HKSAR v. CHEUNG KIN CHUNG

HCMA 411/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 411 OF 2015

(ON APPEAL FROM KCMP 418 OF 2015)

____________

____________

_______________

J U D G M E N T

_______________

1.  On the 23May 2015, the appellant filed an application at the Kowloon City Magistrates’ Court for the issue of two private summonses under section 8 of the Magistrates Ordinance, Cap 227 against the same proposed the defendant who is security guard of Pioneer Management Co. Ltd.

2.  The charges were drafted as follows:

“STATEMENT OF OFFENCE

Attempt to pervert the course of public justice, contrary to Common Law.

PARTICULARS OF OFFENCE

黃品玲(WONG Ban-ling (transliteration)), a security guard of Pioneer Managenent (sic) Co., Ltd., working at G/F, Mei Tak House, Mei Tung Estate, Kln. on 21.5.2015, did pervert the course of public justice by failing to disclose the full name of an unknown man (who previously did attack me on 14.3.2015 for which I initiated the private prosecutions in this magistracy) for attacking me on 21.5.2015 at the lobby on G/F, Mei Tak House, Mei Tung Estate, Kln.”

STATEMENT OF OFFENCE

Aiding & abetting an unknown man to attacking me, contrary to Common Law.

PARTICULARS OF OFFFENCE

黃品玲(WONG Ban-ling (transliteration)), a security guard of Pioneer Managenent (sic) Co., Ltd., working at G/F, Mei Tak House, Mei Tung Estate, Kln. on 21.5.2015, did aid & abet an unknown man (who previously did attack me on 14.3.2015 for which I initiated the private prosecutions in this magistracy) to attacking me at the lobby on G/F, Mei Tak House, Mei Tung Estate, Kln.”

3.  Upon the request of the magistrate[1] the appellant provided additional information on the 15 June 2015.  The said information was contained in five pages and an audio recording in the form of a CD. 

4.  In his application for the private summonses the appellant also mentioned in a footnote: for an order to be issued by the magistrate to the Housing Department to provide him with the relevant CCTV tape(s) as evidence stating that the CCTV footages would only last for 2 weeks.  

5.  On the 18June 2015, the magistrate refused his application to issue the private summonses upon the two charges against the proposed defendant security guard.

Background facts

6.  The proposed defendant is a security guard working at the residence of the appellant’s public housing estate at Mei Tak House in Mei Tung Estate.  The appellant’s complaint generally is that numerous different security guards greet other residents in his building but deliberately choose not to greet him.  He finds it discomforting and unfair.  Further, by and large the security guards also fail to protect him from offences committed upon him by others at his residence when it is their duty to do so and therefore the security guards are committing offences.  This has brought about numerous complaints and litigation against the security guards by the appellant. On this occasion he complains that on 21 May 2015 the security guard on duty committed two offences and thus he applied to issue two separate private summonses against the security guard on duty. 

The security guard on 21 May 2015 aiding and abetting an unknown man, later known as Mr Wong to attack the appellant

7.  This first offence allegedly committed by the security guard is that of an offence of aiding and abetting.  The appellant alleges on 21 May 2015 the appellant met a man at the ground floor lobby of his residence who had assaulted him on 14 March 2015.  The appellant later came to know this man was called Mr Wong and also lived in the same residential block as him.  The appellant started to scold Mr Wong however Mr Wong then charged at him, verbally abused him, threatened to injure his eyes and then attacked him.  He requested the security guard who was on duty at the lobby at the time, to make a report to the police but the security guard ignored him and pretended to do something else.  The appellant however managed to make a call to report to the police himself.  Sometime later some police officers arrived.  The appellant had the opportunity to view the CCTV footage which allegedly captured the incident. The CCTV footage also allegedly captured that about 15 minutes prior to the being attacked, the security guard had talked to Mr Wong for a while.

8.  The appellant alleged that the security guard had committed the offence of aiding and abetting Mr Wong to attack him on 21 May 2015 by ignoring his request to make a report to the police and failing to discharge her duty as a security guard in accordance with the Security and Guarding Services Ordinance and the Housing Ordinance.

Attempt to pervert the course of public justice

9.  The appellant further alleged that the security guard had committed the offence of perverting the course of public justice by failing to inform him that she was familiar with Mr Wong as it was shown in the CCTV footage that she had talked to Mr Wong for a while shortly before the attack upon him took place.

