AGACER JAMES C. v. DIRECTOR OF LEGAL AID

HCA 822/2017
[2018] HKCFI 126

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 822 OF 2017

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D E C I S I O N

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INTRODUCTION

1.  This is a striking out application by the defendant seeking an order to strike out the plaintiff’s statement of claim and to dismiss this action.

2.  The defendant relied on the following grounds for this application:

(a) the statement of claim discloses no reasonable cause of action;

(b) it is frivolous and/or vexatious; and/or

(c) it is an abuse of the process of the court.

3.  In this case the plaintiff claims against the defendant for $10,864,000.

4.  The plaintiff is also the claimant in HCPI 916 of 2014 (the “PI Action”).  The plaintiff claimed in the PI Action that he was assaulted by a Tang Sai Keung and a Chris Lau CY on about 13 April 2010 (the “Assault”).

5.  The plaintiff made three legal aid applications to pursue his claims in the PI Action.  Legal aid was granted to the plaintiff on 20 May 2015 upon his third legal aid application to pursue the PI Action after two previous applications being refused.  The plaintiff alleged that the defendant had delayed in handling his legal aid applications leading to his claims in the PI Action not being commenced within the three-year time limit as stipulated in the Limitation Ordinance (Cap 347).  Hence this claim against the defendant.

6.  The plaintiff issued the writ herein on 6 April 2017 and filed his statement of claim on the same day.

7.  The defendant took out this application on 16 May 2017.

THE PLAINTIFF’S CASE

8.  In the statement of claim, the plaintiff pleaded that the defendant approved the plaintiff’s legal aid application only “after lengthy and undue delay” and “No time bar/limitation warning was ever advised to Plaintiff by the Defendant.” (Para (iii) of the statement of claim).

9.  The plaintiff further pleaded in para (vi) of the statement of claim that:

“Plaintiff was never provided with evidence showing that an application for legal aid, clearly marked as URGENT (copy available), as having alerted Plaintiff to the need to take early action regarding matters of time bar / limitation.”

10.  The plaintiff referred to a written opinion of Mr John Wright of counsel dated 13 February 2015 (the “Legal Opinion”).  The plaintiff pleaded that:

“From that date [ie date of the Legal Opinion] forward Defendant was fully aware of the error in law. Defendant made no attempt to rectify situation. Plaintiff subsequently needed to begin own law research.” (Para (v) of the statement of claim)

“Since date of said written opinion, which was not disputed, of failure of duty, no apology or remedial action was provided by Defendant.” (Para (vii) of the statement of claim)

11.  The plaintiff also complained about the defendant refusing his request to meet Mr Wright to discuss his case.  (Para (vii) of the statement of claim)

12.  The plaintiff pleaded that his claims in the PI Action would be less than $1,000,000 but he “asks for punitive damages of HK$10 million, because Defendant was fully aware of Plaintiff’s psychiatric condition (Bipolar Affective Disorder / Manic Depression) and Plaintiff’s psychological condition (Post Traumatic Stress Disorder) but continued to endanger Plaintiff’s life with suicidal risk by deliberately delaying simple process of law.” (Second last paragraph of the statement of claim)

13.  In his affidavit in opposition to this application filed herein on 14 June 2017, the plaintiff only stated that:

“There exists clearly convincing written evidence of deliberate delaying tactics chosen by Defendant which Plaintiff firmly believes are grounds for this matter to be considered by the High Court.”

14.  Put it in a nutshell, the plaintiff’s case is that the defendant owed him a duty not to delay his legal aid applications and the defendant was guilty of undue delay in processing his legal aid applications leading to the PI Action not being commenced within the time limit stipulated in the Limitation Ordinance.  As such, limitation defence became available to the defendants in the PI Action and the plaintiff suffered loss and damages.

THE ISSUES BEFORE COURT

15.  The issues before me are:

(a) Whether the defendant owes the following duties to the plaintiff:

(i) not to delay in processing the plaintiff’s legal aid applications;

(ii) to warn or advise the plaintiff on time limitation.

(b) If so, whether the defendant had breached his such duties.

(c) If so, whether such breaches constitute a cause of action in private law entitling the plaintiff to claim against the defendant.

