KWOK TAK YING v. HKSAR

HCMA 216/2020

[2021] HKCA 1491

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MAGISTRACY APPEAL NO. 216 OF 2020

(ON APPEAL FROM STMP NO. 136 OF 2020)

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J U D G M E N T

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Hon Poon CJHC (giving the judgment of the Court):

A.   Introduction

1.  On 28 April 2020, the appellant laid information in the Shatin Magistrates’ Courts alleging that between 20 November 2019 and 28 March 2020, Mr Leung Ka Wing, the then Director of Broadcasting, misconducted himself in public office whereby various television and news programmes containing misleading and distorted information were broadcasted by the Radio Television Hong Kong, contrary to common law and punishable under section 101I(1) of the Criminal Procedure Ordinance.[1] She at the same time applied for a summons to be issued under section 8 of the Magistrates Ordinance[2] (“the Ordinance”).  Her application was supported by certain witness statements and exhibits and augmented by skeleton arguments submitted by her counsel[3] pursuant to the directions of Acting Principal Magistrate Daniel Tang (“the Magistrate”).

2.  On 12 June 2020, the Magistrate, without an oral hearing, refused to issue the summons on the ground that there was no prima facie case to establish the mens rea required in the proposed offences, that is, Mr Leung had wilfully and intentionally misconducted himself: 郭德英訴梁家榮 [2020] HKMagC 2, at [12]-[16].  The appellant’s subsequent review brought under section 104 was dismissed by the Magistrate at the hearing on 10 July 2020.[4]

3.  The appellant then appealed under section 113.  Her principal complaint is that the Magistrate had failed to properly consider and analyze the facts and the law relating to the charges.  The appeal first came before Barnes J on 4 February 2021.  She ordered it to be transferred to the Court of Appeal under section 118(1)(d) for the reason that it involved important questions of law which warranted this Court’s determination.

4.  With the benefit of the assistance provided by Mr Jonathan Man, Deputy Director of Public Prosecutions (Ag), Mr Derek Lau, Senior Assistant Director of Public Prosecutions (Ag) and Ms Jackie Lai, Senior Public Prosecutor (Ag) for the respondent and the Secretary for Justice (“SJ”) as interested party, and Ms Maggie Wong SC, amicus curiae,[5] we have identified four questions the discussion and determination of which will help elucidate the law and practice concerning private prosecution.  We shall presently turn to them but we should first briefly outline the statutory scheme in the Ordinance for private prosecution to set the context for discussion.

B.   Statutory scheme for private prosecutions

B1.  Section 14

5.  The right to private prosecution originated in the English common law and had been adopted in Hong Kong since its colonial days.  It received statutory backing in 1949 when section 14 was introduced.[6] Section 14 had since remained intact save and except the change of titles necessitated by the resumption of sovereignty in 1997.  The right to private prosecution is now embedded in section 14(1) in these terms:

“A complainant or informant who is not acting or deemed to act on behalf of [the SJ] may if he so wishes and without any prior leave conduct in person or by counsel on his behalf the prosecution of the offence to which the complaint or information relates…”

6.  However, as is the position under the common law where a private prosecution is always subject to the intervention by the SJ, section 14(1) goes on to provide:

“… but [the SJ] may at any stage of the proceedings before the magistrate intervene and assume the conduct of the proceedings and may within the time limited by section 104 for applying for a review intervene for the purpose of applying for or being made a party to any review.”

Under section 14(2), as from the date of any such intervention the SJ shall be deemed to be a party to the proceedings or the review in lieu of such complainant or informant.

B2.  The procedural steps

7.  Bringing a private prosecution takes two procedural steps.

8.  The first step is the laying of an information or making of a complaint by the individual concerned.

9.  It has long been established that a criminal prosecution, whether public or private, is instituted once an information is laid or a complaint is made: Brooks v Bagshaw [1904] 2 KB 798, per Lord Alverstone CJ at p.801; R v Manchester Stipendiary Magistrate, ex parte Hill [1983] 1 AC 328, per Lord Roskill at pp.342G-343G; Commissioner for Labour & Another v Jetex HVAC Equipments Ltd [1995] 2 HKLR 24, per Litton JA (as he then was) at p.26 line 45.

10.  Section 10 provides for the manner of laying an information and making a complaint in respect of summary offences.  Among other things, the complaint or information may be made or laid by the complainant or the informant in person or by his counsel (section 10(3)); and they shall comply with the Indictment Rules[7] in so far as those rules are applicable mutatis mutandis to them (section 10(4)).  For indictable offences, section 72 sets out the procedure on complaint being made or information being laid, thus confirming that the manner for institution of prosecution for such an offence by way of a complaint or information.

