SUN PO, alias MICHAEL v. DIRECTOR OF LEGAL AID

HCAL 2397/2018

[2021] HKCFI 1309

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2397 OF 2018

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J U D G M E N T

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INTRODUCTION

1.  This is the rolled-up hearing of an application for judicial review of the decision (“the Decision”) of the Director of Legal Aid (“the Direction”) contained in a letter dated 1 August 2018 to remove the Applicant from the Legal Aid Panel with effect from 1 August 2018 in accordance with s 4 of the Legal Aid Ordinance, Cap 91 (“the Ordinance”). In what follow, unless the context indicates otherwise, references to “Section” or “s” shall be to the Ordinance.

LEGAL AID PANEL

2.  In order to better understand the Applicant’s case, I shall first briefly describe the legal regime concerning the exclusion of a solicitor from the Legal Aid Panel for solicitors (“the Panel”).

3.  Section 4(1) provides that the Director shall prepare and maintain separate panels of counsel and solicitors enrolled on the rolls of barristers or solicitors maintained in accordance with the provisions of the Legal Practitioners Ordinance (Cap. 159) who are willing to investigate, report and give an opinion upon applications for the grant of legal aid and to act for aided persons.

4.  Section 4(3), which empowers the Director to make the Decision complained of in this application, states as follows:

“Any counsel and solicitor shall be entitled to have his name included on the panel unless the Director is satisfied that there is good reason for excluding him by reason of his conduct when acting or assigned to act for persons receiving legal aid or of his professional conduct generally.”

5.  It can be seen that s 4(3) gives the Director a discretion to exclude a solicitor from the Panel if the Director is satisfied that there is “good reason” for excluding him by reason of his conduct when acting or assigned to act for an aided person or of his professional conduct generally.  The criterion for exclusion, namely, “good reason”, is not further defined or explained in the statute.

6.  The Director has issued a Manual for Legal Aid Practitioners (“the Manual”) to brief legal aid practitioners on, inter alia, assignment, selection and performance evaluation, and to guide their performance in handling legal aid assignments.  Chapter 4 of the Manual (“Chapter 4”), titled “Performance Evaluation System”, sets out the Director’s practice or policy relating to the exercise of his discretion to exclude a solicitor from the Panel on the ground of unsatisfactory performance or conduct.  The relevant part of Chapter 4 provides as follows:

“ An evaluation report on the performance and/or conduct of assigned counsel or solicitors is compiled under the following circumstances:

(a) where the performance or conduct of counsel or solicitors is considered unsatisfactory, e.g. failure to comply with the provisions of the Legal Aid Ordinance, professional misconduct; or

(b) where cases handled by counsel or solicitors on the Record of Unsatisfactory Performance/Conduct (‘the Record’) are concluded; or

(c) where counsel or solicitors who have not done any legal aid work before complete the first case assigned.

Record of Unsatisfactory Performance/Conduct (‘the Record’)

2. Assigned counsel or solicitors whose performance is considered unsatisfactory by the Departmental Committee on Monitoring Assignments to Counsel and Solicitors (‘the Departmental Monitoring Committee’) will be placed on the Record.

3. If an assigned counsel or solicitor subsequently receives two consecutive satisfactory reports in relation to his performance in the legal aid cases handled by him and such reports are in relation to performance which took place after a reasonable period has elapsed since the date the assigned counsel or solicitor was placed on the Record his name will be removed from the Record.

Removal from the Legal Aid Panel

6. Subject to the decision of the Departmental Monitoring Committee, counsel or solicitors may be removed from the Legal Aid Panel (‘the Panel’) if the unsatisfactory performance is of a serious nature. An act or omission is of such a nature if it has substantially prejudiced the client’s interests or put the Legal Aid Fund at risk or brought the legal aid service into disrepute.”

7.  The Departmental Monitoring Committee on Monitoring Assignments to Counsel and Solicitors (“the DMC”) referred to in §2 of Chapter 4 is chaired by the Director and comprises directorate officers of LAD, and is responsible for formulating policies and guidelines on assignment to private practitioners, overseeing the administration of assignments, and considering reports on unsatisfactory performance or conduct of assigned solicitors and counsel.

