R v. THE DUTY LAWYER SERVICE

HCAL 78 AND 83 of 2013

HCAL 78 of 2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 78 OF 2013

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J U D G M E N T

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INTRODUCTION

1.  This is the consolidated hearing of the two applications for leave to apply for judicial review.  The two applicants are torture claimants under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”).

2.  Each of them seeks to challenge by way of the intended judicial review the decisions of the Duty Lawyer Service (“DLS”) to refuse to assign to the applicant Mr Daly as his choice of lawyer under the DLS CAT Scheme to represent him in the CAT claim[1].  I will refer the decisions collectively as “the Decisions”.

3.  The applicants rely on effectively identical grounds as set out in their respective original Form 86 in support of the intended judicial reviews, thus, the consolidated hearing of their applications.  There are three grounds raised in the original Form 86, and I would for convenience refer these as the “original grounds”.

4.  It is pertinent to note that, as accepted by Mr Dykes SC for the applicants, the original grounds are in effect and in substance identical to the three grounds relied on by three other applicants respectively in HCAL 6, 7 & 63/2013 (“the Earlier HCAL Actions”) to similarly challenge the DLS’s decisions to refuse to assign Mr Daly to represent those applicants.

5.  This court on 16 August 2013 handed down its judgment (“the Earlier HCAL Judgment”) in the Earlier HCAL Actions refusing to grant leave to apply for judicial reviews on those grounds.

6.  For convenience, I quote as follows the summary of those grounds in the Earlier HCAL Judgment at paragraphs 3-7:

“3. There is no dispute that, before the assignment of lawyers by the DLS, Mr Daly had been advising and representing the applicants in other matters. These included their refugee claims and miscellaneous immigration status matters, as well as judicial review challenges against the CAT adjudication process and policy. It is the applicants’ case that they had since developed trust and confidence in Mr Daly. This pre‑existing solicitor‑client relationship was the principal reason behind the applicants’ expressed preference to have Mr Daly to be assigned to them as their lawyer under the DLS CAT Scheme.

4. At the same time, it is common ground that the DLS has adopted a policy (“the Policy”) of even distribution in its assignment of lawyers to CAT claimants under the DLS CAT Scheme. The Policy has been set out in a paper (“the Bills Committee Paper”) presented by DLS to the Bills Committee of the Legislative Council in December 2011 as follows:

‘11. On the question of assignments where the claimant is an existing client of a law firm, it has all along been the Duty Lawyer Service’s policy as stated above that assignments as far as practicable have to be evenly distributed amongst duty lawyers on the panel. It is however also the Duty Lawyer Service’s practice that in order to avoid any duplication of work already done, the Duty Lawyer Service is agreeable to assign the same duty lawyer (duty lawyer assignment is a personal assignment in that the assignment is not to a law firm or to a set of chambers) to continue to represent those claimants who have been offered legal advice by that duty lawyer or has also been engaged to represent them. Such request would only be allowed when that particular duty lawyer has not been saddled with too many CAT cases and is also in a position to handle the additional assignments in a timely and efficient manner.’ (emphasis added)

5. It is the applicants’ case in these applications that the Administrator (“the Administrator”) of the DLS has stated the reasons in the relevant correspondence (which I would say more later) for the decisions to refuse to assign Mr Daly as their choice of lawyer. The reasons so stated were in substance that, as Mr Daly was ‘saddled with too many cases’, there would be no further assignment to him, even though Mr Daly’s role in other cases for the applicants might or might not be relevant (and given that other duty lawyers on panel were equally competent and able to represent the applicants).[2] For convenience, I would refer these reasons as the “the Stated Reasons”.

6. In light of the Stated Reasons, the applicants raise three grounds of challenge in the intended judicial reviews in the respective Form 86. They are:

(1) Ground 1: The decisions are tainted with illegality as the Administrator had fettered her discretion by applying the Policy rigidly and inflexibly by looking only at the number of cases that had been assigned to Mr Daly.