11.  The second step for bringing a private prosecution is the issue of a summons by the magistrate.

12.  After a complaint is made or an information is laid for summary offences, the magistrate may issue a summons to the defendant under section 8 requiring him to appear before a magistrate at the appointed time to answer the complaint or information and to be further dealt with according to the law, or a warrant to arrest him under section 9.  For indictable offences, section 72 empowers the magistrate to issue a warrant of arrest or a summons.  Section 76 further stipulates that the provisions with reference to summonses in Part II (including section 8) in relation to summary offences shall apply equally, mutatis mutandis, to summonses for indictable offences.  Thus section 8 governs the issue of summons for both summary and indictable offences.

13.  Section 8(1B) was introduced in 1981 to regulate the practice of issuing summonses, both private and public.  It provides in subparagraph (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),[8] but, if a magistrate does consider the complaint or information, he may for good cause refuse to issue a summons.”

14.  In practice, public summons issued by public officers or by the police are issued without consideration by a magistrate or an authorized officer.  It is however subject to the magistrate’s power to refuse to issue a summons, expressly retained by section 8(1B)(b).[9]

15.  The practice concerning private summons, however, is markedly different.  Complaints by private citizens continue to be individually and personally considered by a magistrate.[10] Section 8(1B)(b) empowers the magistrate to refuse to issue a private summons on good cause.  There is no provision on the procedure for processing an application to issue a private summons.  In practice, the complainant makes an ex parte application before the magistrate who may determine it without an oral hearing.  In considering the application, the magistrate will have regard to, among other things, the sufficiency of the evidence presented by the complainant.

C.   Questions for determination

16.  The first question that we have identified for our determination concerns the constitutionality of private prosecutions.  It asks: is the right to private prosecution, embedded in section 14(1), compatible with article 63 of the Basic Law (“BL 63”)?  (Question 1)

17.  If the answer to Question 1 is in the affirmative, three further questions arise:

(1)  What should be the test adopted by the magistrate for the sufficiency of the evidence in determining whether or not to issue a private summons?  (Question 2)

(2)  What is the good practice to deal with an application for issue of a private summons?  In particular, bearing in mind BL 63 and section 14(1), what is the proper procedure to be adopted to enable the SJ to decide if she should intervene in a private prosecution?  (Question 3)

(3)  What is the proper way to challenge a decision by the magistrate of refusing to issue a private summons?  (Question 4)

D.   Question 1 – compatibility with BL 63

18.  BL 63 provides:

“The Department of Justice of the Hong Kong Special Administrative Region shall control criminal prosecutions, free from any interference.”

In Re C (A Bankrupt) [2006] 4 HKC 582, Stock JA (as he then was) at [21] summarized the purpose behind BL 63 thus:

“What [BL 63] does, apart from its prime purpose of prohibiting political interference is to reflect the boundary that protects [the SJ] from judicial encroachment upon his right to decide whether to institute a prosecution, what charge to prefer, whether to take over a private prosecution, and whether to discontinue proceedings.”

Control of criminal prosecutions also includes how and by whom criminal prosecutions should be conducted: Re Perry QC [2013] 1 HKLRD 145, per Cheung CJHC (as the Chief Justice then was) at [16]; and the choice of venue of trial: Chiang Lily v Secretary for Justice (2010) 13 HKCFAR 208, per Li CJ at [15].

19.  At a first glance, one may say that the Department of Justice, as the only prosecuting authority vested by BL 63 with the sole control of criminal prosecution, ought to have the power to decide exclusively when and whom to prosecute and what charge to prefer, thus leaving no room for private prosecution.  However, BL 63 cannot be read in isolation.  A purposive and contextual construction requires it to be read together with other articles in the Basic Law which are relevant to the issues at hand.  What is relevant for the purpose of considering private prosecutions is article 35 (“BL 35”), which states:

“Hong Kong residents shall have the right to … access to the courts … and to judicial remedies.”

BL 35 is relevant because the right to bring a private prosecution is an aspect of a citizen’s established right of access to the courts for remedy of wrongs under the common law.

20.  The need to read BL 63 and BL 35 in conjunction was in fact highlighted by the Court of Appeal in Ng Chi Keung v Secretary for Justice, CACV 32/2013, 19 May 2014, unreported, per Stock VP at [21].[11] This brings us to the provenance of private prosecution in the common law to see its significance in terms of access to the criminal justice system.

D1.    An established right of access to courts

21.  In England, the right to private prosecution went back as far as the Middle Ages.  In those days, crimes were regarded as being committed not against the state but against a particular person or family.  The victim or some relatives would initiate and conduct the prosecution against the offender.  Moreover, private citizens were responsible for preserving the peace and maintaining the law.  The common law regarded it the duty of private citizens to preserve the sovereign’s peace and bring offenders to justice.  Private prosecutions were the main way to enforce the criminal law.  As Lord Wilson observed in R (Gujra) v Crown Prosecution Service [2013] 1 AC 484, while giving a brief history of private prosecution in England at [10]-[21], at [11]:

“Until late in the 19^th century prosecutions were brought almost entirely by the victims of the alleged crimes or, if they were dead, by their kinsmen. Local parish constables, not organized on any national or even regional basis and not even paid, sometimes helped the victims to prosecute.”

