LAW WAN TUNG v. THE DIRECTOR OF LEGAL AID

HCAL 180/2021

[2021] HKCFI 2238

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 180 OF 2021

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DECISION

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INTRODUCTION

1.  This is an application for leave to apply for judicial review of the decision (“the Decision”) of Master S H Lee dated 23 November 2020 dismissing the Applicant’s appeal against the refusal of her application for legal aid by the Director of Legal Aid (“the Director”) in relation to her intended appeal against a number of orders made by Mr Recorder Stewart Wong, SC (“the Recorder”) on 5 December 2019 in HCA 2596/2017 (“the Charging Order Action”).

BACKGROUND FACTS

(i)     The Applicant’s criminal convictions for maltreatment of her foreign domestic helper

2.  The Applicant and one Tsui Yun Bun Barry (“Barry Tsui”) were at all material times husband and wife.  They were also the registered joint tenants of a property known as Flat J, 38/F, Block 5, Beverly Garden, 1 Tong Ming Street, Tseung Kwan O (“the Property”).

3.  The Applicant was formerly the employer of Ms Erwiana Sulistyaningsih (“ES”), an Indonesian national.  ES came to Hong Kong in 2013 and worked as the Applicant’s foreign domestic helper between 30 May 2013 and 9 January 2014. During the period of her employment by the Applicant, ES was subjected to extensive physical abuses at the hands of the Applicant, the details of which it is not necessary to set out in this decision.  The Applicant was subsequently charged with a number of offences, including inflicting grievous bodily harm, assault occasioning actual bodily harm, causing grievous bodily harm with intent, common assault, criminal intimidation and offences under the employment legislation, committed against ES during her employment by the Applicant, and tried for those offences in the District Court between 8 December 2014 and 20 January 2015 before H H Judge Woodcock.  On 10 February 2015, the Applicant was convicted of those offences, and on 27 February 2015, she was sentenced to a total of six years’ imprisonment.

(ii)     ES’s civil action for damages against the Applicant

4.  On 16 March 2015, ES commenced a civil action for damages for assault and battery, false imprisonment, negligence, breach of duty of care, breach of contract and breach of the Employment Ordinance, Cap 57, against the Applicant in the District Court of Hong Kong (DCPI 569/2015).  On 28 April 2015, an interlocutory judgment with damages to be assessed was entered in favour of ES against the Applicant in view of the latter’s failure to file an acknowledgment of service.

5.  The assessment of damages took place on 4 December 2017 before H H Judge Winnie Tsui.  Judgment was handed down on 21 December 2017 with damages assessed at HK$809,430.03 plus interest and costs.

(iii)    The Applicant’s fraudulent conveyance of her half share of the Property to Barry Tsui

6.  On 6 February 2015, shortly before the verdict was delivered in the Applicant’s criminal case, the Applicant executed a Deed of Separation with Barry Tsui, under which she agreed to unconditionally transfer her share or interest of or in the Property to Barry Tsui.  The transfer was completed by an assignment dated 17 July 2015 at nil consideration (“the Transfer”).

7.  Upon finding out the Transfer, ES commenced an action in the High Court in HCA 2256/2015 (“the Fraudulent Disposition Action”) to set aside the Transfer under s 60 of the Conveyancing and Property Ordinance, Cap 219, on the ground that the Transfer was made with intent to defraud the Applicant’s creditors, including ES.  In their defence, the Applicant and Barry Tsui alleged that there was a common intention and agreement between them at the time of the purchase of the Property that the Applicant would not have any beneficial interest in the Property, and that the Transfer was made in the light of their separation and in contemplation of their intended divorce.

8.  The Fraudulent Disposition Action was tried by the Recorder between 15 and 23 November 2017.  On 28 December 2017, the Recorder handed down a written judgment (“the Fraudulent Disposition Judgment”) rejecting the Applicant and Barry Tsui’s case that the Applicant did not have any beneficial interest in the Property at the time of its purchase and finding that the Applicant was, until the Deed of Separation, a joint beneficial owner of the Property with Barry Tsui.  The Recorder also found that the Transfer was made by the Applicant with intent to defraud her creditors, including ES, such intent being shared by Barry Tsui, who was a willing and co-operative party to the Transfer.  Accordingly, the Recorder set aside the Transfer under s 60 of the Conveyancing and Property Ordinance.

