Case Detail

THAPA KAMALA v. SECRETARY FOR JUSTICE

Related cases with same parties

CAAR10/1997SECRETARY FOR JUSTICE v. WONG KWONG FEI and Another
CAAR10/1998SECRETARY FOR JUSTICE v. HUI SIU MAN, RICKY
CAAR10/2007SECRETARY FOR JUSTICE v. CHOI SUI HEY
CAAR10/2010SECRETARY FOR JUSTICE v. AMINA MARIAM BOKHARY
CAAR10/2011SECRETARY FOR JUSTICE v. YAN SHEN
CAAR10/2021SECRETARY FOR JUSTICE v. CHAN KIN PONG BONNY
CAAR11/2001SECRETARY FOR JUSTICE v. CHEUNG CHUN-CHIN & OTHERS
CAAR11/2006SECRETARY FOR JUSTICE v. CHUNG YUI HUNG
CAAR11/2007SECRETARY FOR JUSTICE v. MA KWAI CHUN
CAAR11/2010SECRETARY FOR JUSTICE v. CHAN CHUN FAI
CAAR11/2011SECRETARY FOR JUSTICE v. KAN BRIAN PING CHEE
CAAR11/2021SECRETARY FOR JUSTICE v. PASTANA CARVALHO ANDREZA NARELY
CAAR11/2022SECRETARY FOR JUSTICE v. TAM YING YUEN
CAAR1/1999SECRETARY FOR JUSTICE v. KWAN CHI CHEONG AND OTHERS
CAAR1/2002SECRETARY FOR JUSTICE v. CHAN BOON NING
CAAR1/2003SECRETARY FOR JUSTICE v. TSO TSZ KIN
CAAR1/2004SECRETARY FOR JUSTICE v. WONG KWOK KAU
CAAR1/2005SECRETARY FOR JUSTICE v. LI MAN TAK AND OTHERS
CAAR1/2006SECRETARY FOR JUSTICE v. CHAU WAN FUN
CAAR1/2007SECRETARY FOR JUSTICE v. CHIU CHUN WAI AND ANOTHER

Files (3)

[2019] HKCFI 2776-EN-2019-11-08

THAPA KAMALA v. SECRETARY FOR JUSTICE

HTML content

HCAL 1961/2019

[2019] HKCFI 2776

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1961 OF 2019

________________________

BETWEEN
	THAPA KAMALA	Applicant
and
	SECRETARY FOR JUSTICE	Respondent

________________________

Before: Hon Chow J in Chambers (Open to Public)

Date of Hearing: 8 November 2019

Date of Decision: 8 November 2019

________________________

D E C I S I O N

________________________

INTRODUCTION

1. The background facts of the present case have been set out in this court’s earlier judgment dated 16 August 2019 (“the Judgment”), and shall not be repeated here. In this decision, the court adopts the expressions and abbreviations as defined in the Judgment.

2. Consequent upon the court’s order dated 16 August 2019 (“the Order”) directing the Magistrate to proceed to hear the parties’ closing submissions and reach a decision in ESS 39884/2016 (“the Summons”) without further delay, the Magistrate heard closing submissions from the parties on 29 August 2019, and delivered her verdict on 14 October 2019 finding the Applicant not guilty of the offence of negligently endangering her own safety contrary to Section 48 of the Road Traffic Ordinance (Cap 374). Thereupon the Applicant’s solicitor (Mr How) applied to the Magistrate for the costs of the proceedings to be paid by the prosecution. Prosecuting counsel opposed the Applicant’s application. In addition, prosecuting counsel informed the Magistrate that the prosecution intended to apply for a wasted costs order against the Applicant’s legal representatives (namely, her former counsel and her current solicitor) under, inter alia, Section 18 of the Costs in Criminal Cases Ordinance (Cap 492). Prosecuting counsel sought an adjournment sine die of the proceedings so that notice of the application for wasted costs could be given to the Applicant’s legal representatives, and suggested that the two applications could be dealt with in one go. On the other hand, the Applicant’s solicitor submitted that the Magistrate should hear his client’s application at once without delay. The Magistrate eventually adjourned the Applicant’s application and the prosecution’s intended application to 20 December 2019 for them to be dealt with together. The deadline for the prosecution to formally make the application for wasted costs against the Applicant’s legal representatives, I am told, will fall on 11 November 2019.

