HKSAR v. CHEUNG KIN CHUNG

HCMA 490 & 491/2017

[2018] HKCFI 785

HCMA 490/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 490 OF 2017

(ON APPEAL FROM KCMP 501 OF 2017)

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AND

HCMA 491/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 491 OF 2017

(ON APPEAL FROM KCMP 502 OF 2017)

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(heard together)

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J U D G M E N T

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Background

1.  In KCMP 501/2017 and KCMP 502/2017, Mr Cheung Kin Chung (“the Appellant”) applied for the issue of two private summons against two proposed defendants 阮文根 (“Yuen”) and 何玉華 (“Ho”) respectively.

2.  The Appellant’s complaint against Yuen was that Yuen had on 28 May 2017 assaulted him on the G/F of Mei Tak House, Mei Tung Estate, Kowloon.  His complaint against Ho was that Ho had aided Yuen in assaulting him that day.

3.  Ms Veronica Heung, Magistrate (“the Magistrate”) refused both applications.  The Appellant now appeals against the Magistrate’s decisions in KCMP 501/2017 and KCMP 502/2017.

4.  The Appellant is unrepresented on appeal.

5.  In the information laid by the Appellant, he did not provide any evidence or information in support of his application.  He just alleged that Yuen assaulted him at aforementioned place and time whereas Ho aided and abetted Yuen to assault the Appellant.

6.  On 21 June 2017, the Magistrate issued a letter to the Appellant requesting him to submit all supporting evidence in writing by 11 July 2017.  The Appellant failed to do so.  The Magistrate then waited until 31 July 2017 before she dismissed the Appellant’s applications.

7.  By a letter dated 31 July 2017, the Appellant was informed of the court’s decision that his application was refused on the basis that “[t]he applicant has failed to provide any details of the alleged incidents in support of his application and failed to show the essential ingredients of the alleged offences are prima facie present”.

The Magistrate’s decision

8.  The Magistrate found that the Appellant failed to make out a prima facie case in both applications as he had failed to provide the court with any details of his allegations against Yuen and Ho.  For KCMP 501/2017, the Appellant failed to provide any details of the alleged incident, for KCMP 502/2017, the Appellant failed to provide any details as to how Ho took part in the alleged assault of the Appellant by Yuen.  There was no evidence to suggest that Ho had knowledge of the alleged assault by Yuen, that Ho had the ability to control Yuen’s actions or that Ho had made any deliberate decision not to exercise such control (paragraphs 12 & 14 of the Statement of Findings, page 8-9 of the Appeal Bundle).

Grounds of Appeal

9.  The Appellant complained that the Magistrate was biased against him and that her decision had “caused injustice by violating the Hong Kong Bill of Right Ordinance, resulting in an unfair hearing.”

10.  The Appellant relied on an article written by the Hon Justice Michael Kirby titled “Human Rights: The Role Of The Judge” in the book “The Hong Kong Bill of Rights: A Comparative Approach” edited by Johannes Chan, SC.

11.  The Appellant relied on the article for his submissions that:

(i)  If a society is tolerant and rational, it does not need a bill of rights, if it is not, no bill of rights will preserve it.

(ii)  In Hong Kong, Confucianism has a great impact on the way people think, people tend to have an unwarranted and unjustified appeal to traditions, people tend to think of ethics first, with that logical fallacy, the Appellant said he had been treated unfairly by all judges in all levels of courts.

12.  The Appellant cited the judgment of the Court of Appeal in Asia Television Limited v Communications Authority (Successor of the Broadcasting Authority) (CACV 258/2012, 28 February 2013, Cheung CJHC and Lam JA), and complained that the Magistrate made her decision without a hearing and, in doing so, she had acted against the principle of open justice which requires, among others, justice should not only be done, but should manifestly and undoubtedly be seen to be done.  The Appellant complained that he was denied a fair trial without a hearing.  The Appellant cited article 10 of the Hong Kong Bill of Rights, section 8 of the Hong Kong Bill of Rights Ordinance.  Article 10 reads:

“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 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 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 guardian ship of children.”