(2) Ground 2: The decisions are tainted with illegality or irrationality as the Administrator had failed to give sufficient weight to the pre‑existing solicitor-client relationship between the applicant and his chosen lawyer, and had given too much weight to the Policy.

(3) Ground 3: The decisions are in breach of the rights under Articles 35 and 41 of the Basic Law. The issue raised under this ground is whether the court in exercising its powers of supervision purely on Wednesbury irrationality terms or would a proportionality test be applied if the decisions engage fundamental constitutional rights under Articles 35 and 41 of the Basic Law, or alternatively through the requirement of fairness in light of the momentous importance of a CAT claim.

7. However, it must be noted that in relation to these proposed grounds of challenge, Mr Dykes SC for the applicants has fairly confirmed at the hearing that:

(1) There is no challenge of the Policy itself in these applications.

(2) Ground 3 is not advanced as a separate or standalone ground, and the applicants would only seek to rely on it if they could have leave to apply for judicial review based on Grounds 1 and/or 2.”

7.  For the present purposes, for convenience, I would adopt the above summary as also the summary of the original grounds in the present applications.  Further, given that the original grounds are the same as those grounds raised in the Earlier HCAL Actions, the Earlier HCAL Judgment is closely relevant to the present leave applications.  This judgment should be read together with the Earlier HCAL Judgment.

8.  In the Earlier HCAL Judgment, I dismissed the leave application on the bases that:

(1) From the evidence filed by DLS, it is clear that the Administrator in refusing to assign Mr Daly to those applicants had taken into account, inter alia, the pre‑existing solicitor‑client relationship and the fact that there were incidents showing that Mr Daly had been overloaded with too many cases and had not been able to personally properly perform his duty in some of the assigned cases and in a timely manner (“the Performance Factor”). These incidents have been set out at paragraph 13 of the Earlier HCAL Judgment.

(2) I did not accept the applicants’ contentions that that the said evidence filed by DLS in support of the above was only post facto justification of the reasons for the relevant decisions.

(3) In the premises, there was no question that (a) the Administrator had fettered her own discretion by adhering rigidly to the Policy (as defined in the Earlier HCAL Judgment: see the above quoted part of the judgment), or (b) the Administrator had failed to give sufficient weight of the pre-existing solicitor-client relationship.

(4) The applications were in any event academic, given that those applicants’ relevant CAT claims had already been disposed of, and that Mr Daly had also been assigned to represent them in the subsequent relevant judicial reviews against those CAT claim dismissals.

THE PRESENT LEAVE APPLICATIONS

9.  In the present applications, the Administrator has also filed evidence in opposition.  The essence and effect of the evidence is the same as that filed in the Earlier HCAL Actions.

10.  In light of the state of the evidence, and the Earlier HCAL Judgment, Mr Dykes for the present applicants fairly submits that, insofar as the original grounds are concerned, he is contended to leave the arguments as they are set out in the original Form 86, which are effectively the same as considered and rejected in the Earlier HCAL Judgment.

11.  In the premises, I see nothing in the present case that would persuade me from departing from the reasons and considerations I have given in the Earlier HCAL Judgment in finding that the original grounds are also not reasonably arguable.  It is perhaps also worthwhile to mention that the Decisions challenged under the present applications are close in time to those decisions challenged under the Earlier HCAL Actions[3]. That in my view renders the reasoning in the Earlier HCAL Judgment more so to be applicable mutatis mutandis to the present applications.

12.  Therefore, for those same reasons (which I would not repeat here), I also conclude that the original grounds in the present case are not reasonably arguable.

13.  This takes me to the “new” grounds raised in these applications.

14.  On 13 January 2014, four days before this hearing, the applicants have respectively put in a draft Amended Form 86 adding additional bases to support the intended judicial reviews.

15.  As summarised and advanced by Mr Dykes at the hearing, the new grounds amount to as follows:

(1) First, even if the Administrator had taken into account the Performance Factor in relation to Mr Daly’s purported inability to personally handle some other cases and in a timely manner, with the evidence filed by Mr Daly answering and explaining these incidents[4], any such “under performances” must at the highest be regarded as minor “sins” only.  This is underlined by the fact that even in the Administrator’s own case, she had assigned “additional cases to Mr Daly” over and above the quota despite the “performance concern”.  This is objective evidence that the Administrator was not of the view that Mr Daly was unable to competently and professionally discharge his duties to claimants already assigned to him.

