LEVAIRE ROMAIN PIERRE v. THE JUDICIARY ADMINISTRATOR

HCAL 1719/2019

[2020] HKCFI 404

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1719 OF 2019

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D E C I S I O N

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INTRODUCTION

1.  The principal issue which arises for determination in this application for leave to apply for judicial review is whether it is reasonably arguable that the Applicant, a part-time French-English interpreter whose name is on the list of registered part-time interpreters maintained by the Judiciary, has a “legitimate expectation” that the Judiciary Administrator will share such list with other Government bureaux/departments.

BACKGROUND FACTS

(i)     The List of registered part-time interpreters maintained by the Judiciary

2.  For the proper administration of justice, the Judiciary makes available interpreters to provide assistance if any party or witness in any court proceedings uses a language which is not the language used by the court.  The Judiciary maintains its own core team of Court Interpreters (“CIs”) who mainly provide English - Cantonese interpretation service in court proceedings.  Some of them also provide interpretation services for Putonghua and a few Chinese dialects (other than Cantonese).  The CIs are staff employed by the Judiciary.

3.  Besides, the Judiciary maintains a register of part-time interpreters (“PTIs”) for the purpose of providing interpretation services in court proceedings in various foreign languages and some Chinese dialects (other than Cantonese).  Where there is an operational need for interpretation service in court proceedings in a foreign language or a Chinese dialect which the CIs are not able or available to provide, the Judiciary would engage a PTI to provide the required service.  Given the irregular demand for such services, PTIs are engaged on an as-and-when-required basis.  These PTIs are not employees of the Judiciary.  Most of them have their own vocation or engagements, and provide their services on a freelance basis.

4.  To enable the Judiciary to provide interpretation services in court proceedings in foreign languages and Chinese dialects beyond the competence of the CIs, the Judiciary has adopted certain measures, as set out in an information paper for the Legislative Council, LC Paper No. CB(4)994/15-16(03), dated May 2016 (“the 2016 LC Paper”):

“(a) To invite eligible persons to apply to become PTIs of the Judiciary

8. First, the Judiciary strives to identify the largest possible pool of eligible persons in Hong Kong who are able to provide the requisite services, and to ensure that they meet the required standards. This is done by setting the qualification requirements, conducting the language tests, and advertising the invitations of application having regard to operational needs…

(b) To maintain a list of registered PTIs who may be called upon to provide interpretation services in court proceedings

…..

(c) To ensure that the quality of interpretation services provided is of a satisfactory standard through training, support and supervision

11. The Judiciary attaches much importance to the training of, support for and supervision of the PTIs. Court visits are arranged for all new PTIs. They also attend an induction class in real courtroom setting on court structure, court procedures and code of practice. They are also given handouts on relevant subjects including oath/affirmation of court interpreter and witness, specimen charges and brief facts, different nature of sentences in the judicial system, and legal terms commonly used in court proceedings.

12.     On supervision, feedback on interpreting service provided by PTIs is received from court users from time to time. Moreover, as an integral part of the performance management system, inspections on the performance of PTIs in courts are conducted by the Judiciary and views on their performance are also collected from the full-time CIs.”

5.  Subject to their passing the language proficiency tests and security check by the Police, and completing the induction course mentioned in paragraph 11 of the 2016 LC Paper, the Judiciary Administrator would assign work to the PTIs on a gradual basis, starting with relative simple tasks before assigning work of greater varieties and complexities.  In general, before a part-time interpreter’s name is considered for entry on the list of registered PTIs maintained by the Judiciary (“the List”), he/she is required to have worked in court proceedings for a period of time, normally 3 years, to ensure that he/she has acquired sufficient interpretation experience for cases of different nature and at different levels of the court.  It is only after a PTI has proven that he/she can perform well in cases of different nature and at different levels of the court that his/her name would be entered on the List.

6.  When an eligible PTI is considered suitable to be placed on the List, the Judiciary Administrator would issue to him/her a confirmation letter with a reference number.

(ii)     Previous practice of sharing the List with other Government bureaux/departments

7.  It used to be the practice of the Judiciary Administrator to (i) undertake the language assessments for eligible PTIs to be included on the List, (ii) make available the List to other Government bureaux/departments (“Government B/Ds”) to facilitate them to engage PTIs for their own purposes, and (iii) evaluate the performance and manage the conduct of the eligible PTIs.

8.  Such practice was reviewed by the Judiciary Administrator from time to time, having regard to the primary objective of engaging PTIs for the purpose of the administration of justice in court proceedings, the operational needs of the courts and other practical considerations including resources constraints.