His Lordship went on to point out that the Attorney General intervened to conduct only a few prosecutions in very serious or notorious cases; and that he also had a long-standing prerogative power to halt any prosecution by entering a nolle prosequi.

22.  The establishment of public authorities since the 19^th century to assume responsibility for the vast majority of criminal prosecutions, a process described by Lord Wilson as characteristically haphazard,[12] does not extinguish or diminish the common law right to bring private prosecutions.  The right of private prosecution remains firmly part of the English common law: Gujra, per Lord Neuberger at [68].  In fact, the right has also been expressly reserved by statute since 1985.[13]

23.  While historically the right to bring a private prosecution might be regarded as the right upon which the whole English prosecution system was in theory built,[14] in the contemporary criminal justice system it is viewed as a useful constitutional safeguard against capricious, corrupt or biased failure or refusal of the public prosecuting authorities to prosecute offenders against the criminal law, and inertia or partiality on the part of the authorities: Gouriet v Union of Post Office Workers [1978] AC 435, per Lord Diplock at pp.497H-498B; and Lord Wilberforce at p.477B-C; Jones v Whalley [2007] 1 AC 63, per Lord Mance at [43]; Gujra, per Lord Neuberger at [68]; and per Lord Mance at [115].

24.  In Hong Kong, in Re C (A Bankrupt), Stock JA, who evidently had the development of the common law relating to private prosecutions in mind, observed at [25]:

“There is no rule that only [the SJ] may originate a criminal prosecution. That has long been the law and it is well established that:

‘… It cannot properly be said that the institution of prosecutions and the conduct of prosecutions is essentially a function of the Executive Government. In the absence of some special statutory restriction any person is at liberty to institute and conduct a prosecution for a breach of the law.’

per Latham CJ in R v Federal Court of Bankruptcy; ex p Lowenstein (1937-1938) 59 CLR 556, 567.”

25.  In Jiang Enzhu v Lau Wai Hing [2000] 1 HKLRD 121, Stock J at pp.141J-142B spoke of the value of retaining the right to private prosecution thus:

“There is an undoubted duty upon those entrusted with law enforcement to enforce the law…, which is not to say that there is an obligation to prosecute whenever a breach of the criminal law has been shown. But it is precisely the fact that there is no obligation upon the law enforcement authorities to prosecute in every case that gives rise to the concomitant right of the citizen with a sufficient interest to prosecute where the authorities have not.”

What Stock J had referred to clearly falls within the rubric of the constitutional safeguard against inaction or failure to bring public prosecution as articulated in the case law and summarized at [23] above.

26.  Such constitutional safeguard to ensure a private individual’s access to the criminal justice system underlined the reasoning of the Court of Appeal in Ng Chi Keung v Secretary for Justice.  There, the applicant commenced a private prosecution which was intervened by the SJ, who then discontinued on the ground that the materials relied on did not satisfy the “reasonable prospects of success” test.  The applicant’s application for leave to apply for judicial review against the SJ’s decision was dismissed by the deputy judge, who followed the majority in Gujra.[15] On appeal, the applicant argued that the “reasonable prospects of success” test, rather than the “prima facie” test derived from the minority judgment in Gujra,[16] emasculated the constitutional right of the individual to access to the courts and was therefore unlawful.  Recognizing the force of the applicant’s argument, the Court of Appeal held that the applicant had shown a reasonably arguable case for judicial review and allowed the appeal.  After stressing the need to analyze the matter in the context of the Hong Kong setting which had its own specific constitutional provisions and its own sensitivities to prosecutorial decisions, Stock VP said at [21]:

“The two relevant provisions of the Basic Law are articles 35 and 63. Article 35 provides that Hong Kong residents shall have the right to access to the courts, and article 63 says that the Department of Justice ‘shall control criminal prosecutions, free from any interference.’ It seems obvious that the one cannot be read with a blind eye to the other and the question of how the one sits with the other strikes us as an important constitutional question.”

The emphasis on BL 35 underscores the importance of the constitutional safeguard to ensure a private individual’s right to access to the criminal justice system by bringing a private prosecution.

27.  With that in mind, we next consider the right to private prosecution in the context of BL 63.

D2.    A qualified right compatible with BL 63

28.  Like other facets of the right to access to courts, the right of private prosecution is not absolute or inviolable.  Properly understood, the law, whether under the common law or section 14, gives the private prosecutor a right to institute a prosecution but limits his right to continue by reference to the power of the SJ to interfere: Gujra, per Lord Wilson at [21].  The right is thus always subject to being curtailed by the SJ’s intervention in the proceedings. After assuming the proceedings, the SJ may terminate them by entering a nolle prosequi under section 15, discontinuance, withdrawal or offering no evidence.  The SJ may also decline to sign the charge sheet or indictment: see sections 74 and 75 of the District Court Ordinance[17] and section 17 of the Criminal Procedure Ordinance.[18]

29.  The conduct of a private prosecution is also subject to the procedural constraint in section 8(1B)(b). If the magistrate refuses to issue a summons for good cause, the proceedings are effectively stopped almost at the outset.  The court also has the power to stay the proceedings for abuse of process.  The principles relating to stay on the ground of abuse apply in precisely the same way to private prosecutions as they do to public prosecutions: D Ltd v A & Others [2017] EWCA Crim 1172, per Davis LJ at [41].

