HKSAR v. CHEUNG KIN CHUNG

HCMA 561, 591 & 592/2017
[2018] HKCFI 675

HCMA 561/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 561 OF 2017

(ON APPEAL FROM KCMP 688 OF 2017)

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and

HCMA 591/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 591 OF 2017

(ON APPEAL FROM KCMP 769 OF 2017)

_______________

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and

HCMA 592/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 592 OF 2017

(ON APPEAL FROM KCMP 770 OF 2017)

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(heard together)

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J U D G M E N T

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1.  The three appeals heard together in this hearing relate to the appellant’s applications for summonses for private prosecution in the Magistrates’ Court.  The applications were all refused by the magistrates without a hearing.  The appellant now appeals against the decisions of the magistrates in all the three cases.

HCMA 561/2017 (KCMP 688/2017)

2.  The application was against容海桐, a security guard of Pioneer Management Limited, working in the control room, 3/F of Mei Tak House, Mei Tung Estate, Kowloon.  Briefly the proposed charge alleged that the intended defendant aided and abetted an unknown male to assault the appellant by “loudly and angrily shouting at (the appellant), causing (the appellant) to fear (his) personal safety”.

3.  The appellant also requested the magistrate to order the Housing Department: (i) to provide him with a copy of the CCTV footages “between 10:00am and 11:40am inside and outside the building and areas surrounding staircase Number 1, Mei Tung House” and (ii) to let him know the full name and address of the attacker for legal actions.

4.  The magistrate dismissed the application and set out his reasons at paragraph 5 of the Statement of Findings:

“5. I dismissed the application as there was insufficient information to lay the foundation. There was no information given to support how the alleged act of aiding and abetting took place; also there was insufficient information given as to consider the alleged assault did in fact constituted an assault in law”

HCMA 591/2017 (KCMP 769/2017)

5.  This application was also against the same security guard容海桐.  The proposed charge was that, briefly, the intended defendant, in breach of her legal duty under Security and Guarding Services Ordinance (Cap 460), aided and abetted an unknown male to commit common assault when the male was “stalking and waiting for me and getting out his mobile phone pressing something on his phone (most probably recording function) while talking with (the intended defendant)”, “causing me to fear my immediate personal safety”.

6.  The magistrate refused to issue the summons and gave her reasons at paragraph 7 of the Statement of Findings:

“7. As to the Applicant’s application to issue a summons against Yung (KCMP 769/2017) for an offence of ‘aiding, abetting , counseling or procuring an unknown male to commit common assault’, I found that the essential ingredients of the offence were not present. The information did not show how the alleged assault was committed. The information did not suggest an act by the ‘male attacker’ or ‘unknown male’ caused the Applicant to apprehend immediate and unlawful personal violence. A threat to use violence at some time in the future was not an assault. Besides, there was simply no information whatsoever to suggest how Yung took part in the commission of the offence of ‘assaulting me’ by assisting or encouraging its commission. There was simply no information whatsoever to suggest that Yung had the knowledge of the alleged assault, an ability to control the ‘male attacker’s’ or ‘the unknown male’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 refused.”

HCMA 592/2017 (KCMP 770/2017)

7.  The application was against 孫家駒, the chairman of the Mutual Aid Committee of Mei Tak House, Mei Tung Estate, Kowloon.

8.  The proposed charge was “attempt to pervert the course of justice, contrary to Common Law” alleging that the chairman of the Mutual Aid Committee committed the crime by “not telling (the appellant) the male who has assaulted (the appellant) 3 times”.

9.  The appellant also asked for an order to direct Pioneer Management Limited or the Housing Department to give him a copy of the CCTV footages and to let him know the address and full name of the attacker.

10.  The application was dismissed by the magistrate for reasons set out at paragraph 14 of the Statement of Findings:

“14. As to the Applicant’s application to issue a summons against Suen (KCMP 770/2017), I found that a prima facie case was not made out. The elements of the offence of Attempt to Pervert the Course of Public Justice are set out in paragraph 30-2 of the Archbold Hong 2017 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.”

