WEERA NARAYANA MUDALIGE BASILE FONSEKA v. DIRECTOR OF LEGAL AID

HCAL 923/2020

[2021] HKCFI 20

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 923 OF 2020

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J U D G M E N T

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1.  This is an application for leave to apply for judicial review against the decision of the Director of Legal Aid (“the Director”) refusing to grant the applicant legal aid.

2.  The applicant applied for legal aid to sue the Immigration Department (“the Immigration”) for compensation / damages for unlawful detention from 14 September 2004 to 2 August 2005 which he alleged was unlawful.[1]  His application was refused on the ground that the six years’ limitation to bring his claim had expired.[2]

BACKGROUND LEADING TO THE INTENDED CLAIM

3.  The applicant arrived in Hong Kong from the mainland on 7 December 2003 with his Sri Lankan passport and was permitted to stay for three days as a visitor.  He overstayed and was arrested by the Police on 10 September 2004.  Prior to his arrest, he had on 26 February 2004 lodged a claim with the UNHCR for protection as a refugee.[3]  He alleged that despite he showed the police his UNHCR papers he was still arrested.

4.  On 14 September 2004, he was convicted of the offence of Overstaying and was sentenced to four weeks’ imprisonment suspended for two years.[4]

5.  Upon his release, the Immigration arrested him and took him to Ma Tau Kok.  He alleged he was put in a very cold room for 24 hours and not provided with any blankets. On 6 October 2004, he was taken to the Victoria Prison and kept there till 5 August 2005.  He was released by the Immigration on 13 August 2005.

6.  The applicant alleged that the above mentioned detention of him by the Immigration was unlawful.

7.  The applicant further asserted that[5], the Immigration then interviewed him more than 40 times on his allegation of being tortured.  He was medically examined and he claimed the medical report[6] revealed that he had been tortured.  He said that no decision had been made by the Immigration by 2011 despite his enquiry for progress from time to time.

8.  He then came to know a solicitor known to him as Krishnan.  Krishnan interviewed him several times and also accompanied him in an interview with the Immigration.  When the Immigration then asked for a further interview, he declined as he suspected that the interview would be used in a dispute that the Immigration had with the UNHCR during that time.

9.  Then Krishnan filled in some forms for him and told him to take the papers to the Legal Aid Department, which he did.

APPLICATION FOR LEGAL AID

10.  As said[7], the applicant applied for legal aid to sue the Immigration for compensation / damages for the alleged unlawful detention.

11.  His application for legal aid was refused.[8]  It was stated in the Reasons for Refusal[9] that:

“Although [the applicant] may have a viable claim for unlawful detention, his claim which is premised on false imprisonment according to Cheung J’s judgment in HCAL 100/2006 will be time barred by August 2011 by reason of the Limitation Ordinance. His application was refused accordingly.”

12.  The applicant claimed that he had submitted his application to the Legal Aid in time on 19 September 2011 but on that day the Legal Aid found one paper was missing.  There are papers with the date 19 September 2011 written on them[10]. This cannot be sufficient proof that the papers did reach the Legal Aid Department on that date.  Even if it was the case, the limitation of six years to bring the claim had lapsed.

LEGAL AID APPEAL

13.  The applicant appealed against the decision of the Director.

14.  On 22 March 2012, this appeal was heard before a Master and dismissed.[11]  The Master stated in his Ruling that the Director has to consider whether there is any chance of success in the claim, and despite it was thought that the applicant has “a very strong case” he found there was no flaw in the Director’s assessment that it was unlikely for the applicant to succeed in seeking an extension of time.

15.  The applicant has to bring his claim against the Immigration within six years.  He failed to do so.  It appears from the Ruling of the Master that the explanations the applicant provided at the appeal were: he was not aware of the six years’ time limitation, he was ignorant of the law, he had no access to lawyers to seek legal advice, and he had no knowledge about legal aid.

APPLICATION FOR LEAVE TO APPLY FOR JUDICIAL REVIEW

16.  On 18 May 2020, eight years after the decision of the Master, the applicant filed a Notice of application for leave to apply for judicial review.  He wrote his own name as the proposed respondent.  In the space for him to fill in “the judgment, order, decision or other proceedings in respect of which relief is sought”, the applicant wrote “Legal Aid Director 6 year time period claim is time barred”.

17.  I have, despite all these irregularities, considered the merit of the application.

LEGAL PRINCIPLES

18.  The court in a judicial review against the decision in a legal aid appeal does not sit as a further tier of appeal.  The court’s function is confined to review the legality, rationality and fairness of the process.  In this respect, grounds not canvassed before the Master could not be relied upon in a judicial review. Further, the court in a judicial review of this type should not delve in depth into the merits of the underlying claim.[12]

19.  As regards legal aid appeal, Keith JA (sitting as an additional Court of First Instance Judge) stated in Nguyen Trong Son v Director of Legal Aid[13] that the correct approach is:

“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.”