3. The Applicant now applies to this court for an order that the Magistrate do comply with the Order “by hearing the [Applicant’s] application for costs and make a decision within 7 days” from the date of service of the order to be made herein on the Magistrate. The Respondent opposes this application, on the grounds that (i) the Magistrate has already complied with the Order and reached a decision on the Summons on 14 October 2019 by returning a verdict of not guilty, and (ii) this court should not interfere with the Magistrate’s case management decision relating to the issue of costs in the proceedings before her.

4. It will be recalled that in the Form 86, the decision under challenge is the order of the Magistrate on 10 July 2019 that “the Defence is to fulfil its duty by calling the defence witness, Mr Yu Sai-cheong, who is DW6 in this case, to return to the witness-box of this court to continue with his not yet finished evidence”. At the hearing on 16 August 2019, the parties’ submissions were focused on that decision, and there were no mention or discussion of any consequential application(s) that might arise after the Magistrate had heard the parties’ closing submissions and reached a decision on the Summons. The court’s Order must be read and understood in the context of the decision under challenge in the Form 86.

5. In any event, even if the Order directing the Magistrate to reach a decision in the Summons without further delay is to be taken as including all consequential applications arising from her decision on the Summons (such as applications for costs), the requirement of “without further delay” cannot be read literally to mean that the Magistrate should not be entitled to exercise her usual case management powers in relation to the disposal of such consequential applications. It is trite that the court, in the exercise of its supervisory jurisdiction in judicial review, would not, save in the most exceptional circumstances, interfere with a case management decision of a magistrate.

6. On 14 October 2019, there were before the Magistrate (i) the Applicant’s application for costs against the prosecution, and (ii) the prosecution’s intended application for wasted costs against the Applicant’s legal representatives which I consider are inter-linked. Under Section 18 of the Costs in Criminal Cases Ordinance –

“(1) In any criminal proceedings a court or a judge may order the legal or other representative concerned to meet the payment of any wasted costs or any part thereof.
(2) No order under subsection (1) shall be made unless the legal or other representative concerned has been given a reasonable opportunity to appear before the court or the judge and show cause why the order should not be made.”

7. Although the prosecution’s application is directed against the Applicant’s legal representatives and not against the Applicant herself, it seems to me to be obvious that the conduct of the Applicant’s legal representatives in the proceedings before the Magistrate which it is said would give rise to an order for wasted costs against them would be relevant to the question of whether the Applicant should be entitled to the whole or any part of her costs against the prosecution. There is a suggestion that the Magistrate said at the hearing on 14 October 2019 that the two applications were separate, or different, matters. Strictly speaking, they are different matters, but it does not mean that they are not related or that the outcome of one would not be relevant to the other. To the extent that the Magistrate might have thought otherwise, I disagree. Overall, I consider it to be clear that the two applications ought to be heard together. Having regard to the requirement under Section 18(2) of the Costs in Criminal Cases Ordinance that an order for wasted costs should not be made unless the legal representatives concerned have been given a reasonable opportunity to appear before the Magistrate and show cause why the order should not be made, I do not consider the Magistrate can be faulted for adjourning the two applications to be dealt with on another date so that notice of the application for a wasted costs order could be given to the Applicant’s legal representatives.

8. There is nothing in the materials before the court to indicate that the date chosen by the Magistrate, namely, 20 December 2019, exceeded what was reasonable in the circumstances. The merits of the prosecution’s application for a wasted costs order against the Applicant’s legal representatives are matters to be determined by the Magistrate. It would not be appropriate for this court to express any view on the merits of the application. It would, in any event, not be fair for this court to do so without consideration of all relevant materials which the parties may wish to put forward and rely upon.

9. On 7 November 2019, the Applicant filed a further, 3^rd Affidavit, in support of the present application. In the 3^rd Affidavit, it is said that the Magistrate’s delay in dealing with her costs application would also cause delay to her personal injuries action against the taxi driver in HCPI 574/2018. In particular, it is said that her application for leave to adduce expert evidence, currently fixed for hearing on 22 January 2020, may be adjourned sine die as a result of the Magistrate’s delay in dealing with her costs application. Since the Respondent is not a party to the civil action and is not privy to what has happened in that action, it is obvious that the Respondent is in no position to check or verify the matters set out in the 3^rd Affidavit. In any event, the progress of the Applicant’s personal injuries action is a matter for the civil court which this court should not interfere with.

10. In all, I consider the Applicant’s summons dated 28 October 2019 to be misconceived. The summons is dismissed. I shall hear the parties on the question of costs.