13.  The Appellant submitted he was denied an open hearing in contravention of article 10.

14.  The Appellant submitted the Magistrate was biased against him in the two applications as she had been biased against the Appellant in the past when she considered the Appellant’s application for the issuing of private summons in KCMP 889 - 891/2015 and KCMP 972 - 973/2015.

15.  The Appellant said as the Magistrate was biased against him all along, he intentionally and deliberately did not provide evidence in support of the present two applications to the Magistrate.  He cited The King v Sussex Justices [1924] 1 KB 256 on the issue of possibility of bias.

16.  The Appellant complained that all judges at all levels were biased against him.

17.  The Appellant seeks to produce a CD which he says shows what happened on 28 May 2017.  He said he intentionally and deliberately did not provide the CD to the Magistrate because the Magistrate was biased against him.

Respondent’s reply

18.  Mr Kong, for the Respondent, submits that the Magistrate has demonstrated no bias against the Appellant.

19.  Mr Kong submits that the two applications were rightly refused by the Magistrate. The Appellant brought the applications yet he failed to provide any evidence in support of his applications.  He failed to do so despite a letter was issued to him on 21 June 2017 requesting him to submit all supporting evidence by 11 July 2017.  The Magistrate waited until 31 July before she went on to refuse the two applications.

20.  Mr Kong submits that the Magistrate could have simply proceeded to determine the matter on all the information placed before her without asking for information from the Appellant.  A Magistrate is entitled to refuse to issue a private summons without a hearing (see HKSAR v Cheung Kin Chung [2015] 3 HKLRD 310).

21.  Mr Kong submits that the Magistrate’s reasons for refusing to issue the private summons were fair and proper.  The appeals should be dismissed.

Discussions

22.  The Magistrate states the law governing the issuing of a private summons in paragraphs 8 ‑ 11 of her Statement of Findings (page 7 ‑ 8 of the Appeal Bundle):

“8. The issuing of a private summons is governed by section 8 of the Magistrates Ordinance, Cap. 227 (‘the Ordinance’), which 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.’

9. Section 8(1B)(b) of the Ordinance 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.’

10. In 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 offences are prima facie present.

11. 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.”

23.  The Magistrate was right to find that, in both applications, there was no evidence in support of the applications.  The Magistrate was right to find that the Appellant failed to make out a prima facie case against Yuen and Ho.  I cannot see how the Magistrate had fallen into the logical fallacy that the Appellant contended.  The Magistrate did not have any evidence before her as the Appellant intentionally and deliberately did not provide any evidence in support of his applications.  She had no choice but to refuse to issue the private summons applied for by the Appellant.  The Appellant asked me to consider the contents of the CD which he said showed what happened on 28 May 2017.  The proper person to consider the CD as supporting evidence for the applications was the Magistrate, not me.  I am concerned with the correctness or otherwise of the Magistrate’s decisions.  The Appellant intentionally and deliberately decided not to place the CD before the Magistrate.  There is no basis for me to consider the contents of the CD on appeal.

24.  The Magistrate, in refusing to issue the private summons applied for, has not demonstrated any bias against the Appellant.  The fact that the Magistrate had refused to issue private summons applied for by the Appellant forms no basis for the complaint that she was biased or she had acted unfairly against the Appellant.

25.  In my judgment, it cannot be argued that the Magistrate’s decision has caused injustice to the Appellant as it was the Appellant who failed to submit any evidence to the Magistrate in support of his applications.

26.  Mr Kong is right to submit that article 10 of the Hong Kong Bill of Rights does not require an application for a private summons be heard in open court by a Magistrate. There is no such provision in section 8 of the Magistrates Ordinance (Cap 227) which governs the issuance of summonses.  Hence there was no breach of the Appellant’s human rights or denial of a fair hearing.  Article 10 applies after a criminal charge was laid, it did not apply in the present case which concerned an application for the issuing of private summonses against the potential defendants and no criminal charge was laid against them.

27.  All grounds of appeal fail.

28.  I hold a re-hearing on the information placed before the Magistrate, I too find that the information placed before the Magistrate in both applications failed to show the essential ingredients of the alleged offences against Yuen and Ho.

29.  I dismiss both appeals for the above reasons.