30.  Moreover, a private prosecutor, in bringing criminal proceedings, may be at risk of being sued in an action for malicious prosecution: Jiang Enzhu v Lau Wai Hing, per Stock J at p.142F-G.

31.  Pausing here, we note the criticisms about the merits of private prosecution in the contemporary criminal justice system.  Some regard the right to private prosecution as a potentially malign relic of the common law, which is of little value or even otiose nowadays: see for example, Lord Bingham’s observation in Jones v Whalley, at [16].  We have already explained why even in modern times, the right to private prosecution remains a fundamental feature to the criminal justice system in Hong Kong.  In our view, the fact that it is rarely exercised in this jurisdiction[19] does not detract from its value as a constitutional safeguard against possible inaction or even dereliction of duty on the part of the public prosecuting authorities.  Some find it objectionable that the coercive structures of the criminal justice system could be set in motion by an individual.  However, that is the necessary consequence when an individual exercises his constitutional right to access to the criminal courts.  Some fear that it could be abused by those motived by ulterior motives such as personal spite, revenge, financial gain or blackmail.  The fear is legitimate.  But as explained, there are inbuilt safeguards in the law, in terms of control by the SJ and the court, to prevent such abuse.  Those who abused the process might also be held liable in tort for malicious prosecution.

32.  Since the right to private prosecution, whether under the common law or section 14, is subject to the control by the SJ, what is enshrined in BL 35 is such a qualified right. It does not fall foul of the exclusive power of the SJ to control criminal prosecutions under BL 63.  In short, it is compatible with BL 63.  So as rightly submitted by both Mr Man and Ms Wong, the answer to Question 1 is “yes”.

33.  For completeness, it is worth noting that under §7.3 of the Prosecution Code (2013) of the Department of Justice, before a decision is made whether or not to intervene in a private prosecution, the SJ will first make a decision on the future course of the prosecution in accordance with the Prosecution Code.  Further, when considering whether or not to take over a private prosecution, the following factors should be included among those taken into account:

(a) the interests of public justice;

(b)  the seriousness of the offence;

(c) the views of any interested party;

(d)  any duplication of proceedings;

(e) consistency with decisions of the Department of Justice;

(f)  the prospects of a fair trial.

The SJ may also take into account the conduct of the original prosecutor.  See §7.4 of the Prosecution Code.

34.  On this note we conclude our discussion on Question 1 and move to Question 2.

E.   Question 2 – test for sufficiency of evidence

E1.  The well-established principles

35.  It is well settled that the decision whether to issue a summons is a judicial function which must be exercised by the magistrate judicially: R v Wilson, Ex p Battersea Borough Council [1948] 1 KB 43, per Lord Goddard CJ at p.47. There is a line of authorities on how a magistrate should discharge that function emanating from Lord Widgery CJ’s much quoted judgment in R v West London Metropolitan Stipendiary Magistrate, Ex p Klahn [1979] 1 WLR 933, at pp.935-936.  A useful summary of the propositions derived from the authorities is contained in Sweeney J’s judgment in R (Kay) v Leeds Magistrates’ Court [2018] 4 WLR 91 at [22]:

“(1) The magistrate must ascertain whether the allegation is an offence known to the law, and if so whether the essential ingredients of the offence are prima facie present; that the offence alleged is not time-barred; that the court has jurisdiction; and whether the informant has the necessary authority to prosecute.

(2) If so, generally the magistrate ought to issue the summons, unless there are compelling reasons not to do so – most obviously that the application is vexatious (which may involve the presence of an improper ulterior purpose and/or long delay); or is an abuse of process; or is otherwise improper.

(3) Hence the magistrate should consider the whole of the relevant circumstances to enable him to satisfy himself that it is a proper case to issue the summons and, even if there is evidence of the offence, should consider whether the application is vexatious, an abuse of process, or otherwise improper.

(4) Whether the applicant has previously approached the police may be a relevant circumstance.

(5) There is no obligation on the magistrate to make inquiries, but he may do so if he thinks it necessary.

(6) A proposed defendant has no right to be heard, but the magistrate has a discretion to: (a) require the proposed defendant to be notified of the application; (b) hear the proposed defendant if he thinks it necessary for the purpose of making a decision.”

36.  In Hong Kong, Chu J (as she then was) followed Klahn in Tsui Koon Wah v Principal Magistrate of Kowloon City Magistrates’ Courts, HCAL 81/2006, 12 September 2006, unreported, at [40].  In our view, her Ladyship was entirely correct in so doing.  The right to private prosecution being essentially a common law feature, the common law principles on how a magistrate should decide whether to issue a private summons now conveniently summarized in Kay must also apply in Hong Kong.

