AMERICAN EXPRESS INTERNATIONAL INC. v. NG PAK SANG

H.C. A.2343/86

Legal Aid - Stay of proceedings

Removal of stay - jurisdiction of Registrar - Section 15 Legal Aid Ordinance (Cap 91)

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

High Court Action

No. 2343 of 1986

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JUDGMENT

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1. This is an appeal by Mr. Bradley on behalf of the plaintiffs from a decision of Master Settle dated May the 29th 1986 when he made an order permitting the defendant to pay by instalments and the ground of this appeal is that the master had no jurisdiction to make such an order. The brief facts are that the defendant, who was an American Express Card holder, owed Forty Thousand and Eighty-nine Hong Kong Dollars Six Cents to the plaintiffs as a result of his use of that credit card. A writ was issued on April the 24th 1986, and on April the 30th the defendant made an application for legal aid, but this was refused on May the 9th. The defendant swore an affidavit on May the 20th setting out his income and expenses and he asked to pay the debt by instalments. The plaintiff's solicitors on May the 28th noticed that the defendant's application to pay by instalments was listed for the following day and they sent by hand a letter pointing out that because of the application for legal aid, there was a stay on the proceedings and this could only be removed by a judge.

2. The hearing, however, took place on May the 29th and despite Mr. Bradley's objection, the master heard the defendant's application, removed the stay and permitted the defendant to pay by instalments.

3. It is necessary to examine some of the statutory provisions that are relevant. Section 15 of the Legal Aid Ordinance (Cap.91) provides in sub-section 1 that on an application for legal aid a memorandum is filed in the court.  Once that has been done, then under sub-section 2, the proceedings are stayed unless otherwise ordered by a judge of the court in which the litigation is pending. Sub-section 3 provides that the time during which proceedings are stayed by virtue of this section may be reduced or extended by order of a judge of the court in which the litigation is pending. Section 17(1) says:

"Where it appears to-a court of judge that the legal aid certificate has been obtained by fraud or misrepresentation the court or judge may order .... "

In Section 26(1):

"Any person aggrieved by any order or decision of the director made under the provisions of this Ordinance may appeal therefrom to the Registrar of the Supreme Court in Chambers. "

And under Section 26(a) a right of appeal is given to other specified persons.

4. In Section 2, the interpretation section, "court" is defined as meaning any court, tribunal or person in respect of proceedings before which legal aid may be granted, but does not include the Privy Council; the word "judge" is defined as a judge of the Supreme Court or the District Court as the case may be.  The word "judge" is also defined in the Interpretation and General Clauses Ordinance as Chief Justice, a Justice of Appeal, a Judge and Deputy Judge of the High Court.  Section 38 of the Supreme Court Ordinance sets out the jurisdiction, powers and duties of the Registrar. Section 33 of that ordinance sets out the powers of a Judge of the High Court in Chambers. Section 54 permits rules of court to be made and by sub-section 2(b) these rules may prescribe the jurisdiction of the Supreme Court which may be exercised by the Registrar, a Deputy Registrar or Assistant Registrar etc. The relevant rule of the Supreme Court for this matter is found in Order 32 rule 11, which recites that the Registrar shall have power to transact all such business and exercise all such authority and jurisdiction as under any ordinance may be transacted and exercised by a judge in Chambers except in respect of certain matters. It then sets out four specific matters and the appeal before me today does not fall within any of those exceptions.

5. It may be seen, therefore, from this short review of some of the relevant statutory provisions that the Registrar of the Supreme Court can exercise the powers vested in a judge when acting in Chambers. An application that may be made by virtue of Section 15 of the Legal Aid Ordinance, in my judgement, may be made to a judge in Chambers. It might be thought therefore that Order 32 rule 11 does enable the Registrar to deal with such an application. It must be remembered, however, that there are occasions when the statute must be examined to see whether or not it contains expressions from which it may be inferred that powers given to a judge are exerciseable only by that judge. There have been numerous instances, in English law, where an Act of Parliament has given a specific jurisdiction to a judge in Chambers and it has been accepted that that jurisdiction is outside the master's province - see, for example, the note at page 502 of the Rules of the Supreme Court Practice in England where a number of matters are set out which in practice are outside a master's jurisdiction:

6. In Firman v. Ellis^(l) Lord Denning, then Master of the Rolls, when dealing with a provision in the Limitation Act of 1939 said this at page 909:

"The court means the court in which the action is brought.  I think it means a judge of the High Court or in the County Court as the case may be. It includes the judge in Chambers or the judge hearing an application as a preliminary issue.  I do not think it includes the Master in the High Court or a Registrar in the County Court. "

Order 32 rule 9(a) was therefore enacted to permit masters to deal with such an application (now it is under Section 33 of the Limitation Act 1980) and a similar provision is found in the Hong Kong Rules of the Supreme Court Order 32 rule 9(a). Where, therefore, statutes utilize the word "the court", it is clear from that decision and the other instances which may be found within the Rules of the Supreme Court, for example, Order 50 rule 11, and Order 73 that the jurisdiction which is given to a judge cannot be exercised by the master, unless there is a specific rule of court which empowers that to be done.  The Ordinance under consideration in this appeal is, as I have said, the Legal Aid Ordinance Chapter 91; it is important to note that in that ordinance the word "court" is used in a different manner, because by virtue of Section 2 "court" is defined as any court, tribunal or person in respect of proceedings before which legal aid may be granted but does not include Privy Council, and so it is clear that when the word "court" is used in that Ordinance it includes the Registrar. The word "judge", as I have said before, is defined as meaning a Judge of the Supreme Court or District Court. In my judgement, therefore, the word "court" where it is used in the Ordinance and the word "judge" are used in contradistinction; for example, in Section 15 sub-section 2 and 3 are found the words "judge of the court"; in Section 17 is found the-words "where it appears to a court or judge that the legal aid certificate has been obtained by fraud etc. In my judgement therefore, in Section 17 the words "court or judge" are used clearly in contradistinction, so that although the judge may himself be a person who falls within the ambit of the word "court", the Registrar who also falls within the ambit of the word "court" is not a judge. In my judgement, therefore, from the four corners of this Ordinance, it is clear that the draftsman has entrusted the powers under Section 15(2) and (3) solely to a judge of the court in which the litigation is pending, i.e. either a High Court or District Court Judge. Order 32 rule 11 is declaratory in that it declares what the procedure is and in my judgement it does not enable a master to fulfil the function of a judge under the Legal Aid Ordinance. I would like to say that this ruling may cause certain practical difficulties; if it is thought that the Registrar should have such a power, then an amendment to the Rules of the Supreme Court can simply be made, similar to the one, as I have pointed out, in Order 32 rule 9(a). Nevertheless, it is clear in my judgement that the draftsman of the Ordinance has wished to entrust to the judge the power to reduce or extend the period of a stay and this power in my judgement is an important one. I therefore do not personally suggest that such an amendment should be made, but if it is considered by other persons that it is appropriate that Registrars should have the power then, as I have said before, the amendment required is relatively simple. For the reasons I have stated above, in my judgement Master Sutill did not have jurisdiction to entertain the application which was made to him and this appeal therefore is successful.

(1)    (1978) Q.B. 886