RE CHEN HSIU YING

CACV 116/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 116 OF 2016

(ON APPEAL FROM HCAL NO 71 OF 2016)

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JUDGMENT

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Hon Chu JA (giving the Judgment of the Court):

1. This is an appeal against the decision of Au J (“the Judge”) given on 9 May 2016 refusing to grant leave to the applicant to apply for judicial review.

The applicant’s intended judicial review application

2. The Form 86 filed by the applicant named the Social Welfare Department as the proposed respondent, and the Director of Social Welfare Department as an interested party.  The Form 86, however, did not identify the decision that the applicant seeks to challenge by judicial review.  Neither did it contain the grounds relied upon and the relief sought in the intended judicial review application.

3. The applicant filed a total of three affirmations[1] in connection with the application for leave to apply for judicial review.  From these affirmations and the exhibits attached to them, it appears the applicant’s intended judicial review is related to the suspension of her Comprehensive Social Security Assistance (CCSA) payments.  Included in exhibit 1 to the applicant’s first affirmation is a letter dated 6 April 2016 addressed to the Court, in which the applicant made the following points:

(1)  Since January 2016, the applicant’s welfare payments were wrongfully terminated, despite her bank account balance in August 2015 was below the prescribed limit.

(2)  The applicant had requested explanation for the termination of her welfare payments, but the Social Welfare Department (SWD) refused to take responsibility.  

(3)  SWD’s letters in reply merely recounted the meeting the applicant had with the SWD staff.  The applicant could prove some of the contents of the SWD’s letters were untruthful.

(4)  The applicant objected to the SWD’s “investigation system” and welfare recipients were required to sign documents without prior explanation.

(5)  The applicant questioned why resumed payments were not retroactive and expenses incurred during the termination period were not fully reimbursed. 

The relevant facts

4. I set out below the facts that are relevant to the applicant’s intended judicial review application as appeared from the affirmations before the Judge.  It should, however, be noted that not all the correspondence between the applicant and the SWD had been exhibited to the applicant’s affirmations.  

5. The applicant was a recipient of CCSA.  Her continuous eligibility for CCSA is subject to periodic review.  A review was due in around June or July 2015, and CCSA payment for the applicant was initially arranged up to 31 July 2015. 

6. Two appointment letters dated 5 and 29 June 2015 were sent to the applicant by the Causeway Bay Social Security Field Unit (CBFU) of the SWD, requesting her to attend interview for the purpose of reviewing and ascertaining her continuous eligibility for CCSA.  The letters were signed by a Ms Ng, who is a caseworker of CBFU.  The subject line of the 29 June 2015 letter indicated that it was about renewal of CSSA payment.  The letter requested the applicant to bring to the interview, among others, information of her bank account. 

7. The applicant did not turn up for the scheduled interviews.  Ms Ng telephoned the applicant and left messages for her in June and July 2015.   Then on 11 August 2015, the applicant went to the office of CBFU, and was interviewed by Ms Ng and a Mr Kwok, who is the assistant supervisor of CBFU.  The applicant did not agree to provide the bankbook for her account with Nanyang Commercial Bank (“the Bank”) for verification; she only agreed to let CBFU obtain the updated record of her account from the Bank.  She signed the declaration in the Review Form, declaring that the total value of her assets did not exceed the prescribed limit. 

8. Pending enquiry with the bank, CSSA payment to the applicant was extended on a temporary basis, initially for three months up to 31 October 2015, and later for another two months up to 31 December 2015. Since January 2016, CSSA payment to the applicant has been suspended.  

9. In the meantime, SWD was not able to obtain from the Bank updated record of the applicant’s account because her signature was at variance with the specimen signature kept by the bank.  Ms Ng attempted to contact the applicant in October and November 2015 by telephone and by letter, but to no avail. 

10. Later, the applicant sent to the SWD a letter dated 1 December 2015, giving consent to the department to obtain information of her bank account from the Bank, and also disclosing she holds another account with the Bank.  Notwithstanding this, the Bank informed SWD by letter dated 15 December 2015 that the required record could not be provided because the applicant’s signature was still different from the specimen signature.  Ms Ng’s subsequent attempt to contact the applicant by telephone and letter was to no avail.

11. Then on 5 February 2016, the applicant attended the office of CBFU and had an interview with Ms Ng and Mr Kwok.  The applicant showed the bankbook of one of her accounts for checking, but did not sign the declaration in the Review Form.  The applicant asked for written reason for the suspension of her CSSA payment.  By her letter dated 17 February 2016, the applicant requested the SWD to send its reply to her by post. 