(iv)    Charging Order Absolute on the Applicant’s half share of the Property obtained by Barry Tsui

9.  Shortly before the commencement of the trial of the Fraudulent Disposition Action, on 13 November 2017, Barry Tsui commenced an action in the High Court in HCA 2596/2017 (ie, the Charging Order Action) against the Applicant seeking repayment of an alleged debt of HK$3,055,712 (plus interest and costs).  The Applicant filed an acknowledgement of service promptly on 14 November 2017 indicating that she did not intend to defend Barry Tsui’s claim.  On 20 December 2017, Barry Tsui obtained a default judgment against the Applicant.  On 30 December 2017, 2 days after the Fraudulent Disposition Judgment, Barry Tsui applied ex parte for a charging order against the Applicant’s share of the Property.  On 1 February 2018, Barry Tsui obtained a charging order nisi (“the Charging Order Nisi”) on the Applicant’s half share of the Property, and on 4 April 2018, theCharging Order Nisi was made absolute (“the Charging Order Absolute”).

(v)     Discharge of the Charging Order Absolute by the Recorder

10.  In May 2018, ES’s solicitors discovered the Charging Order Absolute upon carrying out an updated land search of the Property.  By an amended summons dated 27 March 2019, ES applied (i) to be added as a party to the Charging Order Action, and (ii) to set aside or discharge the Charging Order Absolute.  On 30 July 2019, ES’s application for joinder was dismissed by a Master.  ES’s appeal against the Master’s decision was heard by the Recorder on 28 November 2019. 

11.  On 5 December 2019, the Recorder handed down a written decision, in which:

(1)  the Recorder rejected the Applicant’s recusal application (“the Order on Recusal”), which was mounted by the Applicant on the basis that the Recorder had shown apparent bias against her by directing, prior to the hearing on 28 November 2019, that a copy of the Fraudulent Disposition Judgment (and a further judgment in relation to the costs of the Fraudulent Disposition Action dated 2 March 2018) be included in the bundles for the hearing at a time when the Recorder had not yet received or considered the Applicant’s skeleton submissions;

(2)  the Recorder made no order on ES’s application to be joined as a party to the Charging Order Action (“the Order on Joinder”) on the basis that ES was a person “interested” in the Applicant’s share of the Property within the meaning of Order 50, r 7(1) of the Rules of the High Court (relying upon the judgment of Fox LJ (with whom Mustill LJ agreed) in Harman v Glencross [1986] Fam 81, at 101A and distinguishing the judgment of Hazel Williamson QC in Banque Nationale de Paris plc v Montman Ltd [2000] 1 BCLC 576) and therefore had locus or standing to apply to discharge the Charging Order Absolute, and it was not necessary for ES to be joined as a party to the action formally; and

(3)  the Recorder discharged the Charging Order Absolute (“the Discharge Order”) on the ground of material non-disclosure, in that Barry Tsui had failed to disclose, when he applied for the Charging Order Nisi, that the Applicant was insolvent or probably insolvent at that time.

12.  By a summons dated 18 December 2019, the Applicant applied for:

“leave to appeal against the Decision of the learned Recorder handed down on 5^th December 2019, if required, on the ground that the learned Recorder erred in not having recused himself on the ground of apparent bias; and that the learned Recorder erred in law in ruling that the Interested Party had standing to apply for a discharge of the Charging Order Absolute in question, and that the learned Recorder erred in making an order to set aside the Charging Order nisi and Charging Order Absolute in question on the ground of material non-disclosure”.

13.  Subsequently, the Applicant’s solicitors, by a letter dated 14 October 2020, sought the Recorder’s direction, pursuant to Order 59, r 21(3) of the Rules of the High Court, Cap 4A, on whether leave to appeal was required.

14.  On 4 December 2020, the Recorder gave a written decision holding or directing that:

(1)  the three applications dealt with in his written decision dated 5 December 2019, namely, the Applicant’s recusal application, ES’s joinder application and ES’s application to discharge the Charging Order Absolute, were separate applications, and the question of whether leave to appeal is required should be considered for each matter separately (§§20-21);

(2)  the Order on Recusal and the Order on Joinder were interlocutory in nature, and thus the Applicant required leave to appeal those orders (§§27-28);

(3)  the Discharge Order was an order determining in a summary way the substantive right of Barry Tsui as a judgment creditor of the Applicant to be granted a charging order over the Applicant’s half share of the Property, and thus the Applicant did not require leave to appeal that order (§§29-30); and

(4)  since leave to appeal the Discharge Order was not required, the time limit for the Applicant to appeal the Discharge Order had expired (§32).

The consequence of the finding in (4) was that the Applicant would need an extension of time if she wished to appeal the Discharge Order.

15.  The Applicant’s summons of 18 December 2019 for leave to appeal, together with her application for extension of time to appeal, are, I am told, scheduled to be heard before the Recorder on 29 September 2021.

(vi)    The Decision

16.  In the meantime, on 22 January 2020, the Applicant applied for legal aid in respect of her intended appeal against the Recorder’s decision made on 5 December 2019.  On 25 February 2020, the Director refused the Applicant’s application for legal aid, on the ground that she had failed to show that she had reasonable grounds of appeal against the Recorder’s decision.

