THAPA KAMALA v. DEPARTMENT OF JUSTICE

HCAL 1961/2019

[2019] HKCFI 1814

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1961 OF 2019

____________

_____________

______________

D E C I S I O N

______________

1.  In the course of the criminal proceedings ESS 39884/2016 arising out of a summons under section 48 of the Road Traffic Ordinance (Cap 374), the defence indicated that, for reasons extraneous to the substance of the evidence, she would not seek to adduce further evidence from DW6, a voluntary defence witness, who was giving evidence‑in‑chief but was not available on the adjourned hearing on 3 July 2019 or indeed during the rest of that week. After days of argument on this matter, on 10 July 2019, the presiding deputy special magistrate made the decision in question, namely:

“ It is the Court Order that the Defence is to fulfil its duty by calling the defence witness, Mr Yu Sai Cheong (transliteration), who is DW6 in this case, to return to the witness box of this court to continue with his not‑yet‑finished evidence.”

I am only dealing this morning with whether or not leave should be granted to the applicant to apply for judicial review, and any appropriate consequential directions if leave is granted. 

2.  The applicant herein is the defendant in the criminal proceedings.

3.  The Secretary for Justice has appeared by Mr Ned Lai, SADPP, this morning in the capacity of the prosecution in the criminal proceedings.  As stated in Practice Direction SL3 at §4:

“ The proper respondent to an application for judicial review, when the Court’s supervisory jurisdiction over criminal proceedings in an inferior Court is invoked, is the other party to the proceedings in the inferior Court, and not the inferior Court itself.”

4.  The Secretary for Justice has expressly not appeared on behalf of the special magistrate.  This accords with the general approach that a tribunal whose decision is the subject matter of judicial review proceedings should normally adopt a neutral stance and not take an active part: Orrico Phillipe v Municipal Services Appeals Board [2015] 4 HKLRD 111.

5.  Three grounds are relied upon by the applicant. Having heard argument, and applying the threshold of “reasonably arguable” laid down by the Court of Final Appeal in Po Fun Chan v Winnie CW Cheung (2007) 10 HKCFAR 676, I consider that leave should be granted on Ground 1, namely, that the special magistrate does not have power or jurisdiction to make the order in question.  By that, the wider sense of jurisdiction is included, namely, where even though the court may literally have a certain power, it will not exercise it according to its settled practice except in a certain way and under certain circumstances: see Re Chime Corporation Ltd (2004) 7 HKCFAR 546, §40. 

6.  For present purposes, in his skeleton submissions Mr Lai accepted that no summons or warrant has been issued under section 21 of the Magistrates Ordinance (Cap 227).  He also frankly stated that the prosecution has been unable to identify any statutory provision which confers on the special magistrate power to impose the order she made which was directed to “the Defence”.  As such, he very fairly submitted in the skeleton submissions that Ground 1 “might meet the necessary threshold for granting leave”, subject to the argument that save in exceptional circumstances the court does not generally interfere by way of judicial review with ongoing criminal proceedings.  It seems to me, however, that it is reasonably arguable there are exceptional circumstances in the present case having regard to its history and the potential consequences of the order in question.

7.  Mr Lai also submitted orally this morning that the order was spelt out as it was, because of the request of the defendant’s solicitor to have the exact terms of order for the purpose of taking instructions from the defendant, and that the “order” was simply an exhortation by the special magistrate to the defence rather than an exercise of any compulsive power by way of court order.  But it seems to me reasonably arguable that it was a compulsory order, made after “repeated urging” as stated in the order itself, coupled with the special magistrate’s refusal to allow the defence to withdraw DW6 (as recited in the order drawn up) and to allow the defence to close her case for the trial to proceed to closing submissions.

8.  I also grant leave under the related Ground 3, namely, that the decision was Wednesbury unreasonable.  This raises an objective question based on the objective facts and the reasons given as the basis of the order in question. 

9.  I do not grant leave under Ground 2, which in essence alleges bad faith and ulterior purpose on the part of the special magistrate.  It seems to me such an inquiry would potentially open up an unwarranted investigation in this judicial review of the entire course of the criminal trial to date, as the sprawling affirmation of the applicant would foreshadow.  If the applicant eventually fails on both Grounds 1 and 3, it is difficult to see on what basis then one can infer any such subjective wrongdoing, which is a most serious allegation.  If, on the other hand, the applicant ultimately succeeds on either or both of Grounds 1 and 3, then Ground 2 would be quite unnecessary.  In these circumstances I refuse to permit Ground 2 which would simply cause unnecessary delay and expense.

10.  As to the procedural directions, Mr Leung and Mr Lai are agreed that if leave is granted, there should be a stay of the criminal proceedings pending the court’s decision in the judicial review.

11.  Mr Lai invites the court to obtain the transcript of the hearings of the criminal proceedings between 28 June and 10 July 2019 and Mr Leung wishes to have the transcript for the hearings between 21 June and 11 July.  Given that leave is being granted only on Grounds 1 and 3, which involve legal arguments based on the main objective facts rather than what might precisely have been said at any sitting, I do not think the hearing of the application for judicial review should be delayed by the preparation of lengthy transcripts which would take time.  Even though neither party has suggested there is urgency, as a matter of principle the criminal proceedings should not be held in abeyance any longer than is strictly necessary.  If very limited transcripts are really necessary they can be called for in parallel.

12.  Accordingly, I would direct that:

(1)     Leave to apply for judicial review be granted in respect of Grounds 1 and 3 of the Form 86.

(2)     Further service of the Form 86 and affidavit of Thapa Kamala on the respondent be dispensed with.

(3)     The respondent do file and serve any affidavit evidence within 14 days hereof.

(4)     The application for judicial review be fixed for an expedited hearing with an estimate of 2 hours, on a date to be notified to the parties.

(5)     Upon being notified of the hearing date, the applicant do forthwith cause to be issued and served an originating summons returnable on the hearing date as notified.

(6)     There be an interim stay of further proceedings in ESS 39884/2016 pending the determination of the application for judicial review.

(7)     Costs reserved.