(Anderson Chow)
Judge of the Court of First Instance
High Court

Mr Kelvin Leung, instructed by How & Co, for the Applicant

Ms Vivian Kao, Senior Government Counsel (Ag), of Department of Justice, for the Respondent

HCAL 1961/2019

[2019] HKCFI 2061

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1961 OF 2019

________________________

BETWEEN

	THAPA KAMALA	Applicant
	and
	SECRETARY FOR JUSTICE	Respondent

________________________

Before: Hon Chow J in Court

Date of Hearing: 16 August 2019

Date of Judgment: 16 August 2019

________________________

J U D G M E N T

________________________

INTRODUCTION

1. This is an application for judicial review of the following order (“the Order”) made by Miss Ho Lai Ming, Deputy Special Magistrate (“the Magistrate”), on 10 July 2019 during the course of the hearing of a summons in the Eastern Magistrates’ Courts against the Applicant –

“the Defence is to fulfil its duty by calling the defence witness, Mr Yu Sai-cheong, who is DW6 in this case, to return to the witness-box of this court to continue with his not yet finished evidence”.

BASIC FACTS

2. The Applicant was involved in a road traffic accident on 25 April 2016, in which she was hit by a taxi and suffered personal injuries while crossing Tai Tam Road, Hong Kong. Arising out of that accident, a summons, ESS 39884/2016, was issued against the Applicant for the offence of negligently endangering her own safety contrary to Section 48 of the Road Traffic Ordinance (Cap 374). The hearing of the summons commenced on 10 January 2018 before the Magistrate sitting in the Eastern Magistrates’ Courts. The history of those proceedings up to September 2018 was set out in paragraphs 3 to 14 of this court’s Reasons for Decision given on 28 September 2018 in an earlier application for judicial review in HCAL 1968/2018 (Thapa Kamala v Secretary for Justice[2018] HKCFI 2218), and will not be repeated here.

3. By the time of the hearing before this court in September 2018 in the earlier judicial review application, the proceedings before the Magistrate had already taken up many court days, but the cross-examination of Mr Tam (PW2), a government chemist called by the prosecution as “traffic reconstruction expert”, had still not been completed. In the earlier judicial review application, the Applicant sought to challenge the Magistrate’s decision on 14 September 2018 to adjourn the trial, part-heard, to 27 September 2018 (with another 5 days reserved). Consequent upon the court’s dismissal of that application, the trial resumed on 27 September 2018. The evidence of Mr Tam eventually finished on 17 December 2018. A third prosecution witness, a police officer, was then called to give evidence, and his evidence finished on 28 December 2018. The prosecution case concluded.

4. On 2 January 2019, the Magistrate ruled that the Applicant had a case to answer. The Applicant called a total of 6 defence witnesses, including one Mr Yu Sai Cheong, being the “DW6” referred to in the Magistrate’s order under challenge. The relevance of Mr Yu’s evidence (I am told by Mr Leung) is that he had processed some photographs extracted from a CCTV footage taken at the time of the accident, and Mr Tam had been shown and asked some questions about those photographs when giving evidence earlier. Mr Yu started giving his evidence on 27 June 2019 after days of argument on whether he should be allowed to do so. By the end of the proceedings on 28 June 2019 (Friday), his evidence-in-chief had still not been completed. Mr Kwan (prosecuting counsel) proposed that the trial should continue on 3 July 2019 (Wednesday), because he had to attend a hearing in another matter on 2 July 2019. Mr Yu was not, however, available to give evidence for the whole week commencing on 1 July 2019. The Magistrate eventually adjourned the trial to 3 July 2019 for continuation of the evidence of Mr Yu.

5. Prior to the resumption of the hearing on 3 July 2019, Mr How (the Applicant’s solicitor) informed Mr Kwan that the Applicant had decided not to call Mr Yu to continue giving evidence. Mr Kwan did not object to the Applicant’s move provided that Mr Yu’s evidence-in-chief so far given should be expunged, which was agreed to by Mr How. Mr How then informed the Magistrate that the Applicant would not call Mr Yu to give further evidence and apply to “withdraw” the evidence of Mr Yu[1]. There followed lengthy submissions and interchanges between counsel/solicitor and the bench on whether it was permissible for the Applicant not to call Mr Yu, who had already started giving evidence, to continue his evidence. Eventually, the Magistrate made the order set out at the beginning of this judgment on 10 July 2019. The proceedings on that day ended with the Magistrate announcing:

“Case be adjourned to 9:30 am of 11 July 2019 for part heard. And the defence is to call DW6 pursuant to the court order.”

