TSUI KOON WAH v. PRINCIPAL MAGISTRATE OF KOWLOON CITY MAGISTRATES' COURTS

HCAL81/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO.81 OF 2006

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D E C I S I O N

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1. This is the applicant's application for leave to judicially review the decision of the Principal Magistrate of Kowloon City Magistrates' Courts (“the Principal Magistrate”) refusing to issue a private summons in respect of the Information he laid on 19 June 2006.

Background

2. The applicant is the plaintiff in High Court Action 890 of 2003 (“HCA890/2003”).  He brought the action against four officers of the Social Welfare Department for damages in defamation in connection with his summary dismissal by the Department.

3. The defendants in HCA890/2003 applied to strike out the Re-Re-Amended Statement of Claim.  By a decision handed down on 5 September 2005, Chung J ordered that a considerable part of the pleadings be struck out, but granted leave to the applicant to amend his pleadings.

4. On 30 September 2005, the applicant filed a Re-Re-Re-Amended Statement of Claim and a Re-Re-Amended Rely in HCA890/2003.  By summons filed on 18 October 2005, the defendants applied to strike out these amended pleadings on the ground that the amendments contained averments previously ordered to be struck out, thereby amounting to an abuse of court process.

5. The second striking out application together with other applications were heard by Chung J.  On 7 April 2006, Chung J handed down his decision (“7 April 2006 Decision”).  In paragraph 23 of the Decision, Chung J summarised the contents of the newly amended pleadings and compared them to the pleadings previously ordered to be struck out.  Chung J concluded that the Re-Re-Re-Amended Statement of Claim did not contain any averment that had been previously struck out.  In respect of the Re-Re-Amended Rely, however, Chung J found a number of the paragraphs in it contained averments that had previously been ordered to be struck out.  The offending paragraphs were summarised in paragraph 25 of the Decision.  Chung J held that these paragraphs were an abuse of the court process and should be struck out.

6. By letter dated 10 April 2006, the solicitors for the defendants in HCA890/2003 wrote to the court pointing out, inter alia, that apart from the paragraphs summarised in paragraph 25 of the 7 April 2006 Decision, there were three other paragraphs in the Re-Re-Amended Reply that contained averments previously ordered to be struck out, namely, paragraphs 7A(g), 56(b) and the last sentence of paragraph 60(b) (collectively referred to as “the additional offending paragraphs”).  The solicitors further pointed out that the additional offending paragraphs should also be struck out.

7. By letter dated 18 April 2006, the applicant wrote to the court setting out what he perceived to be inaccuracies and errors in the 7 April 2006 Decision, including paragraph 25 and the offending paragraphs of the Re-Re-Amended Reply set out therein.  The applicant asked that his comments in the letter be taken into account when approving the draft order.

8. On 19 April 2006, the applicant wrote again, this time in response to letter dated 10 April 2006 from the defendants' solicitors.  In it, the applicant made specific arguments to defend the additional offending paragraphs.  The defendants' solicitors responded by letter of the same date.

9. On 24 April 2006, the applicant wrote to the court replying to the defendants' solicitors' letter.  In brief, he argued that the additional offending paragraphs were new pleas and had overcome the objections identified in the 5 September 2005 decision.

10. On 9 May 2006, a Corrigendum of the 7 April 2006 Decision was issued.  Among other matters, paragraph 23 was amended to add references to the additional offending paragraphs.

11. By letter dated 17 May 2006, Clerk to Chung J forwarded to the applicant and the defendants' solicitors a draft order, which was prepared from the drafts previously lodged by the parties, and invited comments on it.  The additional offending paragraphs were among the paragraphs in the Re-Re-Amended Reply ordered to be struck out under paragraph 4 of the draft order.

12. The applicant wrote on 23 May 2006, objecting to the inclusion of the additional offending paragraphs.  He argued that the court had become functus officio and that the striking out of the additional offending paragraphs should be dealt with by way of an appeal.

13. Notwithstanding the objection, the draft order was approved.  On 27 May 2006, the order was perfected, sealed and filed.

14. On 19 June 2006, the applicant laid an information (“the Information”) in Kowloon City Magistrates' Courts against the handling solicitor of the defendant (“the Solicitor”) and Chung J for the offences of (1) forgery, contrary to section 71 of Crimes Ordinance, Cap.200 and (2) perverting the course of public justice.

