CHAN WAI YIN v. WONG SAU PING ADA AND ANOTHER

DCEC97/2004

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO . 97 OF 2004

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REASONS FOR DECISION

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1.  This employees’ compensation claim started as a claim by the Applicant against the 1^st Respondent. Legal Aid Certificate was granted to the Applicant in connection with these proceedings. Notice of Issue of Legal Aid Certificate dated 17^th October 2003 was filed with the court in respect of these proceedings giving notice inter alia that the solicitor assigned to act for the aided Applicant was Mr Ng Pak Chung Alexander (“Mr Ng”) of Messrs Ng & Co (the “Firm”).

2.  I was informed by Ms Chuah acting for the Director of Legal Aid that the Director had not assigned any counsel to act in these proceedings.

3.  On 4^th February 2004, the Firm issued a summons on behalf of the Applicant against the 1^st Respondent for inter alia the production of the relevant insurance policy. The Firm instructed counsel (the “1^st Counsel”) to attend the hearing of the summons on 1^st March 2004 (the “1^st Hearing”) on behalf of the Applicant. At the 1^st Hearing H H Judge Lok granted the order sought by the Applicant and made an order that the Applicant’s own costs be taxed in accordance with Legal Aid Regulations.

4.  At the first call-over hearing of the present proceedings on 2^nd April 2004 before me (the “2^nd Hearing”), the 1^st Respondent was absent. Counsel (the “2^nd Counsel”) was instructed by the Firm to attend the hearing on behalf of the Applicant. At the 2^nd Hearing I noted that the Applicant’s Application sent to the 1^st Respondent’s address was returned unclaimed and undelivered, which therefore raised concerns as to the viability of the Order of H H Judge Lok since service of the summons before him to the 1^st Respondent’s address might well be defective. The 2^nd Counsel informed me the Order of H H Judge Lok was not yet perfected and he sought an adjournment to look into the matter of service. I therefore ordered that the Application be adjourned sine die with liberty to restore and with costs reserved. I also granted an order for the Applicant’s own costs to be taxed in accordance with the Legal Aid Regulations.

5.  Despite the aforesaid and the fact that the Application was eventually served on the 1^st Respondent only by way of substituted service, the Firm arranged for the Order of H H Judge Lok to be perfected and filed on 16^th April 2004.

6.  On 20^th April 2005, the Employees’ Compensation Assistance Fund Board applied by summons to intervene in these proceedings and to join as the 2^nd Respondent. On the return day of the summons on 22^nd April 2005 (the “3^rd Hearing”), counsel (the “3^rd Counsel”) was instructed by the Firm to appear on behalf of the Applicant. I granted leave to the intervener to join as the 2^nd Respondent and to file an Answer. I also made an order for the taxation of the Applicant’s own costs in accordance with the Legal Aid Regulations in respect of the intervener’s summons. However, in respect of the Applicant’s ex-parte application for substituted service of the Application on the 1^st Respondent by way of Mr Ng’s affirmation, it was adjourned sine die with liberty to restore and with costs reserved.

7.  The Firm on behalf of the Applicant subsequently arranged for substituted service of the Application. Thereafter, the Application was restored for a further directions hearing before me on 18^th August 2006 (the “4^th Hearing”). Counsel (the “4^th Counsel”) was instructed by the Firm to appear on behalf of the Applicant. The 1^st Respondent was absent and a solicitor of Messrs Gallant Y T Ho & Co appeared on behalf of the 2^nd Respondent. Various orders were made in relation to inter partes matters.

8.  In the course of submissions by the 4^th Counsel, it transpired that no legal aid certificate was issued for assigning any of the 2^nd to 4^th Counsel to act in these proceedings. This was the first time the court was informed of such fact.

9.  I raised with the 4^th Counsel my concerns as to whether counsel could be properly briefed to appear on behalf of the legally aided Applicant in such circumstances. I further expressed concerns over the orders for taxation of the Applicant’s own costs in accordance with Legal Aid Regulations that had already been made and over the issue of taxation of the Applicant’s own costs in respect of the 4^th Hearing.

10.  The 4^th Counsel informed me the Firm had not notified the Director of Legal Aid that the 2^nd to 4^th Counsel had been instructed to appear on behalf of the Applicant at the 2^nd to 4^th Hearings, and had not sought prior approval of the Director of Legal Aid to so instruct counsel.

11.  After standing down the case to enable the 4^th Counsel to take instructions, the 4^th Counsel further informed me that the Firm would not seek any reimbursement from the Director of Legal Aid for counsel’s fees and/or the Firm’s costs and disbursements in relation to instructing counsel to attend the 2^nd to 4^th Hearings. This was the first time the court was informed of an offer of waiver of legal costs by the assigned solicitor Mr Ng.

