Law and Enforcement

HIGH COURT SLAMS MAGISTRATE “BIAS” IN PEDESTRIAN CRASH VICTIM’S 91-DAY “JAYWALKING” TRIAL

High Court judges reviewed the epic trial in “painstaking detail”

The High Court has thrown out a Deputy Magistrate’s “tainted” and “bias[ed]” decision on HK$620,000 court costs and called for Bar Association and Law Society investigations into two defence lawyers following a review of a 91-day trial against a female pedestrian badly injured in a taxi collision.

Thapa Kamala was crossing Tai Tam Road outside the American Country Club in April 2016 when she was hit by a taxi driver travelling north: she was hospitalised for almost two months, but in May 2017 she was summonsed for “negligently endangering her own safety as a pedestrian”, an offence under the Road Traffic Ordinance.

According to a costs decision handed down by the High Court yesterday, the “simple traffic matter” should have seen an acquittal of the pedestrian charges on the third day of the case – instead, a trial of “leviathan” proportions gathered dozens of side motions and judicial reviews, including an arrest warrant for a defence lawyer, “childish” bickering between the magistrate and defence lawyers, and an additional 8-day hearing on costs which stretched out over a year.

After being charged, Kamala pled not guilty, with a defence was that the taxi driver was driving too fast and had crossed a solid white line when he struck her.

In fact, evidence presented on the third day of the trial showed that while the driver was just under the speed limit at the time, he may have indeed crossed the white line.

The High Court found that the magistrate “unbeknown to the parties” had taken the view that there was sufficient evidence for acquittal as early as that third day.

“She probably should have stopped the case after canvassing with the parties,” wrote Chief Judge Jeremy Poon and Justices Derek Pang and Anthea Pang.

Yet, to the High Court’s “dismay”, the trial dragged on.

At one point in the trial, upon complaints from the defence about the lack of progress in the trial compared to the maximum fine for the offence – HK$2,000 – the Deputy Magistrate claimed court time had “nothing to do with maximum fine”.

But the High Court said Ho had shown a “fundamental misconception” of court resources.

“[T]he triviality of the offence is a highly relevant factor in allocating the time for the trial appropriately.  Partly because of such lack of proportionality, the Deputy Magistrate failed to properly manage the progress of the trial, which contributed to its undue prolongation,” judges wrote.

Ho acquitted the Kamala on 14 October 2019, the 91st day of the trial, finding neither the taxi driver nor Kamala credible witnesses but finding there was a “lurking doubt” in the prosecution case.

Ho had originally ordered the defence to pay some HK$620,000 in costs but in its decision yesterday the High Court threw out Ho’s costs order.

“A fair-minded and well-informed observer would conclude there was a real possibility that the Deputy Magistrate would be biased. Tainted by apparent bias, the Deputy Magistrate’s costs orders cannot stand,” judges wrote.

But noting that the pedestrian “had brought suspicion upon herself” by crossing the road at that time of night “when she could have used a nearby pedestrian facility,” the High Court said Kamala was not entitled to all the costs of the trial, ordering costs split between the defence and prosecution.

Judges also directed the court to refer the behaviour of the two defence lawyers, Kelvin Leung and How Chun-fai, to the Bar Association and the Law Society.

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