8.  In general, where a panel lawyer is considered to have performed or conducted unsatisfactorily, the Section Head will write to the lawyer concerned seeking an explanation before making a referral to the DMC.  In respect of civil cases, the matter would first be discussed and considered by the Civil Sub-Committee (“the CSC”) under the DMC before it makes a report to the DMC.  The DMC would consider the CSC’s report together with relevant documents, the lawyer’s explanations or representations (if any), previous unsatisfactory records (if any) against the lawyer, and the CSC’s recommendation.  Where members of the DMC agree upon a proposed sanction to be recommended to the Director, the Secretary to the DMC would issue a letter of intent to the lawyer concerned giving him/her a chance to make representations before the DMC finally decides whether to make a recommendation on sanction to the Director.  The Director would then consider the case in light of DMC’s advice and recommendation, and decide whether to impose any sanction on the lawyer.  Where the Director decides to do so, the Secretary to the DMC would issue a letter to inform the lawyer of the sanction imposed by the Director.

9.  As will be seen below, a central complaint of the Applicant in the present case concerns the proper interpretation of §6 of Chapter 4 (“§6”), in particular whether that paragraph exhaustively defines the situations which may be regarded by the Director as being unsatisfactory performance of a serious nature which would justify the exercise of his discretion to exclude a solicitor from the Panel under s 4(3).

BASIC FACTS

10.  The Applicant is a solicitor admitted to practice in Hong Kong on 21 June 1997.  Between March 1998 and 1 August 2018, he was on the Panel.

11.  On 3 December 2012, the Applicant was assigned by the Director to act for an aided person (“the Aided Person”) to claim employees’ compensation against two parties (“R1” and “R2”) in DCEC 137/2013 (“the EC Case”).  The Applicant also acted for the Aided Person in the related common law action against R1 and R2 in DCPI 43/2014 (“the PI Case”).  The Applicant was at that time (and is) a partner of a firm known as Yu Sun Yau Mak & Lawyers (“YSYM”).

12.  In about November 2015, the parties to the aforesaid proceedings agreed to settle the claims in both the EC Case and the PI Case.  By a letter dated 12 November 2015, YSYM informed the Director of the parties’ agreement to settle the EC Case and PI Case.

13.  On 19 November 2015, YSYM filed two Consent Summonses signed by all parties to the EC Case and PI Case respectively (“the Consent Summonses”) for the purposes of disposing of those cases.  The Consent Summons for the EC Case (“the EC Consent Summons”) provided as follows:

“[1] On a without admission of liability basis, the 1^st Respondent do pay to the [Aided Person] the sum of HK$331,600 being compensation inclusive of interest and sum of HK$90,000 being agreed costs of this action (‘the Settlement Sum’) … in full and final settlement of this action;

[2] The [Aided Person] do give credit to the sum of HK$131,600 being advance payment already received by the [Aided Person].

[3] Upon full and due payment of the Settlement Sum, the 1^st Respondent be discharged from all further liabilities of the Applicant’s claims herein and the Applicant shall file and serve a Notice of Discontinuance on the 1^st Respondent within 7 days from the Order to be made herein;

[4] The Applicant hereby discontinues this action against the 2^nd Respondent, with no Order as to costs;

[5] The Direction Hearing fixed for 15^th January 2016 at 10:30 a.m. be vacated; and

[6] The Applicant’s own costs be taxed in accordance with the Legal Aid Regulations.”

14.  The EC Consent Summons was signed by the respective solicitors on behalf of the Aided Person and R1, and by R2 personally as he was acting in person.

