Cheung Kin Chung v. HKSAR

HCMA 842/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 842 OF 2012

(ON APPEAL FROM KCPS 7 OF 2012)

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J U D G M E N T

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1.The Appellant had applied by written information for the issuance of private summons against a Judge of the Court of First Instance.

2.A hearing was conducted by the Acting Principal Magistrate, and after the hearing, the Learned Magistrate having considered all the matters submitted before him then refused to issue a private summons applied for by the Appellant.  The Appellant now appeals against that decision.

3.The Appellant appeared in person and had chosen to conduct the appeal in English.  The Appellant originally had made allegation against 3 Housing Department officers for doing acts intending to pervert the course of public justice and he had applied to the Kowloon City Magistracy for private summonses.  That application was refused and he took the matter on appeal to Mrs Justice Bokhary and his appeal was dismissed.

4.Thus, the Appellant then applied to the Kowloon City Magistracy to issue a private summons against Mrs Justice Bokhary for attempting to pervert the course of public justice.  The Learned Magistrate, after hearing the application, then refused to issue of the summons.  And the Appellant now appeals against Learned Magistrate’s decision, on the ground that the Learned Magistrate was biased against him.  He pointed out that the Learned Magistrate had (see page 30 of Appeal Bundle), after asking him if he had supplied the court with all the documents, then said he was prepared to give reasons for his decision. The Appellant at that stage then said to the Learned Magistrate that he had matters which he needs to draw to the Learned Magistrate’s attention and the Learned Magistrate allowed the Appellant to continue to refer to the cases he wished to refer to, which were really based on the fact that there should be an open hearing and it was only after those submissions were made by the Appellant that the Learned Magistrate then stood down the case and then returned to court subsequently and then delivered his decision.  The Learned Magistrate in his oral reasons, dealt with the additional submissions of the Appellant (see page 38 of Appeal Bundle) and also reviewed the cases which were submitted to him, said that there is good cause to refuse the application for summons since a prima facie case of “attempting to pervert the course of justice by defeating the ends of justice” cannot be made out.  And he correctly pointed out that if the Appellant was of the view that Mrs Justice Bokhary’s decision or omission was wrong or biased, he could have taken the matter further, that is by appealing to the Court of Final Appeal.  Mrs Justice Bokhary, as the Learned Magistrate pointed out, had given reasons for her judgment and also she had judicial immunity under Article 85 of the Basic Law, and therefore in the circumstances, the application of the Appellant to issue a summons was rejected.

5.In this court the Appellant once again alleged bias on the part of Mrs Justice Bokhary and bias on the part of the Learned Magistrate, Mr Lee, in the court below in this case.  Again, if there was bias by Mrs Justice Bokhary, it is not a matter Mr Lee has correctly pointed out that this court would deal with.  The Appellant could have taken the matter further and this is not a matter that would involve a private summons issued for perverting the course of public justice.

6.In relation to the bias of the Learned Magistrate as alleged by the Appellant, it is clear from the transcript that the Learned Magistrate was at that time perfectly clear in stressing from the beginning whether the Appellant had supplied everything that he wished to rely on in his written information and that the Appellant had confirmed that he had relied on the written information to support his application, and in fact the Learned Magistrate had then asked about the supporting documents and it was at that stage after everything was confirmed that the Learned Magistrate subsequently said that he was ready to give his decision and when the Appellant pointed out that he wanted to make further submissions in relation to the authorities in the case, the Learned Magistrate had allowed him to and in fact after the Applellant had made his submission, the Learned Magistrate had taken an adjournment in order to consider the further submissions and then returned later to deliver his decision.

7.I cannot see any bias has been made out against the Learned Magistrate.  The Learned Magistrate very properly had considered everything before him giving extensive oral reasons for his decision and also in his written reason for decision.

8.I do not see any support for the ground as advanced by the Appellant.  The Appellant had made unsubstantial attacks on the judicial system, the Government, the Police that they had persecuted him.  This is not a matter for this court.  The Appellant can use other means to identify the type of persecution that he is experiencing and report the matter to the relevant authorities and it is not for this court to decide on whether he is persecuted or not.  So I do not see any grounds to interfere with the Learned Magistrate’s decision, so this appeal is dismissed.

The Appellant appeared in person

Mr David Yim, PP of Department of the Justice, for the Respondent