Thapa Kamala v. Secretary for Justice

HCAL 1968/2018

[2018] HKCFI 2218

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1968 OF 2018

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Before: Hon Chow J in Court

Date of Hearing: 24 September 2018

Date of Decision: 24 September 2018

Date of Handing Down of Reasons for Decision: 28 September 2018

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REASONS FOR DECISION

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INTRODUCTION

1.In this application for leave to apply for judicial review, the Applicant seeks to challenge the decision (“the Decision”) of Ms Ho Lai Ming, Special Magistrate, made on 14 September 2018 sitting at Eastern Magistrates’ Court to adjourn the part-heard trial of ESS 39884/2016 to 27 September 2018 (with 28 September and 2, 3, 5 and 8 October 2018 reserved).

2.On 24 September 2018, the court heard the application, and made an order dismissing the application, with reasons to be given later.  These are the reasons for the court’s decision.

BASIC FACTS

3.On 25 April 2016 at about 7:45 pm, while the Applicant was at Tai Tam Road (Northbound) near Lamppost 38658, she was hit by a taxi and suffered personal injuries.  Arising out of this incident, the Applicant was charged with the offence that, being a pedestrian using a road, she negligently endangered her own safety (“the Offence”), contrary to Section 48 of the Road Traffic Ordinance, Cap 374.  According to Mr Leung (the Applicant’s counsel), the maximum penalty upon conviction of the Offence would be a fine of HK$500.

4.The Applicant did not admit the Offence, and she was tried before the Special Magistrate.  There were two prosecution witnesses: (i) the taxi-driver, and (ii) a “traffic reconstruction” expert.  The trial commenced on 10 January 2018 at Eastern Magistrates’ Court.  On 11 January 2018 (the 2^nd day of the trial), the Applicant was, according to her, one-minute late for the afternoon court session.  Eventually, the Special Magistrate granted the Applicant bail on condition of payment of HK$100 to secure her attendance at the next time and date appointed by the court.

5.By the conclusion of the hearing on 11 January 2018, the evidence of the factual witness had been completed, but the expert was still under cross-examination by the Applicant’s counsel.

6.The trial was adjourned part-heard to 17 January 2018 for 1 day, but cross examination of the expert was not completed by the end of that day.  The trial was therefore further adjourned.

7.The parties next appeared before the Special Magistrate on 22 and 23 January 2018 and 11 and 20 April 2018, and those 4 days were spent hearing the Applicant’s application that the Special Magistrate should recuse herself from the trial on the ground of apparent bias.  The allegation of apparent bias was based on a number of complaints, including that the Special Magistrate imposed the said bail condition with knowledge that she had no jurisdiction to do so, and that the Special Magistrate excessively and inappropriately interrupted the Applicant’s counsel in conducting the defence at the trial.

8.In the meantime, on 26 January 2018, the Applicant made an application for leave to apply for judicial review against the Special Magistrate’s decision to impose the said bail condition, on the ground that the Special Magistrate had no jurisdiction to compel the Applicant’s attendance at court, or power to order the Applicant to pay HK$100 as a condition of bail.  On 10 April 2018, the application for leave to apply for judicial review was dismissed by Mrs Justice Campbell-Moffat.  The appeal against Mrs Justice Campbell-Moffat’s decision will, I am told, be heard on 12 October 2018.

9.On 27 April 2018, the Special Magistrate refused the Applicant’s recusal application.

10.The criminal trial resumed on 8 May 2018.  Cross examination by the Applicant’s counsel of the expert was not completed by the end of the hearing on that date.  The trial was originally further adjourned to 11 July 2018 (with 3 days reserved), but was subsequently re-fixed to 4 September 2018 (with 3 days reserved) due to problems with the court’s diary.

11.The trial resumed on 4 September 2018, but cross examination of the expert was not completed by the end of the hearing on 6 September 2018.  The trial was therefore further adjourned to 12 and 13 September 2018.  On 6 September 2018, prosecuting counsel informed the Special Magistrate that he would be absent from Hong Kong from 14 September 2018 to 6 December 2018 and would retire from practice on 31 December 2018, and indicated the possibility of another counsel being instructed in his place to continue the prosecution in the event that the trial could not finish prior to his retirement.  Prosecuting counsel also wrote a letter dated 7 September 2018 to the Clerk to the Principal Magistrate at Eastern Magistrates’ Court (with a request that it be placed before the Special Magistrate) stating that if the trial could not finish by 13 September 2018, both he and the Applicant’s counsel would prefer the trial to be adjourned to a date in December 2018.

12.The trial resumed on 12 September 2018, but cross examination of the expert was still not completed by the end of the hearing on 13 September 2018.  The Special Magistrate informed the parties that she did not wish the case to be adjourned to December 2018, and asked prosecuting counsel whether any counsel could be found to take over the prosecution.  She also informed counsel that she would not accommodate counsel or witness’s diary unless counsel or witness had another court hearing or would not be in Hong Kong.  At the court’s request, prosecuting counsel gave the Special Magistrate the available dates of replacement counsel (namely, 27 to 28 September, and 2 to 5 October 2018), and the Applicant’s counsel informed the Special Magistrate that he would not be available from 26 September to 12 October 2018.  The Applicant’s counsel also suggested to the Special Magistrate that the trial be adjourned to December 2018.  The Special Magistrate indicated that she intended to adjourn the trial to 27 and 28 September 2018 and 2, 3, 5 and 8 October 2018 (6 days), but would further discuss the matter with counsel on 14 September 2018.