15.  By a letter dated 18 November 2015, the Legal Aid Department (“LAD”) stated, in response to YSYM’s letter of 12 November 2015 (referred to as being dated “13.11.2015”), that it had received the compensation for the EC Case and damages for the PI Case, and continued as follows:

“To enable us to consider any interim payment to the aided person, please let us know (1) the ceiling of costs for both party and party costs and disbursements and common fund costs for both your predecessor and you, (2) the concluded orders for settlement between 1^st Respondent/Defendant with AP in both cases, (3) whether the aided person’s claims against the 2^nd Respondent/Defendant have been dismissed and the costs implication for such dismissals in both proceedings and (4) any costs order against the aided person in both proceedings, within 14 days from the date of this letter.”

16.  On 23 November 2015, the District Court gave the following direction in relation to the EC Consent Summons:

“The parties are required to attend the hearing of 15.1.2016 when the Consent Summons shall be dealt with, as the 2^nd Respondent is acting in person.”

17.  On 1 December 2015, YSYM responded to LAD’s letter of 18 December 2015 as follows:

“Being the assigned Solicitor and handler of both the captioned cases throughout, our Mr. Michael P. Sun estimate[s] that the total party and party costs ceiling (inclusive of our predecessor’s costs) shall not [be] more than HK$280,000 and the total common fund costs ceiling (inclusive of our predecessor’s costs) shall not more [be] than HK$35,000 for both captioned cases herein.

Please refer to our letter to you dated 12^th November 2015, we send you herewith the copy of two Consent Summons[es] under the PI and EC cases respectively both filed on 19^th November 2015 for your reference. We are still pending Court’s approval for these two Consent Summons[es].

Please be reminded that we have notified you that there is no costs order against the aided client in the captioned cases in our letter dated 2^nd October 2015.”

18.  On 2 December 2015, LAD wrote in reply to YSYM’s letter of 1 December 2015[1], as follows:

“We note that there is no payment time being stated in the two Consent Summons. Please take urgent actions to rectify the same to protect aided person’s position, particularly, on the issue of interest.

We are disappointed to learn that you have not reported the latest position of the case to us in your letter dated 1.12.2015. Notwithstanding that the Court has not approved the Consent Summons and has adjourned the matters to be heard on 15.1.2016 as early as on 24.11.2015, you have not reported the updated status of the same to us.”

19.  On 15 March 2018, LAD’s Professional Officer (being the legal aid counsel handling the EC Case) completed a Performance Evaluation in respect of the Applicant’s conduct of the EC Case.  The Professional Officer took the view that the Applicant’s performance was unsatisfactory by reason of his failure to “report on the progress to the Department in accordance with R.12”.  In respect of “particulars of unsatisfactory performance”, the Professional Officer also noted that “no deadline were stated for the payment of the damages and the compensation in both Consent Summons[es]”.

20.  On 16 March 2018, the Section Head concerned wrote to YSYM (for the attention of the Applicant) stating that his performance in the EC Case was unsatisfactory in that (i) the Applicant failed to properly report the updated progress of the case to LAD in his letter dated 1 December 2015, and (ii) moreover, no deadline was stated for the payment of the compensation and damages in the Consent Summonses.  The Applicant was asked to give his written explanation in respect of those matters within the next 14 days for consideration of whether the matter should be referred to the DMC.

21.  Apparently, the Section Head’s letter of 16 March 2018 was sent to the Applicant’s old address (at Chiyu Bank Building) and was not received by the Applicant.  He did not therefore respond to it.

22.  On 9 April 2018, the Section Head recommended that the Applicant’s name be put on the “Record of Unsatisfactory Performance/Conduct”.

23.  On 17 April 2018, the CSC considered the Applicant’s case.  The following was recorded in the minutes of the CSC meeting held on 17 April 2018:

“[23] On 1 Dec 2015, AS wrote to report that he had filed the consent summons for this case and the connected common law case dated 10 Nov 2015 and 18 Nov 2015 respectively with the court whose approval was pending. It was later transpired that the court had already adjourned the hearing of the consent summons for this case to be heard on 15 Jan 2016 as early as on 24 Nov 2015 as the 2^nd Respondent was acting in person. Moreover, no deadline was stated for the payment of the compensations and the damages in the said consent summons.

