HKSAR v. Cheung Kin Chung

HCMA 267/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 267 OF 2015

(ON APPEAL FROM KCA 45/2015)

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JUDGMENT

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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 13 April 2015 for the issue of a summons against a named person (the proposed defendant) who was said to be an assistant manager performing building management service at Mei Tung Estate. The Appellant alleged that the proposed defendant had perverted the course of public justice by concealing the evidence of CCTV tape for his investigation of a breach of statutory duty committed by a woman security guard.

3.The application was refused by the Magistrate on 27 April 2015.  The Appellant was informed of the decision by a letter.  The Appellant told the Court that in the letter it was stated “the application was refused due to insufficiency to lay any criminal charge”.

4.The Appellant lodged an appeal against the decision.

5.The Appellant appeared in person at the appeal hearing.  He indicated his preference to have the proceeding conducted in English.  I acceded to his request.  Indeed he demonstrated little difficulties to do so.

APPLICATION FOR RECUSAL

6.At the beginning of the hearing, the Appellant asked the Court to commence proceedings of contempt of court against the woman security guard whom he alleged had assaulted him in December last year.  He cited the Rules of the High Court and some cases and argued that I have the jurisdiction to do so.

7.When I advised him that the purpose of the hearing was confined to an appeal against the decision of the Magistrate, he insisted to carry on.  In the circumstances, I stood down the matter for 15 minutes for the Appellant to get himself prepared and focused on the appeal.

8.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.

9.The Appellant put forward the following grounds to support his application :

(1)   I refused to commence the proceedings for contempt of court despite there was sufficient legal and factual basis to do so;

(2)   I did not accede to his request for provision of audio recording of the hearing of an appeal which I heard, and the refusal was inconsistent with previous practice.

10.I refused the application and said I will provide reasons in writing.  This I do now.

11.The Appellant quoted statutory provisions and cases in support of his argument that I have the authority to commence such proceedings.   

12.I readily accept that I have the power to commence proceedings of contempt of court in circumstances where there are merits to do so.  However, that is not the point.  This hearing is for the appeal against the decision of the Magistrate only.  If the Appellant desires a proceedings of other nature to commence, proper procedures should be followed, and at the proper venue.  I see no basis at all to commence proceedings for contempt of court while the hearing was for another specific purpose.

13.In relation to providing of audio recording of appeal hearings, I have pointed out on another occasion[1] that rights and procedures pertinent to appeals arising from decisions of Magistrates are governed by the provisions in Part VII of the Magistrates Ordinance[2] and there is no provision in this Part of the Ordinance which covers providing of audio recording of the hearing of an appeal.

14.I was, and am still 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. 

15.The concern here, however, is not whether my decision in a previous case was right or wrong, it is about whether I should recuse myself on the ground of bias.

16.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.”

17.In the circumstances of the present case, I do not think there is any possibility that a fair-minded and informed observer will think that there is a real possibility that I will be biased in handling the present appeal.

THE APPEAL HEARING

18.The Appellant then proceeded to make extensive verbal submission in connection with the decision of the Magistrate. 

19.In the course of his submission, the Appellant quoted passages from various cases and books.   It appeared to me that most if not all of the passages which the Appellant had read out contain principles on legal concepts and citizens’ rights which are well established.  In my judgment, it is just and adequate to decide the present case by consideration of the relevant statutory provision and authorities. 

20.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.

21.The reasoning of the Appellant which he put forward in support of this appeal may be summarized as follows :

(1)   The court has an important duty in upholding human rights and the Magistrate has failed to perform this duty in refusing his application;

(2)   The Magistrate erred in refusing his application without having given him an opportunity to be heard, and in a public hearing;

(3)   The Magistrate failed to observe the rule of natural justice;

(4)   The Magistrate failed to give clear and sufficient reasons for his refusal;

(5)   The Magistrate was biased against him;

(6)   The Magistrate failed to have regard to his legitimate expectation;

(7)   Injustice had been caused by the refusal of the Magistrate.

22.Undoubtedly the Court has the duty to uphold human rights recognized by law.  Some rights are absolute, some are not.

23.Here, we are talking about a right prescribed by the law for a citizen to bring a prosecution against another person.  The Magistrate who is to consider the application has a duty to consider the matter in accordance with the law.  Whereas the right prescribed by the legislation to bring a prosecution should be respected, the interests of the person against whom the prosecution is to be brought cannot be ignored.

24.The Appellant also criticized the Magistrate for not giving him an opportunity to be heard in open court before refusing his application.

25.He stressed the importance of open justice by referring to cases and books, as well as Article 10 of the Hong Kong Bill of Rights Ordinance[3] and section 11 of the Magistrates Ordinance[4].  As I said, the principles stated in the cases and books which the Appellant referred to are well established.

26.As regards Article 10 of the Bill of Rights Ordinance, in my judgment it does not have direct application in a matter like the present one.  It provides :

“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 present case involved application for issue of a summons.  It was not determination of any criminal charge against the Appellant, nor about determination of his rights and obligations in a suit at law.

