LAW HAU YU v. MASTER J. WONG

HCAL 46/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW PROCEEDINGS

NO 46 OF 2016

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D E C I S I O N

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Introduction

1. This is an application for leave to apply for judicial review.  It is related to the estate of a Mr Chau (respectively “the estate” and “the dec’d”), and was commenced in February 2016 against the direction given by the probate master (in a letter dated 7 August 2015 (and reiterated in letters sent in October and November 2015 and in January 2016)) (among other things) that the estate be joined as the defendant of HCMP 1647/2015 (“HCMP 1647”) (“the said direction”).

2. The background leading to this application is summarized below.

3. According to the applicant’s affirmations filed in HCMP 1647:

(a) she co-habited with the dec’d before his death (since 2000);

(b) she had known the dec’d since May 1996 and the dec’d had no family, relatives, blood issue or adopted child;

(c) the dec’d has not made any will;

(d) shortly before his death, in February 2012, the dec’d handed to her his bank account passbook and verbally told her it was hers;

(e) she claimed entitlement to the credit balance in the said bank account either by way of donatio mortis causa, alternatively, as a creditor of the estate.

The death certificate exhibited to one of the applicant’s said affirmations shows that the dec’d passed away in Hong Kong on 17 February 2012.

This Application for Leave

4. It is trite law judicial review is a remedy of last resort; in other words,

“If an appeal on the merits exists, that avenue should normally be tried before applying for judicial review. Even where grounds for judicial review exist the courts will normally require an applicant to pursue the alternative remedy before applying for judicial review” (Hong Kong Civil Procedure 2016, Vol 1, para 53/14/13).

5. In the context of non-contentious probate matters, r 62(1), Non-contentious Probate Rules (Cap 10A) provides:

“Any person aggrieved by a decision of the Registrar may appeal by summons to a judge”.

6. In view of the above, this application was directed to be heard inter partes (the party which in the normal course of event would appear (for the putative respondent) would be the Department of Justice (“DOJ”)).  The precise capacity in which DOJ appeared at the hearing would depend on what it considered would most efficiently deal with the matter.

7. The inter partes hearing was scheduled to be heard on 15 July.  In a letter dated 12 July 2016, DOJ indicated that it would appear for the probate master, and would take a neutral stance and not make any submissions as to the merits of this application.

8. The parties’ attention was then specifically drawn to r 62(1) in the afternoon of 14 July.

9. At the beginning of the inter partes hearing, the applicant indicated (sensibly) that she would proceed with the matter in accordance with r 62(1), but she asked for this application to be adjourned sine die with liberty to restore.  On the other hand, DOJ, after some hesitation, sought the dismissal of this application (more details of the circumstances of the hearing will be given below).

10. I consider this application to be inappropriate.  As has been made clear in the Form 86 (and the supporting affirmation), the reason put forth by the applicant in support was in gist that the said direction was wrong because the estate, not being an incorporated entity, could not be joined as a defendant.  There is no complaint concerning unfairness, bias, procedural injustice and the like against the probate master.

11. In these circumstances, this application should have proceeded by way of a r 62(1) appeal, rather than judicial review. Further, such an appeal should fully and completely dispose of the applicant’s above complaint.  The need for this application therefore does not arise whether the applicant should succeed or fail in such an appeal.

12. Accordingly, this application is dismissed rather than adjourned.

Role of DOJ

13. During the inter partes hearing, rather than relying on the relatively clear and settled legal principles set out above, DOJ still insisted on taking a neutral stance.  Further, instead of rendering assistance to the court to more efficiently deal with this application, various proposals were put forth (all of which would result in the adjournment of this application); they included:

(1)  DOJ making an intervener application (whatever that may mean);

(2)  appointing an amicus curiae;

(3)  serving the relevant court documents on some possible concerned party/parties (there was no indication as to who that might be).

None of the above proposals would help promote the underlying objectives set out in RHC Ord 1A r 1 (see also Ord 1A r 3).

14. When queried why DOJ should be so “self-inhibitive” in its approach, reference was made by DOJ to the decision in Nattrass v Attorney General [1996] 1 HKC 480.  DOJ focused attention on the court’s remarks quoted below:

“The notion of a judge being able to be heard by counsel to justify a ruling which he has given in an inferior court is a bizarre one. … a judge has no legitimate interest in the outcome of the challenge to his ruling. … It is wholly inappropriate for an attempt to be made to meet [the understandable concern that the successful litigant may not be able to advance the arguments in support of the challenged decision] by the unseemly spectacle of the judge who made the ruling seeking to justify the stance he took” (p 489).

15. Several features in the Nattrass decision should be noted:

(a) the judicial review application was brought about by a pending criminal prosecution (where the opposing parties were the prosecutor and the defendant);

(b) the (then) Attorney General was in fact represented at the judicial review hearing in support of the challenged ruling;

(c) the challenged ruling concerned the judge recusing himself from presiding over a pending criminal trial (and the reasons for the ruling had appeared in writing).

16. In those circumstances, one can readily appreciate why the court’s above remarks were made.  In fact, that the features mentioned in para 15 above were important can be discerned from the following passages in the Nattrass decision:

“Where he has given reasons for his ruling, he should allow his own words to speak for themselves” (p 489).

“[counsel for the judge] has reminded me that when proceedings before a coroner are the subject of an application for judicial review, the coroner is a party and is invariably represented. But the difference is that the proceedings over which the coroner presides are inquisitorial, there are no parties to those proceedings, and if the coroner is not a party to the judicial review …, the person aggrieved by the decision challenged would have no one on whom the proceedings are to be served” (emphasis supplied) (pp 489-490).