[24] On 16 Mar 2018, section head wrote to AS requesting for an explanation before referring the case to DMC.  There was no response from AS.  Members considered AS’s performance in this case did not meet the standard of care and skill expected from an ordinary competent practitioner.  Given the above and that AS had already been included on the Record on 16 May 2014 and 15 Jun 2016 respectively, the Meeting agreed that a more severe sanction should be considered.  After much discussion, Members agreed to recommend DMC to issue a letter of intent to remove AS from the Panel.”

24.  Pausing here, I should mention that the Applicant had two previous records of unsatisfactory performance or conduct on 16 May 2014 and 15 June 2016 respectively, the first concerning the Applicant’s failure to obtain the Director’s prior approval for instructing counsel in an employees’ compensation case, and the second concerning his failure to pay to the Director interest on costs recovered from the defendant in a common law action for damages for personal injuries.  As confirmed by Mr Hectar Pun, SC (for the Applicant), for the purpose of the present application, the Applicant does not challenge the Director’s decisions in respect of the two previous records of unsatisfactory performance or conduct.[2]  It is therefore not necessary for me to further describe the underlying facts or matters relating to them.

25.  On 3 May 2018, the DMC considered the Applicant’s case.  The following was recorded in the minutes of the DMC meeting held on 3 May 2018:

“[22] AS was assigned to act for AP to claim employee’s compensation for personal injuries he sustained in an accident.

[23] On 1 Dec 2015, AS reported that he had filed the consent summons for this case and the connected common law case dated 10 Nov 2015 and 18 Nov 2015 respectively with the court and approval was pending. It later transpired that the court had already on 24 Nov 2015 adjourned the hearing of the consent summons for this case to be heard on 15 Jan 2016 as the 2^nd Respondent was acting in person. Moreover, no deadline was stated for the payment of the compensations and the damages in the said consent summons.

[24] AS was requested to provide explanation before the case was referred to DMC but there was no response from AS.  CSC considered that AS’s performance fell short of the standard expected of a competent and diligent practitioner.  Given the above and that AS had already been included on the Record on 16 May 2014 and 15 Jun 2016 respectively, CSC recommended that a more severe sanction should be considered.  After much discussion, Members agreed with CSC’s recommendation to issue letter of intent to remove AS from the Panel.”

26.  Since the Section Head’s previous letter dated 16 March 2018 was sent to the Applicant’s old address, an identical letter dated 19 June 2018 was sent to the Applicant’s new address (at Chiu Lung Building).  There was no response to that letter.  On 4 July 2018, LAD wrote to the Applicant referring to the Applicant’s unsatisfactory performance in relation to the EC Case and stating the following:

“… The [DMC] has taken the matter very seriously and is of the view that the aforesaid aspects of your unsatisfactory performance are of an extremely serious nature, particularly when this represents a recurrence of unsatisfactory performance on your part. Notice is hereby given to you that the Committee intends to have your name removed from the Legal Aid Panel. If you wish to show cause why your name should not be removed, you may do so within 14 days of the date of this letter. Otherwise I shall assume that you do not wish to make any representation in this regard.”

27.  The Applicant wrote in reply on 16 July 2018 stating, inter alia, as follows:

“By our letter dated 1^st December 2015, it was reported inter alia that ‘We are still pending Court’s approval for these two Consent Summons’. I see that the said report was accurate expression of the progress of the case, although at the time of our said report letter, there was a hearing fixed for 15^th January 2016. The report was on only the fact that the status of the Consent Summons which was not yet approved by the Court. Whether the Consent Summons were to be dealt with by paper disposal or by hearing was not material for the purpose of reporting the progress of the case.

With due respect, the fact that I did not mention that there was a Summons hearing should not amount to any conduct issue. There was no purpose to hide the hearing from the [redacted]. Afterall, the lack of the information of Summons hearing will not cause any hardship or inconvenience on part of the [redacted] or the interest of the Aided Person, in the conduct of the case.

I trust that you would appreciate that it was costs effective not to report immaterial details of the case.  It was in the interest of the [redacted] and the Aided Person to focus material matters which will jeopardize the interest of them.”

