HCMA000477_2015

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HCMA 477/2015HCMA 478/2015HCMA 479/2015(Heard together)

IN THE HIGH COURT OF THEHONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCEMAGISTRACY APPEAL NO 477 OF 2015

(ON APPEAL FROM KCMP 540/2015)

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BETWEEN

HKSAR Respondent

and

CHEUNG KIN CHUNG Appellant

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And



(ON APPEAL FROM KCMP 541/2015)

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BETWEEN

HKSAR Respondent

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and


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And



(ON APPEAL FROM KCMP 553/2015 & 554/2015)

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BETWEEN

HKSAR Respondent

and


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Before: Hon E Toh J in CourtDate of Hearing: 12 October 2015Date of Judgment: 12 November 2015

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J U D G M E N T

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1. All these three appeals the appellant appealed against the

order of the learned magistrate Dr K M Cheung in refusing the appellant’s

application to issue private summonses in all three cases.

HCMA 477/2015

2. In this case the appellant alleged that Ms Yip who is an

assistant manager of the Housing Department did pervert the course of

public justice by concealing relevant CCTV evidence of an alleged attack

on him on 14 March 2015, the learned magistrate sought further

information in writing from the appellant and the appellant submitted a

written document where the appellant claimed that Mr Wong had hit him

and Ms Yip had refused his request to provide him with the CCTV tape.

I can see from the learned magistrate’s statement of findings that the

appellant had alleged that Ms Yu of Pioneer Management on 24 March

2015 told him that she had seen the relevant CCTV footage but Ms Yip

had refused the request of the appellant to release the CCTV footage to

him. The learned magistrate having considered the submissions of the

appellant and at the end of the day considered that there was no legal duty

on Ms Yip to produce the CCTV tape. Also, relevant is that in the

appellant’s 4-page submission to the learned magistrate, he did not say that

Ms Yu confirmed that the CCTV tape actually showed an attack on the

appellant by the said Mr Wong. The learned magistrate was correct in

saying that there is no positive act on the part of Ms Yip to conceal

evidence as disclosed by the information supplied by the appellant so the

leaned magistrate refused the issuing of the summons.

3. The appellant in court submitted that the Housing Department

had not complied with its performance pledge to ensure residents’ comfort

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and also he said that when the police came after this alleged assault. They

had not invited him to watch the relevant CCTV tape with them and the

appellant submitted that there was an abuse of his human rights.

4. The appellant alleged that the learned magistrate not only

failed to address his human rights, he also failed to hold the public hearing

which was against his legitimate expectation and no reasons were given by

the learned magistrate’s decision in the covering letter to him although he

admitted he received at the same time the learned magistrate’s statement of

findings.

5. If it is not necessary for the learned magistrate to give a public

hearing if he concluded that he had had already enough information for

him to properly decide the matter and in this case the learned magistrate

did refer to the information from the appellant in the appellant’s

submissions in a 4-page document. I do not see that the human rights of

the appellant were violated in any form and I therefore dismiss the appeal.

HCMA 478/2015

6. In this case the appellant alleged that Ms Chiu, manager of the

Housing Department, had attempted to pervert the cause of public justice

by concealing relevant CCTV evidence of an alleged attack on him by a

male on 14 March 2015. This alleged attack is similar is the attack which

is mentioned in the previous case in HCMA 477/2015. Similarly the

learned magistrate requested for further information from the defendant in

writing and the appellant submitted his written submission and the

information submitted is similar to that in the previous case and the learned

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magistrate having considered the evidence refused the application of the

appellant for the same reasons.

7. The appellant before me had made the same argument as he

did in HCMA 477/2015 and having considered all the evidence and the

learned magistrate’s statement of findings do not find that the appellant’s

rights were violated nor was the learned magistrate wrong in law. So the

appeal is dismissed.

HCMA 479/2015

8. The appellant alleged that Ms Tsang, a security guard of

Pioneer Management Company Limited, on 15 December 2014 assaulted

him by pushing the kitchen door against him in Room 1208 Mei Tak

House, Mei Tung Estate. In another charge, the appellant in

KCMP 554/2015 alleged that Mr Wong, a security guard of Pioneer

Management Company Limited, on 3 July 2015 did intentionally cause

him to apprehend the application to his body of immediate unlawful force

in the lobby of the ground floor of Mei Tak House, Mei Tung Estate,

Kowloon.

9. The learned magistrate asked the appellant to submit further

information and the appellant submitted a 4-page document and a disc

containing three audio clips. The learned magistrate listened to the three

audio clips and he described them at paragraph 7 of his statement of

findings. The first audio clip recorded a male making a call to complain

which was on 1 July 2015, then on the 3 July 2015 a male alleged a

security officer falling asleep with no greeting to the male. This may have

been the incident which involved Mr Wong against whom the appellant

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had made an allegation of assault and then the final audio clip was on

24 Feb which would be months after the alleged incident with Ms Tsang

where a male voice accused the female security guard of committing an

assault on him. As the learned magistrate very correctly pointed out these

are self-serving clips even though giving the benefit of the doubt to the

appellant, there was no mention whatsoever in the audio clips that

Mr Wong had assaulted the appellant and the allegation made in the audio

clip was two months after the alleged incident involving Ms Tsang, so the

learned magistrate was correct in coming to the conclusion that there is no

evidence nor legal basis for the issuing of a private summons against

Mr Wong or Ms Tsang.

10. One matter I would like to raise is that at paragraph 13, the

learned magistrate also observed that there was no medical report or

evidence from other witness to support the allegation of the applicant. In a

case of common assault it is not necessary for medical reports to be

provided, so the absence of medical reports does not mean that there was

no common assault. However having made that observation, I still

consider that on a careful analysis of what the appellant said that the

alleged assault by Ms Tsang was supposed to have been done by her

pushing a kitchen door and the said kitchen door hit him on his waist and

the alleged assault by Mr Wong on 3 July was that Mr Wong had hit the

desk violently with both hands using foul language. However as I have an

earlier noted the audio clip which was submitted by the appellant to the

learned magistrate merely demonstrated that Mr Wong had failed to greet

him and the male voice on the audio clip had asserted that Ms Tsang had

assaulted him without providing any basis for such assertion.

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11. Therefore on the evidence before me I cannot see that the

learned magistrate had committed any error of law or facts that would

justify my interfering in his decision, so the appeal is dismissed.

(E Toh)Judge of the Court of First Instance

High Court

Mr Prakash L Daryanani SPP, of the Department of Justice, for the respondent

The appellant appeared in person

Documents

HCMA000477_2015