J v. TORTURE CLAIMS APPEAL BOARD

HCAL 385/2019

[2022] HKCFI 510

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 385 OF 2019

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D E C I S I O N

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1.  By a consent order dated 8/11/2021, this court remitted the appeal against the decision of the Director[1] to the TCAB for fresh determination. The applicant applied for costs against the Director to be dealt with by written submission. [2]

2.  The applicant is a national of Gambia. He was allowed to stay in Hong Kong as a visitor until 29/12/2014. He overstayed and surrendered to the Immigration Department on 2/1/2015. He lodged a non-refoulement claim on 13/2/2015. He was assisted by the PSO lawyer[3].

3.  The basis of his claim is not relevant for the present application for costs, suffice it to mention that he was asked to repay the part payment of a land transaction in which he acted as the middleman. He would be harmed or killed by the purchasers if refouled.

4.  The Director dismissed his claim on 3/4/2018. The applicant had a conference with the PSO lawyer—Mr. Chan of Eric Chan & Co—on 13/4/2018. He was given a copy of the Director’s decision. [4]

Late filing of the Notice of Appeal

5.  The applicant appealed to the TCAB in person. He filed the Notice of Appeal (“NOA”) on 25/4/2018. In section 5 of the NOA, he stated that he received the decision of the Director on 13/4/2018. He did not attach any supporting documentary evidence.

6.  In the course of consideration, the adjudicator wrote to the Director enquiring about the date and manner of service of the decision.

7.  The Director replied on 20/11/2018 that the decision was delivered to the PSO lawyer by registered mail on 3/4/2018.

8.  The adjudicator accepted the Director’s explanation. He ruled that the deadline for filing the NOA should be 20/4/2018. The adjudicator pointed out that even accepting that the applicant received the decision on 13/4/2018, there was no explanation as to why he took 12 days to file the NOA on 25/4/2018. The applicant filled in section 5 of the NOA. This indicated that he realized it was out of time. The adjudicator concluded that there was insufficient evidence, documentary or otherwise, to justify late filing. The adjudicator refused late filing of the NOA.

Judicial Review

9.  The applicant filed the leave application for judicial review on 11/2/2019. He attached the decisions of the TCAB and the Director. He was later granted legal aid and represented by KCL & Partners.

10.  Deputy Judge CP Pang dealt with the leave application on paper. The Judge pointed out that exhibits J-16—J-19 of the 3^rd affirmation of the applicant showed that the decision of the Director reached the PSO lawyer on 11/4/2018. The applicant was informed of the decision on 13/4/2018. The Judge ruled that the deadline for filing the NOA should be 25/4/2018. It was reasonably arguable that there was no late filing. The Judge further pointed out that in view of the short delay, the adjudicator should have made more inquiries. Lastly, the adjudicator had not considered the merits of the claim. The Judge granted leave for judicial review on the grounds in the amended Form 86.

11.  The case was later disposed of by a consent order. The appeal was remitted to the TCAB for determination.

12.  The applicant applied for costs against the Director. Counsel for the applicant, Mr. Francis Ngan, argued that by the letter dated 20/11/2018, the Director had misled the adjudicator. Subsequent inquiry revealed that the decision was sent to the PSO lawyer by registered mail on 9/4/2018 instead of 3/4/2018. In the absence of any explanation, the Director’s conduct was improper and wholly inexcusable.

13.  Mr. Rex Cheung, SGC[5], argued that the adjudicator should have made more enquiries given the applicant asserted that he only received the decision on 13/4/2018. The information from the Director did not preclude further enquiry by the adjudicator. Mr. Cheung pointed out that the Director was an interested party to facilitate the disposal of this case. The Director had not opposed the applicant’s leave application. The Director had been acting in good faith.

Discussion

14.  It is well settled that a court would make no order for costs against an inferior court or tribunal which did not appeal or appeared only to assist the court as a neutral party, unless there was a flagrant instance of improper behavior.[6]

15.  An appeal board or a tribunal should not compromise its neutrality by taking a stance in court proceedings to support its own decisions.

16.  Not all obvious or even blatant mistakes in law constituted flagrant improper behaviour. The criteria were stringent and required grave impropriety. A tribunal must have acted perversely or with some disregard for the elementary principles which every court ought to obey, and even then only if it was a flagrant instance.[7]

17.  What amounts to ‘flagrant improper behavior’ is not discussed in the authorities, however, in R v Liverpool Justices, Ex parte Roberts, Lord Parker CJ suggested,

“…the general practice is not to award costs against a party who does not appear to resist an application of this sort. That is not to say that there may not be cases where the court thinks it right to order a party to pay costs if, for instance, he had materially contributed to the error giving rise to the application.”[8] (emphasis added)

18.  So far, the authorities discussed above concerned the inferior court and tribunal, what then is the position of a party who played no part in the proceedings like the Director in the present case.

