HKSAR v. Cheung Kin Chung

HCMA 335/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 335 OF 2014

(ON APPEAL FROM KCMP 413/2014)

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J U D G M E N T

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1.This is an appeal against an order of a Principal Magistrate (hereinafter called the Magistrate) to refuse an application for the issue of a private summons.

2.The Appellant filed in the Kowloon City Magistrates’ Court a written application dated 17 May 2014 for the issue of a summons against a person named as “D” (an assistant housing manager working at Tsui King House, Choi Hung Estate).  The Appellant alleged that this person had perverted the course of public justice by concealing evidence of CCTV footage(s) for his investigation of a breach of statutory duty committed by a woman security guard for her impolite conducts to him.

3.The application was refused by the Magistrate on 19 May 2014. The Appellant was informed of the decision by a Certificate of Order. 

4.The Appellant lodged an appeal against the decision.

5.The Appellant appeared in person at the appeal hearing.  He agreed that the proceeding be conducted in English.  Indeed he demonstrated little difficulties to do so.

6.At the outset of the appeal hearing, the Appellant indicated he had not received the written submission of the Respondent.  Counsel for the Respondent, Mr Prakash L Daryanani, SPP, said that a copy had been arranged to be posted to the Appellant but accepted that it might not have reached him in time.  A copy of the written submission was then provided to the Appellant and I allowed him time to read the document and prepare for the hearing.

APPLICATION FOR RECUSAL

7.When the hearing resumed, the Appellant applied for me be recused from hearing of this appeal, the main ground being that I was, and would be, biased against him.

8.The primary basis which the Appellant put forward to support his application is my handling in a previous appeal case[1] of his request to be provided free of charge with the audio recording of the appeal hearing, after the appeal had been dismissed.

9.In that case (hereinafter called the second case), the Appellant was given the following reply upon my direction :

“Reasons for disposal of the appeal have been set out in the judgment dated 7 May 2014. The request for audio recording of the hearing, whether with payment or not, will not be acceded to unless good reasons can be provided for.”

10.There was no response from the Appellant to this reply.  As a result, the matter was left as it was.

11.The Appellant brought to my attention that when he made an application of the same nature in an earlier case (hereinafter called the first case) after the appeal had been dismissed, I granted the application. 

12.The Appellant told me he had also made a similar application in a case heard by another judge and the application was granted.

13.It was submitted that the inconsistent approaches which I had adopted in the two cases, and my adoption of an approach in the second case which was different from that of the Judge in another case, constituted a serious mistake on my part, which amounted even to a crime, and it reflected that I was biased against the Appellant, and would be biased against him when I was to hear this appeal.

14.Rights and procedures pertinent to appeals arising from decisions of Magistrates are governed by the provisions in Part VII of the Magistrates Ordinance[2] .  There is no provision in this Part of the Ordinance which covers providing of audio recording of the hearing of an appeal.

15.When I considered the application for audio recording in the second case, I was of the view that the Court is entitled to ask for reasons before deciding on the application as providing such records involves incurring of public resources even if payment is to be made by the person who asks for it. 

16.With that in mind a reply in the abovesaid form was made.  The first case, which upon subsequent check was found to have been decided in early 2012, escaped my memory when I considered the application in the second case.  It was not a case of deliberate departure from the previous practice.

17.Having been provided with information in relation to the practice of another judge, and before having the benefit of hearing full argument on the issue, on balance my present inclination is that it may be desirable for judges to adopt a consistent approach when similar request is made in the future.

18.The concern here, however, is not whether the practice in relation to the application in the second case is right or wrong, it is about whether I should recuse myself on the ground of bias.

19.The test and approach when an allegation of bias, or apparent bias, is raised was confirmed by the Appeals Committee of the Court of Final Appeal in Deacons v White & Case Ltd Liability Partnership & Others (2003) 6 HKCFAR 322 :

“The court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility, or a real danger, the two being the same, that the tribunal was biased.”

20.In relation to my handling of the application for provision of the audio recording, putting aside my lack of memory of the first case when I considered the second, I do not think there is any possibility that a fair-minded and informed observer will think that handling a matter very much administrative in nature in a previous case may lead them to a conclusion that there is a real possibility, or a real danger, that I will be biased in handling the present appeal.

21.The Appellant also criticised my decision in the second case.  I was alleged to be intellectually dishonest on the assertion that I had evaded in my decision certain information which he had provided during submission.  There is no need for me to dispute such a serious but unfounded allegation.  The reasons for my decision were explained in full in my judgment.  As a matter of fact, no steps had been taken to take the case further.

22.Owing to this application, I came to realise that it was the third appeal that came to me from this Appellant.  Even though it was not relied upon by the Appellant as a ground to apply for my recusal, I had taken the initiative to consider whether I should do so for this reason.  Each case is to be decided upon its own merit.  I do not see the necessity or justification in recusing myself to hear the present case because I had heard appeals from the same Appellant before.  Judging from the nature of this case, the main issues involve legal consideration and it appeared unlikely (appeared so initially at the stage the application was made, and confirmed during the consideration of the appeal) that the decision would involve credibility assessment or fact finding.