E2.   Why PF Test and not RPS Test

37.  As pointed out, for sufficiency of evidence, a magistrate only needs to be satisfied that the essential ingredients of the offence are prima facie present (“PF Test”).  This is also Ms Wong’s submission.  However, Mr Man argued that the magistrate should adopt the same test used by the SJ in deciding whether to prosecute, namely, the “reasonable prospect of success” test (“RPS Test”), which is more stringent.  In support, Mr Man advanced four main points.

38.  Firstly, Mr Man submitted that the authorities have not explained why the PF Test is adopted.  Since there is no analysis, the juridical basis for adopting the PF Test is unclear.

39.  In our view, what should be the proper test for sufficiency of evidence is informed by the core function that a magistrate performs in satisfying himself that it is a proper case to issue a private summons.  In so doing, the magistrate must carefully balance the right of the private complainant who seeks justice through the criminal process under BL 35 and the interest of the prospective defendant who should not be brought before the court and bear the full blunt of the criminal process set in motion by a private individual unless it is justified.  He is essentially conducting a screening exercise to filter out unmeritorious, frivolous and vexatious cases.  At this stage of the proceedings, the prospective defendant has no locus standi and no right to be heard.  For until a summons has been issued, there is no allegation to meet; no charge has been made:  Klahn, per Lord Widgery at p.936C-D.  So the magistrate will ordinarily only act on the materials presented by the private complainant.  He will not weigh up the evidence or consider potential defence that may arise at trial.

40.  Viewed in the above context, the PF Test strikes a proper balance between the competing interests of the private complainant and the prospective defendant by allowing only cases where all the elements of the alleged offence are prima facie present to proceed.  Though not expressly articulated in the authorities, this is in our view the juridical basis for adopting the PF Test.

41.  Secondly, Mr Man argued that the RPS Test is more appropriate than the PF Test because a private prosecutor is under the same duty as a public prosecutor to objectively assess the evidence and determine if there is a reasonable prospect of conviction: Gujra; R (Holloway) v Harrow Crown Court [2020] 1 Cr App R 8, at [19]; Potier v Magistrate O’Shane & Another [2008] NSWSC 141, at [20]; Ng Chi Keung v Secretary for Justice [2016] 2 HKLRD 1330, following Gujra. There is no logical basis for imposing different standards for compelling the appearance of a defendant in a private and public prosecutions.

42.  We accept that a private prosecutor is under the same duty as a public prosecutor to objectively assess the evidence and determine if there is a reasonable prospect of success.  It is because the same standard should apply to the laying of an information or making of a complaint by any prosecutor, whether public or private.  However, the defendant is not compelled to appear by the information or complaint.  He is only so compelled by the summons issued by a magistrate. In that regard, the magistrate applies the same standard, namely the PF Test, to a private prosecution as much as to a public prosecution if he does consider the information or complaint under section 8(1B)(b).  It does not engage different standards as Mr Man contented.

43.  In his oral submissions when he pressed for the RPS Test, Mr Man seemed to have unwittingly conflated the respective role of a prosecutor and a magistrate in assessing the sufficiency of evidence.  We must stress that their roles are markedly distinct and the line between them should not be blurred: see for example, Mohit v DPP of Mauritius (PC) [2006] 1 WLR 3343, at [17]; Sharma v Brown-Antoine & Others [2007] 1 WLR 780, at p.788; RV v Director of Immigration [2008] 4 HKLRD 529, at [54(i)].

44.  Thirdly, Mr Man argued that the PF Test imposes too low a threshold for the issue of a private summons, which may be easily satisfied upon the unilateral allegation made by a private prosecutor, leading to abuse and waste of judicial resources.

45.  Contrary to Mr Man’s submissions, the threshold set by the PF Test is not a low one: R (Johnson) v Westminster Magistrates’ Court [2019] 1 WLR 6238, at [20].  The magistrate must apply a judicial mind to the materials before him and examine them critically.  He is required to conduct a rigorous analysis of the relevant legal framework to ensure that all elements of the alleged offence are established: R (DPP) v Sunderland Magistrates’ Court [2014] EWHC 613, at [22]-[23].

46.  Further, the magistrate may take into account the conduct of the private prosecutor before laying the information or making the complaint in determining the sufficiency of evidence.  For example: whether he has previously approached the police is a relevant factor: Kay, at [22(4)].  It is because a refusal by the police to proceed with the matter may demonstrate that the private prosecution is hopeless: Johnson, at [21].  Similarly, in Holloway, it is stressed that a magistrate should also be alert to the inherent potential conflict of interest that a private prosecutor may have in the proceedings and may have regard as appropriate to his failure to bring the matter to the police and prosecution authorities.  Males LJ at [20] observed:

“It was common ground before us that a private prosecutor is under the same duty, or at any rate is more likely to be treated as having committed an improper act or omission if he fails to carry out such an analysis [of sufficiency of evidence] ... Because a private prosecutor will often have a private interest in the proceedings, he may lack the objectivity required to undertake such an analysis. Indeed, the objective private prosecutor will recognize the danger of his own lack of objectivity. It will often be prudent, therefore, to bring a proposed prosecution to the attention of the police or prosecution authorities and to take legal advice. While this is not a legal precondition to bringing a private prosecution, and a failure to do so is not in itself ‘improper’, it may give rise to an inference that a private prosecutor was determined to go ahead regardless of the prospects of success or, more mundanely, may simply indicate that no proper analysis of evidential sufficiency has been carried out.”