16.  If the plaintiff shows a reasonable cause of action against the defendant supported by prima facie evidence, the court shall not strike out the plaintiff’s statement of claim as the court will exercise this draconian power of striking out only in plain and obvious cases.  The court shall not conduct a trial upon affidavit.

17.  I shall also not go into the quantum of the plaintiff’s claim as it is a matter for trial if the court does not agree to strike out his statement of claim.

THE PLAINTIFF’S LEGAL AID APPLICATION

18.  In the Affirmation of Lau Ca Chun (“Lau’s Affirmation”) filed herein on 16 May 2017 on behalf of the defendant, the defendant set out the history of the plaintiff’s legal aid applications.

19.  As at 16 May 2017, the plaintiff had made a total of 11 legal aid applications, three of which were related to the plaintiff’s claims pursued in the PI Action.

20.  By a letter dated 28 January 2013 (the “January Letter”) from Burke & Company (“B&C”) to the defendant, B&C referred the plaintiff to the defendant for legal aid in respect of the plaintiff’s intended actions against the Criminal and Law Enforcement Injuries Compensation Board (the “Board”) and the Commissioner of Police (the “Police”) in respect of matters arising from the Assault.  B&C stated in the January Letter that they referred the plaintiff “to apply for Legal Aid to seek Judicial Review regarding refusal of his application for Criminal Compensation, against” the Board and the Police.  B&C mistakenly stated that the Assault took place on 13 October 2010.

21.  On 21 February 2013, the plaintiff submitted his legal aid application for judicial review naming “Pat Heung Police Station (Commission of Police)” as the opposite party and the name of the intended defendant as “Commissioner of Police (HKSAR)” (the “1^st Legal Aid Application”).  He stated that the Assault occurred on 13 April 2010.

22.  By a letter dated 28 March 2013 sent by the defendant to B&C, the defendant sought clarification from B&C on the 1^st Legal Aid Application including the date of the Assault.  By a letter dated 10 April 2013 (the “April Letter”), B&C clarified that the date of the Assault was 13 April 2010.

23.  From the April Letter, the defendant understood that the 1^st Legal Aid Application was also an application for legal aid to claim against the alleged assailants of the Assault (ie subject of the PI Action).

24.  In processing the 1^st Legal Aid Application, the defendant wrote to Pok Oi Hospital on 5 April 2013 to obtain medical records of the plaintiff and sought legal opinion from Mr Earl Deng of counsel on 30 April 2013 in respect of various intended claims of the plaintiff.

25.  On 31 May 2013, Mr Deng rendered his legal opinion on the plaintiff’s intended judicial review against the Board.

26.  On 26 July 2013, Mr Deng rendered his legal opinion on the plaintiff’s intended judicial review against the Police.

27.  On 31 July 2013, the defendant received the plaintiff’s medical records from Pok Oi Hospital.

28.  On 16 October 2013, Mr Deng rendered his legal opinion on the plaintiff’s intended claims against the Police for damages for the Assault.

29.  On 6 March 2014, Mr Deng rendered his legal opinion on the plaintiff’s intended claims against the alleged assailants of the Assault.

30.  Mr Deng took the view, inter alia, that (i) there was no evidence to support the plaintiff’s allegation that the Assault had taken place; (ii) the plaintiff was unable to prove the identity of the attackers; and (iii) the intended claim was time-barred and there was no reason to persuade the court to exercise its discretion to disapply the limitation period.

31.  After considering information obtained and the aforesaid legal opinion of Mr Deng, the defendant refused the 1^st Legal Aid Application on 31 March 2014.

32.  While the 1^st Legal Aid Application was still pending, by a letter dated 19 December 2013 from B&C to the defendant, the plaintiff submitted another four legal aid applications, one of which was a fresh legal aid application for his intended claim against the alleged assailants of the Assault (the “2^nd Legal Aid Application”).

33.  In processing the 2^nd Legal Aid Application, the defendant wrote to the plaintiff on 18 February 2014 seeking further information from the plaintiff.  After considering further information received from B&C in March and April 2014, the defendant concluded that the subject matter of the 2^nd Legal Aid Application was the same as the 1^st Legal Aid Application and there were no new information or documents provided on the merits of the intended claim.