15. By letter dated 21 June 2006 from the First Clerk of Kowloon City Magistrates' Courts, the applicant was informed that the Principal Magistrate considered no offence was disclosed and refused to issue the summons pursuant to section 8(1B)(b) of the Magistrates Ordinance, Cap.227.  The letter also stated that the Principal Magistrate was satisfied that the judgment and sealed order complained of were genuine judgment and order of the court and that, even accepting the irregularities complained in the Information, they were not false instruments or false documents within the meaning of the Crimes Ordinance.

16. Being dissatisfied, the applicant wrote on 27 June 2006 to the First Clerk.  He said his Information also contained a reference to perverting the course of justice by the making of the 7 April 2006 order and the sealed copy thereof.  It was stated that this charge was irrespective of whether the Order was a false instrument or not.

17. By letter dated 28 June 2006, the First Clerk informed the applicant that the Principal Magistrate considered that the facts in the Information did not support an offence of perverting the course of public justice.

18. On 21 July 2006, the applicant commenced these proceedings.

Recusal application

19. On 22 July 2006, the applicant wrote to the court requesting that I be recused from the application for the reason that one of the interested parties in the proceedings was my colleague, being also a Court of First Instance judge.

20. By letter dated 28 July 2006 from the court, the applicant was informed that a proper application should be made.

21. On 31 July 2006, the applicant issued a summons applying for an order that I recused myself from these proceedings.  The applicant clarified at the hearing on 28 August 2006 that this was to be an ex parte application.

22. After hearing the applicant's submissions, I dismissed the summons.  My reasons are as follows.

23. It is evident from the applicant's written and oral submissions that the application was based on apparent bias.  Specifically, the applicant argued that a reasonable man would perceive or conclude there was a real possibility of bias.  The matters that were said to give rise to the perception or conclusion are :

(1) Chung J and I must be acquainted for no less than seven years, having regard to our respective year of appointment to the Court of First Instance.

(2) Chung J is more senior both in terms of age and years of service as a Court of First Instance judge.

(3) The fraternity among High Court judges.

24. In Deacons v. White & Case Ltd Liability Partnership and Others (2003) 6 HKCFAR 322, the Appeals Committee of the Court of Final Appeal confirmed the test and approach to apparent bias to be that :

“The court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased.  It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility, or a real danger, the two being the same, that the tribunal was biased.”

25. In the present case, three points have to be made in respect of the matters relied upon by the applicant in contending there was a real possibility or a real danger of bias.

26. Firstly, the present application is primarily to judicially review the decision of the Principal Magistrate.  What is involved is essentially arguments on law since the applicant only relies on error of law as the ground for judicial review.  Further, even if the private summons were allowed to be issued, it is not indicative of the outcome of the prosecution.

27. Secondly, there is no rule that requires a judge to be disqualified from a case merely on the basis that one of the parties, not to say an interested party, is known to him or is one of his fellow judges.  Further, it is not unheard of or uncommon for one Court of First Instance judge to adjudicate or review the decision or act of another Court of First Instance judge.  From time to time, Court of First Instance judges will sit as additional judge in the Court of Appeal to hear appeals from the Court of First Instance.  There are also occasions when decisions made by Court of First Instance judges when they exercised administrative or quasi-judicial function, were made subject matter of judicial review applications.

28. Thirdly, if the applicant's reasoning is correct, namely, since Chung J is a more senior judge, I would defer to him, then there is simply no point in the applicant's attempt to bring a private prosecution against a Court of First Instance judge in the Magistrates' Court, which is a lower court in the judicial system.

29. In my view, the matters relied upon by the applicant, whether taken individually or together, could not have led a fair-minded and informed observer to conclude that there was a real possibility of bias.

30. The applicant had referred to several authorities as well as a newspaper cutting reporting that Nguyen J had on one occasion declined to hear a civil case because he knew the chairman of one of parties to the action.  No other details of the case were given in the report.

31. These cases do not assist the applicant.  In deciding whether there is apparent bias, the court must have regard to the factual matrix and the circumstances of the case.  Each case has to be decided on its own facts.

32. The circumstances of the cases cited by the applicant are different from those in the present application.  None of them is authority for saying that a real possibility of bias must arise where the decision may potentially have an adverse effect on another serving judge or judicial officer, who is more senior than the presiding judge or judicial officer.

33. For these reasons, the recusal application is refused.

Grounds for judicial review

34. I turn now to deal with the leave application.

35. The intended judicial review application is based on the sole ground of error of law.  It is said that the Principal Magistrate erred in holding that the order dated 7 April 2006 and its sealed copies are not false instruments, and that the Information did not support the offence of perverting the course of public justice.

36. In summary, the applicant's arguments are as follows :

(1)     A written decision can only be amended in limited and most exceptional circumstances.  Paragraph 25 of the 7 April 2006 Decision could not be amended to include the additional offending paragraphs.