17.  On 9 June 2020, the Applicant lodged an appeal against the Director’s refusal to grant her legal aid (LAA 476/2020).  The Applicant’s legal aid appeal came before Master S H Lee on 20 October 2020.

18.  On 23 November 2020, the Master dismissed the Applicant’s legal aid appeal.  This dismissal constitutes the Decision sought to be challenged by the Applicant in the present application for leave to apply for judicial review.  The Master gave the following reasons for the Decision (“Reasons for Decision”):

“[2] On the standing issue, the learned Recorder was, I think, plainly right and the contrary is simply unarguable.

a) His decision that mere unsecured judgment creditor is a person ‘interested’ in the subject-matter of the charge in terms of O.50 r.7(1) RHC, is, I think, fully supported by one of 2 ratio given by Fox LJ (which Mustill LJ agreed) in CA decision of Harman v Glencross, the wordings of the said sub-rule itself (not e.g. ‘having interest in’), and such references to ‘creditor’ in s.20(3) of HCO and other sub-rules of O.50, RHC. The Recorder was therefore, I think, fully justified to disagree with the later first-instance decision of BNP v Montman on the said point (which point was not argued before the Court of Appeal in Nationwide Building Society v Wright though Montman was considered).

b) Montman is, I further agree with the Recorder, also distinguishable in involving a debtor company in liquidation and creditor having mere right to have liquidation duly administered. To the contrary, Law had not been made bankrupt in this case (and thus such insolvency provision relied upon in Montman, and considered in Nationwide Building Society v Wright, is simply neither here nor there for this case).

c) In so far [sic] charging order absolute confers priority to Tsui over Law’s half share in the Property, ES’s ‘legal right’ to satisfy DC Judgment from such share is, as was rightly pointed out by the learned Recorder and I absolutely agree, clearly ‘directly affected’ by such order, thus affording ES, as per Montman, ‘an interest akin’ to proprietary interest in such share to seek to discharge such order.

[3] On the merits issue, the Recorder was, I think, also plainly right in discharging the charging order nisi (and order absolute as well) on ground of material non-disclosure of probable insolvency of Law.

a) Material non-disclosure was plainly complained of in affirmations filed on behalf of ES. Such duty of disclosure, and its applicable principles, is trite law for ex parte applications, including applications for charging order nisi.

b) On the case law, the insolvency or probable insolvency of judgment debtor is undoubtedly, I agree, a material fact, as decided by the learned Recorder, for the court to consider in granting order nisi or not.

c) Notwithstanding absence of valuation evidence of Law’s half-share of the Property and that $3,000,000 was lent on its security to Law, on factual findings of the HC Judgment, I agree, binding on Tsui and Law, the learned Recorder’s reasoning and findings that Law was ‘probably’ insolvent (if not ‘insolvent’ as Tsui admitted in his submissions before him, which the learned Recorder had discounted in any event) cannot, I think, be faulted at all.

d) Tsui having plainly failed his duty to so disclose the same as the applicant at the ex parte stage, the learned Recorder was, I think, plainly right to discharge the order nisi (that is, as he emphasized and I agree, an entirely different issue from whether or not ES has discharged her duty to prove probable insolvency of Law in seeking to discharge the order absolute).

[4] For reasons explained by the learned Recorder, the recusal application made on behalf of Law was, I agree, plainly misconceived.

[5] Hence, Law’s application for leave [to] appeal does not, I think enjoy any prospect of success, let alone reasonable one.

[6] Accordingly, Law’s legal aid appeal is dismissed.” [emphasis original]

APPLICATION FOR LEAVE TO APPLY FOR JUDICIAL REVIEW

19.  On 18 February 2021, the Applicant made the present application for leave to apply for judicial review of the Decision.

20.  In the Form 86, the following grounds of judicial review are raised:

(1)  The Master erred in law in failing to applying the correct test to assess whether the Applicant’s intended application for leave to appeal and/or appeal against “the decision of Mr. Recorder Stewart Wong SC dated 5^th December 2019 under HCA 2596/2017” had a reasonable, as opposed to a fanciful, chance of success.

(2)  The Master erred in law in not having properly understood and considered the legal arguments or submissions of the Applicant.

(3)  The Master erred in law in deciding that the Applicant’s intended application for leave to appeal and/or intended appeal had no prospect of success, let alone a reasonable one.

(4)  The Master’s decision that the Applicant’s intended application for leave to appeal and/or intended appeal had no prospect of success, let alone a reasonable one, is unreasonable.

