HKSAR v. CHEUNG KIN CHUNG

HCMA 810/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 810 OF 2011

(ON APPEAL FROM KCA 185/2011)

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BETWEEN

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REASONS FOR JUDGMENT

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1.  This is an appeal against an order of an Acting 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 18 October 2011 for the issue of a summons against a person called Chan Chun Wai (hereinafter called Chan).  The Appellant alleged that Chan had assaulted and robbed him on 13 July 2007 at the Kowloon Central Library.

3.  The application was, on 19 October 2011, refused by the Magistrate, on the ground that no prima facie case was established on the facts submitted.  The Appellant was informed of the decision. 

4.  The Appellant lodged an appeal pursuant to section 113 of the Magistrates Ordinance, Cap. 227.  He put forward the following grounds :

(1) the Magistrate erred in law by unsustainable conclusion of facts,

(2) the decision has caused injustice by violating the Hong Kong Bill of Rights Ordinance resulting in an unfair hearing, and

(3) the Principal Magistrate was biased against the Appellant.

5.  The Appellant appeared in person at the appeal hearing.  He agreed that the proceeding be conducted in English.  I kept observing during the proceedings and was satisfied that the Appellant has a sufficient proficiency in English to conduct the proceedings in English.

APPLICATION FOR ADJOURNMENT

6.  The Appellant applied for an adjournment on the following grounds :

(1) he had only received the written submission from the Respondent in the morning just before the appeal hearing started; and

(2) he was too engaged in other matters including other court proceedings prior to the hearing to prepare for a detailed submission.

7.  Miss Winnie Mok, PP, Counsel for the Respondent, admitted that her submission was only delivered to the Appellant just before the hearing started since the Department of Justice was unable to get in touch with the Appellant earlier.

8.  She opposed to an adjournment to another date.

9.  I allowed time for the Appellant to read the papers by standing down the case and hearing another case first.

10.  When the hearing resumed, the Appellant asked again for an adjournment to another date.  I ascertained from the Appellant what he was going to allege in support of the appeal and his present position. In my judgment no complex legal issue was involved in the case.  The grounds of appeal in the present case concern mainly a decision of the Magistrate which was based on consideration of what the Appellant alleged had taken place in the incident and the Appellant’ allegation that the Magistrate had been biased.  Consideration of both matters are very much factual.   From our conversation, it was clear that the Appellant was able to relate in detail his allegation and matters in support of his appeal.  The Notice of Appeal was filed on 31 October 2011, 2½ months before the hearing.  The written submission of the Respondent is simple, straight forward and not lengthy.  Up to that stage, the Appellant was unable to satisfy me that an adjournment to another date was justified.

11.  I adjourned the hearing to 2:30 p.m. so that the Appellant could have more time to prepare himself.  The Appellant was told that I remained to be persuaded that an adjournment to another date was justified.

12.  The Appellant did not appear at 2:30 p.m..  When the case was called again at around 3 p.m., the Appellant still was not there. I stood down the case until 3:30 p.m..  The Appellant was still absent by that time.

13.  Miss Mok submitted that the hearing should proceed on the basis that the Appellant had voluntarily given up his rights to address the court further.

14.  In the circumstances, I considered it appropriate to consider the case on what the Court had been informed and addressed.

15.  I dismissed the appeal and said the reasons would be provided afterwards.  These are my reasons.

BASIS FOR THE APPLICATION FOR THE ISSUE OF SUMMONS

16.  In support of his application, the Appellant filed a Declaration which set out his allegations.  His allegations were made against a male security staff working for Kowloon Central Library.  He said he found out his name from the police. 

17.  At the appeal hearing, the Appellant confirmed that the Magistrate had accurately recited in her Reasons for Decision what he said in his Declaration.