9.  On 4 January 2011, certain revised arrangements to the practice were promulgated, as set out in paragraph 7 of General Circular No 2/2011 issued by the Director of Administration to Government B/Ds:

“REVISED ARRANGEMENTS FOR EMPLOYMENT OF NON-GOVERNMENT PART-TIME INTERPRETERS

7     The Judiciary maintains a list of registered non-government part-time interpreters for foreign languages and Chinese dialects for judicial purposes.  While the Judiciary will make its list available for reference of other bureaux/departments, it will not make arrangements for bureaux/departments when they need to engage such non-government part-time interpreters for their own purposes.  Due to this consideration and resource constraint, the Judiciary no longer undertakes language assessment of part-time interpreters for other bureaux/departments or evaluation of performance of part-time interpreters when they work in bureaux/departments other than in the Judiciary.”

10.  In 2015, in the light of actual operational experience, the Judiciary Administrator proposed to the Director of Administration that it might make the List available to Government B/Ds only “when circumstances permit”.  On 18 February 2016, the Director of Administration issued General Circular No 10/2016 to Government B/Ds informing them of the Judiciary’s updated practice of sharing the List with them:

“Arrangements for Employment of Non-Government Part-time Interpreters

7     The judiciary maintains a list of registered non-government part-time interpreters for foreign languages and Chinese dialects for judicial purposes.  While the Judiciary may, when circumstances permit, make its list available for reference of other B/Ds, it will not make arrangements for B/Ds when they need to engage such non-government part-time interpreters for their own purposes.  Due to this consideration and resource constraint, the Judiciary will not undertake language assessment of part-time interpreters for other B/Ds or evaluation of performance or conduct of part-time interpreters when they work in B/Ds other than in the Judiciary.  In all circumstances, the Judiciary has priority on the use of the non-government part-time interpreters on the list.”

(iii)    The Judiciary ceased sharing the List with Government B/Ds starting from August 2018

11.  In the light of actual operational experience over the years, the Judiciary Administrator came to the view that the past practice of sharing the List with Government B/Ds had led to certain unsatisfactory results, including a misguided belief by some Government B/Ds that the Judiciary Administrator was a provider or overseer of the interpretation services provided by the PTIs and that the Judiciary Administrator had an obligation to meet their operational demands for the services of foreign language interpreters.  There was also a misconception on the part of some Government B/Ds that they were only allowed to engage interpreters whose names were on the List, and that the Judiciary Administrator was responsible for the performance and conduct of the PTIs even when they were working for Government B/Ds or other users for their own operational requirements.

12.  In addition, the Judiciary Administrator considered that, institutionally, it was of the utmost importance that the Judiciary, with its primary responsibility for the administration of justice, should not only discharge its duties in an impartial manner, but must also be seen to be doing so.  Accordingly, it would be undesirable and inappropriate for the Judiciary Administrator to be functioning or seen to be functioning as an agent in providing interpretation support to other Government B/Ds or public bodies, which would from time to time be parties to court proceedings. Accordingly, the Judiciary Administrator decided that it would no longer be appropriate to continue the previous practice of providing information of individual PTIs to, or sharing the List with, Government B/Ds.

13.  On 15 February 2018, the Director of Administration issued General Circular No 3/2018 to Government B/Ds to inform them of the latest position of the Judiciary as regards the practice of sharing the List with them:

“Arrangements for Employment of Non-Government Part-time Interpreters

7 The judiciary maintains a list of registered non-government part-time interpreters for foreign languages and Chinese dialects for judicial purposes. The primary purpose of maintaining the list is to ensure proper administration of justice in court proceedings by providing interpretation support in court proceedings where any party or witness uses any language which is not the language used by the court. While the Judiciary may, when circumstances permit, provide some information on its list to B/Ds for reference, the Judiciary is under no obligation to make the list available.

8  B/Ds should, in light of their own operational needs, consider exploring other arrangements to cope with their own interpretation demand for services of interpreters proficient in foreign languages/Chinese dialects.  Alternatively, they may proceed with the procurement of outside interpretation services in accordance with SPRs 200-290.”

14.  Since August 2018, the Judiciary Administrator has ceased to provide information regarding PTIs engaged to provide services for court proceedings to Government B/Ds.  Nevertheless, the Judiciary Administrator would, upon inquiries from Government B/Ds, inform them that each PTI on the List would be issued a confirmation letter with a reference number by the Judiciary Administrator, and they may refer to the confirmation letter to ascertain whether any particular PTI is on the List.

