HKSAR v. CHEUNG KIN CHUNG

HCMA 196/2019
HCMA 197/2019
HCMA 198/2019
(Heard together)

[2020] HKCFI 1239

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 196 OF 2019

(ON APPEAL FROM KCMP 842 OF 2018)

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BETWEEN

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And

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 197 OF 2019

(ON APPEAL FROM KCMP 843 OF 2018)

________________

BETWEEN

________________

And

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 198 OF 2019

(ON APPEAL FROM KCMP 849 OF 2018)

________________

BETWEEN

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JUDGMENT

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1.  On 21 and 24 December 2018, the appellant applied to Ms Bernadette Woo, Principal Magistrate at Kowloon City Magistrates’ Courts (hereinafter as “the Magistrate”), for the issuance of three private summonses against three different proposed defendants for the commencement of private prosecutions against them. His applications were all refused. He now appeals against the Magistrate’s decisions to refuse.

2.  In support of his applications and in response to the Magistrate’s request for him “to submit all documents, materials and information relevant to and in support of” his allegation against the three proposed defendants in the present three cases, the appellant wrote the following two letters in reply. 

3.  In the letter of 28 January 2018[1], the appellant wrote this: 

“Re. Case Nos: KCMP 191, 280, 281, 282, 842, 843 & 849/2018

1. Your letter of 7th Jan., 2019 refers.

2. Up till now I have no information from you as to which defendant belonging to which court case re KCMP 842, 843 & 849/2018.

3. Why did you ignore my requests in previous Informations re KCMP 191, 280, 842, 843 & 849/2018 for gathering the necessary evidence, just like the essential police duty of collecting these types of evidence for investigations & subsequent prosecutions?

4. Defendant lee hon hung, in KCMP 842 or 843/2018 perjured re. no getting of registered packet #RB651-427-046 HK paid by me on 19th Nov, 2018 & actually was received on 21st Nov, 2018 at around 1:09pm which you can check from the Internet as suggested by court clerk Ms. Cheung attending SCTC 11413/18 in a court hearing in the Small Claims Tribunal.

5. Defendant wong kwai lin, in KCMP 842 or 843/2018 perjured by actually uttering abusive language at me many many times as recorded in my attached C.D. & Exhibit #C4 in SCTC 11413/18 which you can verify with the Small Claims Tribunal.”

6. Defendant wong king wai, in KCMP 281/2018 did intimidate me on 14th Mar., 2015 by uttering ‘打你咪打你!’ as shown in my attached C.D. in SCTC 10752/18 which you can check with the Small Claims Tribunal.”

7. Defendant wong wai hing, in KCMP 282/2018 did aid & abet, under legal omission against Cap.460 security & guarding services ordinance, security guard wong kwai in committing criminal intimidation & assault against me as revealed in SCTC 11413/18 Exhibit #C4 and the attached C.D. which you can approach the Small Claims Tribunal.”

8. Defendant lam shing kwan, in KCMP 191, 280 & most probably 849/2018, did interfere me as the witness in SCTC 10752 & 11413/18 by showing hostility towards me (if you did order housing dept. to get these C.C.T.V. footages) by scolding at me and chasing me like assaulting me, with the knowledge that on those dates I was such a witness.”

4.  In the letter of 18 February 2019, the appellant wrote this:

“Re. Case Nos: KCMP 191, 280, 842, 843 & 849/2018 (Excluding KCMP 281/2018, 282/2018)

Just like my 28th Jan., 2019 letter to you, what happens to the requests in these Informations for collecting the necessary evidence (esp. the relevant C.C.T.V. footages) for my investigations & ensuing prosecutions – same as police duty?”

5.  The Magistrate considered all the submitted materials and found that the appellant had failed to provide “any details of the alleged incident in support of his application, and failed to show the essential ingredients of the alleged offences are prima facie present”, and refused the applications accordingly.

6.  The appellant was informed of the Magistrate’s said decision by way of a letter dated 6 March 2019.

7.  The appellant now seeks to appeal against the Magistrate’s determinations.

THE MATTER OF SERVICE OF THE NOTICES OF HEARING

8.  On 20 March 2020, the appellant was absent at the first appeal hearing.  Details of the issue of service of the notices of hearing are found in HKSAR v Cheung Kin Chung, HCMA 192-195/2019 judgment and will not be repeated here.

