HKSAR v. Cheung Kin Chung

HCMA 490/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 480 OF 2014

(On appeal from KCMP 676 of 2014 and KCA 104 of 2014)

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Before: Hon Zervos J in Court

Date of Hearing: 25 September 2014

Date of Judgment: 25 September 2014

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J U D G M E N T

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1.This is an appeal against the decision of Mr Peter Law, Principal Magistrate at Kowloon City Magistrate’s Court, made on 12 August 2014 refusing the appellant’s application for private summonses in relation to two proposed charges, pursuant to section 8 of the Magistrates Ordinance, Cap 227. The appellant filed a notice of appeal dated 15 August 2014. He has failed to attend today’s hearing. He was notified of the hearing by registered post dated 2 September 2014. He had been previously supplied with an appeal bundle by registered post dated 28 August 2014. I am informed by Mr Prakash Daryanani, counsel for the respondent, that he arranged for a copy of his written submissions to be sent to the appellant by post on about 15 September 2014. I am also informed that attempts to contact the appellant today on his mobile telephone number have been unsuccessful. Accordingly, I dismiss the appellant’s appeal and award costs against him.

2.Nevertheless, I will address the subject of the appeal on the papers and materials that are before me and make the following comments.

3.The private summons concerned a private prosecution by the appellant against an unnamed woman security guard at the public estate where he lived, alleging against her intimidation and assault.

4.Section 8 (1B)(b) of the Magistrates Ordinance reads:

“(b) 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.”

5.The appellant’s application to the magistrate consisted only of the following draft charges:

“(1) STATEMENT OF OFFENCE

Intimidation contrary to section 24 of Crime Ordinance, Cap.200

PARTICULARS OF OFFENCE

D, a security guard working at 101-109 Tsui King House, Choi Hung Estate, Wongtaisin, between 9:40 am and 9:55 am on Aug. 10, 2014, did intimidate me by threatening to hit me at the main entrance on G/F, Hung Ngok House, Choi Hung Estate, Kln.

(2) STATEMENT OF OFFENCE

Assault contrary to Common Law & section 40 of The Offence Against The Person Ordinance, Cap.212.

PARTICULARS OF OFFENCE

D, a security guard working at 101-109 Tsui King House, Choi Hung Estate, Wongtaisin, between 9:40 am and 9:55 am on Aug. 10, 2014, did assault me by angrily using his right-hand finger touching me without my consent at the main entrance on G/F, Hung Ngok House, Choi Hung Estate, Kln.”

6.The magistrate’s reasons for his decision were guided by the judgment of Chu J (as she then was) in Tsui Koon Wah v Principal Magistrate of Kowloon City Magistrate’s Court, HCAL 81/2006, 12 September 2006, unreported.  The magistrate said:

“Having considered all the materials before me, with just a few words of brief description of the incidents, suffice it to say there was far from sufficient to lay any criminal charges against somebody. It is not in every case when words uttered on the face of it with threatening contents and any physical bodily contact with angrily facial expression per se amounts to a criminal offence; since before me, the Mens rea, hostile intent and the necessary foundation for the inference were all in the dark; prima facie could not be reached and therefore I am unable to issue criminal proceedings against somebody.”

7.To some extent the substance of the draft charges was dealt with in another appeal by the appellant when he had been similarly refused by a magistrate to issue a summons against an unnamed housing manager of the estate for perverting the course of public justice by concealing evidence of CCTV footage for his investigation of a breach of statutory duty committed by the woman security guard for her impolite conduct to him.  Even though it was not the precise subject of the appeal, the appellant addressed the court on the matters that he wished to pursue by way of private prosecution and that was the subject of the magistrate’s decision refusing to issue the summons which is now on appeal before me.  See HKSAR v Cheung Kin Chung, HCMA 335/2014, 1 August 2014, unreported, paras 37 and 48.

8.The underlying allegations of the private prosecutions concern his complaints against the conduct of security guards, in particular a female security guard, which amount to impoliteness and mistreatment by them towards him which have spawned a litany of complaints and litigation.

9.In the appellant’s notice of appeal, he stated his general grounds of appeal were that the magistrate was prejudiced against him and that the decision had caused injustice by violating the Hong Kong Bill of Rights Ordinance which resulted in an unfair hearing. 

10.On the material before me, I find no substance to the complaints.  The magistrate refused to issue the summonses because of the lack of particulars and substance to the draft charges the subject of the application.  The magistrate had good cause in refusing to issue the summonses.

11.I have made these comments based on the information before me and without having heard from the appellant.  I felt it was appropriate that I do so given that I have decided to dismiss the appeal because of the failure on the part of the appellant to appear at today’s hearing.  Also I decided to award costs against him because of his failure to appear.

12.I should also point out that at today’s hearing, I stood down the appeal on three occasions at about 10.30 am, 11.30 am and 12:30 pm for the appellant to attend.  His name was called out both inside and outside of court, but he failed to appear. 

Mr Prakash L Daryanani SPP of Department of Justice, for HKSAR

The appellant failed to attend