21.  In the Form 86, the Applicant also relies upon “[a]ny other grounds which may be relied upon by counsel that the applicant may instruct to represent her in this application.”  This is plainly not a proper ground of judicial review, and will not be further considered in this decision.

STAY OF PROCEEDINGS LIFTED

22.  In the Form 86, the Applicant did not request for an oral hearing of the application for leave to apply for judicial review. Accordingly, on 22 February 2021, the court gave directions for the filing and service of (i) an initial response by the Director, and (ii) a reply (if any) to the initial response by the Applicant, and informed the parties that, depending on the contents of the initial response and reply (if any), the court would decide whether to deal with the leave application on paper.

23.  Thereupon, the Applicant requested for an oral hearing of the leave application by letter dated 25 February 2021.  To accommodate the Applicant’s request, on 26 February 2021, the court gave directions for an oral hearing of the application.  On 30 March 2021, the court gave notice that the leave application would be heard on 22 July 2021.

24.  The application proceeded in the normal way with evidence being filed by the parties.  Prior to the hearing on 22 July 2021, the Applicant’s solicitors (Messrs Ching & Co) filed hearing bundles and skeleton submissions dated 12 July 2021 (“the Applicant’s Submissions”), and the Director also filed skeleton submissions dated 16 July 2021. However, one day before the hearing, on 21 July 2021, the Applicant made an application for legal aid in relation to the present application.

25.  At the hearing on 22 July 2021, the Applicant was not represented by counsel, but her solicitor, Mr Ching, attended the hearing.  Government counsel, Ms Siu, submitted that the court should lift the automatic stay of proceedings consequent upon the filing of the Memorandum of Notification of an Application for Legal Aid dated 21 July 2021.  Upon the court’s inquiry of the reason(s) for the Applicant’s late application for legal aid, Mr Ching informed the court that until 20 July 2021, he had been under the mistaken belief that the hearing of the leave application would be in Chambers and he had all along intended to appear on behalf of the Applicant at the leave hearing.  It was only on 20 July 2021 that he realized, upon being so informed by the court’s clerk, that the leave hearing on 22 July 2021 would be in Open Court. Since he did not have the right of audience in an Open Court hearing and the Applicant did not have the financial means to instruct counsel to attend the hearing, the Applicant (upon his advice) applied for legal aid on 21 July 2021.

26.  The court did not find Mr Ching’s explanation for the Applicant’s late application for legal aid acceptable, because it was well-known that an application for leave to apply for judicial review, if it was to be dealt with at an oral hearing, would be heard in Open Court.  Also, having regard to the history of this matter, including the fact that an oral hearing was fixed only because of the Applicant’s request for one, the court did not consider that there should be any further delay in the resolution of the present application for leave to apply for judicial review.  Accordingly, the court lifted the automatic stay of proceedings, and directed that the hearing of the Applicant’s leave application should proceed on the basis of the evidence and submissions filed by or on behalf the Applicant.  Ms Siu made brief oral submissions in opposition to the application.  At the conclusion of the hearing, the court reserved its decision.

PRELIMINARY OBSERVATIONS

27.  The different tests to be applied by the Director/Master and the court when considering an application for legal aid and an application for judicial review of a decision refusing to grant legal aid are well settled.  In Xu Fangwen v Deputy Registrar of the High Court and Director of Legal Aid [2019] HKCFI 2332, I attempted to summarise the different tests in the following passages:

“[17] I shall first explain the different questions required to be answered by:

(1) the Director when considering an application for legal aid;

(2) the Deputy Registrar when considering an appeal against the Director’s decision refusing to grant legal aid; and

(3) a judge when considering an application for leave to apply for judicial review of the Deputy Registrar’s decision dismissing a legal aid appeal.

[18] Under Section 10(3) of the [Legal Aid] Ordinance, a person shall not be granted a legal aid certificate in connection with any proceedings unless he shows that he has reasonable grounds for taking, defending, opposing or continuing such proceedings. In the context of the Applicant’s application for legal aid in relation to the Appeal, the Director has to ask whether the Applicant has shown that she has reasonable grounds for the Appeal. For this purpose, ‘reasonable grounds’ requires the Applicant to show that there is a reasonable, as opposed to a fanciful, chance of the Court of Appeal overturning the Judgment of Au J (see Nguyen Trong Son v Director of Legal Aid, LAA 20/1999, 15 December 2000, per Keith JA; Chung Yuk Ying v Registrar of the High Court [2013] 5 HKLRD 78, at paragraph 10 per Queeny Au-Yeung J). Although the Director does not have to be satisfied that the Appeal will more probably than not succeed before he may decide to grant legal aid, in view of the fact that Au J’s Judgment was ultimately based on an exercise of discretion, the Director is entitled to take into account the high threshold for an appeal against an exercise of discretion by a first instance judge.

