CHUNG YUK YING v. THE REGISTRAR OF HIGH COURT

HCAL 127/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 127 OF 2013

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D E C I S I O N

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1.  The Director of Legal Aid (“the Director”) discharged the applicant’s legal aid certificate in relation to an intended common law claim. The applicant seeks leave to apply for judicial review against Master H. Au-Yeung’s decision on 30 May 2013 dismissing her appeal against the Director’s decision.

BACKGROUND

2.  On 26 July 2011, the applicant, a messenger, was instructed to deliver documents to 10^th Floor, Far East Consortium Building (“the Building”), Central.  At the lift lobby of the Building, there were boxes of building materials and handcarts placed against the wall opposite to lift no. 2.  Whilst waiting for lift no. 2, one Mr Wan was facing that lift with his back towards the boxes of building materials and handcarts.  The distance between him and those items was about 2½ feet.  Whilst the applicant was walking past Mr Wan’s back towards another lift, the door to lift no. 2 opened. Mr Wan turned around abruptly to collect the handcart.  The applicant was tripped by Mr Wan’s leg and fell, thereby sustaining bodily injuries.

3.  The applicant was initially granted legal aid for her employees’ compensation claim (against her employer) and common law claim (against Mr Wan, his employer and the property management company of the Building).

4.  On 6 March 2013, the Director discharged the legal aid certificate for the intended common law claim as a result of counsel Ms Queenie Ng’s advice that the applicant “does not stand a more than even chance of success in her intended common law claim against the 1^st, 2^nd and 3^rd Defendants”.  In his Reasons for Discharge, the Director agreed entirely with counsel’s advice.

5.  At the hearing of the applicant’s appeal on 30 May 2013 against the Director’s decision, the bone of contention was that the Director and Ms Ng applied the wrong test.  Instead of conceding that a wrong test had been used, counsel for the Director referred to a legal aid handbook used in England contended that a reasonable chance meant a chance higher than 50%.

6.  The learned Master dismissed the applicant’s appeal, stating that he agreed with the reasons for refusal of the Director (having applied the correct test).  He produced his further Reasons for Decision on 14 June 2013 as follows:-

“1. In relation to the allegations made by the Applicant herself in her written statement, I agree with the Reasons for Refusal of the Legal Aid Department together with the counsel advice relied on as far as the strength of the Applicant’s case is concerned. I do not accept that the Applicant has a reasonable chance in establishing liability against any of the intended Defendants.

2. I have further considered the submissions advanced by the Applicant’s counsel, in which he has relied on some other grounds of negligence and occupier’s liability. In my view, it is fanciful to suggest that the intended Defendants would be liable to the Applicant in the circumstances of the present case as submitted by counsel. The facts in the case of Bhana v. Ocean Apex Trading Ltd [2010] 6 HKC 209 (relied on by the Applicant’s counsel) are clearly distinguishable from those in the present case.

3.  Hence, applying the merits test as set out in the case of Nguyen Trong Son v Director of Legal Aid (LAA 20/1999, unreported, 15 December 2000), the Applicant has no reasonable ground for taking the intended legal proceedings.  The Applicant’s appeal was therefore dismissed.”

7.  The present application for leave to apply for judicial review rests on two grounds:-

A. The learned Master failed to provide any or any sufficient reasons for his decision.

B. Should the issues in relation to the negligence of the intended defendants be properly considered, the learned Master should have accepted that the applicant has a good or at least reasonable case against each intended defendant.

APPLCABLE PRINCIPLES

8.  In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that the threshold for leave to apply for judicial review is reasonable arguability and only a reasonably arguable claim which enjoyed realistic prospects of success should be given leave to proceed.

9.  The criterion for granting legal aid on the merits ground is set out in section 10(3) of the Legal Aid Ordinance 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”: Ngugen Trong Son v Director of Legal Aid, LAA No. 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 Jasmine v Master M. Yuen, HCAL 46/2003, 8 March 2004, Chu J (as she then was); F v Registrar of the High Court [2012] 3 HKC 473, Macrae J (as he then was).

