LEE CHICK CHOI v. THE DIRECTOR OF LEGAL AID

CACV 276/2018

[2019] HKCA 275

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 276 OF 2018

(ON APPEAL FROM HCAL 417 OF 2018)

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J U D G M E N T

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Hon Au JA (giving judgment of the court):

A.   INTRODUCTION

1.  The applicant brought a claim against his former employer Best Spirits under DCCJ 1988/2017 (“the District Court Action”).  He claimed for compensation in the amount of HK$14.475 million for an alleged breach of Data Protection Principle 5 (“DPP 5”) in Schedule 1 to the Personal Data (Privacy) Ordinance (Cap 486) (“the PDPO”).  For that purpose, he had applied for legal aid.

2.  By way of a decision (“the DLA Decision”) made on 18 September 2017, the Director of Legal Aid (“the DLA”) refused the applicant’s legal aid application.

3.  On 14 March 2018, the applicant applied for leave to apply for judicial review seeking to challenge the DLA Decision.  As his leave application was made outside the statutory 3‑month period, he also applied for extension of time for making the leave application.

4.  After hearing the applicant and the DLA, by his judgment dated 27 June 2018 (“the Judgment”), Chow J (“the Judge”) dismissed his application for leave to apply for judicial review, and the application for extension of time to apply for judicial review, with costs.

5.  This is the applicant’s appeal against the Judgment.

6.  With the applicant’s consent, this Court has directed that the appeal be dealt with on paper.  The parties have since filed their respective written submissions for that purpose.

B.   BRIEF BACKGROUND

7.  The brief background has been summarized by the Judge succinctly at paragraphs 2 - 17 of the Judgment as follows:

“2. The background facts giving rise to the Applicant’s claim against Best Spirits were set out in the judgment of Deputy High Court Judge Kent Yee given on 1 December 2014 in HCA 2045/2012 (‘the High Court Action’), and shall not be repeated here.

3. In February 2011, the Applicant filed a claim against Best Spirits with the Labour Tribunal in LBTC 588/2011 seeking damages for unfair dismissal. That claim was dismissed by the Labour Tribunal in October 2011. His application for leave to appeal against the Labour Tribunal’s decision was rejected by Madam Justice Mimmie Chan in June 2013.

4. In the meantime, in November 2012, the Applicant commenced a fresh action in the High Court (ie the High Action) against Best Spirits, seeking compensation in the sum of around HK$14.475 million for unreasonable or unlawful dismissal.

5. Upon Best Spirits’ application to strike out the Applicant’s writ and statement of claim in the High Court Action on, inter alia, the ground of issue estoppel or res judicata, the Applicant applied to amend the statement of claim in order to advance a new claim for compensation in the same amount (HK$14.475 million) for an alleged breach of Data Protection Principle 5 (‘DPP 5’) in Schedule 1 to the PDPO [Personal Data (Privacy) Ordinance].

6. On 1 December 2014, Deputy High Court Judge Kent Yee gave his judgment striking out the Applicant’s writ and statement of claim in the High Court Action, and refusing to grant leave to the Applicant to amend the statement of Claim to advance the new claim for breach of DPP 5 on jurisdiction and causation grounds.

7. The Applicant’s application for leave to appeal, out of time, against the judgment of Deputy High Court Judge Kent Yee was dismissed by the Court of Appeal on 21 May 2015 in HCMP 371/2015. The Court of Appeal considered the judge’s reasoning in respect of the causation ground to be ‘unassailable’.

8. On 26 April 2017, the Applicant commenced yet another action against Best Spirits for the same cause of action, ie breach of DDP 5, in the District Court in DCCJ 1988/2017 (‘the District Court Action’).

9. On 29 May 2017, the Applicant applied for legal aid to pursue the District Court Action against Best Spirits.

10. On 18 September 2017, the Director refused the Applicant’s application for legal aid. As can be seen from the Director’s Reasons for Refusal dated 30 November 2017 (prepared in connection with the Applicant’s legal aid appeal mentioned in paragraph 11 below), the Director’s reasons for the Decision were as follows:-

‘9 A s.9 opinion was obtained from Mr. Poon Siu Bunn, Counsel on merits of Mr. Lee’s application for legal aid… Having considered the relevant information, Counsel is of the view that Mr. Lee does not have a meritorious claim which has a real chance of success against Best Spirits.