12. By a letter dated 18 February 2016, Mr Kwok, after referring to the matters stated in paragraphs 5 to 10 above, pointed out that the applicant’s CSSA payment was arranged up to 31 July 2015 with a temporary extension up to 31 December 2015, and that a review of her eligibility was due and this had to be conducted      

13. By her letter dated 2 March 2016, the applicant expressed dissatisfaction with Mr Kwok’s letter, saying that it was not an explanation for stopping her CSSA payment, and requested information on how to appeal against the decision. 

14. The Director of Social Welfare (“the Director”) replied by letter dated 11 March 2016.  The letter began by explaining the CSSA scheme and the financial tests administered under the scheme:

“Financial tests of CSSA

The CSSA Scheme provides financial assistance to bring the income of needy individuals and families up to a prescribed level to meet their basic needs.  It is non-contributory but means-tested. An applicant must pass both the income and assets tests, among other eligibility criteria, to be eligible for the assistance.” 

15. The letter went on to summarise the events relating to the latest review of the applicant’s continuous eligibility for CSSA payment (see paragraphs 5 to 11 above).  In the concluding section, the letter stated:

“Current position

To sum up, from June 2015 to March 2016, staff of CBFU had made much effort to discuss with you and process your CSSA review. Your CSSA payment had been temporarily arranged from 1 August 2015 to 31 December 2015. To establish your continued eligibility for the CSSA, please provide the bankbooks of all your accounts or a valid consent letter for conducting bank search.

We look forward to receiving your reply. Please contact Ms Ng or Mr Kwok of CBFU at … or … respectively.”

16. The applicant replied on 21 March 2016, acknowledging receipt of this letter and other letters from the SWD, and indicated she would not attend interview set up by Ms Ng.

17. After the applicant filed the application for leave to apply for judicial review, Ms Ng sent an appointment letter dated 14 April 2016 to the applicant requesting her to attend an interview on 22 April 2016, and to provide proofs of her assets, including her account with the Bank.

The Judge’s decision

18. On 9 May 2016, the Judge refused to give leave to the applicant to apply for judicial review.  The Judge’s reasons were set out in Form CALL-1 as follows:

“Based on all the documents filed with the court, there are nothing to show any arguable case that the Director’s decision to require the applicant to be subject to an assets review assessment by providing the applicant’s bankbooks of all the bank accounts or a valid consent letter for conducting bank search to establish the applicant’s continued eligibility for CSSA (see the Director’s letter dated 11 March 2016) is tainted by any errors of law, procedural irregularity or is Wednesbury unreasonable. In the premises, the applicant’s intended judicial review is not reasonably arguable with a realistic prospect of success. Leave to apply for judicial review must therefore be refused.”

The appeal

19. In her Notice of Appeal filed on 20 May 2016, the applicant’s stated the grounds of her appeal to be:

“SWD system only harasses and puts recipients at risk & at the mercy of the department’s organised crime syndicate.”

Application to adduce new evidence

20. The applicant also filed a summons on 27 June 2016, applying to present new evidence for the appeal.  The new evidence is contained in Part F of the appeal bundle (pp 33-70).  They include: (i) the applicant’s submission on the new evidence (pp 33-37); (ii) extracts from bankbooks (pp 38-40); (iii) correspondence exchanged between the applicant and the Hong Kong Monetary Authority in February 2016 (pp 41-42); (iv) the applicant’s letters to the Director in December 2015, June 2012 and June 2010 (pp 43-48); (v) the applicant’s letter to the Ombudsman in August 2012 (pp 49-52); (vi) record of the applicant’s complaint to CAPO in June 2010 (pp 53-54); (vii) the Director’s letter dated July 2010 in reply to the applicant’s June 2010 letter (pp 55-56); (viii) the applicant’s two CSSA Scheme Review Forms printed on 11 August 2015 and 5 February 2016 respectively (pp 57-64); and (ix) 4 appointment letters from SWD to the applicant dated 17 November 2015, 5 June 2012 (and enclosure), 29 June 2012 and 27 July 2012 respectively (pp 65-70).   

21. It is trite law that an application to adduce new evidence at the appeal must satisfy the three requirements established in Ladd v. Marshall [1954] 1 WLR 1489, namely, firstly, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; secondly, the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; thirdly, the evidence must be such as is presumably to be believed, or, in other words, it must be apparently credible though it need not be incontrovertible.

22. All the new evidence that the applicant seeks to put in for the appeal are dated before her application for leave to apply for judicial review.  Evidently, they are also documents in her possession.  The applicant has not explained why she did not put forward these documents in the affirmations filed in support of her application in the court below.  The first requirement established in Ladd v. Marshall is therefore not met.

23. Further, the relevance of those documents dated 2010 and 2012 to the intended judicial review is not apparent.  The applicant’s submissions have also not demonstrated the relevance.  The second requirement under Ladd v. Marshall is also not met.

24. Since the applicant has not been able to satisfy the first and second requirements laid down by Ladd v. Marshall, we refuse her application to put in new evidence and dismiss her summons.     