9.  Given the difficulty in service, and the appellant’s history of not showing up at his appeal hearings, I ordered that service of the notices of hearing for the next appeal hearing should be by way of notices put up on the notice boards at the High Court building as well as Kowloon City Magistracy, pursuant to section 115(4)(c) of the Magistrates Ordinance, Cap 227.

10.  Notices were put up on 2 June 2020 as ordered and were still on the notice boards as at the morning of the 15 June 2020 hearing, which the appellant also failed to attend.

11.  Despite the appellant’s absence at the hearing of 15 June 2020, I found that service of the notices of hearing had been effected under the said section 115(4)(c), and proceeded to deal with the appeals on merits, based on the appellant’s written submissions already filed.

GROUNDS OF APPEAL

12.  The grounds of appeal stated in the appellant’s handwritten notice are identical in all three appeals and are as follows:

“The grounds of this appeal are that the magistrate was biased against me by offering me no public hearing, no public pronouncement of decision, no sufficient rationale for such decision and it caused injustice by violating Article 10 of the HK Bill of Rights Ordinance resulting in an unfair trial.”

13.  These grounds of appeal are also identical to the ones relied upon by the same appellant in HCMA 192, 193, 194 and 195/2019, which are appeals against the same Magistrate’s decision to refuse the same appellant’s applications for private summonses.  The proposed defendant in HCMA 192 and 193/2019 is the same one in HCMA 198/2019, alleging the commission of the same offence of attempt to pervert the course of justice, which took place on a different date.

14.  Given that the same materials were relied upon by the appellant in those cases in support of his applications; given that the Magistrate had decided that there was good cause to refuse the applications on the same materials; and given the identical wordings of the appellant’s grounds of appeal in the other batch of appeals, much of my analysis in that batch are applicable and thus duplicated in the present set of appeals.

DISCUSSION

15.  The appellant’s summons applications were made pursuant to section 8 of the Magistrates Ordinance, Cap 227.

16.  Section 8 (1B)(b) governs how the Magistrate may deal with such applications:

“(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.” (emphasis added)

17.  The first issue in these three appeals is, therefore, whether the Magistrate had good cause to refuse the applications.

18.  Although what amounts to good cause to refuse to issue a summons is not defined in the Ordinance, in the case of Tsui Koon Wah v Principal Magistrate of Kowloon City Magistrates’ 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 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.

19.  This decision has since been applied in many other cases, in particular all the appeal cases that the appellant had been involved in.  The principles are sound, and I will apply likewise.

20.  The next consideration would then be whether the Magistrate did ascertain whether the essential ingredients of the offence are prima facie present.  To examine this, one must look at the applications individually.

HCMA 196/2019

21.  The application was supported by a one-page handwritten document entitled “Information” with a Statement of Offence and Particulars of Offence, which I set out below.

“Statement of Offence: Perjury, contrary to s.31 Cap.200. Particulars of Offence: 黃桂連, a security guard of pioneer management limited (at 3/F, control room, mei tak house, mei tung est., kln.) on 23rd Nov., 2018 in Small Claims Tribunal re.SCTC 11413/18, lawfully sworn as a witness, did willfully make a statement re. no uttering abusive language at me on 20th Mar., 2015 on the G/F at the lobby of mei tak house, which is material in that proceeding & which 黃桂連knew to be false.”

22.  The appellant, at the bottom of the “Information”, wrote “Pl. let me obtain the relevant evidence of the record of proceedings under s.44 Cap.200 from the Small Claims Tribunal.”

ESSENTIAL INGREDIENTS OF THE OFFENCE

23.  The relevant parts of section 31 of the Crimes Ordinance are as follows:

“If any person lawfully sworn as a witness… wilfully makes a statement in any judicial proceeding which is material in that proceeding and which he knows to be false or does not believe to be true, he shall be guilty of perjury…”

24.  In order for the proposed defendant’s lie, if made, to amount to perjury, the prosecution will have to prove beyond reasonable doubt that the false statement was material in that proceeding.

25.  For the Magistrate to consider whether the alleged lie was material in that proceeding, she must be provided with much more information and materials than what the appellant had.  Such information would no doubt include the nature of the small claims tribunal proceedings, so that one might gauge how the credibility of the proposed defendant might affect the outcome of the proceedings, and hence decide whether the alleged lie is material or not.