(2) In light of the above, applying anxious scrutiny, in allowing such “minor sins” to overbear the very important factor of pre‑existing solicitor‑client relationship in the context of CAT claimants, it is at least reasonably arguable that the Administrator’s decisions to refuse to assign the applicants their preferred choice of lawyer are Wednesbury unreasonable or irrational.

(3) Alternatively, the Decisions are also disproportionate, unjustifiable and contrary to Art 35 and 41 of the Basic Law of the right to confidential legal advice and choice of lawyers for timely protection of lawful rights and interests.

(4) Third, the applications are not academic in light of the additional ground as set out in the Amended Form 86.  The additional ground is described as follows under HCAL 78/2013 at paragraph 37A[5]:

“37A. Fourthly, this application is not academic despite the fact that the torture claim of the Applicant has already been decided both on the initial screening and petition stage by the Director of Immigration and the Torture Claims Appeal Board. Should the Applicant succeed in quashing the Adjudicator’s decision against their claim for protection, the Applicant will request Mr Daly to be his choice of duty lawyer due to the strength of their pre‑existing solicitor-client relationship. Mr Daly who is a leading practitioner will most likely be operating at all times at the limit of the DLS quote policy and thus similar considerations will continue to apply. Further, as the DLS may also be operating in a similar capacity under the upcoming USM scheme, the Applicant will be making the same request to the DLS to assign Mr Daly as his duty lawyer on an identical basis (ie the longstanding pre‑existing solicitor-client relationship). The question of what weight the DLS should give to the pre-existing relationship between the Applicant and his lawyer of choice therefore remains very much a live one.”

16.  With respect, I am equally not convinced that these new grounds are reasonably arguable.

17.  In relation to the first additional argument, as seen from the evidence before me, the Administrator in assigning the “additional” two cases to Mr Daly despite the quota and the Performance Factor was premised on very special circumstances and consideration of those two cases.  This has been explained by the Administrator in her 2^nd Affidavit at paragraphs 4-8 as follows:

“4. Having regard to the content of the Applicant’s Amended Notices and, in particular, the reasons for assigning 2 particular cases to MD [Mr Daly] before and after the decisions that are being challenged by the Applicants, I will elaborate on the matters referred to in paragraphs 21 and 22 of my 1^st Affidavit.

5. Firstly, with regard to the case which was assigned to MD on 7^th March 2012. As stated in paragraph 21 of my 1^st Affidavit, the claimant approached the DLS CAT Office on 1^st March 2012 and nominated MD as his duty lawyer. He explained to the DLS court liaison officer that MD had been helping him in two cases for the past 6 years. The claimant also informed us that he had hypertension and serious kidney failure which required kidney dialysis four times day and that he had to visit the Queen Elizabeth Hospital twice a month. The claimant claimed that he was waiting for a kidney transplant. Apart from having a pre-existing solicitor-client relationship, MD had also liaised with the claimant’s doctor and was familiar with his medical problems. This can be seen from the contemporaneous notes kept by the court liaison officer (the representative of the DLS), who communicated with the claimant in that case on 1^st March 2012, now produced and shown to me marked ‘GW‑12’. The existence of the those exceptionally humanitarian circumstances together with the existence of a pre‑existing solicitor‑client relationship between the claimant in that case and MD, were taken into account in the exercise of discretion to assign MD to the claimant.

