HKSAR v. Cheung Kin Chung

HCMA 221-223/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 221 – 223 OF 2015

(ON APPEAL FROM KCMP 236 – 238 OF 2015)

____________

____________

_______________

J U D G M E N T

_______________

1.This is an appeal against the Principal Magistrate’s[1] (the magistrate) decision made on 1 April 2015 refusing the appellant’s applications for the issue of three private summonses in the Kowloon City Magistrates’ Court.

2.Although an appeal has been made separately against the refusal by the magistrate to issue each of the three private summonses, I shall deal with all three appeals in this one judgment together as they concern and arise out of the same incident.

3.On 17 March 2015 the appellant filed in the Kowloon City Magistrates’ Court three summonses involving five charges against three different proposed defendants.  Those proposed defendants were a woman police officer PC56930, a police constable PC58149 and a woman security guard, Wong Wai-hung. 

4.On 30 March 2015 the appellant filed at the Magistrates’ Court a 2 page document containing amongst other matters, a description of the incidents in support of the issuance of his three private summonses (the 2 page document). 

The Incidents complained of in the 2 page document

5.The incidents complained of all occurred on 14 March 2015 at the lobby on the G/F, Mei Tak House, Mei Tung Estate, Kowloon.  The appellant alleged at the location the woman security guard, Madam Wong, always ignored him by not greeting him but greeted other residents despite his numerous complaints against her.  At about 5 pm on that day after the appellant had scolded Madam Wong, he was verbally abused and charged upon by an unnamed male.  He requested Madam Wong the proposed defendant in KCMP238/2015 to make a report to the police but Madam Wong ignored him and turned to help another resident. 

6.Finally the appellant was attacked by the unnamed male.  Later WPC56930 and PC58149 the proposed defendant’s in KCMP236/2015 and KCMP237/2015 respectively, arrived.  The appellant told them about the attack by the unnamed male and the history of retaliations by security guards everywhere.  The appellant asked WPC56930 to view the CCTV recordings of the scene which was said to have captured the attack but the officer refused and let the attacker go.  The two police officers did not prosecute the attacker. 

7.As a result of the above incidents the appellant issued the private summonses against the three proposed defendants as follows:

Madam Wong in KCMP238/2015

8.The appellant alleged Madam Wong committed two offences.  The first was of attempting to pervert the course of justice for failing to furnish the name and address of the man who attacked him and the second offence was of aiding and abetting the man to attack him.

WPC56930 in KCMP236/2015

9.One offence against WPC56930 for perverting the course of justice by failing to prosecute the unknown man attacking the appellant.

PC58149 in KCMP237/2015

10.For two offences against PC58149.  The first for perverting the course of justice by failing to prosecute an unknown man attacking the appellant and the second for common assault in that the police officer pushed him without any consent.

The magistrate’s decisions

11.Having studied the five informations and the 2 page document dated 30 March 2015 by the appellant in Chambers, the magistrate was of the view that the contents was completely empty in disclosing any criminal offence and there was not even a prima facie case on the facts.  He dismissed all the applications[2].

Grounds of appeal

12.In the appellant’s notices of appeal he stated his general grounds of appeal were that the magistrate was biased against him and that the decision has thus caused injustice by violating the Hong Kong Bill of Rights Ordinance, resulting in an unfair hearing.  No written submissions were filed in support of his grounds of appeal.

The appeal hearing

13.The appellant appeared in person and elected to use English as the language of the proceedings.  I found him to be proficient in English.

14.At the outset of the hearing the appellant applied to submit an audio recording as additional evidence in support of his issuance of the private summonses.  He informed the court that that he had made the audio recording as he had carried the recorder on his person during the alleged incidents.  The appellant submitted that this audio recording was relevant to his grounds of appeal in that the magistrate should have considered this evidence prior to his refusal of his applications.  The failure to consider the audio recording was not a ground of appeal.