47.  Finally, Mr Man submitted that since the SJ has to duly and timely consider whether to intervene and take over a private prosecution once it is instituted, it may disrupt the work priority of the Department of Justice and impact on its resources.  A more stringent test should therefore be adopted to prevent possible adverse implications on the Department’s work and resources.

48.  However, those concerns clearly do not sit well with Mr Man’s submissions on Question 3. There, he submitted that arrangements should be made to ensure that the SJ is duly and promptly notified of a private prosecution once instituted; that the magistrate should invite the SJ to provide assistance; and that the SJ should be given a right to be heard as an interested party at the hearing if any.  Those proposed measures, if put in place, would inevitably impact on the work and resources of the Department as he has just contended.  More fundamentally, those concerns are in our view not relevant to the magistrate’s determination whether to issue a private summons.

49.  In consequence, the answer to Question 2 is the PF Test.

F.   Question 3 – good practice and proper procedure

50.  Hitherto, there are no statutory provisions governing the practice and procedure for an application for issue of a private summons.  According to Mr Man, the current practice adopted at the Magistrates’ Courts has been haphazard.  In particular, the SJ has not been consistently notified of all the private prosecutions instituted. In some cases, representatives of the Department of Justice may be invited and allowed to be present at the hearing of the application when such application is brought to their attention.  However, in other cases, the representatives are excluded from the hearing just as other members of the public.  In most cases, the Department of Justice is informed of the private prosecution only after the issue of a summons, thus making it impossible for the SJ to intervene earlier even if she would like to.  Mr Man therefore invited this Court to lay down procedural guidance based on his rather elaborate proposal.  Ms Wong echoed Mr Man’s stance and invited us to consider adopting, as good practice, part 7 of the English Criminal Procedure Rules 2020 on private prosecutions. 

51.  It is clearly in the interest of administration of justice to have a procedural code to deal with an application to issue a private summons.  It is however a matter for the government.  Absent such a code, the magistrate will have to exercise his case management power to control the conduct of each individual application and to facilitate its fair and expedient disposal.  Although case management decisions are application – specific and may hence vary from one to another, to promote good practice and general consistency, we propose the following for magistrates to adopt as and when appropriate.

52.  First, the magistrate should satisfy himself that all the papers in support of the application meet all the applicable statutory requirements.  Depending on the circumstances, he may direct the private prosecutor to provide written submissions.

53.  Second, a private prosecutor is under the same duty of candour expected of a public prosecutor when he takes out the ex parte application for issue of a summons.  Such duty necessarily includes a duty not to mislead the magistrate in any material way and requires the disclosure to him of any material which is potentially adverse to the application or might militate against the issue of the summons or may be relevant to his decision, including any matters which indicate that the issue might be inappropriate.  Any failure on his part may well amount to an abuse of process: see Kay, at [24]-[28].  To ensure that the private prosecutor has discharged that duty of disclosure, the magistrate may require him to support his application by an affirmation.  There, he has to disclose all information that is material to what the magistrate must decide, including but not limited to:

(1)  a statement that to the best of his knowledge, information and belief:

(a) the allegations contained in the application are substantially true; and

(b)  the evidence on which he relies will be available at the trial;

(2)  details of any previous application by him or another public or private prosecutor against the same prospective defendant in respect of any allegations now made;

(3)  whether prior to the application, he has approached the police or the Department of Justice; and if no, state the reason why not; if yes, the details of such approach. 

54.  Third, although the magistrate has the discretion to inform the prospective defendant of the application and even to hear him, in light of the nature of the application and the fact that the prospective defendant has no locus standi, such discretion should only be exercised in exceptional circumstances.

55.  Fourth, the magistrate will ordinarily be able to dispose of the application on paper.  If, however, he wishes to conduct an oral hearing, he must not allow it to be turned into a mini-trial.  To that end, he should give proper case management directions and control the conduct of hearing as appropriate.

56.  Fifth, in deciding whether to notify the SJ of the application, the magistrate should give due recognition of the SJ’s power to control prosecutions under BL 63 and give true and meaningful effect to section 14(1).  Generally speaking:

(1)  If he is going to refuse the application as it stands, it serves no practical purpose to notify the SJ about the private prosecution until after he has dismissed it.

