LEUNG KIT HING, DORIS v. THE MAGISTRATE IN CHARGE OF ALL CASE MANAGEMENT MATTERS AT KOWLOON CITY MAGISTRATES’ COURTS AND OTHERS

HCAL 419/2018

[2018] HKCFI 719

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 419 OF 2018

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DECISION

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1.  In so far as one can gather from the papers lodged by the Applicant in this application for judicial review, the Applicant’s complaint arises out of her previous attempts to produce evidence as “informer” or “witness” in criminal proceedings before the Kowloon City Magistrates’ Courts in KCCC 2035/2017.  There are 5 defendants in those criminal proceedings, and the Applicant is not a party to those proceedings.

2.  The Applicant’s application to produce evidence in the criminal proceedings was dealt with by Mr Peter Law, Principal Magistrate, on 12 July 2017, who directed the Applicant to provide to the prosecution and defence counsel the evidence that she wished to produce for their consideration.  Her “renewed” application made on 14 February 2014 was rejected by Mr Joseph To, Magistrate, on 21 February 2018, on the ground that it had already been considered, ruled upon and reviewed in open court by the Principal Magistrate.  The Applicant sought to re-open the application on 27 February 2018, which was rejected by Mr Joseph To on 28 February 2018.  The Applicant then applied for a “review” of the latest decision of Mr Joseph To, which was rejected by him on 9 March 2018.

3.  On 14 March 2018, the Applicant made an application for leave to apply for judicial review.  However, the application was not in Form 86 in Appendix A to the Rules of the High Court, Cap 4A.  The application was also largely unintelligible, and failed to clearly state the decision(s) under challenge, or the relief sought and the grounds on which it is sought, as required by Order 53, rule 3(2)(a) of the Rules of the High Court.  The Applicant further failed to file an affidavit verifying the facts relied upon in support of her application, as required by Order 53, rule 3(2)(b) of the Rules of the High Court.  Accordingly, on 15 March 2018, the court directed the Applicant to file a fresh application in Form 86 (of no longer than 8 pages) which should clearly and succinctly set out (i) each of the decision(s) proposed to be challenged, stating (inter alia) the person who made the decision, the date of the decision and the terms of the decision in question, and (ii) the relief sought and the grounds on which it is sought, as well as an affidavit in support of the application in accordance with the requirements of the Rules of the High Court within 7 days.

4.  On 22 March 2018, the Applicant filed a fresh application and an affidavit in purported compliance with the court’s directions given on 15 March 2018.  Although the fresh application does not fully comply with the court’s said directions, in order not to waste further time and costs, the court shall deal with the Applicant’s application as it currently stands.

5.  The question of what evidence is relevant and admissible in criminal proceedings is generally a matter to be determined by the trial court and not a matter for judicial review, save in the most exceptional circumstances.  No such circumstances exist here.  If there should be any error made by the trial Magistrate in his/her decision to admit or refuse to admit evidence, such errors can be corrected in appeal proceedings from the Magistrate’s decision.  Further, it is generally a matter for the prosecution or the defence to decide what evidence to deploy at the trial.  As earlier mentioned, Mr Peter Law previously directed the Applicant to provide to the prosecution and defence counsel the evidence that she wished to produce for their consideration.  If the prosecution or defence should consider the Applicant’s evidence to be relevant and helpful to their respective cases, the prosecution or defence could apply to call the Applicant to give evidence at the trial.  Lastly, the Applicant’s current application is, in substance, an attempt to re-litigate her previous application for leave to apply for judicial review in HCAL 1140/2017, which was rejected by Au J on 3 January 2018.

6.  In all the circumstances, I consider it to be clear that (i) the Applicant’s current application is not reasonably arguable, and (ii) her repeated applications to litigate the same issue by way of judicial review amount to an abuse of the Court’s process.  Accordingly, the present application for leave to apply for judicial review is dismissed.