6. Turning to the second case. The claimant’s CAT claim application was determined on 29^th February 2012. The claimant was advised by the assigned duty lawyer representing him at the initial screening that there were no grounds for a petition. On 8^th March 2012, the claimant requested a copy of his case paper. DLS subsequently received a letter dated 10^th April 2012 from Messrs. Barnes and Daly requesting the assignment of MD as the claimant’s duty lawyer for the purpose of a petition. Special circumstances warranted the case to be assigned to MD: (a) the claimant’s previous assigned duty lawyer had not submitted any evidence or information about the claimant’s country of origin at the initial screening; and (b) MD was at the time in the process of contacting potential witnesses for the claimant. This can be seen from the letter dated 10^th April 2012 from Messrs. Barnes and Daly to the DLS now produced and shown to me marked ‘GW-13’.

7. In contrast to the above, the reasons provided by the Applicants to support their applications for MD as their duty lawyer was based essentially on the pre-existing solicitor client relationship between the Applicants and MD. They were unable to provide any other reasons justifying a departure from the DLS’s assignment policy at the time when MD had exceeded the quota limit and when the DLS had concerns as to MD’s performance in other cases as described in paragraphs 25 to 29 of my 1^st Affidavit. The DLS was of the view that other equally competent duty lawyers on the CAT scheme would be fully able to represent the Applicants.

8. As outlined in paragraphs 31 to 34 of my 1^st Affidavit, the Applicants were offered another duty lawyer from Messrs.  Barnes and Daly and other duty lawyers from the panel.”

18.  For Mr Daly’s explanations of the incidents giving rise to the Performance Factor, the Administrator has also responded by paragraphs 9‑11 of the 2^nd Affidavit as follows:

“9. [Mr Daly] alleges that the DLS’s website purports to leave the question of attendance at the screening interview at the discretion and advice of the assigned duty lawyer and that he informed the DLS that he would be leaving early.

10. For the sake of clarification, the information contained in the DLS’s website about the scope of legal assistance to claimants under the DLS CAT Scheme is for public awareness only and are not assignment instructions to the assigned duty lawyers who receive their instructions through an assignment letter. This has been made clear in a letter dated 30^th January 2012 from the DLS to the Law Society’s Investigation Counsel now produced and shown to me marked ‘GW-14’.

11. Regarding his allegation that MD informed the DLS that he would leave early, on 26^th August 2011 MD indicated by letter to the Torture Claim Assessment Section and c.c. copied to the DLS that he would be available from 10:30 am to 3:30 pm for the scheduled screening interview on 12^th September 2011.  However, according to the DLS’ records, MD left the interview at 2:36 pm leaving the claimant in that case with his assistant, an unqualified legal practitioner in Hong Kong, to handle the matter by herself.  It was recorded at 3:23 pm that the claimant wished to amend an answer to a certain question.  As a result, a number of questions and answers arose from that amendment were recorded.  Since MD’s assistant was not legally qualified, she was in no position to advise the claimant or to speak during the screening interview.  MD did not inform and obtain the consent or agreement from the DLS that he would leave an hour before 3:30 pm (the time he said he would be available to) nor that he would leave his assistant to handle the remaining screening interview herself.  The DLS has written to the Law Society’s Investigation Counsel explaining the above incident as can be seen in the letters dated 28^th February 2012, 30^th March 2012 and 16^th May 2012 from the DLS to the Law Society’s Investigation Counsel now produced and shown to me marked ‘GW-15’.”

19.  It is important to note that the court in these intended judicial reviews is not to arbitrate or determine the substantive merits of DLS’s complaints about Mr Daly’s performance.  What the court however is concerned with is whether (a) the Administrator had at the material time before her proper materials to support the complaints, (b) the Administrator was entitled to take into account those complaints as one of the factors for the purpose of considering whether to assign Mr Daly to the applicants, and (c) whether in all the circumstances, the Decisions not to so assign can be said to be Wednesbury unreasonable.

20.  It is not disputed that the Administrator was entitled to (and in fact should) take into account Mr Daly’s performance in other cases to decide whether to assign him to other applicants.  There is at least sufficient prima facie materials and information before her to raise the concern about the performance issue of Mr Daly.  Mr Daly might well have explanations and his own position for those incidents, and these had also been under the Law Society’s investigation.  That however is different from saying that there was no or no prima facie or reasonableevidence to justify the concern in the first place (as I understand it, Mr Dykes is also not, rightly so, arguing that there was no evidence at all to support any such concern).

