HKSAR v. CHEUNG KIN CHUNG

HCMA 27-31/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 27 TO 31 OF 2016

(ON APPEAL FROM KCMP 889, 890, 891, 972 & 973 of 2015)

____________

_______________

J U D G M E N T
_______________

1. This is an appeal against the decision of Mr Lam Tsz Kan, Deputy Magistrate made on 21 December 2015 refusing five applications made by the appellant for the issue of private summonses.

2. The appellant filed a notice of appeal dated 28 December 2015 in respect of each refusal.  The appeals in HCMA 30/2016 & HCMA 31/2016 were listed for hearing on 17 February 2016 and the appeals in HCMA 27/2016, HCMA 28/2016 & HCMA 29/2016 were listed for hearing today.  The appellant failed to attend on 17 February.  I therefore adjourned the hearing of the appeals to today.  The appellant has failed to attend court today.   

3. The appellant was notified of both hearing dates by registered post dated 20 January 2016.  The letters were returned undelivered with the remark “unclaimed”. The court bailiff attended the appellant’s home to serve the appeal bundles together with notice of the hearing dates in the morning and afternoon of 15 February 2016.  On each occasion the door was locked and nobody answered.  A message was also left for the appellant to contact the bailiff.   

4. I am informed the respondent has without success also tried to serve papers on the appellant at the address on the notice of appeal by registered post and by hand.  Contact has also been attempted by calling the mobile phone number given by the appellant in the notices of appeal.  However, this has again proved unsuccessful with no connection being possible. 

5. The respondent asks that I dismiss the appeals.  I am satisfied sufficient notification of the hearing of the appeals has been given to the appellant at his residential address stated in the notices of appeal.  No application has been received requesting adjournment of these appeals.  I am further satisfied that in considering whether to dismiss the appeals in the absence of the appellant I should first determine whether there is any merit in the grounds of appeal so as not to shut out an otherwise meritorious appeal. 

HCMA 27/2016 (KCMP 889/2015); HCMA 28/2016 (KCMP 890/2015) & HCMA 29/2016 (KCMP 891/2015)

6. On 28 October 2015 the appellant filed three applications for the issue of private summonses.  The proposed defendants were security guards and a property officer of Pioneer Management Co Ltd, who managed Mei Tak House in Mei Tung Estate, where the appellant resided. 

7. The applications comprised of a draft charge together with a note stating that details will be disclosed in open court.  The magistrate therefore directed the appellant to file supporting information in court on or before 20 November 2015.  The appellant was granted two further extensions to 18 December 2015 to file the supporting documentation. 

8. On 17 December 2015 the appellant applied to further postpone the cases to the second week of January 2016 on the grounds of ill health.  This being the third application for extension of time on the grounds of ill health the magistrate, being satisfied that even if true the injuries complained of would not hinder the applications, refused further extension of time. 

9. The allegations against the security guards are that on 27 October 2015 they were in contempt of court by retaliating against the appellant in using their walkie-talkies to record his conversations without his consent and by threatening to call the police knowing that he was a prosecution witness. 

10. The allegation against the property officer is that on 26 October 2015 he perverted the course of public justice by concealing the full name of a resident of Mei Tak House who had assaulted the appellant and by concealing or possibly destroying CCTV footage showing the attack.

HCMA 30/2016 (KCMP 972/2015) & HCMA 31/2016 (KCMP 973/2015)

11. On 12 November 2015 the appellant filed two applications for the issue of private summonses.  The proposed defendant in one application was a Mr Wong, a resident of Mei Tak House and in the other application a security guard of Pioneer Management Co Ltd.  

12. The applications also comprised of a draft charge together with a note stating that details will be disclosed in open court.  The magistrate directed the appellant to file supporting information in court on or before 4 December 2015.  No supporting information was filed and no extension of time was sought. 

13. The allegations against Mr Wong were that on 11 November 2015 he assaulted the appellant and committed contempt of court by hitting the appellant knowing that the appellant was a prosecution witness.  The allegation against the security guard was that on the same day he aided and abetted by legal omission the assault on the appellant by Mr Wong. 

14. On 21 December 2015 the magistrate refused all five applications.  On 28 December 2015 the appellant lodged notice of appeal against each refusal.  In the notices of appeal the appellant relies on the same general grounds of appeal in respect of each refusal by the magistrate, namely that the magistrate was biased and that the decision caused injustice by violating the Hong Kong Bill of Rights Ordinance, resulting in unfairness.

DISCUSSION

15. Section 8 of the Magistrates Ordinance, Chapter 227 governs the issue of summonses.  Section 8(1B)(b) provides that:

“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.”

16. The issue to determine is whether the magistrate had good cause to refuse to issue each of the summonses. 

17. In reaching his decision the magistrate properly directed himself on the relevant legal principles laid down in the case of Tsui Koon Wah v Principle Magistrate of Kowloon City Magistrates Courts HCAL 81/2006.

18. The magistrate refused the applications because there was insufficient evidence to establish the essential ingredients of the offences alleged by reason of lack of particulars and substance; the acts alleged did not constitute the offence of attempting to pervert the course of justice; the Magistrates’ Courts only have power at Common Law to punish contempt in the face of the court and not other contempts; and that aiding and abetting by legal omission was not an offence known to law.

19. I am satisfied on the material available to the magistrate there was good cause to refuse the applications.  The magistrate having carefully considered all the material submitted by the appellant and having applied the correct law, I am satisfied that there is no basis whatsoever to say the magistrate was biased and that the decision was in breach of the Hong Kong Bill of Rights Ordinance resulting in unfairness. 

CONCLUSION

20. I find no substance to the complaints made by the appellant.  There are no merits in the grounds of appeal.  The five appeals are accordingly dismissed.