20.  In Chung Yuk Ying v Registrar of the High Court[14], Au‑Yeung J summarised the applicable legal principles as follows:

“9.  The criterion for granting legal aid on the merits ground is set out in s.10(3) of the Legal Aid Ordinance (Cap.91) as ‘reasonable grounds for taking, defending, opposing or continuing such proceedings or being a party thereto’.

10.  The Court does not 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 it has to be satisfied 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’: Nguyen Trong Son v Director of Legal Aid (unrep., HCAA 20/1999, 15 December 2000), Keith JA sitting as an additional Court of First Instance Judge in Chambers.

11.  A judicial review application is not an appeal from either the Director or the Master’s Decision.  The court in a judicial review is concerned with legality and not with merits.  Relief will only be granted if the applicant can demonstrate that the Director has committed an error of law or has acted Wednesbury unreasonably in arriving at the conclusion. See Ng Ai Kheng v Master M Yuen, (unrep., HCAL 46/2003, [2004] HKEC 313), Carlye Chu J (as she then was); F v Registrar of the High Court [2012] 2 HKLRD 73, Macrae J (as he then was).”

21.  This approach was confirmed in Wong Chun Tak v Registrar of the High Court[15].

DISCUSSION

22.  The first hurdle which the applicant faces in the present application is again the time requirement.

23.  Rule 4 of Order 53[16] provides that “an application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.”

24.  The Notice of the present application was filed in court on 18 May 2020.  The application for legal aid was refused on 24 February 2012.  His appeal against the decision of the Director was dismissed on 22 March 2012.  Taking this latter date to be the date when ground for the present application first arose, as the notice of application was only filed on 18 May 2020, the three months’ period prescribed for bringing the application has long lapsed.

25.  There was a delay of almost eight years.  It was a serious and significant breach of the rule.

26.  Prior to the first day of hearing on 31 July 2020, the following directions had been made to the applicant:

(1)  The applicant to file on or before 24 July 2020 the followings:

(a)  The reasons of the Director for refusal of the applicant’s application for legal aid;

(b)  The grounds of appeal and relevant papers if any in relation to the applicant’s appeal which was heard before the Master on 22 March 2012;

(c)  The case number of the Legal Aid Department in this case;

(d)  Details of the claim for which the applicant wishes to seek legal aid;

(e)  The papers the applicant had filed with the Legal Aid Department for seeking legal aid in that claim; and

(f)  The legal aid appeal was dismissed on 22 March 2012, the applicant to explain why there is a delay in applying for leave to apply for judicial review.

27.  The applicant failed to comply with any of the directions.

28.  When asked during the first day of hearing, the applicant gave the following reasons for delay:

(1)  he did not know how to apply for judicial review;

(2)  he needed time to gather the filing fee of $1,045; and

(3)  he needed time to gather the relevant papers (he confirmed what he had filed were all the papers he had).

29.  For the reason stated in paragraphs 26 ‑ 28 above, the hearing was adjourned.  At the second hearing, apart from stressing his lack of means the applicant did not provide other reasons for the delay.

30.  I adopt the 3‑stage approach as stated in the Secretary of State for the Home Department v Begum[17]:

(1)  The first stage is to identify and assess the seriousness or significance of the failure to comply with the rules.  If the breach is serious or significant, the decision maker then considers the second and third stages.

(2)  The second stage is to consider why the failure occurred.  If there is a serious or significant breach and no good reason was given for the breach, then the decision maker moves to the third stage.

(3)  The third stage is to evaluate all the circumstances of the case, so as to enable the court to deal justly with the application.  In considering all the circumstances of the case, the decision maker also takes into account (a) the need for litigation to be conducted efficiently and at proportionate cost, and (b) the need to enforce compliance with rules, practice directions and court orders.

31.  In my judgment, the applicant failed to provide any good reason for the delay to file the notice for application for leave to apply for judicial review.

32.  Notwithstanding this, I go on to examine if there is merit in this application.  It was held in AW v Director of Immigration & Another[18] that:

“… while in the public law field, it is essential that the courts should scrutinize with care any delay in making an application … As long as no prejudice is caused, the courts will not rely on these provisions to deprive a litigant who has behaved sensibly and reasonably of relief to which he is otherwise entitled.”[19]

33.  The main issue is whether the decision to refuse legal aid based on expiry of limitation period was erroneous.

34.  Generally, before extension of time is granted a reasonable prospect of success has to be shown.  A major concern is about whether there are merits in persuading the court that, despite limitation prescribed in section 27 of the Limitation Ordinance[20] has expired, such time limit should be overridden by the court pursuant to section 30 of the same Ordinance.