12.  However, since my concerns touched on the propriety of legal representation of the legally aided Applicant as well as the question of solicitor and client costs vis-à-vis the Firm and the Director of Legal Aid, and given that the Director was unaware of the developments and unrepresented at the 4^th Hearing, I directed inter alia that the Firm do within seven days inform the Director of Legal Aid in writing of the attendance of counsel and the orders made at the 2^nd to 4^th Hearings and that the issue of taxation of the Applicant’s costs in respect of the 3^rd and 4^th Hearings, including the question of the costs of instructing counsel, be adjourned for argument. I also directed that the assigned solicitor and the Director of Legal Aid do attend the said adjourned hearing.

13.  There was no reference to the 1^st Counsel and/or the 1^st Hearing at the 4^th Hearing because at that time my attention was not drawn to the fact that counsel was also briefed to attend the 1^st Hearing.

14.  Pursuant to my order made at the 4^th Hearing, the Firm wrote to the Director of Legal Aid on 19^th August 2006 describing the 2^nd to 4^th Hearings and stating inter alia as follows :

(a)         At all the hearings attended by counsel “owing to the inability of our Mr Ng to attend court on the respective dates” the Firm would not seek reimbursement from the Director of Legal Aid of counsel’s costs and/or the Firm’s cost in relation to instructing counsel;

(b)        Mr Ng of the Firm was prevented from attending court as a result of lengthy dermatology disease and counsel was therefore retained for the various hearings.

15.  At the hearing before me on 6^th September 2006 (the “Present Hearing”), Ms Chuah confirmed that the names of the 1^st to 4^th Counsel (and they are four different counsel) were not included in the panel of counsel established under section 4 of the Legal Aid Ordinance at the time of the respective 1^st to 4^th Hearings.

16.  Mr Chiu, counsel for the assigned solicitor Mr Ng appearing before me at the Present Hearing, informed me that at the time when the 1^st to 4^th Counsel were instructed, the Firm had informed the 1^st to 4^th Counsel that the Applicant in these proceedings was legally aided.

17.  At the commencement of the Present Hearing, I stood down the matter for Mr Chiu to consider whether there was any conflict of interest for him to act for the assigned solicitor Mr Ng in light of certain matters that I raised with him at the hearing. When the matter was restored, Mr Chiu informed me he had carefully considered his position, but did not think he was in any position of conflict and he was comfortable in continuing to represent the assigned solicitor Mr Ng. Ms Chuah took no issue on this and the hearing continued.

18.  Mr Chiu reiterated that the Firm undertook not to seek reimbursement for counsel’s fees and the Firm’s costs and disbursements in instructing the 1^st to 4^th Counsel for the 1^st to 4^th Hearings from the Director of Legal Aid. Whilst such stance may practically remove concerns over expenditure by the public purse on counsel’s fees or legal costs incurred by the assigned solicitor in instructing counsel, Mr Chiu advanced a more fundamental proposition in his written and oral submissions, namely, that it is not objectionable for the assigned solicitor Mr Ng to instruct counsel as he had done in the given circumstances of these proceedings.

19.  Such proposition is so startlingly contrary to common understanding that I considered it appropriate to hand down my detailed reasons for the orders I made at the Present Hearing. It is perhaps also useful to remind legal practitioners of their well-known obligations in conducting legal proceedings on behalf of aided persons.

20.  In a nutshell, Mr Ng was the assigned solicitor for the legally aided Applicant. The Director of Legal Aid did not assign any counsel to act in these proceedings. Yet for four brief court hearings over a span of more than two years, ie from 1^st March 2004 to 28^th August 2006 (such hearings being the only court hearings in these proceedings), neither Mr Ng nor any other solicitor of the Firm appeared on behalf of the Applicant. Rather the 1^st to 4^th Counsel (who were not on the legal aid panel of counsel but who were informed that the lay client was legally aided) were instructed and they accepted briefs to appear on behalf of the Applicant.

21.  It is against the above background that I now turn to Mr Chiu’s submissions. But before I do so, I set out below Ms Chuah’s succinct summary of the position of the Director of Legal Aid.