18.  I quote below the relevant part of the Reasons for Decision, with adaptation of the description of the personalities involved :

“… … . the incident took place on 13 July, 2007. (Chan) was working as a male security at the Kowloon Central Library and at about 9 p.m. exhibited unfriendly conduct towards (the Appellant), who then took his photos, intending to lodge a complaint against (Chan). At around 9:27 p.m., when (the Appellant) walked past (Chan) at the main entrance of the Kowloon Library on the ground floor, (Chan) showed ‘terribly angry facial expressions’ and grabbed (the Appellant’s) mobile phone and shook it vigorously, causing it to break. “The Appellant) struggled with (Chan) and got back his mobile phone. (The Appellant) claims to have suffered post traumatic stress disorder as a result. He subsequently made a report to the police for assistance, but claims the officers who came attempted to pervert the course of justice by assisting (Chan) to evade arrest and told him to lodge a civil claim.”

DECISION OF THE MAGISTRATE

19.  The Magistrate was of the view that there was good cause to refuse the application since prima facie case of robbery and assault against Chan was unlikely to be made out.  She said there is no evidence of an assault and no indication of the use of force as far as the allegation of robbery is concerned.  She concluded that no jury properly directed could come to a conclusion of guilt as the evidence was so tenuous.

DISCUSSION

20.  Issuing of summons is governed by section 8 of the Magistrates Ordinance, Cap. 227.

21.  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.”

22.  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.”

23.  The primary issue in this appeal is whether the Magistrate had refused to issue the summons for good cause.

24.  There is no further provision in the Ordinance as to what amounts to a good cause.

25.  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.

26.  I respectfully agree to the view of Her Ladyship.  Whether the allegation is of an offence known to the law and whether the essential ingredients of the offence are prima facie present individually provides for a good cause to refuse to issue a summons.

27.  With this in mind I turn to the grounds of appeal advanced by the Appellant.

Ground 1

28.  I find that the Magistrate had applied the right test in deciding whether to issue the summons.  The Appellant had set out his allegation in his Declaration.  At the appeal hearing, he confirmed to me that in case there is a trial for the matter, he will have nothing to add on top of what he had said in the Declaration.  Having considered the facts alleged, I find that there is insufficient ground for me to disturb the conclusion of the Magistrate.  I agree that no jury properly directed could come to a conclusion of guilt on the strength of what had been said.

29.  I am satisfied that the Magistrate had refused to issue the summons for good cause. Ground 1 fails.

Ground 2

30.  The right of a private citizen to apply for the issue of summons is an important rights.  In the present case, the Magistrate refused to issue a summons after having considered the allegation put up by the Appellant according to the correct legal principal.  I find no flaw in the process.  I do not find there was any violation of the Hong Kong Bill of Rights Ordinance.  I do not consider the decision has caused any injustice.  Ground 2 fails.

Ground 3

31.  This ground relates to an allegation of bias on the part of the Magistrate.

32.  In Deacons v White & Case Limited Liability Partnership and Others (2003) 6 HKCFAR 322, the Appeals Committee of the Court of Final Appeal confirmed the test and approach to the allegation of bias :

“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.”

33.  There is no evidence, nor any indication, that the Magistrate had been biased.

34.  The Appellant mentioned that on another occasion when his application for a summons was heard in open court, the magistrate, who was the same Magistrate who refused his application on this occasion, asked the prosecution to assist him.  She did not do so in the present case.

35.  Different case calls for different actions.  If the same magistrate saw fit in one case to engage the prosecution, it does not mean he or she had acted improperly, let alone in bias of anyone, not to do so in another case.  The law permits a magistrate to make his decision by consideration of the information available to him.  In this case, the Magistrate had done so.  She applied the correct law and made a decision by consideration of everything available to her.  As I said, I found no flaw in the process.

36.  In the course of addressing me, the Appellant mentioned about previous occasions of mistreatment of him by many people, in particular police officers of various police stations and other people with authority.  He said he had been assaulted on various occasions by police officers, and nobody took any action when he made a report or complaint.  He also alleged that the judiciary not only had done nothing to prevent the misdeed, the courts are prejudicial towards him.

37.  What he said do not support any of his grounds of appeal, including the ground of bias on the part of the Magistrate who refused his application.

CONCLUSION

38.  By reason of the matters aforesaid, I did not consider there was any merit in this appeal and therefore dismissed it.