6. On 11 July 2019, the Applicant applied for leave to apply for judicial review of the Order. On 17 July 2019, after hearing the parties, Mr Justice G Lam granted the Applicant leave to apply for judicial review on Grounds 1 and 3 raised in the Form 86, namely:

(1) the Magistrate does not have power to make the Order (Ground 1); and
(2) the decision to make the Order is Wednesbury unreasonable (Ground 3),

but refused to grant leave on Ground 2, which essentially alleged bad faith and ulterior motive on the part of the Magistrate (see paragraph 9 of Mr Justice G Lam’s Decision dated 17 July 2019).

7. The Originating Summons herein was filed and served on the Secretary for Justice, being the Respondent in the present application, on 24 July 2019.

DISCUSSION

8. While a magistrate has power, under Section 21(1) of the Magistrates Ordinance, Cap 227, to issue a summons to a person whom the magistrate is satisfied is likely to give material evidence on behalf of the complainant or informant or defendant requiring him to appear before the magistrate to testify what he knows concerning the matter of the complaint or information, neither the prosecution nor the defence has such power.

9. On behalf of the Secretary for Justice, Ms Kao has confirmed, or conceded, that the Magistrate “does not have the power to order the Defence to secure the attendance of the Defence witness … at the adjourned hearing” (see paragraph (1) of the Department of Justice’s letter to the court dated 13 August 2019). I consider this to be correct as a matter of principle. While a party calling a witness to give evidence in legal proceedings would ordinarily be expected to have made arrangements with the witness to see that he will attend the hearing and continue to give evidence until he is discharged by the court, that party has no power to compel the witness’s attendance in court. Only the presiding judge has the power to compel the attendance of a witness to give evidence, or continue to give evidence, if necessary by the issue of a warrant. That being the position, it must be obvious that the Magistrate has no power to order the Applicant to secure the attendance of Mr Yu to continue giving evidence before her.

10. The Order made by the Magistrate does not, in terms, order or compel the Applicant to secure the attendance of Mr Yu to give evidence before her. Instead, it is couched as an order to the Applicant to fulfil her “duty” by calling Mr Yu to return to the witness-box to continue giving evidence. However, if the Applicant has no power to compel Mr Yu to attend the hearing, it is difficult to see how she could be under a legal “duty” to do so. The fact that a party has called a witness to give evidence, but fails to take reasonable or proper steps to see that the witness continues to give his evidence until it is completed, may of course attract the court’s criticism and, depending on the circumstances, an adverse inference may be drawn by the court against the party calling the witness to give evidence in the first place. But that cannot be translated into a legal duty on that party to call the witness to continue giving evidence.

11. In any event, even if the Magistrate has power to make the Order, I consider the decision to make it to be unreasonable in the Wednesbury sense, for the following reasons:

(1)  While the evidence of Mr Yu may be relevant to the Applicant’s defence, she has all along had the benefit of legal advice and has voluntarily decided not to further rely on the evidence of Mr Yu. The omission or exclusion of his evidence could not be unfair to the Applicant in such circumstances.
(2)  There has never been any suggestion that Mr Yu’s evidence is relevant to the prosecution case against the applicant. Thus, the omission or exclusion of Mr Yu’s evidence would likewise not be unfair to the prosecution.
(3)  The criminal trial process adopted in this jurisdiction is an adversarial one. The burden is on the prosecution to adduce sufficient admissible evidence to prove, to the criminal standard, that the defendant is guilty of the offence for which he is charged. There is no duty on the part of the defendant to adduce evidence to prove that he is innocent. It is generally a matter for the defendant to decide what, if any, evidence he wishes to adduce and rely upon in his defence. Having regard to the trivial nature of the offence in this case and the maximum fine that may be imposed upon conviction (HK$2,000), the Applicant’s decision not to further rely on the evidence of Mr Yu is readily explicable in the circumstances.
(4)  Bearing in mind also the many court days that this trial has already taken, it is, I consider, unreasonable in the Wednesbury sense for the Magistrate to insist on the Applicant securing the attendance of Mr Yu to continue his defence, when the absence of such defence would cause no unfairness to either the prosecution or the defence.

