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Hksar v Cheung Kin Chung

Judgment Cited authorities 1 Cited in Precedent Map Related
Vincent
Judgment Date27 March 2018
Neutral Citation[2018] HKCFI 675
Citation[2018] 2 HKLRD 597
Judgement NumberHCMA592/2017
CourtHigh Court (Hong Kong)
Subject MatterMagistracy Appeal
HCMA561/2017 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)

_______________

BETWEEN
HKSAR Respondent
and
CHEUNG KIN CHUNG Appellant

_______________

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)

_______________

BETWEEN
HKSAR Respondent
and
CHEUNG KIN CHUNG Appellant

_______________

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)

_______________

BETWEEN
HKSAR Respondent
and
CHEUNG KIN CHUNG Appellant

_______________

(heard together)

Before: Deputy High Court Judge C P Pang in Court

Dates of Hearing: 5 January, 15 February 2018

Date of Last Written Reply of the Appellant: 6 March 2018

Date of Judgment: 27 March 2018

____________________

J U D G M E N T

____________________

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...

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