LEE CHICK CHOI v. THE DIRECTOR OF LEGAL AID

HCAL 417/2018

[2018] HKCFI 1423

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 417 OF 2018

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D E C I S I O N

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INTRODUCTION

1.  This is an application for leave to apply for judicial review of the decision of the Director of Legal Aid (“the Director”) made on 18 September 2017 (“the Decision”) to refuse to grant legal aid to the Applicant to pursue his claim against Best Spirits Company Limited (“Best Spirits”), his former employer, for compensation under Section 66 of the Personal Data (Privacy) Ordinance, Cap 486 (“PDPO”).

BASIC FACTS

2.  The background facts giving rise to the Applicant’s claim against Best Spirits were set out in the judgment of Deputy High Court Judge Kent Yee given on 1 December 2014 in HCA 2045/2012 (“the High Court Action”), and shall not be repeated here.

3.  In February 2011, the Applicant filed a claim against Best Spirits with the Labour Tribunal in LBTC 588/2011 seeking damages for unfair dismissal.  That claim was dismissed by the Labour Tribunal in October 2011.  His application for leave to appeal against the Labour Tribunal’s decision was rejected by Madam Justice Mimmie Chan in June 2013.

4.  In the meantime, in November 2012, the Applicant commenced a fresh action in the High Court (ie the High Action) against Best Spirits, seeking compensation in the sum of around HK$14.475 million for unreasonable or unlawful dismissal.

5.  Upon Best Spirits’ application to strike out the Applicant’s writ and statement of claim in the High Court Action on, inter alia, the ground of issue estoppel or res judicata, the Applicant applied to amend the statement of claim in order to advance a new claim for compensation in the same amount (HK$14.475 million) for an alleged breach of Data Protection Principle 5 (“DPP 5”) in Schedule 1 to the PDPO.

6.  On 1 December 2014, Deputy High Court Judge Kent Yee gave his judgment striking out the Applicant’s writ and statement of claim in the High Court Action, and refusing to grant leave to the Applicant to amend the statement of Claim to advance the new claim for breach of DPP 5 on jurisdiction and causation grounds.

7.  The Applicant’s application for leave to appeal, out of time, against the judgment of Deputy High Court Judge Kent Yee was dismissed by the Court of Appeal on 21 May 2015 in HCMP 371/2015.  The Court of Appeal considered the judge’s reasoning in respect of the causation ground to be “unassailable”.

8.  On 26 April 2017, the Applicant commenced yet another action against Best Spirits for the same cause of action, ie breach of DDP 5, in the District Court in DCCJ 1988/2017 (“the District Court Action”).

9.  On 29 May 2017, the Applicant applied for legal aid to pursue the District Court Action against Best Spirits.

10.  On 18 September 2017, the Director refused the Applicant’s application for legal aid.  As can be seen from the Director’s Reasons for Refusal dated 30 November 2017 (prepared in connection with the Applicant’s legal aid appeal mentioned in paragraph 11 below), the Director’s reasons for the Decision were as follows:-

“9 A s.9 opinion was obtained from Mr. Poon Siu Bunn, Counsel on merits of Mr. Lee’s application for legal aid… Having considered the relevant information, Counsel is of the view that Mr. Lee does not have a meritorious claim which has a real chance of success against Best Spirits.

10 In gist, Counsel is of the view that:-

(a) the doctrine of res judicata is likely engaged in this Action as the amended claim under the fresh pleading in HCA 2045/2012 is exactly the same as his claim in the Action.

(b) as the contravention against DPP 5 was in essence in relation to the inadequacies or unsatisfactory practice in general on the part of Best Spirits in informing its staff of its data control/management policy, Mr. Lee may not be able to prove that the contravention by Best Spirits related to personal data of which Mr. Lee is the data subject under s.66(c) of PDPO.

(c) it would be difficult for Mr. Lee to prove the contravention could lead to his sustaining injury to feelings.

11. Even if Mr. Lee could succeed in proving liability against Best Spirits, the quantum of damages to be awarded would not be more than $15,000.  Therefore the quantum of damages would fall within the jurisdiction of the Small Claim[s] Tribunal which is an excepted proceeding under Schedule 2, Part II of the Legal Aid Ordinance.

12. We concur with Counsel’s opinion and therefore refused Mr. Lee’s legal aid application.”

11.  The Applicant’s legal aid appeal was dismissed by the Deputy Registrar on 15 December 2017 (“the Appeal Decision”).  In the letter conveying his decision, the Deputy Registrar stated that he “agreed with the reasons for refusal of the Director of Legal Aid”.