[19] Since a legal aid appeal is in the nature of a de novo hearing, the Deputy Registrar, when hearing an appeal against the decision of the Director refusing to grant legal aid, should adopt the same approach.

[20] The question to be answered by a judge of the Court of First Instance when considering an application for leave to apply for judicial review of the Deputy Registrar’s decision dismissing a legal aid appeal is a different one. The focus of the judge in such application is the decision of the Deputy Registrar. In the context of the present application, the question for the judge is not whether the Applicant has a reasonable chance of success in the Appeal, but whether her intended application for judicial review of the Deputy Registrar’s decision is reasonably arguable and has a realistic prospect of success. It is not the judge’s function to re-examine the Deputy Registrar’s decision afresh, or consider whether he would have granted legal aid to the Applicant in relation to the Appeal.

(1) ‘A judicial review application is not an appeal from either the Director or the Master’s Decision. The court in a judicial review is concerned with legality and not with merits. Relief will only be granted if the applicant can demonstrate that the Director has committed an error of law, or has acted Wednesbury unreasonably in arriving at the conclusion’ (see Chung Yuk Ying v Registrar of the High Court [2013] 5 HKLRD 78, at paragraph 11 per Queeny Au-Yeung J; Wong Chun Tak v Registrar of the High Court [2015] 3 HKLRD 449, at paragraph 17 per Queeny Au-Yeung J).

(2) ‘In a judicial review of the decision of a master in a legal aid appeal, as in the case of a judicial review of other administrative decision, the court is not sitting as a further tier of appeal.  The court’s function is confined to review the legality, rationality and fairness of the process’ (see Chan Chiu Kwan v Registrar of the High Court [2015] 1 HKC 533, at paragraph 8 per Lam VP).”

28.  In this case, on 5 December 2019, the Recorder made 3 orders in the Charging Order Action, namely (i) the Order on Recusal, (ii) the Order on Joinder, and (iii) the Discharge Order.

29.  In so far as the Order on Recusal is concerned, the Applicant’s recusal application is, in my view, obviously misconceived for the reasons given by the Recorder in §§14-28 of his written decision dated 5 December 2019.  The recusal application is so frivolous and unmeritorious that I consider it to be it bordering on an abuse of the court’s process.  Both the Director and the Master were plainly correct to refuse to grant legal aid to the Applicant in so far as it was sought to pursue her intended appeal against the Order on Recusal.

30.  In so far as the Order on Joinder is concerned, the Recorder in fact refused to make any order to add ES as a party to the Charging Order Action.  There is, so far as I can see, no reason why the Applicant would wish to disturb the Order on Joinder, even though the Applicant does not, I understand, agree with the Recorder’s reason for making that order (namely, that ES is a person interested in the Applicant’s share of the Property for the purpose of Order 50, r 7(1) and therefore has standing or locus to apply to discharge the Charging Order Absolute without any need to be formally joined as a party to the action).  In this regard, it is trite that that an appeal is against an order or judgment, not the reason(s) for the order or judgment.

31.  In my view, there is no reasonable basis for any appeal by the Applicant against the Order on Recusal or Order on Joinder.  The focus of this application ought to be on the Discharge Order.  That the Applicant’s real target is the Discharge Order is demonstrated by the stance taken by the Applicant in her application to the Recorder for direction as to whether leave to appeal was required, as recorded in §14 of the Recorder’s written decision dated 4 December 2020:

“For Law, Ching & Co argues, in considering whether leave to appeal is required, one should focus only on my order discharging the Charging Order Absolute, which is what she is seeking to appeal against. She is not, it is submitted, seeking to appeal against my refusal to recuse myself although ‘the error of refusing to recuse’ is relied upon as a ‘ground of appeal’ against my order discharging the Charging Order Absolute. By that, I take it to mean that there is only one order she wants from the Court of Appeal, namely the setting aside of my order discharging the Charging Order Absolute, which she can achieve by succeeding on any one of her arguments on recusal, or on the locus of ES, or on the question of whether I erred in discharging the Charging Order Absolute.” [emphasis added]

32.  According, the principal question for this court to decide is whether leave to apply for judicial review should be granted in respect of the Master’s Decision to refuse to grant legal aid to the Applicant to assist her to pursue her intended appeal against the Discharge Order.

GROUND (1): THE MASTER FAILED TO APPLY THE CORRECT TEST TO ASSESS WHETHER THE APPLICANT’S INTENDED APPLICATION FOR LEAVE TO APPEAL AND/OR APPEAL HAD A REASONABLE, AS OPPOSED TO A FANCIFUL, CHANCE OF SUCCESS

33.  At §21 of the Applicant’s Submissions, the Applicant complains that the Master did not cite any legal principles applicable to a legal aid appeal, or an application for leave to appeal, in his Reasons for Decision, and hence (it is argued) it cannot be sure whether the Master correctly considered and properly applied the relevant principles.

