CHENG HONG v. MAGISTRATE SHIRLEY CORNELIA HUNG AND ANOTHER

HCAL 982/2025

[2025] HKCFI 1865

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 982 OF 2025

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D E C I S I O N

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A.  Introduction

1.  By Form 86 dated 23 April 2025, the Applicant seeks leave to apply for judicial review so as to challenge decisions made by a Magistrate during, and in relation to, the trial of case number TMS 8592/2023, apparently involving an incident of littering in Tuen Mun, and where the Applicant is or was the defendant on trial.

2.  The Applicant has named, as putative respondents, the Magistrate and the Food and Environmental Hygiene Department (“FEHD”), the complainant in the prosecution before the Magistrate. The ‘judgment, order, decision or other proceeding in respect of which relief is sought’ is described (in English translation) as:

In TMS 8592/2023, FEHD refused to send the mobile phone used for law enforcement for forensic examination. Before the trial, Magistrate Shirley Cornelia Hung rejected the defence application to seize and prohibit the use of the mobile phone from FEHD for law enforcement, and refused to order the shops near the scene to handover CCTV footage. On top of that, Magistrate Hung continued the trial after the defence made an application for judicial review.

3.  The relief sought by the Applicant is (in English translation):

1.  Order the seizure of the mobile phone used by FEHD for law enforcement and the forensic examination of its deleted record.

2.  Order FEHD to refrain from using the mobile phone.

3.  Order the shops near the scene to handover the CCTV footage.

4.  Having considered the papers filed by the Applicant, I am satisfied that it is appropriate to deal with this application on paper. This is my Decision.

B.  The Complaint

5.  As is demonstrated by the Form 86, and as is expanded upon in the Applicant’s affirmation, the Applicant’s complaint is about the conduct of the case brought against him as defendant, and heard by the Magistrate at trial.

6.  In his affirmation, the Applicant explains (in my summary) that:

(1)  He is seeking judicial review in connection with the case in which he is the defendant.

(2)  In that case, even though FEHD had been requested to hand over the mobile phone used for law enforcement for forensic examination several months before the trial, FEHD delayed until formally rejecting the request in writing only shortly before the trial was due to start.

(3)  The footage on the mobile phone can prove that he did not litter.

(4)  However, the filming of the incident for approximately 45 minutes has been reduced to a five-minute edited clip provided.

(5)  Prior to commencement of trial on the first day, on 7 April 2025, the defence made submissions that FEHD had deleted some photos and videos.

(6)  The Magistrate rejected the contention, stating (a) FEHD had provided a written explanation that the evidence did not exist, (b) the defence made a request only at the last moment before the trial began, and (c) although the personal mobile phone contained much private information, the defendant would be allowed to review the phone from the FEHD before the trial.

(7)  As a result, the female staff member of FEHD opened the photo album and trash bin on the phone in the Applicant’s presence, showing photos before and after the alleged offence to prove that the requested photos did not exist.

(8)  After the prosecution case at trial, the Magistrate ruled that there was a prima facie case to answer.

(9)  On the second day of trial, 11 April 2025, the defence asked for an adjournment to apply for judicial review.

(10)  The Magistrate rejected the request, stating that any judicial review was an independent proceeding from the trial, and identifying that any complaint about her ruling as to the examination of the mobile phone might form a ground of appeal which could be raised after conclusion of the trial.

(11)  The defence’s further requests that FEHD be ordered to stop using the mobile phone, and that shops near the scene be ordered to hand over CCTV footage, were also rejected by the Magistrate.

(12)  FEHD and the Magistrate had failed to deal with the issue of the mobile phone fairly, which may affect the legality of the proceedings and his rights as defendant, and the outcome of the trial.

C.  No Merits

7.  With respect, the application for leave to apply for judicial review is without merit, and indeed is misconceived.

8.  First, this Court exercising its supervisory judicial review jurisdiction does not act in an appellate capacity from decisions of the Magistrate.

9.  Second, and in any event, the Applicant has an available alternative remedy, which makes an application for leave to apply for judicial review inappropriate. As the Magistrate has correctly identified, any complaint about her rulings and decision (including as to the fairness of the trial process) might form grounds of appeal, which could be raised after the conclusion of the trial on any appeal which the Applicant may choose to bring.

10.  Thirdly, an applicant for leave to apply for judicial review must identify public law grounds which are said to be the basis upon which the relief sought might be granted. The Applicant in this case has failed to identify any such public law grounds.

D.  Result

11.  In the circumstances where (1) the Applicant has failed to identify any reasonably arguable public law grounds with any realistic prospect of success, and (2) the Applicant has an available alternative remedy, the application for leave to apply for judicial review stands to be dismissed.

12.  I so order. I make no order as to costs.