TSUI KOON WAH v. PETER LAW, MAGISTRATE OF KOWLOON CITY MAGISTRATES' COURTS

HCAL 53/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 53 OF 2007

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D E C I S I O N

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1.  Mr. Tsui is the Plaintiff in HCA No. 890 of 2003.  By a Decision dated 27 November 2006 (following a Pre-Trial Review about 2 weeks earlier), Chung J refused leave to fix a trial date for Mr. Tsui's action.

2.  Mr. Tsui complains that Chung J arrived at his conclusion (namely, that the action was not ready for trial) on the basis of 4 false premises.

3.  The premises derive from statements in Chung J’s Decision to the following effect:-

(1)     That Chung J had “indicated to the parties that it would be more convenient for trial purposes for them to file and serve witness statements which in effect ‘consolidate’ the contents of all witness statements previously filed and served”.

(2)     That, upon being asked by Chung J, Mr. Tsui had said that the contemporaneous documents in his proposed trial bundle were the same as those in the Defendants’ proposed indices, but that the Defendants’ solicitor had disagreed with such statement.

(3)     That Chung J had “indicated to the parties ... [his] preference for the trial bundles proposed in the said letter of the defence”.

(4)     That Chung J had asserted that Mr. Tsui had previously issued and served over “20 subpoenas”.

4.  Those statements (Mr. Tsui contends) are all false.  According to Mr. Tsui, Chung J had never made any such previous “indications” about witness statements and trial bundles; Chung J had in fact preferred Mr. Tsui’s bundle despite opposition by the Defendants’ solicitor; and Mr. Tsui had only issued 17 subpoenas and served 5 of them.

5.  Mr. Tsui accuses Chung J of having lied.  He says that Chung J deliberately made the 4 statements highlighted above in his Decision to convey the impression that Mr. Tsui was somehow at fault for the action not being ready for trial.  Mr. Tsui claims that Chung J thereby caused the trial of the action to be delayed and thereby perverted the course of justice.

6.  On 30 March 2007 Mr. Tsui applied to the Kowloon City Magistrate to issue a private summons against Chung J for (among others) perverting the course of justice.

7.  On 20 April 2007 the Magistrate refused to issue a private summons.  He said that the information laid by Mr. Tsui “did not support an offence of perverting the course of public justice”.

8.  On 27 April 2007 Mr. Tsui enclosed a revised information against Chung J with additional particulars.

9.  On 7 May 2007 the Magistrate replied that Mr. Tsui’s application “had already been considered and concluded on 19 April 2007”.

10.  Mr. Tsui now seeks leave to apply for judicial review against the Magistrate’s refusal to reconsider his application against Chung J.

11.  I do not think that this is a suitable case to grant leave for judicial review.  I do not believe that it can be said that the Magistrate acted unreasonably in refusing Mr. Tsui’s application against Chung J.

12.  First, I do not think that the additional particulars which Mr. Tsui included in his letter of 27 April 2007 substantially added to the totality of material previously placed before the Magistrate by Mr. Tsui.  Accordingly, the Magistrate reasonably held that the renewed application was substantially the same as that which he had previously considered.

13.  Mr. Tsui argues that his first application to the Magistrate was bound to fail because of a lack of particularity.  He says that the additional particulars in his letter of 27 April 2007 cured any such defect.  He submits, for instance, that his second application made it clear what the “course of justice” was that he believed was being perverted.  He refers to having clarified the actus reus through his second application by there accusing Chung J of having “lied” instead of merely saying (as Mr. Tsui had originally done) that Chung J “fabricated” matters.

14.  I am not persuaded.

15.  There is no difference in meaning between having “fabricated” (invented with deceitful intent) and having “lied”.  Moreover, it was clear from the first application what “course of justice” was allegedly being perverted and it was evident from the material which Mr. Tsui placed before the Magistrate then who (Chung J) was being targeted.

16.  Plainly, the Magistrate rejected Mr. Tsui’s first application because he believed the material before him insufficiently supported a charge of perverting the course of justice.  The Magistrate so stated unambiguously and adequately in his 20 April 2007 letter.

17.  The Magistrate (reasonably in my view) regarded the second application as in substance no more than a repetition of the first.  He said so and clearly, by his letter of 7 May 2007, treated Mr. Tsui’s renewed application as being invalid for precisely the same reason as his first application.  The matters raised in Mr. Tsui’s 27 April 2007 letter had in effect already been considered and concluded earlier by the Magistrate.

18.  Second, it seems to me that the Magistrate reasonably took the view that the facts and matters relied upon in the materials provided by Mr. Tsui (whether by his initial or renewed applications) did not support a case of perverting the course of justice.

19.  To begin with, assume (without accepting) that Mr. Tsui is right that Chung J’s conclusion was based on erroneous premises. Even then justice could not be stymied.  The remedy all along lay in Mr. Tsui’s hands.  He could simply have appealed to the Court of Appeal within the time period allowed and demonstrated that Chung J had based his Decision on erroneous premises.  I am unable to understand how whatever Chung J said (whether right or wrong) could have amounted to the actus reus of perverting the course of justice.  That is because, if Mr. Tsui was unhappy with the result before Chung J, Mr. Tsui could always have appealed.

20.  Further, judges are just as human as everyone else.  They can conceivably get things wrong in their judgments.  They may make erroneous statements for a whole variety of reasons.  They may forget, even if (as Mr. Tsui stresses) they have been involved with a case for a long time.

21.  Mr. Tsui assumes that, merely because Chung J made what Mr. Tsui believes to be wrong assertions in coming to a conclusion, Chung J must have been deliberately lying and attempting to pervert the course of justice.

22.  A magistrate can reasonably take the view that the mere making of wrong statements in a judgment, even coupled with the history of Mr. Tsui’s action before Chung J, would not constitute sufficient material or evidence to support a charge of lying to pervert the course of justice.

23.  The Court should not lightly interfere with the Magistrate’s decision.  In a judicial review such as this, provided that the Magistrate has acted reasonably, the Court cannot substitute its view as to what should or should not have been issued.

24.  Accordingly, leave to apply for judicial review is refused.

25.  I note that, at the start of the hearing, Mr. Tsui asked me to recuse myself.  He did so because the case involved potentially serious consequences for Chung J, a fellow judge.  In my view, that fact did not justify my recusing myself.  I did not think that there was a case of real or apparent bias.  I therefore refused the recusal application.