34.  On 7 August 2014, the defendant refused the 2^nd Legal Aid Application (the “Refusal”).  The plaintiff appealed against the Refusal.

35.  The Legal Opinion was obtained from Mr Wright pursuant to section 9 of the Legal Aid Ordinance (Cap 91) in the course of the plaintiff’s aforesaid appeal.  The plaintiff requested to have a meeting with Mr Wright before Mr Wright prepared the Legal Opinion.  Such request was refused by the defendant.  The plaintiff had nevertheless through B&C provided further information and documents to Mr Wright before he issued the Legal Opinion on 13 February 2015.

36.  In the Legal Opinion, Mr Wright took the view that the plaintiff had an arguable case in his intended claims against the assailants of the Assault and the plaintiff might rely on the circumstances of the case to ask the court to exercise its discretion to extend the time for him to file his claims.

37.  In view of the Legal Opinion, the defendant was prepared to grant legal aid to the plaintiff.  The plaintiff agreed to withdraw his appeal against the Refusal and to submit a fresh legal aid application.

38.  The plaintiff submitted his fresh legal aid application on 29 April 2015 (the “3^rd Legal Aid Application”) and informed the defendant that he had already commenced the PI Action on 15 September 2014.  Legal aid was granted to the plaintiff on 20 May 2015 to pursue the PI Action and Mr Burke of B&C was assigned to handle the case.

39.  On 7 February 2017, B&C informed the defendant that the 1^st defendant in the PI Action (ie Tang Sai Keung) raised the defence of “limitation” and the court had directed that the same be dealt with as a preliminary issue.

THE DEFENDANT’S CASE

40.  The defendant did not dispute that he had the statutory duties of processing applications for legal aid and granting legal aid to eligible applications under the Legal Aid Ordinance and that he had to act reasonably in carrying out his such statutory duties. (Para 31 of Lau’s Affirmation)

41.  However, the defendant contended that the defendant was not acting for the plaintiff as his legal representative and the defendant’s statutory duties were towards the public funds to ensure legal aid applications were processed in accordance with the Legal Aid Ordinance only. (Para 32 of Lau’s Affirmation)

42.  The defendant submitted that there was no “lengthy” or “undue delay” caused by the defendant as alleged by the plaintiff in processing the plaintiff’s legal aid applications in relation to his claims against the assailants of the Assault. (Para 32 of Lau’s Affirmation)

43.  The defendant denied that it had taken any delaying tactics as alleged by the plaintiff in handling the plaintiff’s legal aid applications.  (See the 2^nd Affirmation of Lau Ca Chun filed herein on 10 July 2017.

DISCUSSION

Statutory duties of the defendant

44.  In Chong Yu On v Legal Aid Department of Hong Kong [2017] 2 HKLRD 665, it was held that the duty of the Legal Aid Department under the Legal Aid Ordinance was to administer the legal aid scheme, process legal aid applications and provide legal aid to those applicants who met the requirements.

45.  I accept that the defendant is also duty bound to process legal aid applications without undue delay.

46.  Miss Luk for the defendant submitted that apart from having the statutory duty to examine the legal aid applications of the plaintiff, the defendant did not owe any contractual or common law duty of care to the plaintiff.  The duty of the defendant was to process the legal aid applications in accordance with the established procedure as set out in the Legal Aid Ordinance.  This did not include the provision of any legal advice to the legal aid applicants on the subject matter of the application including the issue of time limitation or other legal issues.

47.  In the recent case of Ng Tam Yue v Legal Aid Department (unrep., CACV 243/2016, 13 September 2017), the Court of Appeal pointed out that when the Legal Aid Department merely granted legal aid instead of acting directly as the legal representative of the aided person, the Legal Aid Department owed no other obligation in law in the legally aided proceedings. (See para 14.1 of the judgment)

48.  In processing legal aid applications, the defendant does not act as legal representative of the applicants.  I agree that it is not the duty of the defendant to provide legal advice to legal aid applicants whether on issue of limitation or other legal issues.

49.  As such, I agree that the defendant is under the statutory duty not to delay in processing the plaintiff’s legal aid applications but the defendant is not duty bound to warn or advise the plaintiff on time limitation.

