Thapa Kamala v. Ho Lai-ming

HCAL125/2018

[2018] HKCFI 618

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 125 of 2018

BETWEEN

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

Order by The Honourable Mrs Justice Campbell‑Moffat:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Procedural history

1.The Applicant submitted her Form 86 on 26 January 2018, which had appended to it, an Affirmation which disclosed no grounds in support of her application for leave to seek judicial review.  Upon request by this court, the Applicant re-submitted and filed her second Affirmation in support on 5 February 2018.

Background

2.The Applicant was prosecuted under section 48 of the Road Traffic Ordinance, Cap 374 with being a pedestrian, negligently endangering her own safety on 25 April 2016 when she crossed the Tai Tam Road and was hit by an oncoming taxi causing multiple fractures and hospitalisation.

3.The Applicant appeared before the Eastern Magistrates’ Court on 5 June, 3 July, 28 August, 25 September, 14 November 2017 and on 10 January 2018, which was the first day of trial.  The Applicant maintains that on 11 January 2018, she was one minute late for the afternoon court session and as a result the magistrate stood the matter down.  The trial resumed but at the end of the proceedings, the Magistrate granted the Applicant bail on condition of payment of $100 cash to secure her attendance at the next time and date appointed by the court.

4.The Applicant submits that the magistrate had neither the jurisdiction to compel her attendance at court nor the power to order her to pay $100 as a condition of bail.  She does not support this contention with any legal argument.

5.A defendant in criminal proceedings is required to attend before the relevant court.  A defendant, save in limited circumstances, is required to attend personally to represent themselves or to be represented by a solicitor or counsel but they too must attend.  A defendant, who for good reason, cannot attend court at the time and place appointed, may make representations to be excused from so doing in advance but this is a matter for the court and not for the Defendant.  It is open to the court to grant bail on condition in order to ensure they attend at the appointed time and place.  Any defendant who fails to do so is liable to have bail revoked or their conditions of bail varied appropriately.  It is entirely within the remit and power of the magistrate so to do at her discretion.

Leave to apply for judicial review

6.The Applicant must show an arguable case that there was either unlawfulness, unreasonableness or unfairness by the Special Magistrate when she ordered the variation in the applicant’s conditions of bail in order to obtain leave to judicially review that decision.  She has failed to do so.  It was open to the Magistrate to enquire into the reasons for the Applicant’s tardiness and to take action to ensure it did not recur.  Granting bail on conditions was within her power and there is nothing on the papers to suggest that course of action was procedurally incorrect, unreasonable or unfair.

Conclusion

7.In my judgement, there is no reasonably arguable basis upon which the Applicant could found a claim for judicial review and, as such, there would be no realistic prospect of success if she were to be granted leave.  I therefore refuse leave for judicial review.

Dated 10^th day of April 2018.

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1