- Accident victim Kamala Thapa’s counsel argues magistrate has no power to force her witness return to box
- Judge finds there are exceptional circumstances to grant leave
A Nepali woman who has been on trial in Hong Kong for 89 days over allegations of pedestrian negligence was on Wednesday granted leave for judicial review to challenge a magistrate's order that prevented her from closing her case.
The High Court ruling meant Kamala Thapa would have to wait for months to see the end of her trial, pending the outcome of her latest lawsuit against deputy special magistrate Ho Lai-ming.
Her counsel Kelvin Leung said the wait was undesirable but she would have to bear with it if she wanted justice.
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Mr Justice Godfrey Lam Wan-ho said an expedited hearing would be arranged for the present judicial review, to be held in August at the earliest.
The case is Thapa's fourth lawsuit and third judicial review challenging her trial magistrate's handling of her traffic summons at Eastern Court, which began in January last year.
Her prosecution arose as she was hit by a taxi while crossing Tai Tam Road outside the American Club in Stanley on April 25, 2016. The trial court heard the road section had a speed limit of 50km/h and the average speed of the taxi was 44 to 54km/h. Thapa suffered serious injuries and had to spend two months in hospital.
Prosecutors alleged Thapa had negligently endangered her own safety in an offence punishable with a HK$500 (US$64) fine.
Thapa has since sued Ho for compelling her punctual attendance, fixing a hearing incompatible with her counsel's schedule, and damages in excess of HK$1.7 million for loss of liberty and injured feeling.
Her latest challenge centres on Ho's order on July 10 for "the defence … to fulfil its duty by calling the (witness) to return to the witness box of this court to continue with his not-yet-finished evidence".
The court heard Thapa wanted to withdraw her witness and close her defence case for the trial to move on to closing arguments, but Ho reportedly refused the withdrawal and made the order.
On Wednesday, Leung argued that a magistrate had no statutory power or authority to make the order because it could not be the duty of a defence solicitor to act against his client's instructions and bring a witness to court.
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"It's a serious matter," Leung said. "(Ho) knew there's no such duty."
Prosecutors have not been able to identify any statutory provisions which confers power to the magistrate to make the decision.
Ned Lai Ka-yee, senior assistant director of public prosecutions, said this ground of challenge "might meet the necessary threshold" for judicial review " meaning it was reasonably arguable " but expressed reservations about interfering with ongoing criminal proceedings.
The judge found there were exceptional circumstances for the higher court to exercise its supervisory function.
"I consider that leave should be granted," Lam said.
Thapa has won the judicial review over her attendance, after arguing that she was not required to attend the hearing in the first place when she was legally represented. Her second case, on hearing dates, was dismissed last September.
The District Court has yet to schedule a hearing for her personal injury claim.
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