28.  The Applicant’s representations were considered by the DMC on 20 July 2018.  The following was recorded in §14 of the minutes of the DMC meeting held on 20 July 2018:

“After much discussion, AS’s explanation was considered by Members as unacceptable. Despite his inclusion on the Record twice on 16 May 2014 and 15 June 2016 respectively, AS continued to show unsatisfactory performance in handling legal aid cases. In light of the seriousness of the case and AS’s previous record of unsatisfactory performance, Members considered he had failed to perform at the expected standard of competence and diligence. The Meeting agreed with CSC’s recommendation to remove AS from the Legal Aid Panel”.

29.  The Decision to remove the Applicant from the Panel was conveyed to him by a letter dated 1 August 2018.  In that letter, the Director referred to the following aspects of the Applicant’s performance in his conduct of the EC Case which the DMC considered to be unsatisfactory:

“You have failed to properly report the updated progress of the case to us in your letter dated 1 December 2015. You reported in your said letter that the consent summons for this case and the connected common law case dated 10 November 2015 and 18 November 2015 respectively were filed with the Court and pending the Court’s approval. It later transpired that the Court in fact had already adjourned the hearing of the consent summons for this case to be heard on 15 January 2016 as early as on 24 November 2015 as the 2^nd Respondent was acting in person. Moreover, no deadline was stated for the payment of compensations and the damages in the said consent summons.”

30.  The Director’s letter went on to state:

“The [DMC] has noticed that despite your name had been included on the Record of Unsatisfactory Performance / Conduct on 16 May 2014 and 15 June 2016 respectively, you continue to show unsatisfactory performance in handling legal aid cases. Having given due consideration to your explanations dated 16 July 2018, it was of the view that the above aspects of your performance are of an extremely serious nature. In light of the above and your previous record of unsatisfactory performance, the [DMC] considered you have failed to perform at the expected standard of competence and diligence.”

31.  The Director concluded by stating that, upon the advice of the DMC, he had decided to remove the Applicant’s name from the Panel with effect from the date of the letter (ie 1 August 2018) in accordance with s 4.

APPLICATION FOR JUDICIAL REVIEW

32.  On 30 October 2018, the Applicant made the present application for leave to apply for judicial review.  In the Form 86, four grounds of judicial review are raised, namely:

(1)   taking into account irrelevant considerations / failing to take into account relevant considerations;

(2)   breach of legitimate expectation;

(3)   irrationality; and

(4)   procedural impropriety.

33.  At the rolled-up hearing on 15 March 2021, Mr Pun informed the court that the Applicant had decided not to rely on Ground (4) of judicial review.

GROUNDS (1) AND (2) OF JUDICIAL REVIEW

34.  Grounds (1) and (2) can be dealt with together, and raise the issue of the proper construction of §6.  In summary, Mr Pun’s argument is that:

(1)   §6 defines what “act or omission” would constitute unsatisfactory performance of a serious nature which would justify the exclusion of a solicitor from the Panel, namely, an act or omission which has: (i) substantially prejudiced the client’s interests, (ii) put the Legal Aid Fund at risk, or (iii) brought the legal aid service into disrepute (“the Three Specified Situations”).

(2)   In the present case, there is no allegation or evidence that the Applicant’s act or omission in relation to the EC Case falls within any one of the Three Specified Situations.

(3)   The Director considers, however, that the Three Specified Situations are merely examples where an act or omission of a solicitor may be considered as being unsatisfactory performance of a serious nature which would justify the exclusion of a solicitor from the Panel, but are not exhaustive of the situations for the exercise of his discretion under s 4(3) to exclude a solicitor from the Panel, and do not and cannot fetter or restrict the Director’s exercise of discretion under that subsection.

(4)   The Director has misinterpreted §6.

(5)   The Decision, which was based on a misinterpretation of §6, should therefore be quashed.[3]

35.  Mr Pun contends, further or alternatively, that there was, in any event, no unsatisfactory performance of a serious nature on the part of the Applicant.