(2)  If he needs the SJ’s assistance before he can dispose of it, the SJ should be notified and invited to appear as an interested party.  It is up to the SJ to decide if she wishes to do so.  Depending on the SJ’s decision, he should give further case management directions for the future conduct as appropriate.  He may invite written submissions or hold an oral hearing as he thinks it necessary.

(3)  If he is able to deal with the application without the SJ’s assistance and is going to allow it, the SJ should be notified of the private prosecution as soon as he has issued the summons.  It is again up to the SJ to decide if she wishes to intervene and take over the proceedings.

57.  We reiterate that what have been set out above is meant to be guidance and not a straightjacket. The magistrate has to tailor-make case management decisions to cater for the specific circumstances of the application before him.

G.   Question 4 – proper way to challenge a refusal to issue summons

58.  When a person is aggrieved by a decision made by a magistrate, he may:

(1)  apply to the magistrate for a review under section 104(1);

(2)  appeal to the Court of First Instance by way of case stated under section 105;

(3)  appeal to the Court of First Instance by the alternative procedure under section 113; or

(4)  apply to the Court of First Instance for judicial review.

We first consider the three statutory routes.

G1.   Statutory routes

59.  Section 104(1) reads:

“Within 14 clear days after the determination in any manner by a magistrate of any matter which he has power to determine in a summary way it shall be lawful for either party thereto to apply to the magistrate to review his decision in the matter.”

Section 104(1) would thus apply to a refusal to issue a private summons if it is a matter which a magistrate has power to determine in a summary way.

60.  For the purpose of section 104, “summary way” is synonymous with “summary jurisdiction”.  In Harknett v Venning, HCMP 1345/1983, 1 November 1983, unreported, the Commissioner of ICAC made an ex parte application to a magistrate for the issuance of a notice for the surrender of a suspect’s travel document under section 17A of the Prevention of Bribery Ordinance.[20] The magistrate issued the notice but then purportedly reviewed his decision under section 104.  The Full Bench held that the issuance of the notice was not a matter reviewable under section 104.  Liu J (as he then was) at pp.4 and 5 said:

“In its universally accepted meaning in the context of the Magistrates Ordinance, a matter which a magistrate ‘has power to determine in a summary way’ is a matter which he has power to decide as a court of summary jurisdiction. Summary jurisdiction is a creature of statute. It is well settled that magistrates do not in all cases function as a court of summary jurisdiction. One must look to the purpose and spirit of the enactment whereby a magistrate is empowered to act. Moreover, when section 104 of the Magistrates Ordinance is more closely examined, it is plain that the section calls for the continued participation of the adverse parties in an adjudication. After all, the essence is to have the case re-opened.

Returning once more to section 17A of the Prevention of Bribery Ordinance: Before the service of the issued notice, the suspect may be said to be involved, but in no way can he intervene or participate. At least prior to proceedings consequential upon the service of the issued notice, in acceding to the request of the I.C.A.C. Commissioner, a magistrate cannot be adjudicating in a summary way.

In conclusion, I take the view that the issuance of the notice was not a matter which the learned Magistrate had power to determine as a court of summary jurisdiction or in a summary way.”

61.  In a similar view, Barnes J, after going through some authoritative legal definitions for “summary jurisdiction” and “summary procedure”, observed at p.19 that:

“‘summary way’ begins with an information or a complaint, it envisages that two parties will travel it – an informant or a complainant on one side and a defendant on the other – and it proceeds to a hearing before and then a determination by the justices of the matter of the information or complaint. …

That procedure in all its fundamentals is the statutory procedure in Hong Kong under the Magistrates Ordinance. Consequently, when a statute refers to the power of a magistrate to determine a matter in a summary way it is referring to his jurisdiction to hear and determine a matter brought before him by way of a complaint, information or charge.

In my view, a section 17A application is not such a matter.  It is therefore not one which a magistrate is empowered to determine in a summary way.”

62.  Applying Harknett v Venning, a magistrate exercises his summary jurisdiction when he adjudicates on a matter arising from an information, complaint or charge at an inter partes hearing or proceedings where the defendant fully participates as a party having the right to be heard.  The decision whether to issue a private summons, a filtering exercise conducted on an ex parte basis where the prospective defendant has no locus standi, is plainly not a matter falling within his summary jurisdiction.  So section 104 does not apply to it.

63.  Section 105 relevantly provides:

“Within 14 clear days after the hearing and determination by a magistrate of any complaint, information, charge or other proceeding which he has power to determine in a summary way, either party thereto or any person aggrieved thereby who desires to question by way of appeal any conviction, order, determination or other proceeding as aforesaid on the ground that it is erroneous in point of law, or that it is in excess of jurisdiction, may apply in writing to the magistrate to state and sign a case … In the case of any determination which a magistrate has power to determine in a summary way and which relates to or is connected with an offence the Secretary for Justice shall notwithstanding that he may not be deemed to be a party, have a similar right to apply for a case to be stated as that hereinbefore afforded to the parties and upon the exercise of such right by the Secretary for Justice the complainant or informant shall cease to be a party to any further proceedings.” (emphasis supplied)

Broadly speaking, section 105 covers a hearing and determination by a magistrate in respect of (a) any complaint, information or charge; or (b) other proceedings which he has power to determine in a summary way.