15.The appellant agreed that this audio recording was not mentioned nor referred to in the 2 page document despite it being in his possession at the time he made his applications.  He was unable to offer an explanation as to why he did not mention it in his 2 page document, but complained that as the magistrate did not offer him an open court hearing he was unable to submit or rely on it in support of his applications.  

16.Mr Andrew Cheng, the Senior Public Prosecutor for the respondent, opposed the appellant’s application to submit fresh evidence. He submitted that there was no evidence to show that the audio recording was recorded on the date of the alleged offences, or even who the persons were in the audio recording and thus there was no evidence as to the source or its authenticity. 

17.I agreed with Mr Cheng.  I refused the appellant’s application to adduce the audio recording as additional evidence. 

18.After hearing the appellant’s oral submissions on the first issue and it having taken some time, I felt it was incumbent for me to have a clear understanding of his forthcoming submissions before proceeding further therefore I requested the appellant to provide me with written submissions in support of his grounds of appeal. 

19.Initially the appellant was reluctant to file written submissions as he claimed that he had seen on many occasions other appellants argue their appeals using verbal submissions.  In the course of the dialogue I had also came to know that he too had been before the courts on a number of occasions.

20.The appellant had knowledge that he should have filed and sent his written grounds of appeal as in Mr Cheng’s written submissions[3] he stated that he could not make any reply to the appellant’s grounds of appeal as the appellant had not filed any written grounds to explain his grounds of appeal.

21.I maintained that the appellant should file his written submission in support of his grounds of appeal on the basis of fairness, the practice and procedure of appeals and completeness. 

22.The appellant then applied for an adjournment as he needed more time for preparation.  He informed me that he had only commenced his preparation for the present appeal in the very morning of the appeal.  The respondent opposed the adjournment.

23.I refused the adjournment as the appellant had more than sufficient time to prepare for the appeal as the Notice of Appeal was filed more than a month before on 8 April 2015. 

24.I directed the appellant to provide me with written submissions in support of his grounds of appeal.  After standing down the hearing for approximately half an hour, the appellant informed me that he completed his written submissions and these were submitted. 

The appellant relied upon six points in support of his grounds of appeal

25.The appellant explained his grounds of appeal relying upon six points in his written submissions.  The sixth point was irrelevant for the purposes of this appeal.  The first five points were briefly that the magistrate was bias, lacking clarity, illogical, violated his human rights and was incompetent.  He also expanded upon them orally at the hearing.

26.The appellant’s sixth point was a request for me to initiate contempt of court proceedings against the unnamed male attacker because the appellant had been attacked again by that same male on 21 May 2015. For that attack he had also issued another private prosecution.  The appellant said that as he was a witness in the first attack this was a retaliation against him and hence the attacker should be held for contempt of court.  This was not relevant to the present appeal, there were no grounds to initiate any contempt of court proceedings against the alleged attacker.  I refused the application.

27.With regard to some of the points raised by the appellant he sought to rely on certain passages in text books and cases but did not provide any copies to the court or the respondent.  I directed the appellant to file copies of those documents in court the next day.  On the next day the appellant provided the court with some but not all the copies relied upon. 

Discussion

28.I shall deal with some of the points raised together as they relate to the same grounds. 

29.The appellant complained that the magistrate was bias in that the magistrate did not hear the appellant in an open court hearing before making his decision refusing to issue the private summonses.  He submits that the magistrate should have done so.  The appellant stated that on a previous occasion when he took out a private summons before the same magistrate, the magistrate had heard the appellant in open court and only thereafter made his decision. 

30.The magistrate in not hearing him in open court on this occasion was a decision which was inconsistent with a previous one and illogical.  An open court hearing was required because of the public nature of these proceedings.  The proceedings would then be subject to the full glare of the public.  The appellant relied on Article 10 of the Bill of Rights.  As the appellant was denied an open court hearing on this occasion it was unfair. 

31.Article 10 states :

“Equality before courts and right to fair and public hearing

All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgment rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children.”

32.Next he contended that the magistrate’s decision lacked clarity as the magistrate gave no reasons in his decision.  As the magistrate had made his decision in chambers it was a breach of his human right in that judgments rendered in criminal cases must be made in public. 