13.On 14 September 2018, cross examination of the expert continued up to about 12:00 noon, but did not finish.  The Special Magistrate then discussed with counsel on the dates for the adjourned trial.  The Applicant’s counsel raised the possibility of adjourning the case to 9, 10 and 11 October 2018[1]. Eventually, the Special Magistrate adjourned the trial to 27 and 28 September 2018 and 2, 3, 5 and 8 October 2018 (ie, the Decision), despite her earlier indication that she would not accommodate counsel’s diary unless counsel had another court hearing or would be out of Hong Kong, and with knowledge that the Applicant’s counsel would not be in Hong Kong on those dates.

14.On 18 September 2018, the Applicant made the present application for leave to apply for judicial review of the Decision.  By a letter to the Court dated 18 September 2018 (which was received by the court at 5:28 pm), the Applicant’s solicitors (How & Co) asked the court to treat the application as one of urgency.  The court heard the application on 24 September 2018 at 10:30 am.

15.In his Skeleton Submission dated 20 September 2018, at paragraph 28, Mr Leung states that the grounds of the intended judicial review are as follows:

(1) the Decision amounts to an improper exercise of power on the part of the Special Magistrate;

(2) the Decision is an exercise of power for an improper purpose and in bad faith;

(3) the Decision is manifestly unjust;

(4) the Decision involves such oppressive interference with the rights of the Applicant’s counsel (hence the Applicant’s rights) “as could find no justification in the minds of reasonable men”;

(5) the Special Magistrate failed to take into account a relevant consideration, namely, the hardship of the Applicant’s counsel in attending the adjourned trial on the dates fixed; and

(6) the Decision is so unreasonable that no reasonable magistrate would have come to.

DISCUSSION

16.In my view, leave to apply for judicial review should be refused in the present case, for the following reasons.

17.First, it is well established that, generally speaking, the court’s supervisory jurisdiction in judicial review should not be used to review “intermediate” or “procedural” decisions, or decisions which are not of a “decisive nature”, or decisions which do not constitute “substantive final decisions”.  See Financial Secretary v Wong (2003) 6 HKCFAR 476, at paragraph 13 per Bokhary PJ and paragraphs 93 to 95 per Litton PJ; Rank Profit Industries Ltd v Director of Lands [2007] 2 HKC 171, at paragraphs 86, 94 and 95 per Hartmann J (as he then was); Television Broadcasts Ltd v Communications Authority [2013] 5 HKC 593, at paragraphs 20-27 per Au J; and R (on the application of the London Borough of Hillingdon & Ors) v Secretary of State for Transport [2010] EWHC 626 (Admin), at paragraph 69 per Carnwath LJ (as he then was).  I do not consider that there are any, or any sufficient, exceptional circumstances in the present case to justify a departure from this general principle.

18.Second, in the criminal law context, the court would generally not allow collateral challenges which delay or fragment the criminal process and timely disposal of criminal proceedings.

(1)  In D v Secretary for Justice [2013] 3 HKLRD 373, Lam JA (as he then was, giving the Reasons for Judgment of the Court of Appeal) stated as follows –

“[13] Under common law, absent dishonesty or mala fides or some other wholly exceptional circumstances, as a matter of discretion, the court will not entertain judicial review proceedings which would interfere with the criminal process including the decisions of the Director of Public Prosecutions to prosecute or the decision of a judge to refuse to stay the criminal proceedings: see R v DPP, ex p Kebilene [2000] 2 AC 326 ; Yeung Chun Pong v Secretary for Justice [2008] 3 HKLRD 1 ; Chik Wen Fei v Secretary for Justice CACV 141 of 2008 , 29 July 2008; Re Ko Kit [2008] 4 HKC 323 ; Chiang Lily v Secretary for Justice [2009] 6 HKC 234 at [51].

[14] Though the House of Lords disagreed with the Divisional Court as to how the discretion should be exercised on the facts of Kebilene, there was no disagreement between Lord Bingham of Cornhill CJ (as he then was, sitting in the Divisional Court) and the House of Lords on the above common law principle. At p.337D-E, His Lordship said:

‘Where the grant of leave to move for judicial review would delay or obstruct the conduct of criminal proceedings which ought, in the public interest, to be resolved with all appropriate expedition, the court will always scrutinize the application with the greatest care, both to satisfy itself that there are sound reasons for making the application and to satisfy itself that there are no discretionary grounds (such as delay or the availability of alternative remedies or vexatious conduct by the applicant) which should lead it to refuse leave. The court will be very slow to intervene where the applicant's complaint is one that can be met by appropriate orders of directions in the criminal proceedings.’