(1)   In respect of the allegation concerning the Applicant’s failure to “properly report the updated progress of the case”, Mr Pun argues that -

(a)   The Applicant’s letter dated 1 December 2015 was a reply to the Director’s letter dated 18 November 2015, in which the Director asked the Applicant to provide, among other matters, the concluded orders for settlement and whether the Aided Person’s claims in the EC Case and PI Case against R2 had been dismissed and the costs implication for such dismissals in the two actions.

(b)   In the Applicant’s reply dated 1 December 2015, it was stated that “[w]e are still pending Court’s approval for these two Consent Summons[es]”.

(c)   That reply should be read in context - “pending Court’s approval” clearly referred to the settlement terms contained in the Consent Summonses.

(d)   It was incorrect for the Director to say that “the Court in fact had already adjourned the hearing of the consent summons for this case to be heard on 15 January 2016”.  What the Court ordered was that “[t]he parties are required to attend the hearing of 15.1.2016 when the Consent Summons shall be dealt with, as the 2^nd Respondent is acting in person”.

(e)   In other words, the Court did not vacate the “Direction Hearing fixed for 15^th January 2016 at 10:30 a.m.” as proposed in §5 of the EC Consent Summons, but instead ordered it to be dealt with at the scheduled hearing.

(f)   Read in context, there is nothing incorrect in stating that the EC Consent Summons was “still pending Court’s approval”, in that the settlement terms contained therein had to be approved by the Court at the hearing on 15 January 2016.[4]

(2)   In respect of the allegation concerning the Applicant’s failure to state a deadline for the payment of compensation in the EC Consent Summons, Mr Pun’s argument is along the following lines -

(a)   Order 42, rule 2 of the Rules of District Count, Cap 336H, states as follow -

“(1) Subject to paragraph (2), a judgment or order which requires a person to do an act must specify the time after service of the judgment or order, or some other time, within which the act is to be done.

(2) Where the act which any person is required by any judgment or order to do is to pay money to some other person … a time within which the act is to be done need not be specified in the judgment or order by virtue of paragraph (1), but the foregoing provision shall not affect the power of the Court to specify such a time and to adjudge or order accordingly.”

(b)   As stated in §45/1/3 of Hong Kong Civil Procedure 2021, a judgment or order for the payment of money to a person will not, as a general rule, specify a time for the payment.

(c)   It was unnecessary to state a deadline for payment in a money judgment.

(d)   In any event, the court can impose a deadline for the payment at the hearing on 15 January 2016 if it saw fit to do so.[5]

(i)   Proper construction of §6

36.  The principles for the proper construction of an administrative policy are well settled.  In Deluxe Ascent Limited v Director of Lands [2021] HKCFI 811, I summarized them at §24, as follows:

(1)   the true meaning and effect of a policy is a matter of law for the court to determine;

(2)   the court’s task is to ascertain the intention as expressed in the language of the policy objectively; and

(3)   when interpreting the policy, the court should adopt a purposive approach, having regard to the document’s context and purpose.

37.  The relevant context and purpose of the Manual include the following:

(1)   Section 4(3) gives the Director a discretion to exclude a solicitor for the Panel in any case where the Director is satisfied that there is good reason for excluding him by reason of his conduct when acting or assigned to act for persons receiving legal aid or of his professional conduct generally.  The statutory criteria, namely, “good reason” is wide and general, and is not confined to any particular type of unsatisfactory performance or misconduct.

(2)   The purpose of giving the Director the power to exclude a solicitor from the Panel is to safeguard the interests of aided persons, protect the legal aid fund, as well as effective and efficient administration of the legal aid schemes.

(3)   The Manual is an administrative policy which seeks to provide guidance to legal aid practitioners on, inter alia, assignment, selection and performance evaluation, as well as their performance in handling legal aid cases.

38.  As a set of administrative policy, the Manual does not have the force of law, and should not be read or construed as if it were a statute.  It cannot override express provisions of the Ordinance, or unduly restrict or fetter the exercise of any discretion conferred on the Director by the Ordinance.  On the other hand, it can legitimately be expected that the Director would normally act in accordance with his published policy, save in exceptional circumstances.