Whether the defendant had breached his statutory duties

50.  The defendant received the 1^st Legal Aid Application on 21 February 2013.  The defendant sought clarification from B&C on 28 March 2013 and wrote to Pok Oi Hospital on 5 April to obtain relevant medical records of the plaintiff.  The Defendant also sought counsel opinion from Mr Deng on 30 April 2013 in respect of various intended legal actions of the plaintiff.

51.  Mr Deng issued legal opinion on each of the plaintiff’s intended actions on 31 May 2013, 26 July 2013, 16 October 2013 and 6 March 2014.  Pok Oi Hospital provided the requested medical records to the defendant on 31 July 2013.  After considering the information obtained and the legal opinion of Mr Deng, the defendant refused the 1^st Legal Aid Application on 31 March 2014.

52.  It took the defendant about 13 months to dispose of the 1^st Legal Aid Application.  On the face of it, the time taken was a bit long.  The plaintiff had included four intended actions in the 1^st Legal Aid Application.  It took Mr Deng of counsel 11 months to deal with all the intended actions.  I agree that the time taken by Mr Deng to advise on the plaintiff’s intended actions could be shortened but I do not consider that as unduly delay on the part of the defendant.  I note that the defendant had sought advice from Mr Deng of counsel within three months of receiving the 1^st Legal Aid Application, only that it took 11 months for counsel to render his legal opinion on all four intended legal actions of the plaintiff.  It took the defendant less than four weeks after receiving Mr Deng’s legal opinion on all issues to dispose of the 1^st Legal Aid Application.

53.  I agree that there is room for improvement in respect of the length of time taken up in handling the 1^st Legal Aid Application.  However, I do not agree that this amounts to the defendant breaching his statutory duties in the circumstances of this case.

54.  The 2^nd Legal Aid Application was made on 19 December 2013.  The plaintiff made four legal aid applications together on that occasion.  The 2^nd Legal Aid Application was refused on 7 August 2014.  It took the defendant less than eight months to dispose of the 2^nd Legal Aid Application.  I do not accept that there was unduly delay on the part of the defendant in dealing with the 2^nd Legal Aid Application.

55.  The plaintiff submitted the 3^rd Legal Aid Application on 29 April 2015 which was granted within one month on 20 May 2015.  I do not think that the plaintiff has any complaint for unduly delay in respect of the 3^rd Legal Aid Application.

56.  As I do not accept that there was unduly delay on the part of the defendant in handling the plaintiff’s legal aid applications for his claims subject of the PI Action, I find that the plaintiff has no reasonable cause of action against the defendant in this action.

57.  In the event that I were wrong in my aforesaid finding and assuming for the purpose of this application that the defendant had in breached of his statutory duties delayed in processing the plaintiff’s legal aid applications, I shall consider whether such breaches will entitle the plaintiff to claim against the defendant for damages.

Whether the plaintiff may claim the defendant for breach of statutory duties

58.  In Kaisilk Development Ltd v Urban Renewal Authority [2004] 1 HKLRD 907 Rogers VP stated at 918D that:

“It is trite law that, in the ordinary case, a breach of statutory duty does not, by itself, give rise to any private law cause of action.”

59.  Lord Hoffmann stated in Stovin v Wise [1996] AC 923 at 952F that:

“Whether a statutory duty gives rise to a private cause of action is a question of construction: see Reg v Deputy Governor of Parkhurst Prison, Ex parte Hague [1992] 1 AC 58. It requires an examination of the policy of the statute to decide whether it was intended to confer a right to compensation for breach.”

60.  In Liu Mei Huei v Government of HKSAR [2016] 2 HKLRD 249, the Court of Appeal held that the legislative intent of the Legal Aid Ordinance was that should the defendant breach his duty at law, an applicant for legal aid could seek legal relief by lodging an appeal or applying for judicial review in public law.  However, it did not confer a legal aid applicant a civil cause of action.

