Leung Kit Hing, Doris v. The Magistrate in Charge of All Case Management Matters At Kowloon City Magistrates' Courts and Others
Read the full judgment text of CACV 104/2018 on BabelCite. This Court of Appeal judgment was delivered on 17 September 2018 before Lam VP, Chu and Poon JJA.
Civil procedure – judicial review – abuse of process – second application for judicial review after previous refusal – standing – non-party seeking to compel witness evidence in criminal proceedings – legitimate expectation – procedural impropriety – appeal dismissed – The applicant, a non-party to criminal proceedings KCCC 2035/2017, sought judicial review to compel the magistrate, prosecution, or defence to call her as a witness. She had previously applied for leave in HCAL 1140/2017, which was refused, and the appeal struck out. Her second application (HCAL 419/2018) was refused by Chow J. On appeal, the Court of Appeal held that bringing a second application on the same subject matter was an abuse of process. Further, the applicant had no standing to interfere with the criminal trial; the question of evidence is for the trial court, not judicial review, except in exceptional circumstances. Arguments based on legitimate expectation and procedural impropriety were wholly misconceived. Appeal dismissed.
Legal issues: Abuse of process in second judicial review application · Standing to interfere with criminal trial evidence · Legitimate expectation and procedural impropriety claims
Outcome: Appeal dismissed.
Cited by 2 cases · Cites 4 cases
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CACV 104/2018 [2018] HKCA 599 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO 104 OF 2018 (ON APPEAL FROM HCAL 419/2018) __________________________
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________________ JUDGMENT ________________ Hon Lam VP (giving the Judgment of the Court): 1.This is an appeal by the Applicant against the decision by Chow J refusing leave to apply for judicial review dated 12 April 2018. 2.The Applicant consented to have the appeal to be determined on the papers without any oral hearing on 29 June 2018. The Applicant was directed to file written submissions by 20 July 2018. Upon application by the Applicant, an extension of 7 days was granted. The Applicant eventually filed the same on 27 July 2018. 3.We have considered the Applicant’s written submissions. In essence, the Applicant complained that she was not permitted to produce evidence as “informer” or “witness” in the magistracy criminal proceedings of KCCC 2035/2017, to which she was not a party. 4.The Applicant had previously applied for leave to apply for judicial review on the same subject matter in HCAL 1140/2017. Au J refused leave on 3 January 2018. The appeal against Au J’s decision (CACV 36/2018) was struck out by another division of this Court (Lam VP, Yuen and Poon JJA) on 28 February due to her non-compliance with an unless order dated 20 February 2018. Her application for leave to appeal against that order to the Court of Final Appeal was also dismissed on 9 May 2018 by this Court. 5.It is an abuse of process for the applicant to bring a second application for judicial review after her failure to obtain leave from Au J. On this ground alone, her present appeal must fail. 6.Further, we agree with Chow J’s observations at [5] of the Decision of 12 April 2018:
7.The Applicant’s prayer for an order of “mandamus” to compel the Prosecution or Defence, or the Magistrate to call the Applicant as witness or assess her evidence is wholly inappropriate and wrong in principle. She had no standing to interfere with the criminal trial. 8.Viewed thus, the applicant’s arguments based on “legitimate expectation” and “procedural impropriety” are wholly misconceived. 9.For these reasons, we dismiss the appeal.
The applicant acting in person |
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