10 In gist, Counsel is of the view that:-

(a) the doctrine of res judicata is likely engaged in this Action as the amended claim under the fresh pleading in HCA 2045/2012 is exactly the same as his claim in the Action.

(b) as the contravention against DPP 5 was in essence in relation to the inadequacies or unsatisfactory practice in general on the part of Best Spirits in informing its staff of its data control/management policy, Mr. Lee may not be able to prove that the contravention by Best Spirits related to personal data of which Mr. Lee is the data subject under s.66(c) of PDPO.

(c) it would be difficult for Mr. Lee to prove the contravention could lead to his sustaining injury to feelings.

11 Even if Mr. Lee could succeed in proving liability against Best Spirits, the quantum of damages to be awarded would not be more than $15,000. Therefore the quantum of damages would fall within the jurisdiction of the Small Claim[s] Tribunal which is an excepted proceeding under Schedule 2, Part II of the Legal Aid Ordinance.

12 We concur with Counsel’s opinion and therefore refused Mr. Lee’s legal aid application.’

11. The Applicant’s legal aid appeal was dismissed by the Deputy Registrar on 15 December 2017 (‘the Appeal Decision’). In the letter conveying his decision, the Deputy Registrar stated that he ‘agreed with the reasons for refusal of the Director of Legal Aid’.

12. On 14 March 2018, the Applicant made the present application for leave to apply for judicial review.

13. On 15 March 2018, the Court directed an oral hearing of the application for leave to apply for judicial review, and granted leave to the Director to file evidence and attend the oral hearing to resist the leave application. An affidavit of Chik Yin Shan, Acting Senior Legal Aid Counsel, has since been filed on behalf of the Director setting out the relevant background facts of the Applicant’s case and his application for legal aid.

14. On 24 April 2018, H H Judge Andrew Li gave his decision striking out the Applicant’s writ of summons in the District Court Action and dismissing the action on, inter alia, the following grounds:-

(1) It was a disguised fresh claim to re-litigate the PDPO claim which the Applicant had lost before Deputy High Court Judge Kent Yee and the Court of Appeal, and thus it was a clear abuse of the process of the court for him to re-litigate the matter.

(2) The claim is doomed to fail due to a complete lack of merits.

15. On 23 May 2018, H H Judge Andrew Li refused to grant the Applicant leave to appeal against the decision of 24 April 2018.

16. The Applicant has renewed his application for leave to appeal to the Court of Appeal in CAMP 79/2018. I am given to understand that no date has yet been fixed for the hearing of the leave application.

17.     As made clear in his oral submissions at the hearing on 21 June 2018, the crux of the Applicant’s complaint against the Decision is that the Director had committed a fundamental mistake in taking the view that his claim under Section 66 of the PDPO could or should be proceeded with in the Small Claims Tribunal.”

C.    THE JUDGMENT

8.  The Judge dismissed the applicant’s applications as he concluded that the applicant’s intended judicial review had no reasonable prospect of success for the reasons set out at paragraphs 20 - 23 of the Judgment as follows:

(1)   First, judicial review is generally a remedy of last resort, and the court would normally not permit a decision to be challenged by way of judicial review if an appeal can be brought against the decision.  In this case, there is a statutory of right of appeal against the Decision.  The applicant took advantage of the appeal procedure, albeit unsuccessfully.  Be that as it may, there is no good reason why the applicant should be allowed to challenge the Decision by way of judicial review.

(2)   Second, it is clear that the Director’s main reason for refusing to grant legal aid to the applicant to pursue the District Court Action was its lack of merits.  That his claim is unmeritorious or hopeless has now been confirmed by the decision of HH Judge Andrew Li dated 24 April 2018.  The Director was correct not to grant legal aid to the applicant to pursue an unmeritorious or hopeless claim.

(3)   Third, the view taken by counsel and endorsed the Director that the quantum of the applicant’s claim would be no more than $15,000 and fall within the jurisdiction of the Small Claims Tribunal is not unreasonable.  Thus, even if, strictly speaking, the Claim should first be commenced in the District Court (in view of the recent judgment of the Court of Appeal in Lee Kwok Tung Albert v Chiyu Banking Corporation Limited, CACV 180/2017, 6 March 2018, paragraphs 4.19 ‑ 4.22), Best Spirits could apply to transfer the proceedings to the Small Claims Tribunal, in which event legal aid would not be available to the applicant to pursue his claim in that forum.