64.  A hearing and determination of “a complaint, information or charge” plainly refer to proceedings against a defendant in connection with an offence.  It clearly does not cover a refusal to issue a private summons.

65.  Applying the ejusdem generis rule, “other proceedings” refer to proceedings of the same nature as “complaint, information or charge”: Attorney General v Man Chi Kin & Another [1964] HKLR 482, per Macfee J at p.488.   The same reference of “a magistrate having power to determine in a summary way” has been used in section 104.  Generally speaking, where the same language is used in different parts of the same piece of legislation, it should be given the same meaning unless the context otherwise clearly indicates a different meaning is intended: HKSAR v Wan Thomas (2018) 21 HKCFAR 214, per Fok PJ at [27].  As there exists no contrary context, Harknett v Venning applies to section 105.  Thus “summary way” in section 105 also means summary jurisdiction as explained at [62] above.  It must follow that it does not cover a refusal to issue a private summons either.

66.  Section 113 stipulates:

“(1) Any person aggrieved by any conviction, order or determination of a magistrate in respect of or in connection with any offence, who did not plead guilty or admit the truth of the information or complaint, may appeal from the conviction, order or determination … to a judge.

(2) Any person who after pleading guilty or admitting the truth of the information or complaint is convicted of any offence by a magistrate may appeal to a judge against his sentence…

(3) After the hearing and determination of any complaint or other proceeding which a magistrate has power to determine in a summary way other than a determination or proceeding relating to or in connection with an offence either party thereto may appeal from such order or determination of such magistrate to a judge.”

67.  None of the three subsections applies to a refusal to issue a private summon.  It is because:

(1)  Section 113(1) applies to an appeal against a conviction, order or determination only at the conclusion of the proceedings before a magistrate: R v Cheung Chi Keung [1986] HKC 653, per Roberts CJ at p.655B-D.

(2)  Section 113(2) only applies to an appeal against sentence after a guilty plea by the defendant.

(3)  Section 113(3) covers hearing and determination of any complaint which a magistrate has power to determine in a summary way other than a determination or proceeding relating to or in connection with an offence.  For the reasons articulated at [65] above, Harknett v Venning applies.  Section 113(3) envisages an inter partes hearing with all the necessary parties present as of right in which the magistrate exercises his summary jurisdiction in connection with such other determination or proceeding.

68.  In conclusion, none of the three statutory routes is available to a private prosecutor who wishes to challenge the magistrate’s decision refusing to issue a private summons.  Any purported appeal against such decision is improperly constituted and is liable to be dismissed on this ground alone.  Mr Man drew our attention to previous cases where a private prosecutor challenged the magistrate’s decision refusing to issue a private summons by way of appeal but the question if it was proper to do so was never raised: HKSAR v Cheung Kin Chung [2012] 2 HKC 516; HKSAR v Cheung Kin Chung [2015] 3 HKLRD 310; HKSAR v Cheung Kin Chung [2018] 2 HKLRD 597.  We agree with Mr Man that those appeals were not properly brought.

G2.   Judicial review

69.  What remains is judicial review.  The High Court has long-established supervisory jurisdiction by way of judicial review over magistrates’ courts: R v Hereford Magistrates’ Court, Ex p Rowlands [1998] QB 110, per Lord Bingham at p.125C-D.  This jurisdiction extends to the decision whether to issue a private summons: Kay, at [20].  Judicial review is thus the only proper way for an aggrieved private prosecutor to challenge the magistrate’s decision refusing to issue a private summons.

H.   Disposal of the present appeal

70.  The present appeal is purportedly brought under section 113.  As such, it is improperly constituted and we dismiss it on this ground alone.  For completeness, we will very briefly deal with its merits.

71.  Misconduct in public office is a common law offence.  It is committed where:

(1)  a public official;

(2)  in the course of or in relation to his public office;

(3)  wilfully misconducts himself; by act or omission, for example, by wilfully neglecting or failing to perform his duty;

(4)  without reasonable excuse or justification; and

(5)  where such misconduct was serious, not trivial, having regard to the responsibilities of the office and the officeholder, the importance of the public objects which they serve and the nature and extent of the departure from those responsibilities.

See HKSAR v Tsang Yam Kuen Donald (2019) 22 HKCFAR 176, at [25].

72.  On the materials relied on by the applicant, applying the PF Test, there is simply no prima facie evidence to establish the necessary ingredient of mens rea by showing that Mr Leung had wilfully misconducted himself.  The Magistrate was thus entirely correct in refusing to issue the private summons sought.

73.  For the above reasons, we dismiss the appeal.

74.  Lastly, we would like to thank Mr Man and Ms Wong for their very able assistance.