VIDANAGE NIROSHA SAMPATH v. LI KWOK WAI, MARCO

HCAL 84/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 84 OF 2013

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J U D G M E N T

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1.  This is an application for leave to apply for judicial review against the decisions of a Magistrate. The Applicant made the application in person, by filing on 9 May 2013 a Notice of application for leave to apply for judicial review[1]. The reliefs sought are a declaration (which I take is a declaration that the decisions are wrong) and quashing of the decisions.

2.  No hearing is requested in the notice of application.  Having considered the matter, in my judgment this application can appropriately be decided without a hearing.

Background and Allegations

3.  The Applicant is an accused in a criminal trial. She is charged with the offence of Assaulting a Police Officer, contrary to section 63 of the Police Force Ordinance[2]. She pleaded not guilty to the charge.  The trial started before a Magistrate[3] on 3 May 2013.  She was legally represented at the trial.

4.  In the Affirmation she made on 8 May 2013, she alleged that the Magistrate had made a number of decisions before the trial proper which are unfair and unreasonable and will result in an unfair trial.

5.  She provided information in support of her allegations in a Note attached to the Notice of application for leave to apply for judicial review. 

6.  One of the allegations is in relation to an application to stay the proceedings.  It is unclear whether the exact allegation is that the Magistrate refused to allow her Counsel to make a stay application or that he did not allow her Counsel to make any submissions in respect of the stay application.  In any case, if it was the latter situation, she submitted that such course of action was tantamount to a refusal of the stay application.

7.  It was said that, at a Mention Hearing held on 18 April, the Prosecution disclosed that a police officer had made contact with two eye witnesses and provided reasons why the two witnesses who had initially been included as prosecution witnesses in the Brief Facts were later removed from the list.  Full disclosure of the contact by the police officer was requested but it remained outstanding.

8.  Besides, the Prosecution failed to disclose the address of one of the two mentioned witnesses, making it impossible to issue a witness summons to him.

9.  Another allegation is that the Magistrate refused to allow the Defence sufficient time to crystallize and prepare its case.  She quoted Practice Direction 9.7 but did not specifically mention its relevance.  I note the Practice Direction stipulates, inter alia, that where a defendant proposes to make an application to stay criminal proceedings on the ground of abuse of process, written notice of such application must be given to the Prosecutions Division of the Department of Justice not later than 21 days before the date fixed for the trial, and that a skeleton argument and a list of authorities to be relied upon must be served upon the court and all other parties to the proceedings not later than 14 days before the date fixed for the trial.

10.  As a further allegation, the Applicant complained that the Magistrate had refused an adjournment of the trial for a Clinical Psychologist to complete a report on his assessment of her.  The report is material as a major issue in the criminal case is whether the Applicant had the requisite mens rea to commit the offence. 

Basis of the Application for Leave

11.  It appears that the complaints boil down to the following basis of the application for leave to apply for judicial review :

(1) The Magistrate had wrongly refused to stay the proceedings; and

(2) The Magistrate had wrongly refused an adjournment of the hearing.

Discussion

12.  The Court of First Instance has the powers to supervise and correct the proceedings of and orders made in the Magistrate’s Court.

13.  The criminal trial of the Applicant had started.  She did not make clear in the papers what exactly the present state of the trial is.  I, however, do not see the absolute practical need to have this point clarified.  In my judgment, irrespective of whether the trial has completed or is still in progress, the outcome of this leave application is the same. 

14.  It the trial has completed, bringing an appeal is a course open to the Applicant if she is aggrieved by the decision.  It is, indeed, the most appropriate course of actions to take.

15.  If the trial is still in progress, the judicial review proceedings, if permitted to proceed, will be an interruption of the criminal proceedings.

16.  Hartman J (as he then was) observed in Mo Yuk Ping v Secretary for Justice [4] that :

“9. When a criminal trial has commenced, it is accepted that only in exceptional cases will the trial be interrupted – perhaps for many months – to enable a matter of law to be resolved. Matters of law constantly arise in criminal trials. Trials after all are legal proceedings. But if ruling of law made by a trial judge are disputed they can be challenged on appeal. The criminal justice system is designed to this end.

10.    It is also a founding principle of the judicial review jurisdiction that applications for judicial review should in most cases be applications of last resort.  Other remedies should first be exhausted.”

17.  His Lordship’s views that the integrity of the criminal process must prevail and that the availability of an alternative remedy is relevant to the exercise of discretion whether to grant leave was confirmed by the Court of Appeal[5]. The Court of Appeal further held that only in exceptional circumstances should criminal proceedings be permitted to be interrupted by an application for judicial review.  It was also pointed out that it would be very rare that the court would permit its supervisory jurisdiction be involved to put a halt to criminal proceedings.

18.  With the information provided, the Applicant failed to persuade me that there is anything unusual in the nature of her complaint against the decisions of the Magistrate.

19.  I do not find there are exceptional circumstances which justify interference with an ongoing criminal trial, if it is still in progress.  In consideration, I bear in mind the existence of a right to appeal as an alternative procedure for remedy against the decisions, if the Applicant is found guilty.

20.  If the trial has completed, as I have said, the proper course to take is to bring an appeal.  When an application for leave to apply for judicial review is considered, whether other remedies have been exhausted is a material factor.  There is nothing to sufficiently justify a departure from the general principle.

21.  In my judgment, the material provided by the Applicant does not support an exceptional case in which the judicial review procedure should be engaged to interrupt the criminal trial, or the procedure should take priority over an appeal if it is the appropriate course to take.

Conclusion

22.  I therefore refuse to grant leave to apply for a judicial review against the decisions of the Magistrate.

Remark

23.  The Court had received a letter dated 9 May 2012 from the Department of Justice stating that if the court is minded to grant leave, the Secretary for Justice would wish to be heard.  In the letter, apart from stating that “the prosecution is of the view that the application is without merit” and “there may have been material non-disclosure”, nothing further of substance was said.  I do not see the need to engage the Secretary in this leave application.

24.  It was also pointed out that, according to the decision in Secretary for Justice v Law Kwok Kuen Sidney[6] and the Practice Direction – SL3[7], the proper respondent to this application should be the Secretary for Justice instead of the trial Magistrate.  

25.  My decision in this leave application is based on the substance and merit as disclosed in the material provided by the Applicant.  The decision will not be different even if the Secretary for Justice instead of the trial Magistrate is named as the Proposed Respondent.

The applicant, in person

(A copy of this judgment will be provided to :-

 - The Trial Magistrate, the proposed Respondent of this application.

- The Secretary for Justice.

- The Duty Lawyer Scheme and Mr Mark Sutherland, who represent the Applicant in the trial)