35.  In H v Director of Immigration[21], Lam VP observed that “the exercise involved a multi-faceted assessment in the particular circumstances of the case. Non-exhaustive factors included length of the delay, explanation for the delay, merits of the substantive application, prejudice and the involvement of questions of general public importance.”[22]  His Lordship further observed: “it is wrong to characterise the decision on refusal to extend time as a de facto decision on the merits. … It was a multi-faceted assessment. … even if the applicant can show that the judge erred in the assessment of merits, … it does not follow that he could succeed in getting an extension of time.”[23]

36.  The applicant failed in the first hearing to answer most of the questions put to him in order to clarify the situation and seek information necessary and relevant to the matter.  Whilst there were signs of evasiveness, the chance that it was a result of lapse of memory should not be lightly dismissed, I considered it fair and just to obtain relevant information which can be made available to the court.  I sought the consent of the applicant to obtain the relevant files from the Legal Aid Department.

37.  Papers reveal that the Master decided the case having observed that the applicant has a very strong case for his claim for damages for unlawful detention against the Director of Immigration.  The assessment of the Director of Legal Aid was that the applicant “may have a viable claim”.  Such assessment was based on the decision in A v Director of Immigration[24].

38.  Notwithstanding that, what has to be considered and decided was in essence whether the court would in the circumstances grant extension of time for the applicant to bring the claim for the alleged unlawful detention.  Both the Master and the Director were of the view that the applicant would not be able to succeed in this aspect.

39.  The court has an unfettered discretion to grant extension of time if it is equitable to do so.  In consideration of whether such discretion is to be exercised, the court shall have regard to all the circumstances of the case and in particular the matters set out in section 30(3) of the Limitation Ordinance[25]:

“(3)  In acting under this section the court shall have regard to all the circumstances of the case and in particular to—

(a)  the length of, and the reasons for, the delay on the part of the plaintiff;

(b)  the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action had been brought within the time allowed by section 27 or 28, as the case may be;

(c)  the conduct of the defendant after the cause of action arose, including the extent, if any, to which he responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiff’s cause of action against the defendant;

(d)  the duration of any disability of the plaintiff arising after the date of the accrual of the cause of action;

(e)  the extent to which the plaintiff acted promptly and reasonably once he knew whether or not the act or omission of the defendant, to which the injury was attributable, might be capable at that time of giving rise to an action for damages;

(f)  the steps, if any taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received.”

40.  Judicial review is not a further or alternative appeal procedure.  The court’s function is confined to review the legality, rationality and fairness of the process.  It is trite law that the court will not generally interfere with the factual findings made by a tribunal by way of judicial review, as the court is not discharging the same function as that of the tribunal.  There may be cases where the court may disturb the factual findings, for example, where there has been a misdirection or mistake of material fact, or where the decision is unsupported by substantial evidence.  The court may also interfere if the factual findings are so unreasonable in the Wednesbury sense^[26].

41.  The applicant was invited to make further submission at the second hearing and he stressed his lack of means, complaining that the International Social Service has only been providing him with food and did not provide him financial support resulting in his inability to pay all the necessary bills.  He submitted the following documents:

(1)  unpaid bills to illustrate his financial situation[27];

(2)  two letters from solicitors seeking eviction of him from land he is occupying unlawfully[28]; and

(3)  papers revealing his legal aid appeal in relation to his claim that the Social Welfare Department refusing to reimburse his rental[29].

42.  He also said a lady called Ruwanwellage Amara Shanthi Chandrasekare who had been his major support in many aspects had returned to Sri Lanka.  These have little relevance to the applicant’s present application.

43.  Having considered the whole circumstances, I do not find either the Master or the Director has committed an error of law.  I do not find any ground to disturb their factual findings.  I also do not find either of them had acted unreasonably in the Wednesbury sense[30] in arriving at his respective decision.

44.  It was confirmed by the Court of Final Appeal in Po Fun Chan v Winnie Cheung^[31] that the test in deciding whether leave to apply for judicial review should be granted is whether the applicant’s case is reasonably arguable, in other words, whether it enjoys realistic prospect of success.

45.  In my judgment, the applicant failed to demonstrate that his case is reasonably arguable with a realistic chance of success.  His application for leave to apply for judicial review is therefore refused.  In the circumstances, it is not necessary, and indeed I do not see sufficient ground, to grant the applicant extension of time in filing the notice for application for leave to apply for judicial review.