XCHRX NGUYEN TRONG SON v. DIRECTOR OF LEGAL AID

LAA 20/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LEGAL AID APPEAL NO. 20 OF 1999

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J U D G M E N T

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Introduction

1. This is the adjourned hearing of a part-heard appeal pursuant to section 26(1) of the Legal Aid Ordinance (Cap. 91) ("the Ordinance") from the refusal of the Director of Legal Aid to grant the Appellant's application for legal aid. The relevant facts can be gleaned from my judgment of 3 June 1999 when I ordered that the appeal be adjourned so that various documents to which I referred in my judgment could be supplied to the Appellant's solicitors. Those documents have now been supplied, together with copies of the statements of three officers of the Department of Correctional Services: Joyce Ho, whose statement is dated 7 August 1996; Yeung Ka Mui, whose statement is dated 22 August 1996; and Wong Fung Kiu, whose statement is dated 15 July 1996. I have read all those documents as well as a preliminary report dated 5 March 2000 from Dr Steven Strach of Forensic Documents Services Pty. Ltd., together with its two appendices.

The current approach

2. The critical issue in the action for which the Appellant is applying for legal aid is one of fact. Was the property which it is common ground the Appellant had lodged with officers of the Department of Correctional Services in 1992 for safe-keeping when he was detained in Whitehead Detention Centre returned to him in October 1993? This appeal is a hearing de novo. My function is to determine whether the Appellant has shown that he has reasonable grounds for taking the proceedings, bearing in mind that the issue in the case is one of fact. I do not believe that I have to be satisfied that it is more probable than not that the issue of fact will be decided in the Appellant's favour. But I do have to be satisfied, I think, that the Appellant has shown that there is a reasonable, as opposed to a fanciful, chance of the court at trial deciding that issue of fact in his favour. That question has to be decided without a prolonged investigation on the part of the court. Otherwise, the hearing of the appeal would degenerate into a mini-trial of the action itself.

Conclusion

3. I have concluded that the Appellant has shown that there is a reasonable, as opposed to a fanciful, chance of the court at trial deciding the issue of fact in his favour. I therefore direct that the Appellant be granted a legal aid certificate to pursue his action against the Commissioner of Correctional Services. Since there is likely to be a trial of the action unless it is compromised in the meantime, it is desirable that the less I say about the merits of the case the better. However, I am required by section 26(5) of the Ordinance to give reasons for my decision, and I shall therefore explain the various factors which, rightly or wrongly, I have taken into account in reaching my conclusion.

Reasons

4. First, the Appellant's case is that, if property involving valuables and large amounts of cash was deposited with the Department of Correctional Services for safe-keeping, the policy of the Department was normally not to return that property to a detainee until he left the detention centre. That is borne out to some extent by rules 13(1), 14(2) and 15(1) of the Immigration (Vietnamese Migrants) (Detention Centre) Rules. None of the documents before me dispute the Appellant's assertion of that aspect of the Department's policy. Yet there is no explanation before me as to why, if that was the policy, an exception was made to return the Appellant's property to him in October 1993.

5. Secondly, the Appellant's case is that if a detainee wishes to have his property returned to him, he has to make a written application for it. None of the documents before me dispute the Appellant's assertion about that aspect of the Department's policy. The Department's explanation for not being able to produce such an application is that it may have been damaged in a fire at Whitehead Detention Centre in May 1996, i.e. a month or so before the Appellant, on his version of events, asked for the first time for the return of the property to him. However, there is nothing in the documents before me which show where such an application form would be stored or whether that storage area was destroyed in the fire. Nor is there any explanation before me as to why, if the application form was destroyed in the fire, the receipt for the Appellant's property allegedly signed by the Appellant in October 1993 was not also destroyed. There is nothing in the documents before me containing an assertion from the Department of Correctional Services that the application form and the property record recording the Appellant's signature on the receipt of the property would not have been kept in the same place.

6. Thirdly, the three statements from the officers of the Department of Correctional Services which have recently been produced to the Appellant's solicitors do not state how they could remember in 1996 a relatively unimportant incident which would have occurred about three years earlier. I would be inclined, if I were the judge at trial, to treat those statements as statements as to what the witnesses would normally have done if a detainee requested the return of his property. In any event, their evidence does not exclude the possibility of another inmate, who may or may not have had a superficial resemblance to the Appellant, getting hold of what is described as the Appellant's "boat people identity card" temporarily without the Appellant's knowledge and obtaining the property pretending to be the Appellant.

7. Fourthly, the handwriting evidence is not decisive. Mr Leung's opinion is only that the receipt was "probably" signed by the Appellant, and Dr Strach is unable to form a considered view without (a) more examples of the Appellant's genuine signature and the way he wrote numbers in 1993 and (b) the original of the property record allegedly signed by him in 1993. As for the latter, that has now gone missing. Despite a photocopy of it having been obtained in 1996 in the course of the police investigation, no explanation has been given as to how since then the original of the property record has disappeared.

8. Fifthly, the Appellant's genuine signatures all have a cross through the number "7", whereas the Appellant's alleged signature on the receipt for the property did not. That important difference - which at first blush would suggest that his purported signature on the property record in 1993 was not his real signature - was explained away by Mr Leung on the footing that the genuine signatures could have been an attempt to disguise the fact that his receipt for the property was genuine. However, that argument is significantly undermined by the fact that two of the genuine signatures containing the cross through the "7" were written in 1992 and 1994 - well before it might have occurred to the Appellant to disguise the genuine way in which he wrote the number "7".

9. Sixthly, if the Appellant's account is false, he would have been claiming the return of his property in 1996 at a time when he knew that he had applied for and obtained it in 1993 and had signed for its return to him then. That is a strong view to take of his conduct.

10. These, then, have been the factors which I have taken into account in concluding that the Appellant has satisfied me that there is a reasonable, as opposed to a fanciful, chance of the court at trial deciding the issue of fact in the Appellant's favour.

The size of the claim

11. Finally, in my previous judgment I said:

"... I should add, in the interests of completeness, that I asked Mr Marshall [who was then representing the Director of Legal Aid] what lay behind the second reason for the refusal of the application for legal aid - namely, that it was unreasonable for the Appellant to be granted legal aid in the particular circumstances of the case. Was it being contended, for example, that the amount at stake did not justify the grant of legal aid, even if the Appellant had a strong case on the merits? Mr Marshall disavowed any argument on those lines in the circumstances of the case. The second reason for refusal therefore added nothing to the first."

Today, Mr Sampson Tang for the Director of Legal Aid asked me to take into account the relatively small size of the Appellant's claim. I do not propose to do that. I do not think that it would be right for the Director of Legal Aid to be permitted to resile from the concession made on his behalf at the previous hearing.