THE APPEAL HEARING

23.At the appeal hearing, the Appellant made extensive verbal submission, often repeating himself.  He did not finish in the morning and the hearing was adjourned to 2:30 pm..  He did not appear at the scheduled time.  The case was stood down until 2:45 p.m..  The Appellant still did not appear.  Having discussed with Counsel for the Respondent, and as the Appellant did not appear till around 2:50 p.m., I decided to treat the Appellant as having decided to give up his rights to address the Court further.  As a matter of fact, the Court received a letter from the Appellant on the following day requesting for the audio recording of the hearing, without mentioning his absence and any intention of seeking the Court to hear him further.

24.In the course of his submission, the Appellant quoted passages from various books without equipping himself with a copy for the Court.  He said that he would provide the Court with a photocopy subsequent to the hearing. Since the hearing concluded in an unexpected way, there was no chance for the Court to give a clear direction as to what he should do in this regard.  I therefore indicated in open court that I would wait for a week to see if copies would be filed before starting to prepare the judgment.  No copy of any book was provided by the Appellant within one week after the hearing.  I then proceeded to consider the case and prepare this judgment.

25.Most if not all of the passages which the Appellant had read out during the appeal hearing do not appear to have been quoted from authoritative law books usually relied on by local practitioners.  It appeared to me that the passages contain principles on legal concepts and citizens’ rights which are well established as well as some which sounded less so.  In my judgment, it is just and adequate to decide the present case by consideration of the relevant statutory provision and the relevant authorities.  In consideration, I bore in mind that it is clear legislative intent to provide a citizen with a channel to initiate private prosecution against another person for a crime allegedly committed by the latter but it is also clear legislative intent that such action can be scrutinized by the court as prescribed by the law.

26.In the circumstances that the Appellant did not attend the hearing in the afternoon, I considered the case on what the Court had been informed and addressed.  The Respondent had filed a written submission prior to the hearing.  It was considered.  Counsel for the Respondent did not make any further submission.

GROUNDS OF APPEAL

27.The ground which the Appellant stated in his Notice of Appeal is that the Magistrate was prejudiced against him and that the decision has thus caused injustice by violating the Hong Kong Bill of Rights Ordinance[3], resulting in an unfair hearing.

28.A major point which the Appellant made in support of his ground was that the same Magistrate had previously handled another similar application made by him and on that occasion he did give him opportunity to file further information before a decision was made, but this time he did not do the same and dismissed his application right away on paper.

29.The Appellant submitted that justice must not only be done, it must also be seen to be done.  It was further submitted that this inconsistent approach adopted by the Magistrate was improper, and amounted to a crime.

30.When asked why he did not provide the Magistrate with full information when he submitted his application, the Appellant said he did not know the legal requirement and he had no means to engage a lawyer.  What the Appellant said is less than convincing in particular as he was not new to this sort of application.

31.In any case, it does not need to be legally trained to appreciate that when one makes an application of a degree of importance, he is to provide at least the minimum of information to support the application unless for example where a standard proforma is provided.  It is just common sense.  What the Appellant actually did in this case was merely filing an Information.  In the Information are a Statement of Offence and Particulars of Offence.  The Appellant did not provide anything else in support of his application.

32.An applicant for issuing of a summons to start a private prosecution must understand that he is starting a solemn criminal proceeding by making a serious allegation against another person.  Once a summons is issued, the person to whom the summons is issued is burdened with a criminal prosecution. The applicant therefore cannot assume that a Magistrate will grant him the application and issue the summons if the only thing he provides is an Information containing a Statement of Offence and Particulars of Offence.

33.In my judgment, the alleged inconsistent approach of the Magistrate does not without more afford the Appellant a ground of appeal.

34.The Magistrate was entitled to determine the matter upon the whole of the information put before him.  He was not obliged to give the Appellant further opportunities to supply additional information though if he considered it appropriate he might do so.  

35.I cannot say the Magistrate erred in his approach in the present case.  I do not consider handling the application this way reflects that the Magistrate has been bias or prejudiced against the Appellant.  I also do not consider there had been infringement of any provisions in the Hong Kong Bill of Rights Ordinance.

36.That said, I gave the Appellant the opportunities to tell me what he would have told the Magistrate if he was given the opportunity to provide further information in support of his application.