12.  On 14 March 2018, the Applicant made the present application for leave to apply for judicial review.

13.  On 15 March 2018, the Court directed an oral hearing of the application for leave to apply for judicial review, and granted leave to the Director to file evidence and attend the oral hearing to resist the leave application.  An affidavit of Chik Yin Shan, Acting Senior Legal Aid Counsel, has since been filed on behalf of the Director setting out the relevant background facts of the Applicant’s case and his application for legal aid.

14.  On 24 April 2018, H H Judge Andrew Li gave his decision striking out the Applicant’s writ of summons in the District Court Action and dismissing the action on, inter alia, the following grounds:-

(1)  It was a disguised fresh claim to re-litigate the PDPO claim which the Applicant had lost before Deputy High Court Judge Kent Yee and the Court of Appeal, and thus it was a clear abuse of the process of the court for him to re-litigate the matter.

(2)  The claim is doomed to fail due to a complete lack of merits.

15.  On 23 May 2018, H H Judge Andrew Li refused to grant the Applicant leave to appeal against the decision of 24 April 2018.

16.  The Applicant has renewed his application for leave to appeal to the Court of Appeal in CAMP 79/2018.  I am given to understand that no date has yet been fixed for the hearing of the leave application.

17.  As made clear in his oral submissions at the hearing on 21 June 2018, the crux of the Applicant’s complaint against the Decision is that the Director had committed a fundamental mistake in taking the view that his claim under Section 66 of the PDPO could or should be proceeded with in the Small Claims Tribunal.

DISCUSSION

18.  In his Form 86, the Applicant stated that the decision under challenge was the Director’s “Decision Delivered on 15^th December, 2017”.  As a matter of fact, the Director did not make any relevant decision on 15 December 2017.  The Director made the Decision on 18 September 2017, while the Deputy Registrar made the Appeal Decision on 15 December 2017.  On 19 June 2018, the Applicant issued a summons seeking an extension of time to apply for leave to apply for judicial review of the Director’s Decision made on 18 September 2017.  At the hearing on 21 June 2018, the Applicant confirmed that he wished to amend the Form 86 to challenge the Director’s Decision made on 18 September 2017.

19.  In my view, the Applicant’s intended application for judicial review of the Decision has no reasonable prospect of success.

20.  First, judicial review is generally a remedy of last resort, and the court would normally not permit a decision to be challenged by way of judicial review if an appeal can be brought against the decision.  In this case, there is a statutory of right of appeal against the Decision.  The Applicant took advantage of the appeal procedure, albeit unsuccessfully.  Be that as it may, there is no good reason why the Applicant should be allowed to challenge the Decision by way of judicial review.

21.  Second, it is clear that the Director’s main reason for refusing to grant legal aid to the Applicant to pursue the District Court Action was its lack of merits.  That his claim is unmeritorious or hopeless has now been confirmed by the decision of H H Judge Andrew Li dated 24 April 2018.  The Director was correct not to grant legal aid to the Applicant to pursue an unmeritorious or hopeless claim.

22.  Third, the view taken by counsel and endorsed the Director that the quantum of the Applicant’s claim would be no more than $15,000 and fall within the jurisdiction of the Small Claims Tribunal is not unreasonable.  Thus, even if, strictly speaking, the Claim should first be commenced in the District Court (in view of the recent judgment of the Court of Appeal in Lee Kwok Tung Albert v Chiyu Banking Corporation Limited, CACV 180/2017, 6 March 2018, §§4.19 to 4.22), Best Spirits could apply to transfer the proceedings to the Small Claims Tribunal, in which event legal aid would not be available to the Applicant to pursue his claim in that forum.

23.  Fourth, there is no useful purpose to be served by granting the Applicant leave to apply for judicial review of the Decision, because the District Court Action has come to an end.  There is no question of the Director now granting legal aid to the Applicant to pursue an action which has already been struck out.  The fact that the Applicant has a pending application for leave to appeal against the decision of H H Judge Andrew Li dated 24 April 2018 is irrelevant, because neither an appeal nor an application for leave to appeal operates as a stay of the relevant decision.

DISPOSITION

24.  For the foregoing reasons, the application for leave to apply for judicial review, and the application for an extension of time to apply for leave, are dismissed.

25.  On the question of costs, the two applications are, in my view, completely unmeritorious.  Further, the Applicant failed to set out all the relevant background facts in his affirmation filed in support of the leave application, which led to the court directing the Director to file evidence and to attend the hearing to resist the application.  Also, the Director’s participation at the oral hearing has been of substantial assistance to the court in reaching its decision on whether to grant leave to apply for judicial review in the instant case.  In all the circumstances, I consider that the Applicant should bear the Director’s costs in this matter, to be taxed if not agreed.  I so order.