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

CACV 104/2018

[2018] HKCA 599

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 104 OF 2018

(ON APPEAL FROM HCAL 419/2018)

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

1.  This is an appeal by the Applicant against the decision by Chow J refusing leave to apply for judicial review dated 12 April 2018.

2.  The Applicant consented to have the appeal to be determined on the papers without any oral hearing on 29 June 2018.  The Applicant was directed to file written submissions by 20 July 2018.  Upon application by the Applicant, an extension of 7 days was granted.  The Applicant eventually filed the same on 27 July 2018.

3.  We have considered the Applicant’s written submissions.  In essence, the Applicant complained that she was not permitted to produce evidence as “informer” or “witness” in the magistracy criminal proceedings of KCCC 2035/2017, to which she was not a party.

4.  The Applicant had previously applied for leave to apply for judicial review on the same subject matter in HCAL 1140/2017. Au J refused leave on 3 January 2018. The appeal against Au J’s decision (CACV 36/2018) was struck out by another division of this Court (Lam VP, Yuen and Poon JJA) on 28 February due to her non-compliance with an unless order dated 20 February 2018. Her application for leave to appeal against that order to the Court of Final Appeal was also dismissed on 9 May 2018 by this Court.

5.  It is an abuse of process for the applicant to bring a second application for judicial review after her failure to obtain leave from Au J. On this ground alone, her present appeal must fail.

6.  Further, we agree with Chow J’s observations at [5] of the Decision of 12 April 2018:

“ 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.”

7.  The Applicant’s prayer for an order of “mandamus” to compel the Prosecution or Defence, or the Magistrate to call the Applicant as witness or assess her evidence is wholly inappropriate and wrong in principle. She had no standing to interfere with the criminal trial.

8.  Viewed thus, the applicant’s arguments based on “legitimate expectation” and “procedural impropriety” are wholly misconceived.

9.  For these reasons, we dismiss the appeal.