Ground A: that the learned Master failed to provide any or any sufficient reasons for his decision

12.  In Eastern Express Publisher Ltd v Obscene Articles Tribunal [1995] 3 HKC 145, Findlay J said at 150D as follows:-

“There is no express requirement imposing a general duty on the tribunal to give reasons for its decisions on references or on classifications at a final hearing. But this duty is implied, both by the common law and by implication from this statute. The duty to give reasons is part of the duty to give a fair hearing. Where a body is set up by statute to make decisions affecting the rights and property of members of a community, especially a body such as the tribunal, which is headed by a judicial officer, the people concerned, and the public generally, have a right to know on what basis the body has made its decisions. Even if there is no right of appeal, the body will usually be subject to judicial review, and judicial review cannot be effectively conducted without the superior courts knowing reasons for decisions. The case is stronger in the case of the tribunal because a provision that says that reasons need not be given on an interim classification implies that they should be given following a full hearing, either for classification purposes or on references. And, in the case of this Ordinance, there is a right of appeal; a right of appeal only on points of law, but, of course, a right of appeal on points of law cannot be effectively exercised unless a party knows what facts were found, and how the law was applied to those facts.

The tribunal, having a duty to give reasons, has a duty to give adequate reasons. They must be sufficient to enable the High Court to know what facts the tribunal has found, how it has applied the law to those facts and how the tribunal dealt with the substantial points that were raised. The reasons may be brief, but a mere recitation of a statutory formula is not enough. If the tribunal has not done this; if the tribunal does not give reasons sufficient to justify a particular decision, the court may assume that the tribunal had no such reasons.”

13.  The learned Master's decision was challenged as being too brief, lacked details on how he had applied the law to the facts and how the points raised by the applicant’s then counsel were dealt with.

14.  In my view, there is no objection in principle for a Master to adopt the reasons, in whole or in part, for discharge given by the Director or the opinion of counsel, provided, of course, the reasons in themselves were sufficient in terms of analyses of facts and law.

15.  As disclosed in his written Reasons for Decision, the learned Master had considered the reasons for refusal given by the director, Ms Ng’s advice and the submissions advanced by the applicant’s then counsel.   The reasons for distinguishing the case of Bhana v Ocean Apex Trading Ltd [2010] 6 HKC 209 from the applicant’s have been set out in Ms Ng’s advice (paragraphs 20-23). There was only one merits test set out in the case of Nguyen Trong Son, one applied frequently by Masters hearing legal aid appeals.  Insofar as the allegations made by the applicant in her written statement were concerned, it is not reasonably arguable that the learned Master has failed to give adequate reasons for his decision.

16.  The learned Master's comment, however, that it was fanciful to suggest that the intended defendant would be liable appeared to be directed at the “other grounds” of negligence and occupiers liability not mentioned in the Reasons of the Director.  Those “other grounds” have not been identified and it is arguable that the learned Master has failed to explain why he found those grounds fanciful.  Leave to apply for judicial review ought to be granted on Ground A.

17.  Further, Ms Ng’s advice was prompted by the Director’s instructions to advise on the merits based on a test of “more than even chance of success”, a threshold higher than “reasonable, as opposed a fanciful, chance”.  Ms Ng failed to spot the wrong test and gave her advice accordingly.  The opinion in the legal aid handbook could not have precedence over the Hong Kong test in Nguyen Trong Son v Director of Legal Aid.  It is also arguable that in agreeing to the views of the Director and Ms Ng, the learned Master also erred in applying the wrong test.

Ground B: Should the issues in relation to the negligence of the intended defendants be properly considered, the learned Master should have accepted that the applicant has a good or at least reasonable case against each intended defendant

18.  This ground goes to the merits of the claim itself. As stated by Chu J in the case of Ng Ai Kheng, the court in its judicial review jurisdiction is not concerned with merits but legality. It is not appropriate to embark upon analyses of the merits of the claim itself. This ground is not arguable.

CONCLUSION

19.  The applicant has demonstrated reasonably arguable grounds for saying that the learned Master has failed to give reasons for the “other grounds” advanced by the applicant and applied the wrong test for considering the merits. I therefore grant leave to apply for judicial review for the whole of Ground A but not Ground B which deals with the merits of the claim itself.

20.  I thank Mr Wong for his assistance.