26.  Yet, the appellant had provided no such information despite the Magistrate’s two requests.  In his letter of 28 January 2018 set out above, the appellant merely repeated what was stated in the Particulars.

27.  He merely repeatedly voiced his opinion that the magistrate court should find out the matters, in essence asking the magistrate to undertake the work of the Police.

28.  One would think that the first thing that the appellant might be able to provide to the magistrate in support of his application would be the transcripts of proceedings in the Tribunal.  They can be easily obtained by the appellant.  If costs were an issue, he could request for an audio recording of the proceedings, which would be helpful for the Magistrate to ascertain if there had been such utterance in the first place.

29.  The Statement of Claim, Defence filed in the Tribunal would also be material information for the Magistrate, perhaps accompanied by the appellant’s note to explain how such a lie is material to those proceedings.

30.  The appellant had done none of that.

31.  I notice that the appellant did mention that such use of abusive language against him by the proposed defendant was recorded in an attached “C.D. and Exhibit #C4 in SCTC 11413/18”.  There is no mention of such a C.D. in the Magistrate’s Reasons for Refusal, nor is there any such compact disc in the appeal bundle.

32.  In any event, it is not the duty of the Magistrate in dealing with such applications to take up the role of an investigation body.  It is for the appellant to provide such material as is necessary in support of his applications.  The material in question was already in the possession of the appellant and he could easily have made a copy for the Magistrate.  This he did not.

33.  Without the disc, it was not open for the Magistrate to speculate what the contents might be, she could only proceed on the materials already before her.

Section 44, Crimes Ordinance record of proceedings

34.  As to the appellant’s request to the Magistrate for obtaining the record of proceedings in the Small Claims Tribunal under section 44 of the Crimes Ordinance, I find that this section does not empower the Magistrate to so obtain.

35.  Section 44 reads as follows:

“A document purporting to be a copy of the record of any proceedings before a court and purporting to be certified by an officer having the custody of the records of that court as a true copy of that record shall be admitted in evidence in proceedings for an offence against section 31, 38 or 39 on its production by the prosecution without further proof, and—

(a) until the contrary is proved, the court before which such document is produced shall presume—

(i) that the document is certified by such officer;

(ii) that the document is a true copy of the record of those proceedings; and

(iii) that the evidence taken in those proceedings and recorded therein was duly taken; and

(b) such document shall be prima facie evidence of the evidence taken in those proceedings and recorded therein and of all other matters contained therein.”

36.  Section 44, therefore, governs the evidential status of such record of proceedings only, it does not provide for the obtaining of the record.

37.  Given the dearth of material, the Magistrate was correct to find that there was a good cause to not issue the summons.  The essential ingredients of the offence are not prima facie present.

HCMA 197/2019

“Statement of Offence: Perjury, contrary to s.31 Cap.200. Particulars of Offence: 李漢雄, a senior manager of pioneer management limited (at 3/F, control room, mei tak house, mei tung estate, kln.) on 23rd Nov., 2018 in in Small Claims Tribunal re. SCTC 11413/18, lawfully sworn as a witness, did willfully make a statement re. no receiving of my 19th Nov., 2018 recored package to his company, which is material in that proceeding & which 李漢雄knew to be false.”

38.  The appellant, at the bottom of the “Information”, wrote “Pl. let me obtain the relevant evidence of the record of proceedings under s.44 Cap.200 from the Small Claims Tribunal”.  

39.  For the same reasons given in relation to HCMA 196/2019 above, I find that there was insufficient material put forward by the appellant to support this application, in particular how the proposed defendant’s alleged lie of not having received a packet might be material to the Small Claims Tribunal proceedings.  The Magistrate was right to decide that there was good cause to refuse this application.  The essential ingredients of the offence are not prima facie present.

HCMA 198/2019

“Statement of Offence: Attempt to pervert the course of justice, contrary to Common Law. Particulars of Offence: 林成君, a security guard of pioneer management limited working at 3/F Mei Tak House, Mei Tung Est., Kln. On 23.12.2018 on 3/F of the said building did commit the crime by interfering me as a witness in SCTC 11413/18 lodged by me in the Small Claims Tribunal.”

40.  The appellant wrote this in the note at the bottom of the “Information”:

“I will appear in Open Court, as a resident of … Your immediate ordering housing dept. for me to obtain a copy of the CCTV footage between 6:50am & 7:15am yesterday as evidence before its time limit for storing it will be appreciated. In addition, pl. be reminded that security guards here have been aiding & abetting others attacking me for more than 10 times!”