12. It is only in exceptional circumstances that the court will exercise its supervisory jurisdiction in judicial review to intervene in on-going criminal proceedings before a magistrate, or review “intermediate” or “procedural” decisions in such proceedings. I referred to the relevant principles in Thapa Kamala v Secretary for Justice[2018] HKCFI 2218, at paragraphs 17 and 18, and shall not repeat them here. The present situation is a truly exceptional one. The offence alleged against the Applicant is, on any view of the matter, a trivial one. The facts of the case are simple and straight-forward. One would ordinarily expect that a trial of this nature, if the evidence is properly presented and the hearing properly managed, could be completed within a couple of hours, or at most a couple of days. The time that the hearing of the summons has lasted (89 court days up to 11 July 2019) can only be described as extravagant in the extreme. It amounts to a completely disproportionate use of judicial resources, and brings the administration of criminal justice in Hong Kong into disrepute. It is obvious that something has seriously gone wrong in the proceedings before the Magistrate. While this is not the occasion to apportion responsibility for this wholly unacceptable state of affairs, the proceedings must, in my view, be brought to a conclusion as soon as practicable. The decision to compel the Applicant to secure the attendance of Mr Yu to continue giving evidence in the circumstances, which would further prolong the proceedings, is, I believe, contrary to the interests of justice.

13. I also consider that the court should, exceptionally, grant an order of mandamus to direct the Magistrate to proceed to hear the parties’ closing submissions and reach a decision in the case before her. Ms Kao submits that the court should not grant such order because the Magistrate may be minded to exercise her power under Section 21 of the Magistrates Ordinance to require Mr Yu to attend the hearing to continue giving evidence. However, as earlier mentioned, that is a course of action which I consider to be unreasonable in the Wednesbury sense. Ms Kao also says that Mr Yu has already given part of his evidence, and there is no authority that she is aware of that would permit his evidence so far given to be expunged. In circumstances where both the prosecution and the defence are content not to rely on the evidence of Mr Yu so far given, I see no reason in principle why the evidence cannot be expunged by the Magistrate or, what amounts to the same thing, given no weight at all by her. Mr Leung has confirmed that the Applicant will have no further evidence to adduce in the proceedings before the Magistrate. Neither has Ms Kao suggested that the prosecution has any further evidence that it may wish to adduce, whether by way of rebuttal or otherwise. In the circumstances, the next stage of the proceeding should be the closing submissions of the parties which the Magistrate ought to proceed to hear, and then reach a proper decision on the summons.

14. There is one other matter that I ought to mention. On 15 August 2019, the parties sent to the court a draft Statement and Order seeking to dispose of the present application pursuant to the procedure contained in paragraph 23 of Practice Direction SL 3. Essentially, the parties’ proposal was that the application should be disposed of on Ground 1 (ie lack of power to make the Order), and the court should grant an order of certiorari to bring up and quash the Order only, but not an order of mandamus to direct the Magistrate to proceed to hear closing submissions and reach a decision on the case before her. However, the Applicant also sent a letter to the court dated 15 August 2019 suggesting that the court should grant an order of mandamus as sought in the Originating Summons. In my view, if the parties wish the court to dispose of an application pursuant to paragraph 23 of Practice Direction SL 3, the parties must be agreed on all the matters as set out in the draft statement and order (including the relief to be granted). In any event, I am not satisfied that the court should only deal with Ground 1, but not Ground 3 (Wednesbury unreasonableness), or grant only an order of certiorari, but not an order of mandamus. The issue of whether the decision to make the Order is Wednesbury unreasonable is, I consider, relevant to the issue of whether the court should grant an order of mandamus. It should be emphasized that even where the parties are agreed that an application for judicial review should be disposed of pursuant to the procedure under paragraph 23 of Practice Direction SL 3 and have submitted a draft Statement and Order for such purpose, the court is not bound by the parties’ agreement. In most cases, the court will approve the parties’ agreement. However, exceptionally in the present case, the court considers that the due administration of justice requires the court to reach a conclusion on Ground 3 and whether to exercise its discretion to grant an order of mandamus. For this reason, on 15 August 2019, the court directed that the hearing of the application for judicial review should proceed on 16 August 2019 as scheduled.

DISPOSITION

15. The application for judicial review is allowed. I grant (i) an order of certiorari to bring up and quash the Order made by the Magistrate on 10 July 2019, and (ii) an order of mandamus to direct the Magistrate to proceed to hear the parties’ closing submissions and reach a decision in ESS 39884/2016 without further delay.

16. I shall now hear the parties on the question of costs.

	(Anderson Chow)
	Judge of the Court of First Instance
	High Court

Mr Kelvin Leung, instructed by How & Co, for the Applicant

Ms Vivian Kao, GC, of Department of Justice, for the Respondent

[1] See paragraph 132 of the Affidavit of the Affidavit dated 10 July 2019, although at paragraph 142 of that Affidavit, she says that it was inaccurate to describe her application as an application “to withdraw DW6’s evidence”.