39.  For ease of reference, I shall set out §6 again:

“Subject to the decision of the Departmental Monitoring Committee, counsel or solicitors may be removed from the Legal Aid Panel (‘the Panel’) if the unsatisfactory performance is of a serious nature. An act or omission is of such a nature if it has substantially prejudiced the client’s interests or put the Legal Aid Fund at risk or brought the legal aid service into disrepute.”

40.  It is clear that under §6, the Director would only exercise the power to remove a solicitor from the Panel where the unsatisfactory performance of the solicitor is of a “serious nature”.  This much is not controversial.  The question is whether unsatisfactory performance of serious nature is confined to the Three Specified Situations mentioned in that paragraph, ie, (i) it has substantially prejudiced the client’s interests, or (ii) it has put the Legal Aid Fund at risk, or (iii) it has brought the legal aid service into disrepute.  The language of §6 does not support this construction: it says that a case falling within the Three Specified Situations would be regarded as unsatisfactory performance of a serious nature, but it does not say that conduct not falling within the Three Specified Situations cannot or will not be regarded as unsatisfactory performance of a serious nature.

41.  The construction contended for by Mr Pun will also unduly restrict the general discretion conferred on the Director under s 4(3), and run counter to the purpose of that subsection as mentioned in §37(2) above.

42.  Mr Johnny Ma (for the Director) submits that if the Applicant’s construction is correct, it would mean that “a solicitor who is repeatedly and continuously unsatisfactory in his performance in handling legal aid cases assigned to him over a period of time, but such unsatisfactory performances (whether taken individually or cumulatively) fall barely short of satisfying any of the [Three Specified Situations], cannot be removed by the Director from the Panel.  Such construction runs contrary to common sense, and would compromise or seriously undermine the purpose of the Director’s discretion under [s 4(3)], namely, ‘for safeguarding the interest of aided persons, protecting legal aid funds as well as effective and efficient administration of the legal aid schemes.’”[6]  There is, I consider, force in this submission.

43.  In my view, §6 is not intended, and does not, exhaustively define the situations which may be regarded by the Director as being unsatisfactory performance of a serious nature as would justify the exercise of his discretion to exclude a solicitor from the Panel under s 4(3). Mr Pun’s argument that the Director has misconstrued §6 is accordingly rejected.

(ii)   Error of law or irrationality of the Decision

44.  The Director considers the Applicant’s performance in relation to his handling of the EC Case to be unsatisfactory for two substantive reasons:

(1)   He failed to property report the updated progress of the case in YSYM’s letter to LAD dated 1 December 2015 (“the First Reason”).

(2)   He failed to state any deadline for the payment of the agreed compensation in the EC Consent Summons (“the Second Reason”).

45.  In respect of the Second Reason, LAD apparently took the view that without stating a deadline for payment, the Aided Person’s position on the issue of interest on the judgment sum would not be protected.[7]  The complaint that the Applicant failed to state a deadline for the payment of the compensation in the EC Consent Summons was contained in the Section Head’s letter dated 16 March 2018/19 June 2018[8], and included as one of the complaints against the Applicant in the minutes of the CSC meeting held on 17 April 2018, the minutes of the DMC meeting held on 3 May 2018, and, most significantly, in the Director’s decision letter dated 1 August 2018.

46.  It is clear, however, that as a matter of law, there is no requirement to stipulate a date for payment in a money judgment (Order 42, rule 2(2) of the Rules of District Count).  Where no date for payment is stipulated in a money judgment, the judgment sum is payable forthwith.  Further, s 50(1) of the District Court Ordinance, Cap 336, provides that a judgment debt carries simple interest on the total amount of the judgment debt, or on the part that for the time being remains unpaid, from the date of the judgment until payment.  Thus, the Aided Person’s position on interest was not prejudiced, or unprotected, by the absence of any stipulation regarding the date of payment of the agreed compensation in a judgment which might be made in terms of the EC Consent Summons.

