Re Thapa Kamala

CACV 118/2018

[2018] HKCA 729

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 118 OF 2018

(ON APPEAL FROM HCAL 125/2018)

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Before: Hon Yuen JA and Barma JA in Court

Date of Hearing: 12 October 2018

Date of Judgment: 12 October 2018

Date of the Reasons for Judgment: 22 October 2018

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REASONS FOR JUDGMENT

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Hon Barma JA (giving the Reasons for Judgment of the Court):

1.This was an appeal against a decision of Campbell-Moffat J given on 10 April 2018 refusing leave to the applicant to apply for judicial review. At the conclusion of the hearing, we allowed the appeal, and granted leave to the applicant to bring the intended judicial review. These are our reasons for doing so.

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.  This is a summary offence.  

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.  She was represented by counsel.  According to the applicant, on the second day of trial (11 January 2018) she was absent (although her counsel was present) when the afternoon session commenced and the magistrate stood the matter down as a result.  The applicant says that she returned about a minute later.  The trial then resumed but at the end of the day’s proceedings, the Magistrate imposed bail on the applicant, on condition, requiring payment of $100 cash to secure her attendance at the next time and date appointed by the court (“the Magistrate’s Decision”).  The applicant provided the bail required of her.

4.On 26 January 2018, the applicant filed a Form 86 in respect of the Magistrate’s Decision seeking to quash it, and an order for the return of her bail money.  The ground for judicial review relied on by the applicant is that:

“The Applicant has been represented by counsel throughout. By virtue of section 18 of the Magistrate Ordinance, an absent party so represented shall be deemed not to be absent. The proposed Respondent does not have jurisdiction to impose a bail condition and/or compel the Applicant to attend the hearing.”

5.In her second affirmation dated 3 February 2018, the applicant argued at §13 that “the Magistrate did not have jurisdiction to compel [her] to attend the Court and did not have the power to make the [Magistrate’s Decision]”.

6.On 10 April 2018, the judge refused to grant leave for judicial review.  The refusal was made after consideration on paper only and without an oral hearing.  Her reasons are contained at [4] – [6] of CALL-1 Form:

“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.

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.”

7.In saying at [4] of CALL-1 that the applicant has not supported her contention with any legal argument, it would appear that the judge has failed to consider s.18 of the Magistrate Ordinance, which had been expressly referred to in para 4 of the applicant’s grounds (set out in para 4 of these Reasons for Judgment).  On 23 April 2018, the applicant filed a Notice of Appeal.  The grounds of appeal are largely similar to the grounds for seeking leave, except that the applicant added:

“… by virtue of section 18 of the Magistrates’ Ordinance (Cap 277), an absent party represented by counsel shall be deemed not to be absent. The Respondent does not have jurisdiction to compel the personal attendance of the Appellant by requiring the Appellant to, as a bail condition, pay a sum of money, when the Appellant was not under detention at any time” (Emphasis supplied.)

8.The Notice of Appeal sought to set aside the order below and the making in its place of orders granting the substantive relief sought in the proposed judicial review proceedings.

Legal principles

9.Section 18 of the Magistrates Ordinance, Cap 227 provides that:

“Appearance by counsel

At the hearing of a complaint or information, a party may be represented by counsel; and an absent party so represented shall be deemed not to be absent:

Provided that appearance of a party by counsel shall not satisfy any provision in any enactment or any condition of a recognizance expressly requiring the appearance of the party.”

10.The application of this section was considered in Owen John Inglis v Loh Lai Kuen, Eda (unreported, CACV341/2004, 21 July 2005).  In that case, the court was asked to determine whether, in relation to a summary offence, an accused person can appear in the Magistrates’ Court only by counsel and not personally, and if there is such an entitlement, the limits to this.  After considering other provisions in the Magistrates Ordinance, Cap 227 and a number of cases (particularly Chain Chi Woo David v Lo Polly (Special Magistrate) [1996] 4 HKC 466), Ma CJHC (as he then was) held that:

(1) section 16(1) enables a defendant against whom a complaint has been made or an information laid to engage counsel to act on his behalf in proceedings in the Magistrates’ Court, and this includes dealing with his plea and conducting his defence (§15 of the judgment);

(2) section 18 reiterates the right of a defendant to be represented by counsel at the hearing of a complaint or information.  It also states that where a defendant is so represented but he is actually physically absent, he is deemed not to be absent at the hearing (§18 of the judgment);

(3) for the proviso in section 18, the words “expressly requiring the appearance of the party” meant a statutory requirement that the relevant party is actually present and not by counsel (§§20-21 of the judgment);

(4) a magistrate cannot use the power in section 20(1) to compel a defendant to appear in person at the adjourned hearing (§27(2)). Except where a defendant has been required by a bail term to surrender himself or has been remanded in custody, a defendant does not have to appear in person in answer to a complaint or information, but can do so by his counsel.  If a defendant does not turn up at the hearing of a complaint or information, whether original or as adjourned, there is simply no power to order his arrest if his counsel appeared. (§27(3) of the judgment);

(5) a magistrate has power to ensure the attendance of a defendant by remanding him in custody or on bail under s20(3). If a defendant who has been admitted to bail fails to surrender to custody, a warrant for his arrest may be issued by the magistrate under s20(4) (§27(4) of the judgment)

Discussion

11.The applicant’s case is that the magistrate had no power to impose a cash bail of $100 because of s18 Magistrates Ordinance, Cap 227 and the fact that the applicant was not under detention at any time prior to the imposition of bail requirement.  At §21 of the skeleton, counsel for the applicant further submitted that the effect of the cash bail was to have arrested the applicant. 

12.In our view, having regard to Inglis, these propositions are at least reasonably arguable.  In such circumstances, the decision of the judge refusing leave to bring judicial review proceedings must be set aside.  However, it seems to us that the appropriate order to make would be simply to grant leave to the applicant to bring judicial review proceedings before the Court of First Instance, and not to attempt to determine the matter substantively at this stage, particularly as the putative respondent now substituted by the Secretary for Justice took a neutral stance and did not appear on the appeal.

13.For the foregoing reasons, we allowed the appeal and made the order mentioned in paragraph 1 above.

14.So far as costs are concerned, we make an order that the applicant’s costs of this appeal and in the court below be in the cause of the judicial review proceedings to be instituted by her.

Mr Kelvin Leung, instructed by How & Co., for the applicant (appellant)

The putative respondent did not appear