“Mr Nicholas Bradley for the Attorney General takes the preliminary point that Judge Caird’s ruling to discharge himself is not amenable to judicial review” (p 490).

And if there is no one to be served with the court documents, naturally no one will appear to oppose the related judicial review.

17. A more thorough review of the authorities shows that there is no inflexible practice for an inferior tribunal not to appear at a judicial review application (a vast body of authorities can be found concerning justices, tribunals and coroners); in fact, whether it may appropriately do so depends on circumstances, in particular those set out below.

18. The following conclusions can be drawn from the authorities:

(1)  an “interested party” should be served and usually has a right to appear and be heard by the court: RHC Ord 53 r 5(3) (in the context of an appeal, Ord 55 r 4(1)(b) (the exception is provided for in Ord 55 r 8));

(2)  where an inferior tribunal has been so served, it has two choices: to remain neutral and not to appear in court, or to appear and advance its case;

(3)  where the inferior tribunal decides to be “neutral”, it is rare that costs would be awarded against it, whatever may be the outcome of the court hearing.  The exceptions to this include: (a) where there was a “flagrant instance” of improper behaviour on its part; (b) where it unreasonably declined to sign a draft consent order which might obviate the costs of an unnecessary hearing.  On the other hand, the quality of the challenged decision is not usually of itself a reason for awarding costs;

(4)  where the inferior tribunal decides to appear and take part in the court hearing, it becomes a party to a lis, and as such may recover costs if it wins and may be ordered to pay costs if it loses (there were also authorities which strongly “encouraged” justices not to appear by indicating that the justices may not have their costs even if successful and be liable to pay costs if unsuccessful).

(Authorities for the above can be found in, for example, R(Davies) v Birmingham Deputy Coroner [2004] 1 WLR 2739; R v Llanidloes Licensing Justices, ex parte Davies [1957] 1 WLR 809; R v Feltham Justices, exp Haid [1998] COD 440; R v West Yorkshire Coroner, ex parte Kenyon, Times, 11 April 1984)

19. However, authorities also show that costs may not be awarded against an inferior tribunal even if it should decide to appear in court proceedings.  Recognized instances of such exception include:

(a)   where issues of general principles as to jurisdiction and procedure are raised, and the tribunal has relevant material to put before the court: S (A Minor) v Special Educational Needs Tribunal and another [1995] 1 WLR 1627;

(b)  where the inferior tribunal exercises a highly specialist jurisdiction: the Birmingham Deputy Coroner decision, para 22, p 2747;

(c)   where the inferior court’s bona fides were questioned (or misconduct is alleged): R v Newcastle-under-Lyme Justices, ex parte Massey and others [1994] 1 WLR1684;

(d)  where it is desirable that the tribunal should make its position clear (which may be by way of letter): R v Gloucester Crown Court, ex parte Chester [1998] COD 365; R v Southwark Crown Court, ex parte Collman (1998) Archbold News, August; R (Mersey Care NHS Trust) v Mental Health Review Tribunal [2003] EWHC 1182 (Admin) (see also Southey, Weston & Bunting: Judicial Review (2012), pp156-157);

(e)   where the reasons for the inferior tribunal’s decision are not immediately apparent from the record, it may appear to assist the court as to the circumstances which brought about the decision: R v Oldham Justices and Another, ex parte Cawley [1996] 1 All ER 464.

Further to the above, there may be instances where it is appropriate for the inferior tribunal and the party which is supportive of its decision to work out which of them is to appear before court: R v Industrial Disputes Tribunal, ex parte American Express Co Inc. [1954] 1 WLR 1118.

20. It is perhaps in view of the authorities referred to in para 19 above, the learned authors of Supperstone, Goudie & Walker: Judicial Review (2014) observed:

“Yet this does not mean that the inferior court should play no part in the litigation at all. It is expected that once a claim has been made, the inferior court will make clear what its position on the claim is, usually in writing. In some instances a fuller written explanation of what happened may also be of assistance to the court at the judicial review hearing” (para 20.4.2 (p 769)).

21. Returning to this application, the relevant circumstances are:

(1)  although commenced by way of judicial review, it is in truth in the nature of an appeal (as provided for by r 62(1));

(2)  on the materials adduced (especially by the applicant) there is at present no other party to serve, or would appear to oppose this application;

(3)  the said direction does not determine the final outcome of the applicant’s application for grant of representation, and was procedural in nature.  It is unknown if the said direction reflects the general practice of the probate registry;

(4)  perhaps because of the nature of the said direction, no reason has been given by the probate master for it.

Thus, this may well be a case where the probate master’s assistance (through DOJ) is needed (irrespective of whether such assistance falls within para 19(a), (b) and/or (d) above).

22. Moreover, s 4(9), Intestates’ Estates Ordinance (Cap 73) provides:

“In default of any person taking an absolute interest under the foregoing provisions, the residuary estate of the intestate shall … belong to the Government as bona vacantia … ”.

23. Hence, apart from providing assistance, and without in any way pre-judging the matter, the circumstances suggest the government may have a legitimate interest in the estate in its own right.  As such, the government may well be an “interested party”.

24. In light of the above, there are at least 3 potential reasons why DOJ should have adopted some stance other than being “neutral”:

(a)   to provide assistance to the court as to the circumstances leading to the probate master’s said direction (including any relevant general practice of the probate registry);

(b)  to appear for the probate master and put forth the reasons (if any) for his direction;

(c)   to appear for the government and put forth its case (if any).

25. The Birmingham Deputy Coroner decision also mentioned the rarer cases of judges of the county court appearing in judicial review applications (at para 5, p 2742), but did not expressly state whether the above principles are applicable.  There does not appear to be any good reason (whether as a matter of logic or policy) why they should not.