22.  Ms Chuah submitted that the Director of Legal Aid had no statutory liability to pay the 1^st to 4^th Counsel’s fees or the legal costs incurred by the assigned solicitor Mr Ng in relation to briefing counsel because the Director did not assign any counsel to act on behalf of the aided Applicant in these proceedings. The Director of Legal Aid only knew of the instructions to counsel ex post facto and never gave any prior approval. Indeed, up to the Present Hearing, the assigned solicitor Mr Ng had not informed the Director that the 1^st Counsel had been instructed to attend the 1^st Hearing and Ms Chuah only became aware of such fact on being informed by the court. Ms Chuah informed me that given their nature the Director would not have issued any legal aid certificate for assigning counsel to attend the 1^st to 4^th Hearings.

23.  Ms Chuah further informed me that under normal circumstances, if an assigned solicitor wished to instruct counsel, he or she should write to the Director of Legal Aid to seek prior approval. If approval was granted, counsel would be selected from the legal aid panel of counsel and assigned by the Director to act for the aided person in the particular proceedings. The Director of Legal Aid would then notify the court, the relevant counsel and the assigned solicitor of such assignment of counsel to act for the aided person.

24.  Ms Chuah’s submissions are borne out by the provisions of the Legal Aid Ordiannce. Section 13(1) provides that where a legal aid certificate is granted, the Director of Legal Aid may assign counsel or solicitor to act for the aided person. Section 13(2) provides that counsel or solicitor selected under section 13(1) “shall be selected from the panel” (my emphasis). Section 4(1) provides that the Director of Legal Aid shall prepare and maintain separate panels of counsel and solicitors enrolled on the roll of barristers and solicitors “who are willing to investigate, report and give an opinion upon applications for the grant of legal aid and to act for aided persons” (my emphasis).

25.  Plainly, counsel or solicitor acting for the aided person must be assigned by the Director of Legal Aid and must be from the legal aid panel. In briefing counsel for legally aided cases it is the duty of the assigned solicitor to ascertain that the above requirements are satisfied, yet here the 1^st to 4^th Counsel fell foul of these requirements.

26.  Section 13(1) of the Legal Aid Ordinance further provides that where a legal aid certificate is granted and the Director assigns counsel, “the Director shall endorse on the legal aid certificate the name of any counsel …… assigned” (my emphasis). Section 14(1) provides that “the Director shall file the legal aid certificate in the registry of the court ……” (my emphasis). Section 14(2) provides that where counsel is assigned to act after a legal aid certificate is filed in court, or in any case where a new assignment is made in lieu of counsel assigned previously, “the Director shall not be required to endorse on the certificate the name of the counsel …… so assigned, or newly assigned as the case may be, but may, instead, give notice of such assignment or new assignment in writing to the proper officer of the court in which proceedings are pending”.

27.  Again, these provisions show that counsel or new counsel is to be assigned by the Director of Legal Aid and when so assigned the court will be notified. In these proceedings, this court was not notified of any assignment of counsel by the Director of Legal Aid.

28.  The close control by the Director of Legal Aid over legally aided cases can also be seen from the provisions in regulations 6A and 12 of the Legal Aid Regulations.

29.  Legal aid is a creature of statute. The rights of legal practitioners to appear and act for aided persons and the rights of aided persons to have legal representatives act for them derive from and/or are limited by the Legal Aid Ordinance and its subsidiary legislation. The statutory requirements for the establishment of separate panels of counsel and solicitor and the need for the Director of Legal Aid to assign counsel and/or solicitor in legally aided cases serve a laudable purpose. They protect the proper use of public revenue and promote justice by ensuring suitable counsel and/or solicitor are assigned to act for aided persons in a cost-effective manner.

30.  Assigned solicitors should be well familiar with the statutory obligations and restrictions in the conduct of proceedings on behalf of legally aided clients. Likewise, counsel in accepting briefs to act for legally aided lay clients should take care to ascertain whether they can properly appear and act for them. When there is any uncertainty, it is incumbent on either counsel or solicitor or both to seek confirmation from the Director of Legal Aid.

31.  Mr Chiu in his written submissions contended that “provided that the assigned solicitor gives sufficient instruction to a counsel and on condition that the counsel fees would be borne by the solicitors’ firm, it is an accepted practice that counsel could be instructed to appear for the aided person to attend call-over hearing and the like even if the respective counsel certificate is not issued by the Legal Aid when the assigned solicitor could not attend the hearing by himself” (my emphasis).

32.  At the Present Hearing, Mr Chiu at first argued that the above proposition is correct not just as a matter of practice but as a matter of law. In short, it was said that as a matter of law, even if the Director of Legal Aid had not assigned any counsel to act for the aided person in the relevant proceedings, the assigned solicitor was still entitled to brief counsel (even counsel not on the legal aid panel) provided (a) the assigned solicitor gave sufficient instructions to counsel, (b) the assigned solicitor would personally bear counsel’s fees, (c) the hearing to be attended by counsel was a “call-over hearing and the like” and (d) the assigned solicitor could not attend the hearing himself.