34.  The applicable tests for a legal aid appeal and an application for leave to appeal are well settled:

(1)  For a legal aid appeal where legal aid is sought to pursue an appeal to the Court of Appeal, the test is whether the applicant has shown that he has reasonable grounds for the appeal.  For this purpose, “reasonable grounds” requires the applicant to show that there is a reasonable, as opposed to a fanciful, chance of the Court of Appeal overturning the judgment at first instance.

(2)  For an application for leave to appeal to the Court of Appeal, leave may be granted if the court is satisfied that (a) the appeal has a reasonable prospect of success, or (b) there is some other reason in the interests of justice why the appeal should be heard.  As for (a), it is not enough that the appeal is arguable or not fanciful, as the applicant must show that he has reasonable (though not necessarily probable) prospects of success.  As for (b), the applicant must show that there is an issue of considerable public importance for the court to exercise its discretion to grant leave.

35.  In considering this ground of judicial review, it should first be noted that at the hearing before the Master, the Applicant proceeded on the basis that the decision made by the Recorder on 5 December 2019 was interlocutory in nature and thus leave to appeal was required[1].  At that hearing, Mr Ching specifically drew the Master’s attention to the leading authorities on the applicable tests for a legal aid appeal and an application for leave to appeal, and the Master indicated that he was familiar with them[2].  There was no particular aspect of those principles which required special consideration in the context of the Applicant’s legal aid appeal before the Master.  I do not consider the fact that the Master did not set out the relevant principles in the Reasons for Decision to be any indication that he did not correctly understand or apply them when determining the Applicant’s legal aid appeal before him.

36.  In any event, as can be seen from the Reasons for Decision, the Master was of the view that the Recorder was plainly right in (i) holding that ES had standing to challenge the Charging Order Absolute, and (ii) discharging the Charging Order Absolute on the ground of material non-disclosure.  Leaving aside for the moment the question of whether the Master is correct in coming to that view (which is a matter going to the merits of his decision), it is clear that the Master did not consider the Applicant’s intended appeal against the Discharge Order to be reasonably arguable or have any prospect of success.  On that footing, the Applicant would have failed to show that she had reasonable grounds for seeking leave to appeal against the Discharge Order, and the dismissal of the Applicant’s legal aid appeal was inevitable.

37.  As mentioned above, that the Recorder has decided that the Applicant does not require leave to appeal the Discharge Order, but the time for her to appeal has expired.  The consequence is that she now requires an extension of time to appeal the Discharge Order.  For the purpose of this decision, it is not necessary for me to decide whether this view of the Recorder is correct or not.  If the Recorder’s view is correct, meaning that the Applicant requires an extension of time to appeal, the proper question for the Master would be whether the Applicant had shown that there was a reasonable, as opposed to a fanciful, chance of the Applicant obtaining an extension of time to appeal.  As earlier noted, the Master was plainly of the view that the Applicant’s intended appeal against the Discharge Order was not reasonably arguable, and did not have any prospect of success.  On that footing, there would be no basis for the Master to come to the view that the Applicant had a reasonable chance of obtaining an extension of time to appeal from either the Court of First Instance or the Court of Appeal, this not being a case where it can be said that there is any special reason in the interests of justice why the appeal should be heard (eg strong public interest, or an issue of law of general or public importance arising for determination).  The dismissal of the legal aid appeal would necessarily follow.

38.  In all, Ground (1) of judicial review is not, in my view, reasonably arguable.

GROUND (2): THE MASTER DID NOT PROPERLY UNDERSTAND AND CONSIDER THE LEGAL ARGUMENTS OR SUBMISSIONS OF THE APPLICANT

39.  The Applicant has not, in either the Form 86 or in the two affirmations of Ching Ming Yu filed on 18 February 2021 and 12 July 2021 respectively, set out or elaborated on the aspect(s) in which the Master allegedly did not properly understand or consider the legal arguments or submissions of the Applicant.

40.  In the Applicant’s Submission:

(1)  At §18, the Applicant complains that the Master did not identify the issues to be considered arising out of the arguments/submissions of the Applicant, but only referred to the three broad issues which the Recorder had identified and considered in the written decision dated 5 December 2019, namely, the standing issue, the merits issue and the recusal issue.  The Applicant argues, therefore, that it cannot be sure whether or not the Master correctly understood the issues as submitted by the Applicant.

(2)  At §20, the Applicant complains that the Master only summarized the “reasons” of the Recorder instead of giving his own reasons, and appeared to be just “‘paying lip services’ to the Recorder”.