Decision on the appeal

25. Leave to judicial review will only be given where the intended judicial review application is reasonably arguable and enjoys realistic prospect of success: Po Fun Chan v. Winnie Cheung (2007) 10 HKCFAR 676.   Generally speaking, an applicant applying for judicial review has to demonstrate that the decision being challenged involves some errors of law or procedural irregularity, or is Wednesbury unreasonable.  

26. The applicant’s core complaint, as appeared by her letter dated 6 April 2016 (see paragraph 3 above), relates to the suspension of her CSSA payment as from January 2016.  She also complains of lack of explanation for the suspension, and also the SWD’s “investigation system”. 

27. From the Director’s letter dated 11 March 2016, it can be seen that the CSSA scheme is means-tested, and CSSA recipients must pass both the income test and assets test.  The applicant does not challenge this.  The applicant is also not challenging that the Director is entitled to conduct review or assessment to ascertain the continuous eligibility of CSSA recipients.  We also do not understand the applicant to be contesting that her entitlement to CSSA payment is not, or should not, be subject to periodic review. 

28. The applicant has not particularised what aspect of the SWD’s “investigation system’ that she objects to, other than merely saying that welfare recipients were required to sign documents without their prior approval.  In our view, as part of the financial tests administered under the CSSA scheme, and for the purpose of reviewing and assessing the applicant’s continuous eligibility for CSSA payment, the Director must be entitled to call for information of assets held by the applicant, including requiring the applicant to provide information of her bank accounts, and/or to give valid and effective consent for obtaining the information directly from banks. 

29. We agree with the Judge that on the materials before him, there is nothing to indicate that the Director’s decision to require the applicant to be subject to an assets review assessment, and to provide the bankbooks of all her bank accounts or, alternatively, to give a valid consent letter for conducting bank search to establish her continued eligibility for CSSA, gives rise to any grounds for judicial review. 

30. We are further of the view that if the Director cannot obtain, or does not have, information establishing the applicant’s continuous eligibility to CSSA payment, he is entitled to withhold or terminate CSSA payment to the applicant. 

31. The materials filed by the applicant show that the applicant has not provided the SWD with the bankbooks of all her bank accounts, and that the SWD has not been able to carry out a bank search because the applicant’s signature on the consent letter does not match the specimen signature held by the Bank. 

32. We cannot see any proper basis to judicially review the Director’s decision not to continue making CSSA payment, given that he has not been able to establish whether the applicant continues to be eligible for CSSA payment, and when he had already, pending outcome of the enquiries with the Bank, extended the payment on a temporary basis for five months up to 31 December 2015.  

33. We do not agree with the applicant that the Director has not given an explanation for his decision to suspend CSSA payment in January 2016.  Both the 18 February 2016 and 11 March 2016 letters have clearly pointed out that the periodic review to assess the applicant’s continuous eligibility has been outstanding, and that despite efforts of the SWD staff to carry out the review, it has not been possible to obtain information of all of the applicant’s bank accounts.  The Director’s 11 March 2016 letter further urged the applicant to provide the bankbooks of all her accounts or a valid consent letter for conducting bank search so as to establish her continuous eligibility for the CSSA.  In our view, the applicant can be left with no doubt that CSSA payment was suspended because the SWD has not been to establish her continuous eligibility for CSSA payment, which is occasioned by her failure to provide the department with information, and/or to co-operate with the department to obtain the information required.

34. The applicant has in the course of this appeal also raised some other matters, including there was a “crime syndicate” within the SWD, that the CBFU caseworker Ms Ng she met on one interview was not the same Ms Ng she saw on another interview or spoke to on the phone, and so on.  All these matters are irrelevant to the decision that the applicant seeks to challenge by way of her intended judicial review. Further, none of these matters amounts to proper ground for judicial review.

35. The applicant has also after the hearing sent two letters dated 12 and 18 August 2016 to the Court. It is inappropriate to send additional arguments or further materials to the Court when the appeal hearing is concluded and the Court has reserved the decision.  We would, however, clarify one matter raised in the first letter. The application for leave to apply for judicial review is an ex parte application: see Order 53 rule 3(2) of The Rules of the High Court, Cap.4A.  The applicant’s appeal against the refusal of leave to apply for judicial review is also an ex parte appeal.  The SWD is not a party in the appeal.  It is therefore not correct for the applicant to say in the first letter that the SWD did not defend its case.  It is only if leave to apply for judicial review is granted and the application for judicial review is brought, that the putative respondent, SWD, will become a party to the proceedings. 

36. For the above reasons, the Judge’s conclusion that the applicant’s intended judicial review does not meet the threshold for granting leave and his decision to refuse leave to apply for judicial review are plainly correct.  Accordingly, we dismiss the applicant’s appeal.