33.  I requested assistance from Mr Chiu as to the relevant legal support for his proposition with the four provisos. Mr Chiu frankly accepted there was no provision to such effect in the Legal Aid Ordinance and he cited no other authority. I note that whilst section 16B(b), 20 and 20A of the Legal Aid Ordinance provide that counsel and solicitor acting for the aided person shall be paid by the Director of Legal Aid, there is no provision that allows the assigned solicitor to personally engage counsel and pay such counsel’s fees.

34.  Mr Chiu suggested that the absence of express provision in the Legal Aid Ordinance did not mean that the proposition was not sound. Since legal aid is a creature of statute, I cannot accept such suggestion. In any event, as discussed above, there are express provisions in sections 13 and 14 of the Legal Aid Ordinance which adopted the mandatory word “shall” with no qualification in terms of the four provisos outlined by Mr Chiu or otherwise. Mr Chiu did not refer to sections 13 and 14 of the Legal Aid Ordinance at all in his submissions until I drew them to his attention. Rather he relied on regulation 17 of the Legal Aid Regulations which provides that “for the removal of doubt, it is hereby declared that where any solicitor is assigned for the purpose of any proceedings any other solicitor in the same firm may act for the aided person therein”. I am at a loss to understand the relevancy of this provision when here the assigned solicitor Mr Ng briefed counsel and not any other solicitor of the Firm to attend the 1^st to 4^th Hearings.

35.  Mr Chiu also had not shown any basis for asserting the alleged “accepted practice”. It may well be that in a private non-legally aided case the lay client may entrust his solicitor to engage counsel as he deems appropriate (irrespective of whether certificate for counsel will be granted on an inter partes basis), but Mr Chiu did not explain how such “practice” in private cases could be borrowed and applied to legally aided cases given the aforesaid statutory provisions.

36.  Mr Chiu’s submission is tantamount to saying that an assigned solicitor acting for an aided person on assignment by the Director of Legal Aid can on his own motion brief counsel in a manner akin to a private non-legally aided case without notifying or seeking the approval of the Director of Legal Aid. Such approach flies in the face of the aforesaid statutory provisions and puts the regime of legal representation in legal aid cases into disarray. In the end, Mr Chiu accepted that as a matter of law the assigned solicitor is required to notify and seek the prior approval of the Director of Legal Aid before briefing counsel.

37.  However, Mr Chiu submitted that nevertheless as a matter of “real life” and not just legal consideration, a distinction should be drawn between call-over hearings and trials, namely, that the assigned solicitor should notify the Director for Legal Aid and/or seek his approval for briefing counsel for the purpose of trial, but it would be unnecessary to do so for the purpose of instructing counsel to attend call-over hearings. Again Mr Chiu was unable to identify any supporting provision, authority or “practice” for such distinction. The fallacy of such distinction is highlighted by the obvious lacuna of what an assigned solicitor should do in respect of the myriad types of court hearings that did not fall cleanly into the categories of call-over hearings and trials.

38.  Mr Chiu argued that apart from the assigned solicitor Mr Ng, the Firm only had “a consultant working quite separately from him” and no other partner or assistant solicitor, so if Mr Ng could not attend the 1^st to 4^th Hearings (due to his lengthy dermatology disease), he could as assigned solicitor instruct counsel to appear for the aided Applicant.

39.  In my view, there is no satisfactory reason before me why the consultant of the Firm, who clearly fell within the category of “any other solicitor in the same firm” under regulation 17 of the Legal Aid Regulations, could not have attended the 1^st to 4^th Hearings on behalf of the legally aided Applicant. The fact that Mr Ng chose to segregate his practice from that of the consultant is not a satisfactory reason.

40.  Even more fundamentally, I cannot accept the reason offered by Mr Ng. If he suffers from a chronic illness so debilitating that he could not discharge his duty as an assigned solicitor to attend four brief hearings within a period of more than two years, and if he had no one to delegate to, he should have considered carefully whether to consult the Director of Legal Aid to assign counsel to act in these proceedings or alternatively to give up the aided Applicant’s case so that the Director can re-assign the case to another panel solicitor to handle. Mr Chiu did not suggest the need to brief counsel for the 1^st to 4^th Hearings were prompted by urgent events as opposed to Mr Ng’s lengthy illness. In any event, even if there were any urgency, the Legal Aid Ordinance contains provision for the issuance of emergency certificates, which would have enabled re-assignment of assigned solicitor or internal handling by the Director of Legal Aid’s own counsel.