(3)  At §§19 and 23-31, the Applicant complains that the Master did not consider various arguments raised by the Applicant in support of her legal aid appeal, including -

(a)  the legal effect of s 45 of the Bankruptcy Ordinance, which concerns the right of a creditor to retain the benefit of execution or attachment which had been completed prior to the date of the bankruptcy order against the trustee of the bankrupt;

(b)  the Applicant’s arguments referred to in §§11-14 of the “Revised Skeleton Submissions of the Applicant” dated 19 October 2020 (“the Oct 2020 Submissions”) which, it is said, are relevant to “the interpretation of the legal principles derived from Harman v Glencross”;

(c)  the Applicant’s arguments referred to in §§15, 27 and 37 of the Oct 2020 Submissions on whether there is a duty on a judgment creditor, when applying for a charging order against a property of the judgment debtor, to disclose the insolvency of the judgment debtor;

(d)  the Applicant’s argument concerning “prior interest or subsequent interest” raised in §§20 and 21 of the Oct 2020 Submissions;

(e)  the Applicant’s procedural argument in respect of Amended Summons taken out by ES on 31 January 2019 raised in §34 of the Oct 2020 Submissions;

(f)  the Applicant’s argument that the legal burden was on ES to prove the insolvency of the Applicant raised in §§39-43 of the Oct 2020 Submissions; and

(g)  the legal principles raised by the Applicant in §§107-109 of the “Skeleton Submissions of the Defendant” dated 26 November 2019 concerning the rights of a judgment creditor to enforce a money judgment by means of execution prescribed by the relevant rules of court.

41.  In relation to the Discharge Order (which, as earlier mentioned, should be the focus of this case), the critical or principal issues for determination were (i) whether ES was a person “interested” in the Applicant’s half share of the Property for the purpose of Order 50, r 7(1) of the Rules of the High Court to give her standing to apply for a discharge of the Charging Order Absolute, (ii) whether there was any material non-disclosure on the part of Barry Tsui in his ex parte application for the Charging Order Nisi, and (iii) whether the court should exercise its discretion not to discharge (or to re-grant) the Charging Order Absolute notwithstanding the material non-disclosure.  The Master considered those issues in the Reasons for Decision, essentially agreeing with the reasons and conclusions of the Recorder which the Master said were plainly “right” (at §§2 and 3).  Since the Master agreed with the reasons and conclusions of the Recorder, there was, I consider, no obligation on his part to analyze the issues afresh.  It is not, as a matter of principle, objectionable for the Master in such circumstances to simply state that he agreed with the reasons and conclusions of the Recorder, or briefly summarize them in the Reasons for Decision.  Upon a fair reading of the Reasons for Decision, I consider that the Master has adequately stated or explained why he agreed with the reasons and conclusions of the Recorder in respect of the three critical or principal issues which required determination in relation to the Discharge Order.

42.  In respect of the specific arguments which the Applicant complains were not addressed by the Master in the Reasons for Decision, it is important to bear in mind that the Master was sitting as an administrative tribunal in a legal aid appeal.  There was no duty on the part of the Master to address every single issue, whether of fact or law, raised by the Applicant in the Reasons for Decision.  As stated by Li CJ in Oriental Daily Publisher Ltd v Commissioner for Television and Entertainment Licensing Authority (1997-98) HKCFAR 279, at 291D, “the reasons given should show that the Tribunal has addressed the substantial issues before it and show why the Tribunal has come to its decision.  There may not be any need however to address every single issue.  But the reasons should show that the issues that arise for serious consideration have been considered.”

43.  In the context of the present case, what was required of the Master in relation to the giving of reasons was to deal with the critical issues necessary or essential for a proper determination of the legal aid appeal, stating his reasons and conclusions in a clear and succinct manner.  I consider that the Master has adequately done so in the Reasons for Decision.  The specific arguments which the Applicant complains were not addressed in the Reasons for Decision were not distinct grounds or objections to ES’s application to discharge the Charging Order Absolute, but were detailed arguments in support of the Applicant’s contention that the Recorder was wrong to find against her in respect of the three critical or principal issues in relation to the Discharge Order.  There was no duty on the part of the Master to separately address those detailed arguments in the Reasons for Decision.  In this regard, it needs to be borne in mind that the Master was not sitting as a court of appeal and writing a judgment on the Applicant’s appeal.  In any event, even for a court judgment, “[t]here is no duty on a judge to deal with every submission made by counsel or set out all the cases cited to him in giving reasons.  All that the judge is required to do is to identify the conclusion and explain the manner in which he resolved vital matters in contention to enable the parties to understand why he reached his decision” (Tao, Soh Ngun v HSBC International Trustee Limited [2018] HKCA 691, at §69 per Kwan JA).

