Thapa Kamala v. Secretary for Justice

HCAL 1961/2019

[2019] HKCFI 2776

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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Before: Hon Chow J in Chambers (Open to Public)

Date of Hearing: 8 November 2019

Date of Decision: 8 November 2019

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D E C I S I O N

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INTRODUCTION

1.The background facts of the present case have been set out in this court’s earlier judgment dated 16 August 2019 (“the Judgment”), and shall not be repeated here.  In this decision, the court adopts the expressions and abbreviations as defined in the Judgment.

2.Consequent upon the court’s order dated 16 August 2019 (“the Order”) directing the Magistrate to proceed to hear the parties’ closing submissions and reach a decision in ESS 39884/2016 (“the Summons”) without further delay, the Magistrate heard closing submissions from the parties on 29 August 2019, and delivered her verdict on 14 October 2019 finding the Applicant not guilty of the offence of negligently endangering her own safety contrary to Section 48 of the Road Traffic Ordinance (Cap 374).  Thereupon the Applicant’s solicitor (Mr How) applied to the Magistrate for the costs of the proceedings to be paid by the prosecution.  Prosecuting counsel opposed the Applicant’s application.  In addition, prosecuting counsel informed the Magistrate that the prosecution intended to apply for a wasted costs order against the Applicant’s legal representatives (namely, her former counsel and her current solicitor) under, inter alia, Section 18 of the Costs in Criminal Cases Ordinance (Cap 492). Prosecuting counsel sought an adjournment sine die of the proceedings so that notice of the application for wasted costs could be given to the Applicant’s legal representatives, and suggested that the two applications could be dealt with in one go.  On the other hand, the Applicant’s solicitor submitted that the Magistrate should hear his client’s application at once without delay.  The Magistrate eventually adjourned the Applicant’s application and the prosecution’s intended application to 20 December 2019 for them to be dealt with together.  The deadline for the prosecution to formally make the application for wasted costs against the Applicant’s legal representatives, I am told, will fall on 11 November 2019.

3.The Applicant now applies to this court for an order that the Magistrate do comply with the Order “by hearing the [Applicant’s] application for costs and make a decision within 7 days” from the date of service of the order to be made herein on the Magistrate.  The Respondent opposes this application, on the grounds that (i) the Magistrate has already complied with the Order and reached a decision on the Summons on 14 October 2019 by returning a verdict of not guilty, and (ii) this court should not interfere with the Magistrate’s case management decision relating to the issue of costs in the proceedings before her.

4.It will be recalled that in the Form 86, the decision under challenge is the order of the Magistrate on 10 July 2019 that “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”.  At the hearing on 16 August 2019, the parties’ submissions were focused on that decision, and there were no mention or discussion of any consequential application(s) that might arise after the Magistrate had heard the parties’ closing submissions and reached a decision on the Summons.  The court’s Order must be read and understood in the context of the decision under challenge in the Form 86.

5.In any event, even if the Order directing the Magistrate to reach a decision in the Summons without further delay is to be taken as including all consequential applications arising from her decision on the Summons (such as applications for costs), the requirement of “without further delay” cannot be read literally to mean that the Magistrate should not be entitled to exercise her usual case management powers in relation to the disposal of such consequential applications.  It is trite that the court, in the exercise of its supervisory jurisdiction in judicial review, would not, save in the most exceptional circumstances, interfere with a case management decision of a magistrate.

6.On 14 October 2019, there were before the Magistrate (i) the Applicant’s application for costs against the prosecution, and (ii) the prosecution’s intended application for wasted costs against the Applicant’s legal representatives which I consider are inter-linked.  Under Section 18 of the Costs in Criminal Cases Ordinance –

“(1) In any criminal proceedings a court or a judge may order the legal or other representative concerned to meet the payment of any wasted costs or any part thereof.

(2)  No order under subsection (1) shall be made unless the legal or other representative concerned has been given a reasonable opportunity to appear before the court or the judge and show cause why the order should not be made.”

7.Although the prosecution’s application is directed against the Applicant’s legal representatives and not against the Applicant herself, it seems to me to be obvious that the conduct of the Applicant’s legal representatives in the proceedings before the Magistrate which it is said would give rise to an order for wasted costs against them would be relevant to the question of whether the Applicant should be entitled to the whole or any part of her costs against the prosecution.  There is a suggestion that the Magistrate said at the hearing on 14 October 2019 that the two applications were separate, or different, matters.  Strictly speaking, they are different matters, but it does not mean that they are not related or that the outcome of one would not be relevant to the other.  To the extent that the Magistrate might have thought otherwise, I disagree.  Overall, I consider it to be clear that the two applications ought to be heard together.  Having regard to the requirement under Section 18(2) of the Costs in Criminal Cases Ordinance that an order for wasted costs should not be made unless the legal representatives concerned have been given a reasonable opportunity to appear before the Magistrate and show cause why the order should not be made, I do not consider the Magistrate can be faulted for adjourning the two applications to be dealt with on another date so that notice of the application for a wasted costs order could be given to the Applicant’s legal representatives.

8.There is nothing in the materials before the court to indicate that the date chosen by the Magistrate, namely, 20 December 2019, exceeded what was reasonable in the circumstances.  The merits of the prosecution’s application for a wasted costs order against the Applicant’s legal representatives are matters to be determined by the Magistrate.  It would not be appropriate for this court to express any view on the merits of the application.  It would, in any event, not be fair for this court to do so without consideration of all relevant materials which the parties may wish to put forward and rely upon.

9.On 7 November 2019, the Applicant filed a further, 3^rd Affidavit, in support of the present application. In the 3^rd Affidavit, it is said that the Magistrate’s delay in dealing with her costs application would also cause delay to her personal injuries action against the taxi driver in HCPI 574/2018.  In particular, it is said that her application for leave to adduce expert evidence, currently fixed for hearing on 22 January 2020, may be adjourned sine die as a result of the Magistrate’s delay in dealing with her costs application.  Since the Respondent is not a party to the civil action and is not privy to what has happened in that action, it is obvious that the Respondent is in no position to check or verify the matters set out in the 3^rd Affidavit.  In any event, the progress of the Applicant’s personal injuries action is a matter for the civil court which this court should not interfere with.

10.In all, I consider the Applicant’s summons dated 28 October 2019 to be misconceived.  The summons is dismissed.  I shall hear the parties on the question of costs.

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

Ms Vivian Kao, Senior Government Counsel (Ag), of Department of Justice, for the Respondent