hearing, they were at liberty to ask for one.

16.The applicant submits that a judge may make fresh factual findings in a magistracy appeal, as opposed to merely approving and making final the decision below.  In my Judgment, the possibility that a judge may make fresh factual findings in a magistracy appeal does not alter the fact that in a magistracy appeal, the parties have the opportunity to address the court on any point by way of written submissions, including matters that may involve fresh factual findings and a reply by the appellant.  In any event, it is open for an appellant to ask for an oral hearing of the appeal if one is required.

17.The applicant submits in the reply submissions that “…In contrast, a Magistracy appeal is inter parte, by its nature of rehearing the applicable standard is higher one of ‘beyond reasonable doubt’, and any Judgment made cannot be ‘varied’ unless by way of a further appeal.”  It is over simplistic to state “the applicable standard” as “higher one of “beyond reasonable doubt”, the correct principles can be found in the Judgment of Zervos J (as he then was) in HKSAR v Fok James Alistair HCMA 82/2015:

“4. The principles relating to a magistracy appeal are well settled. As noted by McWalters J (as he then was) in HKSAR v Ip Chin Kei [2012] 4 HKLRD 383, a magistracy appeal is a rehearing on the papers. He explained at paras 59 and 60 that the duty of the appellate court was not to determine whether error had been made, and if so what the consequence of such an error would be as if conducting an appeal in the strict sense, but rather whether any error that had been identified prevented the appellate court from performing its statutory duty of conducting a rehearing. He noted that if the appellate court could conduct the rehearing it should do so and if it could not then it should allow the appeal, making such order or orders as seen to it, in the circumstances, to be just. He further noted that even if no error had been identified and no ground of appeal made out then that was not the end of the matter as the duty on the appellate court was to conduct a rehearing and that it should do for its ultimate duty is to determine whether it is satisfied beyond reasonable doubt of the guilt of the appellant.

5. McWalters J summarised the relevant legal principles at para 66 by providing eight statements of principle of which the last four are of particular relevance to the conduct of a magistracy appeal and to the discussion in this judgment. They state that:

‘(5) The appellate court will only depart from a magistrate’s finding of fact or determination of a witness’ credibility if satisfied that it is plainly wrong.

(6) Error by the magistrate, especially one constituting a material irregularity, may lead to the appellate court allowing the appeal and quashing the conviction.

(7) The test in determining whether an error by a magistrate should lead to the appeal being allowed and the conviction quashed is whether it is just for such an order to be made.

(8)  Absent the appellate court identifying any error by the magistrate and absent any of the grounds of appeal succeeding, the appellate court must still perform its statutory duty of conducting a rehearing.  This requires the appellate court to be satisfied on the evidence adduced by the prosecution. The guilt of the appellant has been proven beyond reasonable doubt, failing which the appeal must be allowed.’”

18.The carrying out of the statutory duty of conducting a rehearing according to the principles in Fok James Alistair and Ip Chin Kei can be done by an oral hearing or a hearing on papers.  In a magistracy appeal, it is open for an appellant to advance grounds of appeal on points of law and on evidence.  The mode of hearing, i.e. whether it is by hearing on papers or oral hearing does not inhibit the freedom of an appellant to advance his/her grounds of appeal.  The Court of First Instance, in determining whether it is necessary or desirable to hold a hearing on papers, will take into consideration any submissions by the parties on the matter if they so wish.

19.The applicant cites paragraph 1 of Raymond Chen and submits that the Court of Final Appeal, instead of holding that a magistracy appeal can be disposed of on the papers, was holding that the appellate judge erred in dealing with credibility on transcript after an oral hearing.  It is clear from Raymond Chen that the Court of Final Appeal reconfirmed that a magistracy appeal is an appeal by way of rehearing on the papers.  The error made by the appellate judge in Raymond Chen, i.e. “the way in which the High Court judge dealt with credibility on the transcript went beyond what is permissible in an appeal by way of rehearing on the papers”, was not made because of the mode of the hearing of the magistracy appeal, that it was by way of oral hearing and not a hearing on papers.  The significance of the Judgment of Raymond Chen is that grounds of appeal relating to credibility can be dealt with in a magistracy appeal on the transcript, provided that it does not go beyond what is permissible.  If matters relating to credibility can be dealt with by written submissions with the help of the transcript, one cannot see why legal arguments cannot be fully made by written submissions.

20.All matters considered, it is not reasonably arguable that an appellant has a right to oral hearing under sections 113 to 118 of the MO. Question 1 is not reasonable arguable.

Question 2: If the answer to Question 1 is yes, under what circumstances can a right to oral hearing be curtailed?

21.Given the answer to Question 1, Question 2 does not arise and is not reasonably arguable.  As stated, it is a matter of judicial discretion for the Court of First Instance to decide whether an oral hearing is necessary or desirable. It is also open for the parties to ask for an oral hearing be held and make submissions on the matter if they so wish.

22.The applicant submits that the fact that there are provisions in the MO providing the court with the power to adjourn the hearing of the appeal (Section 119(1)(c)) and provisions governing the powers and procedures including an oral hearing, to hear and determine magistracy appeals (Sections 113 to 118 of the MO) support the applicant’s argument that the hearing shall be oral.  In my Judgment, the provisions identified by the applicant do not support its argument that oral hearing is the only permissible mode of hearing for magistracy appeals.  Provisions like sections 113 to 118 and 119(1)(c) are necessary for an oral hearing but the presence of these provisions by no means precludes hearing on papers without an oral hearing.  These provisions are applicable when an oral hearing is to be held for the hearing and determination of the appeal.

Disposal of the Application

23.For the reasons given, the applicant’s application for certification of law for appealing to the Court of Final Appeal is refused.

Ms Angela Wong, PP of the Department of Justice, for the respondent

Mr Anthony Lai and Mr Stephen Keung, instructed by Bond Ng Solicitors,    for the applicant