The magistrate’s reasons for refusing to issue the summons

10.  The magistrate gave her reasons for refusing to issue the summonses as follows[2]:-

“The audio recording

8. There are altogether 6 audio clips in the CD.  Three of them allegedly contain the complaints by telephone by the Applicant against the performance of the proposed defendant in her capacity as a security guard on three different occasions prior to the present incident.  The other three contain conversations and abusive language used among people on three different occasions.  Two of them took place more than two months before the present incident.  The remaining one allegedly recorded the conversations among the people at the material time of the present incident.” 

13. As to the Applicant’s application to issue a summons for “Aiding and abetting an unknown man to attack me”, I found that there was simply no evidence to suggest that the proposed defendant took part in the commission of the offence of “attacking me” by assisting or encouraging its commission. There was simply no evidence whatsoever to suggest that the proposed defendant had the knowledge of the “attack” by the unknown man, an ability to control the unknown man’s actions or any deliberate decision not to exercise such control.  The prima facie case for the alleged offence was not made out.  The application was therefore refused.

14. As to the Applicant’s application to issue a summons for “Attempt to pervert the course of public justice”, I found that a prima facie case was not made out.  The elements of the offence are set out in paragraph 30-2 of the Archbold Hong 2015 Edition.  I do not propose to repeat that here. Evidence of a positive act by the proposed defendant is required to prove the offence.  Inaction is insufficient to constitute the offence (R v Headley [1996] RTR 173, CA).  As a prima facie case for the alleged offence was not made out, the application was refused.”

Grounds of appeal

11.  The appellant filed a Notice of appeal to a judge against decision dated 22 June 2015.  The grounds were stated as follows:

“The general grounds of appeal are that the Magistrate was biased against me and that the decision has thus caused injustice by violating the Hong Kong Bill of Rights Ordinance, resulting in an unfair hearing.’

12.  No specific points were mentioned as the basis of the alleged biasness by the magistrate and no specific section of the Bill of Rights Ordinance, Cap 383 was mentioned.

13.  At the hearing of the appeal as the grounds of appeal advanced were bare.  I requested the appellant to provide me with written submissions providing details of his grounds of appeal. Very brief written submission were provided thereafter stating the following:

(1) Bias of magistrate – no reasoning given in letter dated 18 June 2015

(2) Incompetence – no obtaining of material CCTV evidence re 21 May 2015 and of the full name of the attacker

(3) Breach of Natural Justice – Hearing rule

(4) Inconsistency – fallacy there was open court hearing last time before the magistrate, therefore legitimate expectation

(5) Human rights violation – Article 10

Application for my recusal

14.  After quite a protracted time spent orally expanding on the above written submissions, the appellant made an application for my recusal from the case because I had shown bias against him by refusing his application in a previous appeal[3]. The grounds for bias was that at the previous appeal I had : -

(a) denied his request for the production of the CCTV footage and;

(b) denied him protection by refusing his application to take out contempt of court proceedings for prosecuting the male Mr Wong who had attacked him on 14 March 2015.

15.  The relevant test to be applied when considering a recusal application of a judge was explained and articulated by Ribeiro PJ in Deacons v White & Case Liability Partnership and Others (2003) 6  HKCFAR 322  The test is whether there is a reasonable apprehension of bias and this is decided by the court first ascertaining the facts relevant to the application and then asking itself whether those facts would lead a fair minded and informed observer to conclude that there was a real possibility that the court was biased. 

16.  Turning to (a) above, the refusal of his request for the CCTV footage.  The relevant passages are stated at paragraphs 43 and 44 of my previous judgment[4]. In brief, the appellant’s complaint was that the magistrate was incompetent in that the magistrate failed to obtain the CCTV recording from the management company.  I had found no merit in the appellant’s allegation that the magistrate was incompetent. 

17.  As regards the second ground of bias (b) above paragraph 26 of the judgment[5] refers.  The application made by the appellant was not relevant to the appeal being heard against the magistrate’s decision for refusing to issue the private summons.  The allegation of an attack by another person on the appellant was unrelated and hence I refused the application.  

18.  In applying the test enunciated above, I refused to recuse myself in the present appeal on the basis that a fair minded and informed observer would conclude that there was a real possibility that I will be biased. 