33.In my view the relevant provision does not require a magistrate to hear an applicant in open court upon consideration of the issuance of an information as there is no such provision in section 8 of the Magistrates Ordinance cap 227 (the Ordinance).

34.The issuance of summons is governed by section 8 of the Ordinance.  

“(1) 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.

……

(1B)(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 course refuse to issue a summons.”

35.The circumstances why the magistrate had on a previous occasion invited the appellant to address him in open court is unclear. One of the reasons where an applicant may be asked to appear before a magistrate maybe if there was any ambiguity in his application.  In those circumstances, the magistrate may ask the applicant to provide further information by addressing him in open court and or in writing.  

36.I do not find there was any breach of the appellant’s human right or that he had been denied a fair hearing.  In my view Article 10 envisages that after a criminal charge is laid then those proceedings should be held in open court.  In the case of a private summons no criminal charge has been laid and thus the relevant provision does not require the magistrate to hear the applicant in open court.  

37.The nature of these proceedings is for the magistrate to consider the information before him upon the evidence that the applicant proposes to rely upon in taking out a private prosecution against a proposed the defendant.  The magistrate’s decision is to decide whether a summons should be issued.  He should consider if there is prima facie evidence.  He is entitled to determine the application in chambers.

38.The appellant complained that the magistrate in his letter dated 1 April 2015 gave no reasons for the refusal of the issuance of private prosecutions and therefore his decision lacked clarity.  The magistrate notified the appellant of his decision in the following terms:-

“ All application be refused. None of details provided could support to lay any criminal charge against any proposed Defendant”

39.The April letter notified the appellant of the magistrate’s refusal.  What the magistrate said in his April letter was that none of the details were sufficient to support a criminal charge against the proposed the defendant.  After the appellant lodged an appeal more detailed written reasons were provided also repeating what he had earlier said. 

40.The magistrate’s reasons for his decision were guided by the judgment of Chu J (as she then was) in the case of Tsui Koon Wah v Principle Magistrate of Kowloon City Magistrates Courts HCAL 81/2006. 

41.In his decision the magistrate stated at paragraph 3 and 4:-

“3. The principles was laid down in Tsui Koon Wah v Principal Magistrate of Kowloon City Magistrate’s Courts ( HCAL 81/2006 ), Chu J ( as she then was ) held that:

(1) it is within the power of a magistrate in dealing with an application for 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.

4.When I studied his applications in Chambers, all the details submitted was in 2 pages filed on 30 March 2015; the contents was completely empty in disclosing any criminal offence even prima facie whatsoever, I dismissed all his applications.”

42.The reasons expressed above given by the magistrate were succinct but clear.  The magistrate had applied the correct test.  The magistrate was of the view that the information laid by the appellant did not disclose any criminal offence or even a prima facie case against the proposed defendants.  He had good cause to refuse the applications.

43.It was the appellant’s case that the management company refused the appellant’s request to view the CCTV recording which would be definitive evidence showing the alleged offences. In the 2 page document the appellant sought for the magistrate to summons the responsible staff of the management company so as to force them to submit the CCTV recording. 

44.The appellant contended that the magistrate’s decision was incompetent in that the magistrate showed his inability as he failed to obtain evidence in the form of the CCTV recording from the management company. In support of his contention the appellant referred to a text book of Scottish Criminal Law and Practice Series titled Criminal Procedure by Sheehan and Dickson 2^nd edition.  The relevant passages do not support the appellant’s grounds of appeal of the magistrate’s incompetence.  There is no merit in his complaint. 

Conclusion

45.I found no substance to the complaints made by the appellant.  There are no merits in the grounds of appeal.  The magistrate refused to issue the summonses because of the lack of evidence.  The magistrate had good cause in refusing to issue the summonses. 

46.The appeals in the above three cases are accordingly dismissed. 

Mr Andrew Cheng, SPP of the Department of Justice, for the respondent

The appellant appeared in person