(4)   Fourth, there is no useful purpose to be served by granting the applicant leave to apply for judicial review of the Decision, because the District Court Action has come to an end.  There is no question of the Director now granting legal aid to the applicant to pursue an action which has already been struck out.  The fact that the applicant has a pending application for leave to appeal against the decision of HH Judge Andrew Li dated 24 April 2018 is irrelevant, because neither an appeal nor an application for leave to appeal operates as a stay of the relevant decision.

D.   THIS APPEAL

D1.   Grounds of Appeal

9.  The grounds of appeal as set out in the Notice of Appeal filed on 28 June 2018 are these:

(1)   Ground 1: The Judge erred in finding there was no good reason to allow the applicant to judicially review the DLA Decision.

(2)   Ground 2: The Judge erred in finding the DLA was correct not to grant legal aid to the applicant to pursue an unmeritorious or hopeless claim.

(3)   Ground 3: The Judge erred in finding it was not unreasonable to consider the quantum of the District Court Action to be no more than $15,000, falling within the jurisdiction of the Small Claims Tribunal.

(4)   Ground 4: The Judge erred in finding no useful purpose in granting the applicant leave as the District Court Action has been struck out, and the pending application for leave to appeal is irrelevant.

(5)   Ground 5: The Judge erred in dismissing the applicant’s application for leave to apply for judicial review of the DLA Decision and application for an extension of time to apply for leave.

(6)   Ground 6: The Judge erred in ordering the applicant to bear the DLA’s costs in the court below, to be taxed if not agreed.

10.  Other than making submissions in support of the above grounds appeal, the applicant in his written submissions has also advanced arguments that are related to another legal aid application of his under LA/M/1882/2017, which concerns another of his action under FAMV 51/2018[1]. Those submissions are irrelevant to this appeal, and the court will not have regard to them.

D2.   No leave has been obtained by the applicant to appeal

11.  As mentioned above, by way of the Judgment, the Judge also refused to extend time for the applicant to apply for leave to apply judicial review.  This is in nature an interlocutory judgment, and the applicant must first obtain leave from the Judge or this court before he could properly bring an appeal against the Judgment[2].

12.  However, the applicant has not even applied, let alone having obtained, leave to appeal.  Without leave, the appeal is improperly and invalidly brought and should be struck out on this basis alone.

13.  In any event, even if the applicant was to ask this court to grant him leave to appeal by way of the present application, we would not grant it as, for the reasons explained below, we are of the view that the appeal is entirely without merit.

D3.   Merits of the appeal

14.  An appeal against the refusal of leave for judicial review is not an occasion for the applicant to regurgitate arguments already advanced.  The Court of Appeal would only reverse the decision of the Judge if it could be demonstrated that there were errors of law, that the Judge failed to take in account relevant matters, or the decision was otherwise plainly wrong: United Muslim Association of Hong Kong v Yusuf Yu [2018] HKCA 451 at [38] and [39].

15.  Bearing these principles in mind, we would now proceed to consider the merits of the applicant’s grounds of appeal.

Ground 1

16.  As pointed out by the Judge, it is trite that judicial review is a remedy of last resort.  Save in exceptional circumstances, the court will not normally grant relief to a challenge by judicial review against a decision where there is an alternative remedy, such as by way of appeal.  As recently reiterated by this court, judicial review is not to replace the statutory or administrative appeal avenue that is in place in respect of a challenge against an administrative decision. A person aggrieved by an administrative decision should challenge it by way of the appeal avenue instead of judicial review[3].

17.  In the present case, in the Form 86 as amended, the applicant sought leave to challenge by way of judicial review the decision of the DLA (ie, the DLA Decision) but not that of the Registrar hearing the legal aid appeal.  Even when this was pointed out to him by the Judge at the hearing, the applicant confirmed and insisted that it was the DLA Decision but not the Registrar’s that he intended to challenge[4].

18.  In the premises, the Judge was entirely correct in law to refuse to grant leave based on the well-established principle that the court would not entertain and grant any relief to the applicant’s intended judicial review, since there was an alternative avenue of appeal that the applicant should and had in fact pursued to challenge the DLA Decision.

19.  The first ground of appeal has no merits and should be rejected.

Ground 2

20.  The DLA refused the applicant’s legal aid application on the ground that, based on the evidence available, the District Court Action had no reasonable merits.  The Judge concluded that the DLA’s view cannot be said to be without basis or irrational in public law sense and hence the applicant’s intended judicial review ground had no merits.