47.  The view that, in order to protect the Aided Person’s position on interest, it was necessary to state a deadline for the payment of the compensation in the EC Consent Summons was based on a misunderstanding or mistake of law.  The absence of a stipulated deadline for the payment of the compensation in the EC Consent Summons may also be regarded as an irrelevant consideration which the Director ought not to have taken into account in making the Decision.  Since the First Reason was one of the two substantive reasons for the Director’s decision that the Applicant’s performance in his handling of the EC Case was unsatisfactory, the Decision was, in my view, vitiated by an error of law or irrationality.

48.  The First Reason of the Director for finding that the Applicant’s performance in his handling of the EC Case was unsatisfactory is more controversial.  The contents of YSYM’s letter dated 1 December 2015 may not strictly be incorrect, but the Director’s complaint was that the Applicant failed to properly report the updated progress of the EC Case, in particular that “the Court in fact had already adjourned the hearing of the consent summons … to be heard on 15 January 2016 as early as on 24 November 2015”.  It is debatable whether it was strictly correct to say that the EC Consent Summons had been adjourned to be heard on 15 January 2016, and whether the fact that the Court had ordered the EC Consent Summons to be dealt with at a directions hearing scheduled for 15 January 2016 was a material matter which ought to have been mentioned (or reported) in YSYM’s letter to LAD dated 1 December 2015 which was sent in response to the specific queries raised in LAD’s letter dated 18 November 2015.

49.  Having regard to the above conclusion that the Decision was vitiated by an error of law or irrationality in respect of the Second Reason, I consider that the whole matter ought to be remitted to the Director for fresh consideration (see Capital Rich Development Ltd v Town Planning Board [2007] 2 HKLRD 155, at §§70-72).  It would not, in my view, be appropriate for the court to take over the role of the Director to decide whether, absent the Second Reason, the Applicant’s alleged unsatisfactory performance in the handling of the EC Case based on the First Reason, taking into account his previous records of unsatisfactory performance or conduct, is of such a “serious nature” that he ought to be excluded from the Panel.  Mr Ma argues that the outcome would be inevitable based on the First Reason alone.  I do not consider the facts and circumstances of the present case to be so compelling that that the outcome is inevitable as submitted by Mr Ma, and consider that this is a matter which is more appropriate to be decided by the Director (who has far more experience in relation to cases of unsatisfactory performance or conduct which would justify exclusion from the Panel), than by the court.  For the avoidance of doubt, the court expresses no concluded view on the correctness of the First Reason.

GROUND (3) OF JUDICIAL REVIEW

50.  In respect of Ground (3), Mr Pun argues that the Decision was irrational in that it was “altogether excessive and out of proportion to the occasion” (in reliance on the test established in R v Barnsley Metropolitan Borough Council, ex p Hook [1976] 1 WLR 1052, at 1057H per Lord Denning MR and 1063B per Sir John Pennycuick, and applied by Deputy High Court Judge Andrew Cheung (as he then was) in Chu Ping Tak v Commissioner of Police, at §52), taking into account the following matters:

(1)   There was no allegation or evidence that the Applicant’s “act or omission” had substantially prejudiced the client’s interests or put the Legal Aid Fund at risk or brought the legal aid service into disrepute.

(2)   The matters referred to in §35 above.

51.  In view of the conclusion reached under Grounds (1) and (2) above, it is not necessary for me to consider this ground in detail.  I would simply state that I am not satisfied, on the facts of this case, that the decision to remove the Applicant from the Panel was so excessive or out of proportion as would justify the court’s intervention of the Director’s exercise of discretion in this case.

DISPOSITION

52.  Leave to apply for judicial review of the Decision is granted, and the application for judicial review of the Decision is allowed.  The court grants an order of certiorari to remove into the High Court and to quash the Decision, and remits the matter to the Director for fresh consideration in accordance with this judgment.

53.  Mr Pun and Mr Ma agree that costs should follow the event.  I therefore make an order that the Director shall pay the costs of the Applicant, to be taxed if not agreed, with certificate for 2 counsel.