The grounds of appeal

11.  In all three cases, the appellant filed similar general grounds of appeal alleging that the magistrates were biased/prejudiced against the appellant and there was a violation of the Hong Kong Bill of Rights Ordinance resulting in an unfair trial.

The hearing

12.  The three cases were heard together on the morning of 5 January 2018.  The appellant appeared in person and said that he needed time to read the respondent’s written skeleton submission.  He asked to adjourn the cases and I adjourned to 2:30pm of that day accordingly.  When the court resumed hearing in the afternoon, the appellant did not turn up.  At the request of Mr Daryanani, Senior Public Prosecutor for the respondent, I adjourned the cases to 15 February 2018. Notice of hearing was then duly served.

13.  On the morning of 15 February 2018, the appellant appeared in person explaining that he was absent in the afternoon of the previous hearing because he did not have adequate time to prepare.  The appeal hearing then proceeded.

The appellant’s complaint

14.  During his oral submission in the hearing, the appellant clarified that his main complaint was that he had not been given a “public hearing” before his applications for summonses were dismissed.  He relied on Article 10 of the Hong Kong Bill of Rights Ordinance.  The appellant stated that in many of his previous applications, he had been invited to attend a hearing in court before the magistrates dismissed his applications.

15.  At the hearing, the appellant referred to articles, books and cases without a copy for the court. He said, being a person on public assistance, he could not afford the charges for making copies for the court.

16.  The appellant also referred to previous incidents when he was assaulted by unknown assailants and police officers in the vicinity of his residence.

17.  The appellant finished all his oral submission shortly before 1pm.  I adjourned the hearing to 3pm for Mr Daryanani to prepare for his reply.  I warned the appellant that he must attend the hearing, otherwise the hearing would continue in his absence.

18.  At the resumed hearing in the afternoon, the appellant was absent.  Mr Daryanani proposed that, in fairness to the appellant, the written submission he had prepared could be adopted in court and sent to the appellant by post.  And the appellant should be allowed to make his reply, if he so wished, when he received the respondent’s written submission.  I accepted the proposal.

The respondent’s position

19.  The reply of the respondent in their written submission can be stated briefly:

(1) Article 10 of the Bill of Rights Ordinance is referring to determination of criminal charge against a person, or of his rights and obligations in a suit at law.  The appellant’s case had not reached the stage of a determination of a criminal charge as the summonses for private prosecution were not granted by the magistrate.  The summonses were not civil suit of his rights and obligation.

(2) Magistrates need to be extra careful as private prosecution can be misused irresponsibly.

(3) A private summons will label the intended defendant a criminal.  If there is an open hearing, the reputation of the person being accused would be affected, even if the summons is refused at the end.

(4) There is no requirement that an open hearing has to be held to decide whether a private summons should be issued.

20.  After the hearing on 15 February 2018, the written submission of the respondent was sent to the appellant by post, with the direction that he should make his written reply, if any, within three weeks.  The appellant faxed a letter to this court on 20 February, apparently before he received the respondent’s written submission.  In the letter, the appellant explained that he did not return to the court on the afternoon of 15 February “because of cost issue”.  He also attached an article to his letter emphasizing that “Confucian approach to law is wrong”.

21.  The appellant faxed another letter to the court on 6 March 2018 in response to the written submission of the respondent.  He emphasized in his written reply that Article 10 is applicable “In the determination of … his rights … in a suit at law… when read with s.14 of Cap 227 Magistrates Ordinance for my applying private prosecution.  In addition, pl. note s.11 of Cap 227…”

Discussion

22.  As the main ground of appeal concerns the absence of a public hearing, I should only briefly deal with the merits of the three applications for summonses.

23.  Section 8 of the Magistrates Ordinance (“the Ordinance”) governs the issue of summons.  It provides:

“(1) 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.