27.Section 11 of the Magistrates Ordinance provides :

“The room or place in which a Magistrate sits to hear and try any complaint or information shall be deemed an open and public court, to which the public generally may have access, so far as the same can conveniently contain them …”

28.The Magistrate here was not sitting to hear and try a complaint or information, he was asked to decide whether to issue a summons.  Section 11 does not come into play.

29.The material provided by the Appellant does not persuade me that there is a legal requirement for the Magistrate to decide this matter in a public hearing.

30.The Appellant criticized the Magistrate for not giving him an opportunity to be heard, before refusing his application this time.  He pointed out that other and the same Magistrates had on previous occasions heard his application in open court.

31.The Appellant also criticized the Magistrate for failing to observe the rule of natural justice.

32.I will deal with the natural justice point first.  This is a wide topic and the Appellant did not distinctively pinpoint which aspect of this principle he was relying on, though I do not expect him to do so effectively as a layman.

33.One of the most important purposes of the rule of natural justice is to ensure fairness.  What boils down in this aspect of the appeal is whether the Magistrate had handled the matter fairly and the Appellant been treated fairly.  

34.Open hearing and the right to be heard are important features of the rule of natural justice.  They are particularly important in protecting the right of a person against whom an allegation is made.  In this regard, it must be noted that the Appellant does not fall into this category.  He is the one who is making allegation against other people.

35.Application for issue of a summons is a solemn criminal procedure.  The applicant is under a duty to provide sufficient information to support his application.  In my judgment, the Magistrate is entitled to determine the matter upon the whole of the information put before him.  He is not under an obligation to give the applicant further opportunities to supply additional information either in person or in writing, though if he considers it appropriate he may do so.

36.In this application, the Appellant had provided the Magistrate with the followings :

(1)   A paper setting out the Statement of Offence and Particulars of Offence;

(2)   Outline of facts which he relied upon in making the allegation; and

(3)   Submission with quotation of authorities about the relevant law and its application on the alleged facts.

37.Against these I am to decide whether the Magistrate erred in refusing the application.

38.Issuing of summons is governed by section 8 of the Magistrates Ordinance (hereinafter called the Ordinance)[5].  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.The view of Her Ladyship has been consistently applied in cases of this nature and I see no reason not to adopt it.  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.  In this regard, I do not think Her Ladyship intended to give an exhaustive list of good cause.

43.The offence the Appellant alleged is perverting the course of public justice.  He alleged that the Defendant as stated concealed the evidence of CCTV tape for his investigation of a breach of statutory duty.

44.The Appellant set out the reasons why he thought there was a breach of statutory duty in the paper attached in the application. The statutory duty he has in mind is what prescribed in section 4(2)(e) of the Housing Ordinance[6], to be read together with the definition of security work as provided in the Security and Guarding Services Ordinance[7].

45.I do not think it is necessary to go into details as to whether or not the security guard was performing security work and am to decide the matter on the basis that she did.

46.The conduct the Appellant complained about is :

“On 1.4.2015, I returned home and scolded the woman security guard attacker for attacking me in last December. In fact, she did not reveal her full name upon my numerous times of asking her! That woman security guard attacker then loudly shouted at me, pointed at me angrily & took out her mobile phone to recording my speaking thus violating again my human right of privacy …”[8]

He also said he had gone to the office of the proposed defendant and made complaint against other security guards for ignoring him, uttering abusive language at him and attacking him.

47.Section 4(2)(e) of the Housing Ordinance provides :

“(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;”

48.I do not consider the conduct mentioned above can be said to be a breach of statutory duty of a person engaged in security work.

49.The offence which the Appellant alleged is perverting the course of public justice.  The list of conduct which may amount to pervert is long, and it includes interference with witness and evidence and helping to conceal crime.  In my judgment, the conduct presently alleged by the Appellant does not amount to pervert the course of justice.

50.The Appellant had not disclosed in what manner he alleged the proposed defendant had concealed the CCTV footage, even assuming such CCTV footage existed and was relevant to his allegation against the woman security guard.

51.He also had not disclosed what actually had happened between the proposed defendant 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.

52.In the circumstances, I do not consider the Magistrate had erred in refusing the application.  I am satisfied that, in the light of the information before the Magistrate, there was good cause for him to refuse to issue the summons.

53.Applying the test as stated above[9], I have no basis to find that the Magistrate had biased against the Appellant.

54.The reasons the Magistrate provided for his refusal is short.  Whilst I accept that giving more details would have been desirable, what the Magistrate said is clear and succinct.

55.As the Magistrate had made his decision in accordance with the law and his decision is one he was entitled to make, the Appellant cannot say injustice has been caused to him by the refusal.

56.I do not consider, in the circumstances of the present case, the Appellant has a legitimate expectation that he would be heard before the Magistrate makes a decision or that his application for a summons would be granted.

57.The Appellant included in his application a request to the Magistrate to order production of the CCTV tape.  I do not see that the Magistrate has the authority to make such an order.  The Magistrate Ordinance only empowers him, in the context, to issue a summons pursuant to section 8.

58.For these reasons, I dismiss the appeal.

Miss NG Cheuk Hwa, Claudia, SSP(Ag) of Department of Justice, for the respondent

The appellant, in person