(2)     At the hearing of the striking out application, the defendant's solicitor did not identify which paragraphs of the Re-Re-Amended Reply that the application was directed at.  There was thus no opportunity for the applicant to make submissions on the paragraphs ordered to be struck out, including the additional offending paragraphs.  The entire process and the ultimate decision were unjust and unfair.

(3)     The order and its sealed copies are false in that : (a) the additional offending paragraphs were not struck out in the circumstances as set out in the preamble to the order, and (b) the additional offending paragraphs were not yet struck out on 7 April 2006, which is the date of the order.

(4)     The Solicitor and Chung J knew that paragraph 25 of the 7 April 2006 Decision could not be amended to include the additional offending paragraphs.  Nevertheless, they together acted in disregard of the law and to injure the applicant's interest by “manufacturing” (製造) the order and directing the Clerk to approve the draft order respectively.  As such, they are guilty of perverting the course of justice.

The Magistrates Ordinance, Cap.227

37. Under section 8(1) of the Magistrates Ordinance, Cap.227, a magistrate has the power to issue a private summons on an information laid before him.

38. Section 8(1B)(b) further provides as follows :

“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.”

39. It is thus 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.

40. In R. v. West London Metropolitan Stipendiary Magistrate, ex parte Khlan [1979] 1 WLR 933 at 935, Lord Widgery CJ after citing Rex v. Wilson, ex parte Battersea Borough Council [1948] 1 KB 43, 47 in which Lord Goddard CJ stated that a summons is the result of judicial act, observed that the magistrate should ascertain, inter alia, 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.

41. Although the relevant section of the Magistrates' Courts Act 1952 considered in Klahn's case (i.e. section 1(1)), is differently worded that section 8(1) and 8(1B) of Magistrates Ordinance, Lord Widgery CJ's observations are equally applicable where the magistrate had proceeded to consider the contents of the information.  It is therefore entirely proper for a magistrate to consider whether the information laid discloses any offence known to the law and whether the essential ingredients of the offence are prima facie present.

The offence of forgery

42. Section 71 of the Crimes Ordinance, Cap.200, provides that :

“A person who makes a false instrument, with the intention that he or another shall use it to induce somebody to accept it as genuine, and by reason of so accepting it to do or not to do some act to his own or any other person's prejudice, comments the offence of forgery…”

43. Section 69(a) further provides that an instrument is false if it purports to have been :

“(i) made in the form in which it is made by a person who did not in fact make it in that form;

(ii) made in the form in which it is made on the authority of a person who did not in fact authorize its making in that form;

(iii) made in the terms in which it is made by a person who did not in fact make it in those terms;

(iv) made in the terms in which it is made on the authority of a person who did not in fact authorize its making on those terms;

(v) altered in any respect by a person who did not in fact alter it in that respect;

(vi) altered in any respect on the authority of any person who did not in fact authorize its alteration in that respect;

(vii) made or altered on a date on which or place at which or otherwise in circumstances in which it was not in fact made or altered; or

(viii) made or altered by an existing person but he did not in fact exist;”

Section 69(a)(vii) is relied upon by the applicant in the present application.

44. Before dealing with the specific arguments advanced by the applicant in support of his application, it is necessary to make two points, which are fundamental.

45. Firstly, contrary to what the applicant seems to believe, a decision and the order subsequently drawn up and sealed are inter-related and are to be read together.  A decision explains the judge's conclusion on an application before him.  The order on the other hand sets out the manner in which the judge's conclusion on the application is to be implemented.  Often a judge having expressed his views and conclusions on the application in the written decision, will leave it to the parties to work out the precise terms of the order.

46. Secondly and in respect of the striking out application in HCA890/2003, it is trite that the defendant's application was on the basis that the revival of the previously struck out averments by the newly amended pleadings amounted to an abuse of court process.  This was accepted by Chung J.  In the 7 April 2006 Decision, paragraphs 23 to 26 in particular, Chung J concluded that those parts of the Re-Re-Amended Reply that repeated the previously struck out averments should be struck out as an abuse of court process.  As noted above, the order subsequently drawn up and sealed is to implement this conclusion by spelling out the precise paragraphs in the Re-Re-Amended Reply that were to be struck out on this basis.

47. In the Information laid before the Principal Magistrate, the applicant stated that the sealed order served on him contained false information, which he identified to be the inclusion of the additional offending paragraphs when these paragraphs did not appear in paragraph 25 of the 7 April 2006 Decision.  On this basis, he contended that the Solicitor and Chung J had made a false order with the intention of using it to induce him to accept the order as being genuine and had thereby contravened section 71 of the Crimes Ordinance.  He had not referred to other part of the order or section 69(a)(vii) of the Crimes Ordinance.

