HKSAR v. Leung, Kit Hing Doris

HCMA 244/2025

[2026] HKCFI 3176

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 244 OF 2025

(ON APPEAL FROM ESCC 3274/2024)

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REASONS FOR JUDGMENT

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1.The appellant was charged with one count of criminal damage[1] in ESCC 3274/2024 (“the Case”). The appellant failed to attend the hearing of the Case scheduled at 3:00 p.m. on 17 June 2025. The presiding magistrate (“the Magistrate”) thus made a series of orders[2] (“the Initial Orders”).

2.Thereafter, the appellant appeared in court at approximately 3:28 p.m. on the same day.  After hearing the matter, the Magistrate made another series of orders (“the Final Orders”) superseding the Initial Orders. The Final Orders include:

(1) if the appellant has medical needs in future, she must make a written application to the Court, accompanied by a medical report.  The report must specify the date(s) on which the appellant is unable to attend court and there must be certification by a doctor as to whether the appellant is unfit to attend court;

(2) the appellant’s application to stay the proceedings permanently is adjourned to 29 July 2025; and

(3) the prosecution shall, on or before 15 July 2025, file written submissions in reply to the appellant’s application for a permanent stay of proceedings.

3.The appellant now appeals against the Final Orders.

The appeal hearing

4.The hearings in the Magistrates’ Courts were conducted in Chinese.  At the appeal hearing on 28 May 2026, the appellant applied for the appeal hearing to be conducted in English and stated that it would be easier for her to understand English.  I granted her application and indicated that the judgment of the appeal would be written in English.

5.At the hearing on 28 May 2026, I dismissed the appeal for want of jurisdiction.  These are the reasons.

Background of the Case

6.The Magistrate’s Reasons for Orders show the following[3]:

(1) The appellant first attended the hearing of the Case in person on 12 December 2024. The appellant pleaded not guilty, and the trial was scheduled for 23 January 2025. Subsequently, the presiding magistrate on that day vacated the trial date and adjourned the Case to 10 March 2025 for mention.

(2) Between March and April 2025, the Case had been adjourned four times and eventually to 8 May 2025 upon receipt of medical certificates submitted by the appellant.

(3) On 8 May 2025, the appellant failed to attend the hearing.  The prosecution applied for the issuance of a warrant of arrest.  The presiding magistrate on that day granted the application, issued a warrant of arrest, and granted bail to the appellant.

(4) The appellant applied on 15 May 2025 to set aside the warrant of arrest based on a medical certificate covering sick leave from 4 May 2025 to 13 May 2025. The Magistrate granted the application and listed the Case for mention on 17 June 2025.

(5) By a written application dated 16 June 2025, the appellant submitted a medical certificate granting 14 days’ sick leave from 12 June 2025 to 25 June 2025 and requested a permanent stay of proceedings, explaining injuries sustained on 21 January and 27 January 2025 and her subsequent medical condition.

(6) On 17 June 2025 at 3:00 p.m., the Magistrate noted the appellant’s absence and made the Initial Orders.  The appellant later appeared at about 3:28 p.m., confirmed she was fit to proceed, but objected to adjournment and sought termination of proceedings, also alleging non-disclosure by the prosecution.

(7) The Magistrate considered her conduct and found the appellant might rely on medical certificates to avoid trial but, given her age and be fair to her, the Magistrate required medical certification on fitness to attend court before he decided on the proper case management, thus making the Final Orders.

Grounds of appeal

7.The appellant has submitted numerous letters, together with a substantial number of enclosures, some relating to complaints against police and staff of the Judiciary, some concerning her medical condition, and some pertaining to the grounds of appeal.

8.     Her grounds of appeal are:

(1) prosecution has failed to serve materials relating to the Case on her;

(2) the Magistrate should have dealt with her application to dismiss the charge on ground of defects in the allegation[4];

(3) insufficient evidence to support the charge; and

(4) the Final Orders were not interlocutory in nature.

9.At the appeal hearing, the appellant also mentioned the police had signed a settlement agreement with her and thus the Case should not proceed.  The so-called settlement agreement was produced for the Court’s inspection and that document is in fact an acknowledgement of receipt of documents provided by the police to the appellant.

Respondent’s reply

10.The respondent submitted that the Final Orders were interlocutory and not appealable.  Any appeal should arise only after final determination of the Case, if necessary.

Circumstances relating to this appeal

11.As noted above, the proceedings in the Magistrates’ Courts were repeatedly adjourned due to the appellant’s submission of medical certificates both before and after the hearings.

12.In this appeal, the original hearing date was 6 March 2026.  Due to repeated submissions of medical certificates by the appellant indicating sick leave covering multiple periods (namely, 21 February to 6 March 2026, 5 March to 18 March 2026, 21 March to 3 April 2026, 18 April to 21 April 2026, and 23 April to 28 April 2026), the hearing has been rescheduled five times.

13.On 11 May 2026, the appellant made a further application to the Court seeking a lengthy adjournment to allow for medical planning in light of what she described as “critical health condition”.

14.It is noted that some medical certificates issued in 2025 mentioned “home resting/ home rest”, but none of the medical certificates issued in 2026 contain such a requirement.  Moreover, none of the medical certificates state that the appellant is unfit to attend court.  The Court considers that ordinary medical certificates do not establish that the appellant is incapable of attending court.  Further, records show that during the relevant sick leave periods, the appellant attended the High Court Building on multiple occasions to conduct file searches and/or filing of documents, sometimes staying for periods ranging from 20 minutes to several hours.  These records demonstrate that the appellant was capable of attending the High Court Building and remaining there for extended periods to handle court-related matters.

15.As to the appellant’s alleged need for medical planning, the Court observes from the medical documents that as early as May 2025, the appellant had been advised to undergo CT scans and/or consult specialists.  Despite the passage of more than a year, only a limited number of scans have been completed.  The Court is of the view that the medical documents do not substantiate the claimed medical necessity.

16.Nevertheless, in order to give the appellant the opportunity to make any necessary and properly supported applications, the Court made it clear by a letter dated 12 May 2026 that no further adjournment would be granted on the basis of ordinary sick leave certificates.  The Court also warned the appellant that if she failed to attend on the next scheduled date (i.e. 28 May 2026), the Court would determine the appeal in her absence.

17.On 26 May 2026, the Court received another letter from the appellant enclosing documents and a medical certificate with sick leave period from 23 May to 29 May 2026.  Given it was not indicated in the medical certificate that the appellant was unfit to attend court, it was ordered that the hearing on 28 May 2026 would proceed.

18.At the appeal hearing on 28 May 2026, the appellant attended the hearing and was able to present her arguments throughout the hearing despite she was on sick leave.

Consideration

19.As pointed out by the respondent, it is well-settled law that the appeal under section 113 of the Magistrates Ordinance, Cap. 227, does not apply to interlocutory decisions[5].

20.There is no final determination of the Case yet.  The Final Orders are clearly interlocutory in nature.  The appeal is therefore dismissed for want of jurisdiction.

Ms. Cheung Mung Ting, Amber, PP, of Department of Justice, for the respondent

The Appellant appeared in person