21.  Further, in relation to the assignment of Mr Daly in the other additional cases notwithstanding the quota and the performance concern, given the very special circumstances and factors as identified by the Administrator in those cases, I do not find it reasonably arguable that those incidents per se render her present Decisions irrational or unreasonable as submitted by Mr Dykes. Quite to the contrary, it demonstrates that the Administrator had not adhered strictly to the Policy or quota system, and had in her exercise of discretion taken into account the individual circumstances of each case.  This is precisely what the applicants say she should have done in each case.

22.  In the premises, even applying anxious scrutiny, in light of the Performance Factor and the lack of other special factors (as in the other additional cases), I do not find the Decisions are ones that no reasonable person in the position Administrator would have made in the circumstances of the present cases despite the pre-existing solicitor-client relationship.

23.  For the same reasons, even if the rights under Arts 35 and 41 of the Basic Law were engaged in relation to the assignment of duty lawyer under the DLS CAT Scheme[6], the Decisions are not reasonably arguably to be disproportionate and unjustified in limiting those rights.

CONCLUSIONS

24.  For all the above reasons, I dismiss the leave applications as none of grounds raised in support of the intended judicial review are reasonably arguable.

25.  Finally, I also reject the additional argument that the intended judicial reviews are not academic.

26.  The present applications are disposed of on the basis of the evidence as at the time of the Decisions.  Similarly, whether the Administrator would in the future decide to assign or not to assign the applicants’ preferred choice of lawyer (even if it is still Mr Daly) under the DLS CAT Scheme for the USM Scheme must also be predominantly fact sensitive.  It may depend, for example, on whether at that time, under the context of the Policy, the Administrator still has justifications to be concerned with the fact that Mr Daly is overloaded with cases which has affected his ability to discharge his duties professionally, personally and in a timely manner.  It may also depend on whether as at that time, the applicants would have provided further or other justifications for having Mr Daly as their representing lawyer.

27.  Therefore, I would have also refused the leave applications on the basis that the intended judicial review are academic in nature.

COSTS

28.  In the Earlier HCAL Actions, upon DLS’s application, I awarded costs to the putative respondent.  My reasons for doing so have been fully set out in the judgment dated 5 November 2013 (“the Costs Judgment”).  In essence, other than that DLS’s attendance had rendered significant assistance to the court, I was of the view that the leave applications were clearly without merits in light of the evidence filed, and that the applicants in substance had had a rolled-up hearing.

29.  Mr Duncan for DLS similarly asks for costs of the present applications on similar bases.  Further, Mr Duncan emphasises that the present leave applications are a fortiori ones where costs should be awarded to the putative respondent since, in light of the Earlier HCAL Judgment, it must be even clearer to the applicants that their intended judicial review have no merits.

30.  I agree with Mr Duncan.

31.  I would also like to point out that after the handing down of the Earlier HCAL Judgment in August 2013, I gave directions in October in these leave applications for hearing and the filing of evidence by DLS. DLS filed her evidence on 13 November 2013.  However, it was only until 13 January 2014 that the applicants sought to amend the respective Forms 86 by adding the “new grounds”, with Mr Daly filing his two affirmations respectively on 13 and 16 January to support those grounds.  As I mentioned above, these affirmations however effectively principally refer back to Mr Daly’s earlier affirmations filed in the Earlier HCAL Actions.

32.  In light of the Earlier HCAL Judgment and the way the additional grounds were raised in the last minute relying on predominantly similar evidence already filed in the Earlier HCAL Actions, it appears to me that the applicants should have also realised that these leave applications clearly have no merits even with the new grounds.

33.  Thus, for the same reasons in the Costs Judgment, I accept that there are similar exceptional circumstances in the present case to justify awarding to DLS costs of these unsuccessful leave applications.

34.  I therefore so order that costs of these applications be to DLS to be taxed if not agreed, with certificate for two counsel.

35.  I further order that the applicants’ own costs be taxed in accordance with legal aid regulations.