Thapa Kamala v. Secretary for Justice

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

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BETWEEN

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Before: Hon Chow J in Court

Date of Hearing: 16 August 2019

Date of Judgment: 16 August 2019

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J U D G M E N T

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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.

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

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