19.  In this respect, the case of Re Lee Shiu Ting [9] may be a useful reference. The Full Court in Hong Kong applied the principle set down by Lord Parker and refused to grant costs against the prosecution.

20.  That case was an application for an order of certiorari to quash an order of disqualification from holding a licence to drive any type of motor vehicle under s.4 of the Motor Vehicle Insurance (Third Party Risks) Ordinance.

21.  Huggins J concluded that the magistrate erred in failing to specify the period of disqualification. His Lordship refused to order costs against the prosecution who did not oppose the application for certiorari. His Lordship agreed with the comment of Lord Parker in R v Liverpool Justices, Ex parte Roberts, [10]

“So far as costs against the magistrates are concerned, it has been the practice not to grant costs against magistrates or tribunals merely because they have made a mistake in law but only if they have acted improperly, that is to say, perversely or with some disregard for the elementary principles which every court ought to obey, and even then only if it was a flagrant instance. In the present case the Court is satisfied that the denial of justice here was a pure mistake and was not a flagrant instance; indeed, counsel has not asked for costs against the magistrates. He asks for costs only against the prosecution. So far as that is concerned, it is the recollection of all the members of this court that the general practice is not to award costs against a party who does not appear to resist an application of this sort. That is not to say that there may not be cases where the court thinks it right to order that that party to pay costs if, for instance, he has clearly contributed to the error giving rise to the application. Accordingly, following that usual practice, the court in the present case refuses costs." (emphasis added)

22.  In my view, the conduct of the party, who did not appear to oppose the application, must be “materially contributed to the error” or “clearly contributed to the error” before it would be liable to pay costs.

23.  In the present case, the adjudicator dealt with the application for late filing on paper. The Director did not participate in the decision albeit that it had provided some misleading information which might have contributed to the TCAB decision.

24.  It is essential, before applying the principles discussed above, to examine the background facts leading to the TCAB decision as follows:

(a)  In the affirmation in support of his leave application, the applicant had filed a copy of the decision of the Director which had a chop on it. This chop showed that the applicant received the decision from the PSO lawyer on 13/4/2018. The applicant had signed to confirm. There was the company chop of Eric Chan & Co on it. The applicant was given a copy of this decision by the PSO lawyer on 13/4/2018. It was unclear why did he not attach it to the NOA.

(b)  In the 3^rd affirmation of the applicant, he produced an envelope in ‘exhibit J-17’ which contained the decision of the Director sent to the PSO lawyer. This envelope must be in the possession of the PSO lawyer. The postal chop is conclusive that the decision of the Director was only posted on 9/4/2018.

(c)  The applicant also produced in the same affirmation a covering letter from the Director to the PSO lawyer (‘exhibit J-18’). Two chops on this letter are significant. One evidencing that the PSO lawyer received the decision of the Director on 11/4/2018. The other evidencing that the decision of the Director was explained to the applicant on 13/4/2018.

(d)  There is no evidence whether the applicant was given a copy of this letter and the envelope (‘exhibit J-17 and J-18’). Those advising him might not be aware of the significance of these exhibits at that stage.

(e)  There were subsequent correspondences between the Director of Legal Aid and the PSO lawyer. It is only necessary to refer to the letter from the PSO lawyer (‘exhibit J-30’). It appeared in paragraph 6 of the letter that the PSO lawyer had alerted the applicant to be cautious about the niceties on the computation of the time limit.

25.  It is clear from the facts above that the applicant was aware of the possible argument in relation to the time limit. He was in possession of a copy of the decision of the Director which demonstrated delay in the mail.[11] Unfortunately, he might not be given a copy of ‘exhibit J-18’. It did not occur to him to ask for a copy and attached to his NOA.

26.  This was compounded by the limited enquiry made by the TCAB. In this aspect, I agree with Deputy Judge Pang that the adjudicator should have made more enquiries given the short delay. This duty to make further enquiry is fact sensitive. It should not create extra burden on the TCAB in general.

27.  This is not a fault finding exercise.  I echo the comment of the Court of Appeal in Orrico Philippe thateven the most conscientious and competent decision-maker would have made mistakes which with the benefit of hindsight, can be described as obvious or blatant.[12]

28.  Having considered the above analysis, I do not think the Director’s misleading information to the adjudicator is flagrantly improper or clearly contributed to the error of the TCAB decision.

29.  In the circumstances, I make no order for costs.