21.  This court cannot see how the Judge’s said conclusion can be said to be plainly wrong, given the fact that the District Court Action had in fact been struck out.  Quite to the contrary, the Judge was plainly right.

22.  There is also nothing in this ground of appeal.

Ground 3

23.  Under this ground, the applicant complains that the Judge erred to have accepted the DLA’s assessment that his claimed compensation could be no more than $15,000.  He says the assessment was wrong and without basis.

24.  In this respect, it must be noted that in deciding whether to grant leave to apply for judicial review under this ground, the Judge was only concerned with whether there was no basis at all or it was Wednesbury unreasonable for the DLA to have formed that assessment.

25.  The Judge concluded that the DLA was not Wednesbury unreasonable as that was based on counsel’s opinion after having assessed the available evidence with the relevant legal principle.  It was also reasonable for the DLA to rely on counsel’s opinion.

26.  However, the applicant has emphasized in his present submissions that as a matter of law, his claim seeking compensation under section 66 of the PDPO must be commenced at the District Court.  Hence, the DLA and the Judge were in any event wrong in law to say that it was reasonable not to grant him legal aid because his claim should fall within the Small Claim Tribunal jurisdiction.

27.  There is no merit in this complaint.  In Lee Kwok Tung Albert v Chiyu Banking Corporation [2018] HKCA 123, 2 HKLRD 273 at [4.3] ‑ [4.22], this court has decided that although a section 66 claim under the PDPO should first be commenced at the District Court, the District Court does not have exclusive jurisdiction to hear such claims.  When appropriate, a party can apply and the District Court can transfer the claim to the Court of First Instance to deal with it.  In the premises, the Judge did not err as a matter of principle by relying on this authority to say that it was not unreasonable for the DLA to form the view that the applicant’s claim could be transferred to the Small Claim Tribunal[5].

28.  For these reasons, Ground 3 must also fail.

Ground 4

29.  This ground is a non-starter.  Even if the applicant would be successful in his proposed grounds of judicial review challenging the DLA Decision, there is no chance that the court would exercise the discretion to quash it and remit it back to the DLA to consider granting legal aid to the applicant, as the underlying subject District Court Action has been struck out already.  As rightly observed by the Judge, there is therefore no question of granting legal aid to the applicant to enable him to further pursue the District Court Action.  The intended judicial review is academic and serves no useful purpose.  The Judge is clearly right in this reason.

Ground 5

30.  Whether to grant an extension of time is a matter of discretion for the court.  Hence, unless the Judge erred in principle or is plainly wrong when exercised his discretion not to extend time in the present case, this court will not interfere his exercise of discretion.

31.  Under established principle, in exercising the discretion, the Judge is entitled to take into account the merits of the intended judicial review to decide whether to extend time[6].

32.  As we have said above, the Judge is entirely correct to form the view that the applicant’s intended judicial review had no merits and leave should not be granted.  Given the clear lack of any arguable merits, it must be right for the judge to refuse to extend time for the applicant to apply for leave for commencing judicial review.

33.  This ground is misconceived and must be dismissed.

Ground 6

34.  Again, costs is a matter of discretion for the Judge.  Although the usual starting position for a contested unsuccessful judicial review leave application is no order as to costs, the court could depart from this position if it is of the view that there are good reasons to do so after taking into account all the circumstances of the case, which include whether the leave application is ill-conceived or unmeritorious, and whether the appearance of the putative respondent has provided valuable assistance to the court.  See: Leung Kwok Hung v President of the Legislative Council (No 2) (2014) 17 HKCFAR 841 at paragraphs 17(1) ‑ (6) per Ribeiro PJ.

35.  In ordering costs against the applicant, the Judge took into account “the completely unmeritorious” nature of the applicant’s leave and time extension applications, the applicant’s failure to set out all the relevant background facts, which justified the DLA appearance at the court’s direction, and the valuable assistance given to the court by the DLA’s appearance[7].  These are all relevant matters that the Judge is entitled to take into account and the Judge exercised the discretion in accordance with the above principle.  The Judge therefore did not err in principle in ordering costs against the applicant.  In any event, in our view, his decision on costs is plainly correct in light of the obvious ill-conceived nature of these applications.

36.  The applicant’s complaint under Ground 6 is also entirely without merit and must be rejected.

E.   CONCLUSION

37.  For all the above reasons, the appeal should be struck out and dismissed.

38.  There are no reasons why costs should not follow the event.  We further order that costs of this appeal be paid by the applicant to the DLA, summarily taxed at $60,000.