19.  Turning back to the appellant’s oral submissions at the hearing, the appellant was quoting and reading from numerous authorities. Despite my repeated requests for copies to be provided, no copies were forthcoming.  The explanation offered by the appellant was that he unable to pay for photocopies of the cases as he was a recipient of comprehensive social security allowance.  I informed the appellant that if copies were not provided no reliance would be placed on the cases.  I accepted the appellant’s proposal of providing soft copies of the cases referred to, on a disk.  In the circumstances I adjourned the hearing so that the soft copies of the cases could be provided to myself and counsel for the respondent.  

20.  Prior to the second day of the hearing of the appeal the appellant had provided soft copies of the cases on a disk, an English translation of the audio recording and further more detailed written submissions of his grounds of appeal.  At the resumed hearing, he further orally elaborated on his submissions.

Consideration of the grounds of appeal

21.  I now turn to consider the appellant’s grounds of appeal and submissions.

The Incompetence of the magistrate

22.  The appellant complained that the magistrate was incompetent as she did not obtain the CCTV evidence of 21 May 2015 covering the details of his alleged attack by the male, Mr Wong and was not protecting his human rights. 

23.  He alleged Mr Wong had attacked him previously on 14 March 2015.  It was his contention that the Judiciary is to safe guard and protect him by summoning the responsible person from the Pioneering Management Company (Management Company) or the Housing Department to produce the CCTV footage to see clearly what was happening on those two days ( 14 March and 21 May 2015) on the CCTV. 

24.  In support of his argument that the judiciary has a basic duty to protect his human rights and uphold the rule of law he referred to the case of R v Horseferry Road Magistrates Court ex p Bennett (No.1) [1993] UKHL 10 and the following passage:

“If the court is to have the power to interfere with the prosecution in the present circumstances it must be because the judiciary accept a responsibility for the maintenance of the rule of law that embraces a willingness to oversee executive action and to refuse to countenance behaviour that threatens either basic human rights or the rule of law.

My Lords, I have no doubt that the judiciary should accept this responsibility in the field of criminal law.”

25.  The appellant submitted that the magistrate should have summoned the responsible person from the management company to produce the CCTV footage under s 21 and s 22 of the Magistrates Ordinance Cap 227. 

26.  Section 21 is a provision stipulating the attendance of witnesses.  If it is made to appear to a magistrate that a person in Hong Kong is likely to give material evidence on behalf of the complainant or informant or defendant the magistrate shall issue the summons to such person to appear at the time and place specified to testify before a magistrate what he knows concerning the matter of the complaint or information.  In my view this section is not applicable, it is a provision requiring the attendance of witnesses where a summons has been issued or a charge brought against a defendant where in the present case no such summons has been issued. 

27.  Under s 22 the magistrate’s power to summons a witness is 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.  For the forgoing reasons in paragraph 26 this section is also not applicable. 

28.  There is no merit in the appellant’s ground of the incompetence of the magistrate. 

Breaches of Natural Justice – hearing – legitimate expectation – consistency – fallacy – no bias rule – Article 10 of the Bill of Right, human rights violation

29.  I shall deal with the above grounds of appeal together. The appellant complains that he was not given a hearing before the refusal to issue the private summonses.  He complains that he should have been given a fair and public hearing.  He had a legitimate expectation that he would have a hearing as the magistrate had given him an open hearing on a previous occasion. The magistrate was inconsistent.  Further any judgment by the magistrate should have taken place in open court. 

30.  For a public hearing which the appellant should have been given, the appellant relies on the following passage in the case of T (A Firm Of Solicitors), R (on the application of) v Legal Aid Board [1998] EWCA Civ 958 (10 June 1998)

“This is the reason it is so important not to forget why proceedings are required to be subjected to the full glare of a public hearing. It is necessary because the public nature of proceedings deters inappropriate behaviour on the part of the court. It also maintains the public’s confidence in the administration of justice. It enables the public to know that justice is being administered impartially.”