61.  In the lower court decision of the Liu Mei Huei case (reported as Lau Mei Wai v HKSAR [2013] 1 HKLRD 1232), To J had examined the policy objective of the Legal Aid Ordinance and was of the view that:

“… the intention of the Legislature in enacting the Legal Aid Ordinance is that, if the Director of Legal Aid is in breach of his statutory duty, the form of relief available to an applicant for legal aid is to seek an appeal or review, and the Ordinance does not give rise to a cause of action under private law. Furthermore, as a matter of policy, if a duty of care under private law was imposed on the Director of Legal Aid in addition to the statutory duty, it would be difficult for the LAD [the Legal Aid Department] to operate effectively. In order to avoid civil liability under private law, the LAD staff might, for fear of receiving complaints or becoming involved in legal proceedings, issue legal aid certificates indiscriminately, thereby causing abuse and wastage of resources; even worse, the whole legal aid system would come to a standstill, as a result of which those who were eligible for legal aid would not obtain the service they should receive. Therefore, in my judgment, the legislative intent behind the Legal Aid Ordinance is to impose on the Director of Legal Aid certain statutory duties which are owed to the public, but these duties are not intended to give rise to civil duties of care under private law. It follows that, even though the Director of Legal Aid was in breach of the statutory duty, it did not give rise to any cause of action in favour of the plaintiff.” (See para 27 of the judgment)

62.  When the case went to the Court of Appeal, the Court of Appeal affirmed the aforesaid views of To J. (See para 77 of the judgment of the Court of Appeal)

63.  As such, putting the plaintiff’s case to the highest and assuming that the defendant had breached his statutory duties in handling the plaintiff’s legal aid applications, the plaintiff still has no cause of action in private law to claim against the defendant for damages.

Other matters

64.  The plaintiff pleaded that the Legal Opinion showed the defendant error in law and failure in duty.  As stated in the Legal Opinion, counsel was instructed to advise on the merits, in particular on:

(a) the likelihood that the plaintiff was assaulted;

(b) the identity of the alleged assailants;

(c) whether there are special grounds for extending the limitation period.

65.  The Legal Opinion only deals with the merits of the plaintiff’s claim in the PI Action.  It only shows that Mr Wright took a different view from that of Mr Deng on the plaintiff’s claims in the PI Action.  The Legal Opinion does not deal with the defendant’s handling of the plaintiff’s legal aid applications.  It is noted that in para 29 of the Legal Opinion, Mr Wright stated that:

“29. With commendable candour, the applicant’s solicitor Mr Burke has admitted in correspondence that he advised the applicant [ie the plaintiff] (within the limitation period) that the limitation period was 6 years, being unaware the law had changed. … Mr Agacer [the plaintiff] received this advice within the limitation period.”

66.  The Legal Opinion shows that the plaintiff had been advised by B&C on the issue of limitation.  This further shows that the plaintiff’s complaint against the defendant for not advising or warning him on the issue of limitation is totally devoid of merits.  I do not see that the Legal Opinion assists the plaintiff in this action. 

67.  The plaintiff also complained that the defendant did not agree for him to have meeting with Mr Wright before Mr Wright issued the Legal Opinion.

68.  It is within the power of the defendant to decide how to discharge his statutory duties of processing legal aid applications.  Whether it is necessary for the legal aid applicant to meet the advising counsel is a matter to be decided by the defendant after considering the circumstances of the case and bearing in mind that public funds are being involved.  I see no merits in any claims premised on such complaint.

69.  In any event, as discussed above any breach of statutory duties on the part of the defendant will not confer on the plaintiff any cause of action to claim in private law.

CONCLUSION AND COSTS

70.  As the plaintiff has no reasonable cause of action against the defendant in this action, I allow this application of the defendant and strike out the statement of claim filed herein on 6 April 2017. I also dismiss this action of the plaintiff.

71.  Costs shall follow event.  I make an order nisi that the plaintiff shall pay the costs of the defendant for this application and this action, including costs previously reserved, to be assessed by summary assessment.

72.  The above costs order nisi shall become absolute after 14 days from the date of this decision unless application to vary the order nisi is received from any party within this 14-day period.

73.  I further direct the defendant to submit statement of costs to the court within 14 days after the aforesaid order nisi shall become absolute with copy to the plaintiff.  The plaintiff shall submit to the court his comments (if any) to the defendant’s statement of costs within 14 days thereafter with copy to the defendant.  The costs payable by the plaintiff to the defendant will be assessed by summary assessment by way of paper disposal.