41.  The relevant paragraph of the appellant’s 28 January 2018 letter is paragraph 8, where he stated that the proposed defendant “most probably… did interfere me as the witness in SCTC 10752 & 11413/18 by showing hostility towards me… by scolding me and chasing me like assaulting me, with the knowledge that on those dates I was such a witness.” (my emphasis)

ESSENTIAL INGREDIENTS OF THE OFFENCE[2]

42.  In the case of HKSAR v Wong Chi Wai (2013) 16 HKCFAR 539; FACC 10/2012, the Court of Final Appeal set out the elements of the offence of perverting the course of public justice that are required to be proved:

“30. An attempt to pervert the course of justice is ‘the doing of some act which has a tendency and is intended to pervert the administration of public justice.’ The actus reus is thus the doing of the act with the prohibited tendency and the mens rea is the intention to pervert the course of justice.

31. With regard to the actus reus generally, the following propositions may be stated:

(a) Although it is called an ‘attempt’, it is a substantive offence. But like an inchoate offence, it is committed even where the act with the prohibited tendency does not actually result in interference with the course of justice.

(b) A person’s conduct has a tendency to pervert the course of justice if it has a tendency towards ‘impairing (or preventing the exercise of) the capacity of a court or competent judicial authority to do justice’.

(c) The tendency must involve impairing the administration of justice in curial proceedings. Conduct with a tendency to result in unlawfulness which does not interfere with curial proceedings does not constitute the offence.

32. The following propositions may be stated in respect of the mens rea of the offence:

(a) To prove that a defendant intended to pervert the course of justice, it is necessary to prove that he knew that his conduct would have or that he intended it to have a tendency to pervert the course of justice in relation to the curial proceedings in question.

(b)   Where his conduct has a manifest tendency to pervert the course of justice, the required intention may readily be inferred from proof that the defendant intended to perform the relevant act.   But where the act does not manifestly have the prohibited tendency, it is necessary to prove the abovementioned specific intent on the defendant’s part.”

43.  Given the above matters that are required to be considered by the Magistrate in order to decide if the essential ingredients of the offence are supported by prima facie evidence, it is clear that what had been put forward by the appellant was totally insufficient.

44.  The Magistrate was right to find that there was a good cause to not issue the summons on the ground that the essential ingredients of the offence are not prima facie present.

GROUNDS OF APPEAL COMMON TO ALL THREE CASES[3]

45.  I deal next with the following grounds of appeal common to all three appeals.

46.  The appellant alleges that the Magistrate “was biased against me by offering me no public hearing, no public pronouncement of decision, no sufficient rationale for such decision and it caused injustice by violating Article 10 of the HK Bill of Rights Ordinance resulting in an unfair trial” in all four of the appeals.

47.  The grounds as worded are muddled and difficult to understand.  As best I could, I proceed on the basis that the appellant’s accusation of the Magistrate as being biased is a ground separate from the others, and is the first ground of appeal.

48.  The second ground of appeal is that there was no public hearing.  The third ground of appeal is that the Magistrate did not provide sufficient reasons for her decisions.  The fourth ground is that there has been a breach of Article 10 of the Hong Kong Bill of Rights Ordinance.

BIAS

Actual bias

49.  The appellant had put forward no evidence as to how the Magistrate was actually biased.  There is no suggestion that the Magistrate had a direct interest in the outcome of the applications or allegations to similar effect.  The appellant merely made a bare assertion.

Apparent bias

50.  As for apparent bias, the test to be applied is as confirmed by the Court of Final Appeal in the case of Deacons v White & Case Limited Liability Partnership and 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.”

51.  In the present case, the appellant had not put forward any material that would suggest that there is a danger that the learned Magistrate would be biased.

52.  I find that, having looked at all the available facts and the circumstances of the case, no fair-minded and informed observer would conclude that there was such a possibility or danger.  This ground of appeal fails.

NO PUBLIC HEARING

53.  Article 10 of the Hong Kong Bill of Rights reads as follows:

“Article 10

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.” (my emphasis)

54.  In the magistracy appeal case of HKSAR v Cheung Kin Chung [2018] 2 HKLRD 597, the same appellant sought to appeal the decision of a Magistrate to refuse three summonses as applied by him for private prosecution.