48. Plainly, the only basis on which the applicant contended in his Information that the order was a forgery or a false instrument was that the additional offending paragraphs were not included in paragraph 25 of the Decision.  As the foregoing analysis shows, this contention is flawed.  As a result of the Corrigendum, the additional offending paragraphs are among the paragraphs analysed and compared under paragraph 23 of the Decision and found to contain averments previously struck out.  The fact that they did not appear in paragraph 25 of the Decision is no indication that Chung J did not regard them as amounting to abuse of court process and liable to be struck out.  Thus viewed, there is no conflict or contradiction between the 7 April 2006 Decision and the order drawn up and sealed.  Neither is there any falsity in the order drawn up and approved by the Court.

49. The Principal Magistrate's conclusion that the order is not a false instrument and that no offence of forgery is disclosed in the Information is plainly correct as a matter of law.

50. As to the applicant's argument that the 7 April 2006 Decision could not be amended to include the additional offending paragraphs, it is irrelevant to the issue in this application.  Whether it was correct to receive and entertain further arguments on the additional offending paragraphs after the handing down of the 7 April 2003 Decision is an issue to be considered in the context of the law of civil procedure.  The proper channel for raising the complaint and the issue is by way of an civil appeal.  The applicant has however not appealed against the order.

51. Similarly, the complaint that the striking out of the paragraphs in the Re-Re-Amended Reply, including the additional offending paragraphs, is unfair and unjust should properly be made on an appeal, but not by way of judicial review.

52. In respect of the third argument that the order was false because the additional offending paragraphs were not struck out in the circumstances set out in the preamble and on the date of the order, it is not an argument open to the applicant in the present application.  The argument was never raised in the Information laid before the Principal Magistrate.  It was not the falsity relied upon by the applicant when he made the application for the issue of a summons.  The applicant cannot say that the Principal Magistrate made an error of law in refusing his application by reason of particulars and arguments that were not part of the Information laid before the magistrate.

53. I would additionally observe that even if the preamble failed to set out the correspondences between the parties and the court in connection with the additional offending paragraphs and/or that the order should be dated differently, they are clerical errors or slips in drawing up and/or approving the order.  They alone could not have supported an offence of forgery.

The offence of perverting the course of public justice

54. I turn finally to the fourth argument relating to the offence of perverting the course of public justice.  In the Information he laid before the Principal Magistrate, after setting out the falsity of the order in support of the offence of forgery, the applicant went on to state :

“Moreover, [the Solicitor] and [Chung J] did prevent the course of justice by making the order dated 7 April 2006 in respect of High Court Action No.890 of 2003 together with sealed copy thereof.”

55. This is all that was said in the Information about the offence of perverting the course of public justice.  In the premises, there can be no surprise that the Principal Magistrate held that the offence was not made out.  It cannot be said that his view is wrong as a matter of law.

Conclusion

56. As Mr Lee for the respondent rightly observed, even on the low threshold for leave application as laid down in Ho Ming Sai v. Director of Immigration [1994] 1 HKLR 21, leave to apply for judicial review must be refused.

Costs

57. In the Form 86A, the applicant requested a hearing in the event the court is minded to refuse leave.  I had directed that the leave application should proceed inter partes since the application raised some questions of law.

58. Mr Lee asked that the applicant be ordered to pay the costs of the putative respondent in the event the leave application is refused.  He pointed out that the applicant had persisted with the application even after being served with the Department of Justice's submissions.

59. The applicant opposed contending that the presence of the Department of Justice was not of great assistance to the court.  It was said that the Department of Justice had not canvassed other legal issues, such as whether the conduct he complained of was indictable as a matter of law.  He further argued that litigants should not be discouraged from pursuing their legal right by costs order. 

60. Costs is a matter of judicial discretion.  I do not agree with the applicant's reasons for opposing costs.  Mr Lee's written submissions and oral submissions had been helpful to the court.  His written submissions has pointed out the fundamental misconception in the applicant's case for applying for a summons.  However, I note that Mr Lee's submission was served on Friday when the hearing took place on the following Monday.  The hearing could not have been avoided even if the applicant, after reading the submissions, decided not to proceed with the leave application.

61. This being the position and considering that the attendance of the Department of Justice was required to assist on points of law, I consider that it is an appropriate exercise of the discretion to make no order as to the costs of this application.