31.  For the principle of legitimate expectation of a hearing the appellant relies on the passages in the case of London Borough Of Newham & Ors, R v [2001] EWCA Civ 607 :-

“The law requires that any legitimate expectation be properly taken into account in the decision making process….. But when the Authority looks at the matter again it must take into account the legitimate expectations. Unless there are reasons recognised by law for not giving effect to those legitimate expectations then effect should be given to them…”

32.  I have addressed these matters in paragraphs 33 to 37 of my previous judgment[6] to which I shall not repeat herein.  As mentioned therein there is no legal obligation to hear the application for a private summons in open court.  There is no human rights violation, nor any breach of Hong Kong Bill of Rights Ordinance, Cap 383, section 8 at Article 10.  Even if the magistrate or another magistrate had heard a previous application for a private summons in open court, it does not preclude the magistrate not hearing the application in open court.  There is no legitimate expectation.  There are no merits in the grounds of appeal.

33.  In the instance case the magistrate had conscientiously and fairly after the appellant had filed the application for two private summonses on 23 May 2015, requested additional information which was provided by the appellant on 15 June 2015.  As was stated by Deputy High Court Judge A Wong (as he then was) in HKSAR v Cheung Kin-chung (the appellant) HCMA 335/2014[7].

“The magistrate was entitled to determine the matter upon the whole of the information put before him. He was not obliged to give the appellant further opportunities to supply addition information though he considered it appropriate to do so.”

Bias of magistrate Heung

34.  The appellant complains that the letter by the magistrate to him dated 18 June 2015 gave insufficient and intelligible reasons for her decision in refusing to issue the two private summonses.  The magistrate’s letter stated:

“The contents of the information and the supporting document provided are completely empty in disclosing any criminal offence against the proposed defendant and there is not even a prima facie case on the facts. I refuse the application for issuing the two summonses.”

35.  The appellant relied upon the following passages in the case of Flannery & Anor v Halifax Estate Agencies Ltd [1999] EWCA Civ 811 (18 February 1999) in his submissions that the magistrate should give sufficient reasons and that the lack of reasons is a self standing ground of appeal. 

“We make the following general comments on the duty to give reasons:

(1) The duty is a function of due process, and therefore of justice. Its rationale has two principal aspects. The first is that fairness surely requires that the parties especially the losing party should be left in no doubt why they have won or lost. This is especially so since without reasons the losing party will not know (as was said in Ex parte Dave) whether the court has misdirected itself, and thus whether he may have an available appeal on the substance of the case. The second is that a requirement to give reasons concentrates the mind; if it is fulfilled, the resulting decision is much more likely to be soundly based on the evidence than if it is not.

(2) The first of these aspects implies that want of reasons may be a good self-standing ground of appeal. Where because no reasons are given it is impossible to tell whether the judge has gone wrong on the law or the facts, the losing party would be altogether deprived of his chance of an appeal unless the court entertains an appeal based on the lack of reasons itself.

(3) The extent of the duty, or rather the reach of what is required to fulfil it, depends on the subject-matter. Where there is a straightforward factual dispute whose resolution depends simply on which witness is telling the truth about events which he claims to recall, it is likely to be enough for the judge (having, no doubt, summarised the evidence) to indicate simply that he believes X rather than Y; indeed there may be nothing else to say. But where the dispute involves something in the nature of an intellectual exchange, with reasons and analysis advanced on either side, the judge must enter into the issues canvassed before him and explain why he prefers one case over the other. This is likely to apply particularly in litigation where as here there is disputed expert evidence; but it is not necessarily limited to such cases.

(4) This is not to suggest that there is one rule for cases concerning the witnesses’ truthfulness or recall of events, and another for cases where the issue depends on reasoning or analysis (with experts or otherwise). The rule is the same: the judge must explain why he has reached his decision. The question is always, what is required of the judge to do so; and that will differ from case to case. Transparency should be the watchword.”

36.  The magistrate gave sufficient reasons, that the information in support for the application of the two summonses disclosed no criminal offence and did not even show a prima facie case on the facts. 

37.  Upon the appellant’s appeal against the magistrate’s decision to refuse to issue the summonses, the magistrate provided full reasons in her statement of findings.  It can be seen that she had carefully accessed the available evidence submitted by the appellant before refusing the application.  There is no merit in the appellant’s ground of the magistrate’s incompetence or of the magistrate being bias. 

Conclusion

38.  In this case the magistrate had carefully considered the information, assessed the available evidence before her and had applied the correct law and made her decision.  On the information available to the magistrate there was good cause to refuse to issue the private summonses. 

39.  In the circumstances, there are no merits in this appeal and it follows that the appeal is dismissed.