…

(1B) (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)

24.  The primary issue in all the three cases is whether the magistrate refused to issue the summons for good cause.

25.  There is no provision in the Ordinance to define what amounts to “good cause”.

26.  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 offence are prima facie present.

27.  The view of Chu J has been consistently applied in later cases concerning the issue of summons for private prosecution.  I do not find any reason to depart from the principles established.

28.  The magistrates in all the three cases correctly applied the principles stated in Tsui Koon Wah.

29.  In HCMA 561/2017 (KCMP 688/2017), the magistrate had asked the appellant to supply more relevant information to support the application, yet the appellant did not respond to the magistrate’s request.  The magistrate, on the limited information provided to him, found the information insufficient to constitute the aiding and abetting of an assault and refused the application.  I cannot find any fault in the approach of the magistrate.

30.  In HCMA 591/2017 (KCMP 769/2017), the magistrate found that the information provided did not state clearly how the act of the “attacker” by pressing his phone could cause the appellant to fear immediate personal safety and on what basis the security guard could be said to be aiding and abetting the attacker by breaching her legal duty under the Security and Guarding Services Ordinance.  I agree with the magistrate that no prima facie case of any offence could be made out.

31.  HCMA 592/2017 (KCMP 770/2017) was considered by the same magistrate in KCMP 769/2017.  I agree with the magistrate that by refusing to tell the appellant the identity of the assailant who the applicant believed had assaulted him, the intended defendant did not commit the offence of attempting to pervert public justice.

32.  In my judgment, the appellant did not disclose a prima facie case for a criminal offence in all his applications. The magistrates in the three cases had good cause to refuse the applications.  The magistrates were proper not to order the Housing Department to supply the CCTV footages or the information of the alleged assailant to the appellant.

Right to a public hearing

33.  I now come to the common ground of appeal in the three cases that the magistrates were biased because the appellant was not given a public hearing, contrary to Article 10 in Section 8 of the Hong Kong Bill of Rights Ordinance.  As a result, the appellant claimed, he was not given a fair hearing.

34.  Article 10 of the Bill of Rights Ordinance provides:

“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. …”

35.  The three appeals involved application for issue of summons.  The appellant was not facing a criminal charge, hence the refusal of the magistrates to issue summons was not a determination of a criminal charge against him.  Neither did the magistrates determine the appellant’s civil rights and obligations in a suit at law.  Therefore both the civil and criminal limbs of the fair trial rights are not infringed.

36.  The appellant prayed in aid Section 11 of the Ordinance which provides:

“The room or place in which a magistrate sits to hear and try any complaint or information shall be deemed an open and public court, to which the public generally may have access, so far as the same can conveniently contain them, unless the magistrate otherwise directs where the evidence is of an indecent character, or where a prosecution is for an offence against the Societies Ordinance (Cap. 151) and is an offence relating to or otherwise connected with a Triad Society, in which case he shall make a note on the depositions of the direction which he has given:

Provided that in any case the delivery by the magistrate of his determination and any proceedings subsequent thereto, other than a review under section 104 which requires the hearing of evidence, shall take place in open and public court.”

37.  In my judgment, in considering the application for summons for private prosecution, a magistrate is not sitting to hear and try a complaint or information.  Section 11 of the Ordinance cannot assist the argument of the appellant.

38.  In my view, neither the provisions under Article 10 of the Bill of Rights Ordinance nor section 11 of the Magistrates Ordinance require the magistrate to hear an application for issue of summons in open court.  A refusal to issue summons for private prosecution by a magistrate without a hearing, for reasons that the information does not disclose any offence known to law, or that the essential ingredients of the alleged offence are not prima facie present, would not offend the principle of open justice.

39.  There is absolutely no basis to suggest that the magistrates in the three appeals were in any way biased, or the appellant having been deprived of a fair trial.

40.  There is no merit at all in the three appeals.

The Result

41.  For the above reasons, all the three appeals must be dismissed.