55.  One of the grounds of appeal put forward in that case was also that the decision was made without hearing the applicant in open court, and that the appellant’s rights as guaranteed under Article 10 of the Bill of Rights Ordinance had been breached, resulting in him not having had a fair trial.

56.  Deputy High Court Judge CP Pang ruled that, since the appellant was not facing a criminal charge, the Magistrate’s decision to not issue the summonses was not a “determination of any criminal charge against him” as stipulated in Article 10.  Neither were the decisions a determination of “his rights and obligations in a suit at law”.

57.  That being the case, Article 10’s requirement for a public hearing would not cover the Magistrate’s exercise of her jurisdiction to decide under section 8 of the Magistrates Ordinance whether there is good cause to refuse to issue the summonses applied for.

58.  I agree with my learned brother’s reasoning and ruling.  The appellant’s rights under Article 10, as far as they are applicable, have not been breached.  The fact that the applications for the summonses were dealt with without a public hearing does not render the procedure unfair.

59.  Since there is no requirement for an open hearing in dealing with the applications, there would also be no requirement for a public pronouncement of the decision in open court.  Article 10 is thus also not breached.

60.  The second and fourth ground of appeal, therefore, both fail.

61.  As for the ground of there being “no sufficient rationale” for the refusals, I find that, for the reasons already given above when dealing with the individual applications, and upon reading the Magistrate’s Reasons for Refusal, ample reasons had been given and the decisions were all made correctly.  This ground of appeal also must fail.

SECTIONS 21 AND 22 OF THE MAGISTRATES ORDINANCE

62.  Since the appellant had, in his letter of 18 February 2019, referred to requests he had made for the provision of CCTV footages “for my investigations & ensuring prosecutions – same as police duty”, I will also include here my findings on the use of sections 21 and 22 of the Magistrates Ordinance as suggested by the appellant in his other applications[4].

63.  Section 21 states that:

“If it is made to appear to a magistrate, by any credible person, that any person within Hong Kong is likely to give material evidence on behalf of the complainant or informant or defendant, the magistrate shall issue his summons to such person, under his hand and seal, requiring him to be and appear at—

(a) such time and place as specified in the summons; and

(b) such time and place as may be directed in such manner as is specified in the summons,

before a magistrate to testify what he knows concerning the matter of the complaint or information.”

64.  Section 22 grants the Magistrate the collateral power to order production of documents:

“The powers contained in sections 21 and 78 enabling a magistrate to issue a summons to any witness to attend to give evidence before a magistrate shall be deemed to include the power to summon and require a witness to produce to such magistrate books, plans, papers, documents, articles, goods and things likely to be material evidence on the hearing of any charge, information or complaint, and the provisions of those sections relating to the neglect or refusal of a witness, without just excuse, to attend to give evidence, or to be sworn, or to give evidence, shall apply accordingly, and a magistrate shall have power to vary or add to the forms in the rules made hereunder accordingly.”

65.  When read together, it is clear that the powers under the two sections are exercisable only when a summons has been issued, or a charge has been brought against a defendant.

66.  In the present case, a summons was as yet to be issued when the appellant made the request.  Sections 21 and 22 would, therefore, have no application to the appellant’s applications for the summons.

67.  In the case of HKSAR v Cheung Kin Chung, HCMA 571-3/2015, another of the appellant’s appeals, M Poon J dealt with the exact same point put forward by the appellant and said the following:

“13. The appellant’s request for a court order to compel those in charge to produce CCTV footage which might show the alleged 3 incidents under s 21 and 22 of the Magistrates Ordinance is misconceived. These sections derive from the institution of proceedings to ensure the attendance of witnesses and production of relevant documents. On failing to apply for private summons, no proceedings would be instituted and thus these sections do not come into play at all.”

68.  As such, the appellant has no right to request the Magistrate to order the release of the CCTV footages under the two sections.

JUDGMENT

69.  For the reasons given above, all three appeals are dismissed.

COSTS

70.  This batch of appeals would be the 51^st to 53^rd magistracy appeals that the appellant has been involved in.  All of the other appeals also originated from the appellant being dissatisfied with a magistrate’s decision to refuse his application to issue a private summons.  The bulk of the proposed defendants were security guards of the building that the appellant was residing in.

71.  It is clear that the appellant should consider obtaining some help, perhaps in the form of proper legal representation, to assist him in deciding how best to proceed with his situation in the future.

72.  There be no order as to costs.