37.The matters which the Appellant included in his address to the Court may be summarised as follows :

(i) a woman security guard had been impolite to him in that she ignored his question as to why she was not polite to him, and she displayed impolite facial expression to him, thereby making him uncomfortable;

(ii) this amounted to a breach of her statutory duty, as it is provided in section 4(2)(e) of the Housing Ordinance[4] that :

“(2) The Authority shall have the following powers :

……

(e) to manage any housing, and any premises, structures and grounds ancillary thereto, and any common parts, having regard to the interests, welfare and comfort of the tenants, owners or occupiers thereof, and to charge fees for its services in connection with such management;”

(iii) the Appellant also cited the Security and Guarding Services Ordinance[5] which provides, inter alia, for the definition of security work in the context of the Ordinance;

(iv) the Appellant said the alleged conduct of the female security guard was captured by CCTV recording, the assistant housing manager’s concealing from him the CCTV footage(s) amounted to perverting the course of public justice;

(v) the Appellant also gave an account of assaults on him by security guards on various previous occasions. He made applications for summons against these people.  On one occasion, a conviction resulted. 

(vi) for over 10 years security guards had not been treating him well, the inference that can be drawn is that they wanted to retaliate against him;

(vii) as a result of the retaliation, he had to leave his employment;

(viii) he had made complaints for mal-treatment by security guards to various departments or institutions by different means including writing letters and e-mail.  The complaints met with inadequate attention or response;

(ix) the government has been intolerant to him and had done irrational acts against him.  Civil servants like police officers think they can do whatever they like to him.  Many police officers had assaulted him;

(x) Legal Aid Department made irrational decisions in relation to his application for legal aid;

(xi) he was denied proper judicial proceedings, judicial decisions at various levels were not fair to him and have the effect of extinguishing his legal rights and remedies;

(xii) Hong Kong only pays lip service to human rights and rule of law; and

(xiii) Appeals had been brought against the Magistrate who refused his present application in relation to other applications of similar nature he had made and refused.

38.Issuing of summons is governed by section 8 of the Magistrates Ordinance (hereinafter called the Ordinance)[6]. Section 8(1) provides :

“In every case where a complaint is made to or an information laid before a magistrate or an officer of a magistrate’s court who is authorized in writing for that purpose by a magistrate, being a complaint or information in respect of which a magistrate has power to convict summarily or to make an order for the payment of money or otherwise, it shall be lawful, subject to this Part, for a summons to be issued by a magistrate or an officer of a magistrate’s court who is authorized under this subsection.”

Section 8(1B)(b) further provides :

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

39.It is obvious that the Magistrate did consider the information.  The primary issue in this appeal is whether the Magistrate had refused to issue the summons for good cause.

40.There is no further provision in the Ordinance as to what amounts to a good cause.

41.In Tsui Koon Wah v Principal Magistrate of Kowloon City Magistrates’ Courts HCAL81/2006, Chu J (as she then was) held that :

(1) it is within the power of a magistrate in dealing with an application for the issue of a summons to have regard to the contents of the information; and

(2) in performing this judicial act, the magistrate should ascertain whether the allegation is of an offence known to the law and if so whether the essential ingredients of the offence are prima facie present.

42.I respectfully agree to the view of Her Ladyship.  In deciding whether a summons should be issued or there is a good cause to refuse to issue it, a magistrate is entitled to consider whether the allegation is of an offence known to the law and if so whether the essential ingredients of the offence are prima facie present.

43.The Ordinance provides a channel for a citizen to initiate a private prosecution against another person by applying for a summons.  Whether such application should be granted is governed by the provision in the Ordinance.

44.The Ordinance permits a magistrate to make his decision by consideration of the information available to him.  In this case, the Magistrate had done so.  He applied the correct law and made a decision by consideration of everything then available to him. 

45.I am satisfied that, in the light of the information then before the Magistrate, there was good cause for him to refuse to issue the summons.

46.At the appeal hearing, the Appellant had provided me with further information which he said forms the basis of his application.

47.I have considered whether, if this additional information is taken into account, a summons should be issued or there is good cause not to do so.

48.Most of the matters the Appellant raised are irrelevant to consideration of the application and the present appeal.

49.I also have the following observations :

(i) Being impolite in the manner the Appellant described did not amount to an offence or a breach of statutory duty on the part of the woman security guard;

(ii) The Appellant had not disclosed in what manner he alleged the assistant housing manager had concealed the CCTV footage, even assuming such CCTV footage existed and was relevant to his allegation against the woman security guard;

(iii) He had not disclosed what actually had happened between the housing manager and him, and what the latter had done, or omitted to do, which could be said to be amounting to pervert the course of public justice, or even an attempt to do so;

(iv) He did not identify who the woman security guard was;

(v) More importantly, he did not identify who was the assistant housing manager, the proposed defendant of this summons.

50.In my judgment, by applying what were said in Tsui Koon Wah v Principal Magistrate of Kowloon City Magistrates’ Courts, even taking into account the whole of the information which the Appellant had provided to the Court at the appeal stage, there is good cause to refuse the summons. 

CONCLUSION

51.By reason of the matters aforesaid, I do not consider there is any merit in this appeal and therefore dismiss it. 

Mr Prakash L Daryanani, SPP, of Department of Justice, for the Respondent

The Appellant in person