41.  The prime duty of any assigned solicitor or counsel is to ensure that he is fit and able to properly discharge his duties to the client and to the court and in a legally aided case to the Director of Legal Aid as well. The reason offered does not lend any strength to the suggestion that Mr Ng could on his own instruct counsel to appear on behalf of the Applicant at the 1^st to 4^th Hearings.

42.  Mr Chiu acknowledged that “instruction of counsel without a counsel certificate from the Legal Aid Department is highly not commendable” (my emphasis). Mr Chiu also said it would have been better to “notify the Director of Legal Aid beforehand. By then, the Director of Legal Aid would be informed about the fact that a counsel is instructed and may make necessary records or give necessary directions to the assigned solicitor.”

43.  But from the above analysis, failing to notify the Director of Legal Aid or to seek his approval before briefing counsel to attend the 1^st to 4^th Hearings is not just “highly not recommendable”, it is, in my view, not permissible under the Legal Aid Ordinance.

44.  Mr Chiu had said all he could to support Mr Ng’s decision to instruct the 1^st to 4^th Counsel in the manner he did, but I cannot accept his various submissions.

45.  In the circumstances, I made an order at the Present Hearing that the Applicant’s own costs of the 4^th Hearing be taxed in accordance with Legal Aid Regulations save and except that there be no order in respect of the costs of the 4^th Counsel and of the costs incurred by the Firm of and occasioned by instructing the 4^th Counsel.

46.  I further directed that in respect of the orders made for the taxation of the Applicant’s own costs in respect of the 1^st to 3^rd Hearings, there shall be no order in respect of the costs of the 1^st to 3^rd Counsel and of the costs incurred by the Firm of and occasioned by instructing such counsel.

47.  Since the above matters concerned the proper representation of parties, they also appear to be matters of professional conduct. I raised with Mr Chiu the issue of whether this matter should be referred to The Law Society of Hong Kong. Mr Chiu submitted that practically speaking the Director of Legal Aid and the aided Applicant were not financially prejudiced. Whilst the absence of financial prejudice is a factor to considered, the issue at heart is the matter of professional conduct. Mr Chiu then submitted there was a genuine mistaken understanding of the law, but such contention does not sit well with the bold approach adopted in his written and oral submissions made on behalf of the assigned solicitor Mr Ng.

48.  However, Ms Chuah informed me that Mr Ng was still the assigned solicitor for the aided Applicant in these proceedings. In the circumstances, I did not consider it appropriate to deal with this issue at this stage. Therefore, at the Present Hearing, I directed that consideration of the issue whether instructions to 1^st to 4^th Counsel by the assigned solicitor Mr Ng to attend the 1^st to 4^th Hearings should be referred to The Law Society of Hong Kong be adjourned and restored forthwith before me by the assigned solicitor Mr Ng after the trial or final disposal of these proceedings or upon his ceasing to be the assigned solicitor for the aided Applicant, whichever is earlier.

49.  Since the 1^st to 4^th Counsel are involved as well, I also directed that the 1^st to 4^th Counsel be invited to attend the said adjourned hearing to address on their own representation of the aided Applicant at the 1^st to 4^th Hearings.

50.  I also granted leave for the Director of Legal Aid to attend the said adjourned hearing.

51.  I further directed that there would be no order as to costs of the Present Hearing. For the avoidance of doubt, there shall be no legal aid taxation of the Applicant’s own costs.

52.  Since I have dealt with the matter of the Applicant’s solicitor and client costs and the Applicant’s legal representation, it is inappropriate for me to continue to adjudicate on inter partes matters in respect of these proceedings. I have therefore directed that all further applications and/or court hearings in respect of these proceedings should not be fixed before me and that the Firm do notify the Respondents of this Order.

53.  To facilitate the said adjourned hearing, I now direct that the Firm do within seven days from the date hereof forward a copy of the Reasons for Decision to each of the 1^st to 4^th Counsel.

54.  The court has a serious responsibility for the administration of justice, which is a duty to itself, to the legal profession and to public community. The court places great reliance on legal practitioners, but such privilege for legal practitioners comes with the duty to act with competence, honesty and candour. The court is jealous to uphold the legal aid regime which serves an important role in the administration of justice. Practitioners should take special care in the conduct of proceedings for aided persons given public interest and public revenue considerations. The Director of Legal Aid is urged to consider whether appropriate reminder should be given to assigned solicitors and counsel.