SUN PO, alias MICHAEL v. DIRECTOR OF LEGAL AID

HCAL 2397/2018

[2020] HKCFI 2861

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2397 OF 2018

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BETWEEN

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D E C I S I O N

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INTRODUCTION

1.  There are two applications before the court:

(1) the Applicant’s summons dated 12 December 2019 seeking leave to amend the Form 86; and

(2) the Putative Respondent (“Director”)’s summons dated 6 January 2020 seeking to strike out Exhibit “SPM-9a” to the 2^nd Affidavit of the Applicant, and the corresponding part of the 2^nd Affidavit, namely, the last 7 lines of paragraph 11, starting with the words “Recently …” to the end of that paragraph.

THE APPLICANT’S SUMMONS

2.  The Applicant is a practicing solicitor who was admitted on 21 June 1997.  Since 2005, he has been on the Legal Aid Panel under s 4 of the Legal Aid Ordinance, Cap 91.  On 1 August 2018, the Director made a decision (“the Decision”) to remove the Applicant from the Legal Aid Panel with immediate effect on the ground that his performance as assigned solicitor was considered unsatisfactory by the Departmental Committee on Monitoring Assignments to Counsel and Solicitors (“the Committee”), in that he had failed to properly report the updated progress of two cases in which the Applicant had been assigned as solicitor for an aided person, namely, DCEC No 137 of 2013 and the related common law action, in his letter to the Director dated 1 December 2015.  Apparently, the Applicant’s name had been included on the Record of Unsatisfactory Performance / Conduct on 16 May 2014 and 15 June 2016 respectively.  The Decision constitutes the subject matter of the present application for judicial review.

3.  The Form 86 raises 4 grounds of judicial review, namely: (i) taking into account irrelevant considerations / failure to take into account relevant considerations, (ii) breach of legitimate expectation, (iii) irrationality, and (iv) procedural impropriety.  For the purpose of this decision, it is not necessary to consider the merits of those grounds of judicial review, which will have to be determined at the rolled-up hearing.

4.  The Applicant now proposes to amend the Form 86 to add a new ground of judicial review, namely, ultra vires, the argument being that the Committee was at the material time unlawfully and invalidly constituted because it did not have a representative from the Corruption Prevention Department of the ICAC.  It is not in dispute that, as a matter of fact, the Committee has not had a such representative from the ICAC since January 2013.

5.  However, as pointed out by Mr Ma (for the Director), the Committee is merely an administrative body within the Legal Aid Department to monitor the performance of counsel and solicitors on the Legal Aid Panel.  Its composition is not prescribed by any Ordinance or regulation. There is no requirement that it must have a representative from the Corruption Prevention Department of the ICAC.

6.  In Chapter 4 entitled “Performance Evaluation System” of the Manual for Legal Aid Practitioners (updated on 11 October 2013) issued by the Director, the following is stated in paragraph 12 under the sub-heading “Departmental Monitoring Committee”:

“The Departmental Monitoring Committee formulates policy and guidelines on assignment to private practitioners and oversees the administration of assignments to private practitioners on the Legal Aid Penal in addition to considering reports on unsatisfactory performance or conduct of assigned counsel or solicitors. It is chaired by the Director of Legal Aid and comprises of directorate officers of the Department. The ICAC will be consulted when appropriate issues relating to corruption prevention are identified.”

7.  There is nothing in the Manual to suggest that there has to be a representative from the ICAC sitting on the Committee.  Further, since the present case did not concern any issue of corruption prevention, there was no need to consult the ICAC.

8.  The Applicant refers to and relies on a Legco Paper No CB(2)/1203/05-06(01) titled “Direct Investigation: Monitoring of Assigned-out Cases” dated January 2006 prepared by the Ombudsman, which stated at paragraph 18 thereof that “Chaired by DLA, DMC comprises a Deputy Director, two Assistant Directors, three Assistant Principal Legal Aid Counsel and a representative from the Corruption Prevention Department of the Independent Commission Against Corruption”.  Such reliance is misplaced, because the said statement was merely descriptive of the composition of the Committee as at the time of the Legco Paper.  It cannot be taken to prescribe the composition of the Committee as a matter of law.

9.  Furthermore, the Decision under challenge in the present was made by the Director, not by the Committee, which only made a recommendation to the Director to remove the Applicant’s name from the Legal Aid Panel.  Even if, contrary to the above view, there was some irregularity about the composition of the Committee, I do not see that the Decision could be said to be ultra vires the powers of the Director.  The proposed additional ground of judicial review is not reasonably arguable.  There has also been unexplained substantial delay on the part of the Applicant in seeking to raise this ground of judicial review many months after the composition of the Committee was made known to him on 14 September 2018.  In all, I would not be prepared to grant leave to the Applicant to amend the Form 86.

THE DIRECTOR’S SUMMONS

10.  I now turn to the Director’s summons.  The Applicant’s evidence sought to be expunged by the Director concerns the Applicant’s previous record of unsatisfactory performance / conduct on 15 May 2014, namely, engaging counsel in a legal aid case (DCEC No 61 of 2011) without the prior approval of the Director.  The evidence in question is to be effect that the Applicant had in fact obtained consent from the aided person (“Mr Ngan”) for counsel to be instructed.

11.  It appears, on the documentary evidence before the court, that Mr Ngan previously informed the Director in writing on 16 June 2013 that he had not given his consent for counsel to be instructed in his case.  That led to the Director initially asking the Applicant to explain why he instructed counsel without the approval of the Director and without the consent of the aided person, which it was considered could give rise to a breach of the duty of confidentiality.  However, in the Applicant’s explanation to the Director dated 2 January 2014, he enclosed a document signed by Mr Ngan dated 31 December 2013 confirming that he did in fact know of and consent to counsel being instructed to assist in his employees’ compensation case.  In the eventual decision of the Director dated 16 May 2014, the sole ground given by the Director for finding unsatisfactory performance or conduct on the part of the Applicant related to his failure to obtain the Director’s approval to instructing counsel.  There was no longer any reliance on his failure to obtain client’s consent.  In my view, the question of client’s consent is a red herring.

12.  There is also nothing in the Decision letter dated 1 August 2018 to suggest that the Director misunderstood the basis of the first adverse record against the Applicant dated 16 May 2014.

13.  The part of the Applicant’s evidence objected to by the Director is, in my view, irrelevant to the application for judicial review, and should be expunged.

DISPOSITION

14.  The Applicant’s Summons dated 12 December 2019 is dismissed.

15.  In so far as the Director’s Summons dated 6 January 2020 is concerned, I make an order in terms of paragraph 1 thereof.

16.  I shall now hear the parties on the question of costs.