[15] The rationale of that principle is obvious. Lord Cooke was content to express his agreement with Mr Pannick's submission in that regard in Kebilene at p.372D-E:

‘… the contention put in the forefront was based on the undesirability of satellite litigation attending cases to be tried on indictment. It was said that the present criminal proceedings should not be interfered with by way of judicial review: that the trial, and if necessary, appeal processes should provide adequate remedies for the applicants if their human rights are violated. A risk or imminent violation could no doubt be dealt with similarly at the trial or on appeal.’

[17] In Hong Kong, what Stock JA (as he then was) had said at [67] of the judgment in Yeung Chun Pong v Secretary for Justice [2008] 3 HKLRD 1 is, with respect, a sound reminder as to why the discretion should be exercised with great care:

‘There is a clear public interest in ensuring that charges, once before a court, must be tried. There is built into the system a host of safeguards to secure for an accused a fair, and an appropriately speedy, determination. If those safeguards are not afforded in a particular instance, there is provided by the Legislature a prescribed appeal mechanism. That mechanism does not envisage interlocutory appeals or collateral challenges. That is for very good reason, namely, that in practice most trials would constantly be interrupted to the disadvantage of effective decision-making and the disruption of the system as a whole. Sometimes disruption to and delay of a particular trial caused by a judicial review application - or even by repeated applications in the one case - may derail a prosecution properly brought by the effect of that delay upon witnesses or their availability. This disruption may find aggravated form as in the present case, where there is an ex parte application made for leave; leave is granted without hearing the prosecutor respondent; an application is then made to set aside leave; that is refused; there is an appeal from that refusal, an appeal that may find its way to the Court of Final Appeal and, if the leave is not disturbed, there is a judicial review and renewed appeals from whatever decision emerges therefrom; and whilst all this is going on, hearing dates for trial are repeatedly vacated. The outcome is that unwarranted applications to stay proceedings combined with collateral challenges themselves run the risk of abusing the court's process.’”

(2)  In Chiang Lily v Secretary for Justice [2009] 6 HKC 234, Ma CJHC (as he then was, with whom the other members of the Court of Appeal agreed) stated at paragraph 51 as follows –

“In the context of criminal charges and criminal trials, much has been said in recent times by the courts deprecating the trend of what are known as collateral challenges which delay or fragment the progress and timely disposal of criminal proceedings: see the comments of Sir Anthony Mason NPJ in Yeung Chun Pong v Secretary for Justice (2006) 9 HKCFAR 836, at 849C-D (paragraph 44). It goes without saying that the public interest is clearly in the efficient and expeditious disposal of criminal charges, and that unnecessary delays ought not to be permitted.”

19.Third, in relation to the merits of the Applicant’s intended grounds of judicial review mentioned in paragraph 15 above:-

(1)  Mr Leung has not been able to pin-point or identify the alleged “improper purpose” or “bad faith” on the part of the Special Magistrate, or provide any reasonable basis for this very serious allegation.

(2)  The rest of the grounds are, in substance, a challenge to the Decision on the Wednesbury unreasonableness ground.  It needs to be emphasised that a magistrate has a very wide discretion in relation to the fixing of dates for the continuation of an on-going trial.  The exercise of such discretion is in the nature of a case management decision which the High Court in the exercise of its supervisory jurisdiction in judicial review would be most reluctant to interfere with.  In my view, the Special Magistrate was entitled to decide, having regard to the triviality of the charge, the fact that the criminal trial has already occupied many court days with numerous adjournments and breaks since January 2018, and the undesirability of any further delay to the conclusion of the criminal proceedings, that the trial should continue on 27 September 2018 notwithstanding Mr Leung’s unavailability. In this connection, it is significant that Mr Leung only informed the Special Magistrate that he would be out of Hong Kong on the dates fixed for the adjourned trial, but did not inform her of the reason why he had to be absent from Hong Kong.  In view of Mr Leung’s request that he does not wish the reason to be made known publicly, I do not propose to set it out in this decision.  The reason for Mr Leung’s absence from Hong Kong is strictly not relevant for the present purpose, because the court is concerned with the information which was available to the Special Magistrate at the time when she made the Decision, not what was subsequently made known to this court.  I also bear in mind that the Special Magistrate had indicated that she would not accommodate counsel’s diary unless counsel had another court hearing or would be out of Hong Kong.  It has not, however, been argued by Mr Leung that such indication was binding on the Special Magistrate.  In my view, the indication should be regarded as only an expression of a provisional view by the Special Magistrate, and could not sensibly be regarded as overriding in all circumstances.

(3)  In short, I am not satisfied that the intended application is reasonable arguable with realistic prospects of success (see Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676).

20.Fourth, there is the issue of proportionality. On any view of the matter, the charge against the Applicant is a trivial one. Should she ultimately be convicted of that charge, the maximum penalty (according to Mr Leung) is only a fine of HK$500 (although a figure of HK$2,000 was, I understand, mentioned by the Special Magistrate), and her complaint against the Decision made by the Special Magistrate can form a ground of appeal against the conviction.  In such circumstances, I do not consider that the court should sanction another set of satellite litigation with obviously undesirable consequences.

DISPOSITION

21.For the foregoing reasons, the application for judicial review is dismissed, with no order as to costs.

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

The Putative Respondent was absent