44.  In all, the Applicant’s contention that the Master did not properly understand or consider her arguments or submissions under Ground (2) of judicial review is not reasonably arguable.

GROUNDS (3) AND (4): ERROR OF LAW AND IRRATIONALITY

45.  Grounds (3) and (4) can be taken together. Ground (3) alleges that the Master erred in law in deciding that the Applicant’s intended application for leave to appeal and/or intended appeal had no prospect of success, let alone a reasonable one, while Ground (4) alleges that such decision of the Master is unreasonable.

46.  In respect of Ground (3), the Applicant has not identified the error(s) of law allegedly made by the Master in coming to the conclusion that her intended application for leave to appeal and/or intended appeal had no prospect of success.  Ground (3) is simply a bare allegation.  In order to obtain leave to apply for judicial review, it is not sufficient for an applicant in his Form 86 to make a bare allegation that the decision-maker made an error of law.  To obtain leave on this ground, the applicant should set out or identify, succinctly, the error(s) of law allegedly made by the decision-maker in the Form 86.  The Applicant has wholly failed to do so in this case.  The Applicant has also failed to identify, in the two affirmations of Ching Ming Yu filed on 18 February 2021 and 12 July 2021 respectively, or in the Applicant’s Submissions, any error(s) of law allegedly made by the Master in the Decision.  The highest that has been said is that the Master failed to consider various arguments or submissions advanced by or on behalf of the Applicant in the Reasons for Decision.  This does not mean that the Master made any, or any material, error of law in the Decision.

47.  The Applicant’s allegation under Ground (4) that such decision of the Master is “unreasonable” is also a bare allegation.  In so far as the reasonableness of the Decision is concerned, as earlier mentioned, I do not consider that the Master was under any duty to deal with each and every legal submission or argument raised by the Applicant in the Reasons for Decision.  Such omission does not of itself make the Decision Wednesbury unreasonable.  The Master considered the critical or principal issues and came to the conclusion that the Applicant’s intended appeal, or application for leave to appeal, against the Discharge Order had no prospect of success and, on that basis, dismissed the Applicant’s legal aid appeal.  While the Applicant may not agree with the Decision of the Master, I do not see how the Decision can be said to be “unreasonable” in the public law sense.

48.  In all, neither Grounds (3) or (4) of judicial review is reasonably arguable.

49.  In the above discussion, I have concentrated on the Applicant’s application for legal aid to appeal the Discharge Order.  In so far as the Order on Recusal and Order on Joinder are concerned, I have already explained why I do not consider the Applicant has any reasonable ground or basis to appeal those orders to the Court of Appeal.  Neither do I see that there is any ground or basis for this court to grant the Applicant leave to apply for judicial review of the Decision in so far as it relates to her application for legal aid to challenge the Order on Recusal or Order on Joinder.

DISPOSITION

50.  The intended application for judicial review is not reasonably arguable, and has no realistic prospect of success.  The application for leave to apply for judicial review is accordingly dismissed.

51.  The principles for awarding costs against an unsuccessful applicant in an application for leave to apply for judicial review are well settled (see Leung Kwok Hung v President of the Legislative Council (No 2) (2014) 17 HKCFAR 841), and do not have to be repeated here.  I consider that the Applicant should bear the costs of the Director in the present application, for the following reasons:

(1)  The Director has filed evidence and attended the leave hearing at the court’s invitation, and has provided substantial and helpful assistance to the court.

(2)  The Applicant has, effectively, had a hearing on the merits of her intended application for judicial review.

(3)  The Applicant’s application clearly lacks any substantial merits.

(4)  The Applicant’s application is brought to advance her personal or private interest.

(5)  The Court would have disposed of the leave application on paper, but for the Applicant’s request for an oral hearing of the leave application.

(6)  Having obtained a date for an oral hearing with more than 3.5 months’ advance notice, the Applicant failed to attend the hearing by counsel, but made a last minute application for legal aid which, but for the court’s decision to lift the stay of proceedings, would have derailed the hearing.

52.  Accordingly, I make an order that the Applicant shall pay the costs of the Director incurred in resisting the application for leave to apply for judicial review.  I have considered the Applicant’s objections made by letter dated 29 July 2021 to the Director’s Statement of Costs dated 21 July 2021.  The costs incurred and sought by the Director seem to me to be reasonable.  I summarily assess the Director’s costs at HK$110,000.

[1] See §§1, 8 and 9 of the “Revised Skeleton Submissions of the Applicant” dated 19 October 2020, although Mr Ching seemed to have recognised that the Discharge Order was a final order and leave to appeal might not be required (see transcript of the hearing, at p 27 lines H-K).

[2] See transcript of the hearing at p 2 lines M-Q and p 27 lines K-O.