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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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| BETWEEN |
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KWOK TAK YING (郭德英) |
Appellant |
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and |
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HKSAR |
Respondent |
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and |
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SECRETARY FOR JUSTICE |
Interested Party |
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Before: Hon Poon CJHC, M Poon JA and Alex Lee J in Court
Date of Hearing: 17 September 2021
Date of Judgment: 11 October 2021
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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...
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