15.  In passing, I should mention that the Judiciary Administrator has recently completed a further review on the arrangement for engaging PTIs for foreign languages and Chinese dialects, and plans to take forward a new arrangement under which it would no longer maintain the List but would engage freelance interpreters for the sole purpose of serving the courts.  Freelance interpreters who meet the Judiciary’s requirements for providing court interpretation services will be issued a standard letter confirming that they are included as service providers for a specified period during which they may be engaged to provide interpretation services as and when required.

(iv)    The Applicant’s complaint

16.  In or about November 2014, the Applicant applied to become a PTI to provide French-English interpretation service to the Judiciary.  After completing the induction course and passing the language proficiency test in December 2014 and early January 2015 respectively, the Applicant started to be engaged to provide French-English interpretation service in court proceedings from the second half of January 2015 onwards.

17.  On 31 July 2018, the Judiciary Administrator issued to the Applicant a confirmation letter stating that his name had been entered on the List for French and English languages.  Enclosed with that letter was a document or booklet titled “Basic Guidelines for Part-Time Interpreters (Revised: July 2017)”.  There was nothing in either the letter or the enclosure to suggest that the Judiciary would share the List with any Government B/Ds or public bodies.

18.  Between September and December 2018, the Applicants made enquires, both by phone and email, to the Part-time Interpreters Unit of the Judiciary Administration (“PTUJA”) on whether the Judiciary had shared the updated List with Government B/Ds.

(1)     In an email dated 5 September 2018, the PTUJA informed the Applicant that the updated List was not yet ready to be sent and the confirmation letter issued by the Judiciary Administrator to him would be proof that his name was on the List, but it had no control over what other Government departments would do or accept.

(2)     In a further email dated 11 December 2018, the PTUJA informed the Applicant that “we have never told anyone that the list of interpreters maintained by the Judiciary is shared with other government departments from time to time, usually every three months”, and that the Judiciary was “not an accreditation centre nor translation agency in Hong Kong”.

(3)     According to the Applicant, on 4 June 2019, Mrs Karen Tan of the PTUJA verbally confirmed that the Judiciary did not intend to share the List with Government agencies and other departments anymore.

APPLICATION FOR JUDICIAL REVIEW

19.  On 21 June 2019, the Applicant made the present application for leave to apply for judicial review of the Judiciary Administrator’s decision “to stop sharing the list of part-time registered court interpreters with other public departments and government agencies”.

20.  As stated in paragraph 16 of the Form 86, the Applicant relies upon the “public law doctrine of legitimate expectation” as the “core legal principle” in support of the present application.  As further stated in paragraph 34 of the Form 86, the Applicant contends that such legitimate expectation has arisen as a result of the “habitual conduct” of the Judiciary “as the provider of a regularly updated list of registered interpreters that are to be considered as competent interpreters fit to serve the public of Hong Kong.”

DISCUSSION

21.  In support of his argument that the Judiciary has, by its habitual conduct, represented itself as the provider of a regularly updated list of registered interpreters who are considered to be competent and fit to serve the public of Hong Kong, the Applicant refers to and relies on:

(1)     an email from Mrs Karen Tan dated 7 September 2016 to him, in which Mrs Tan stated that “… we owe the public a duty to make sure interpreters are well experienced and qualified before we would formally put their names on our list and refer them to users”; and

(2)     various emails from the Police Public Relations Branch dated 26 September 2017, the Immigration Department dated 24 August 2018, and the Director of Legal Aid dated 6 September 2018 to the Applicant, to show that these Government departments rely on the List provided by the Judiciary for the purpose of engaging part-time interpreters to provide interpretation services.

22.  It is not in dispute that the Judiciary used to have a practice of sharing the List with Government B/Ds for their reference or use, and they relied on the List for the purpose of engaging part-time interpreters to meet their operational demands or requirements.  It would also appear that some Government B/Ds continue to rely on the List previously provided by the Judiciary for such purposes, notwithstanding the fact that they have been formally informed by the Director of Administration on 15 February 2018 that the Judiciary is under no obligation to make the List available to them and they should explore other arrangements to cope with their own demands or requirements for interpretation services, and the Judiciary has ceased providing any update of the List since August 2018.

23.  As a matter of principle, merely because a public body has followed a habitual or previous consistent course of conduct is generally not sufficient to give rise to a legitimate expectation.  In R (Niazi) v Secretary of State [2008] EWCA Civ 755, at §50, Laws JA described three different types of situation where a legitimate expectation might arise:

“A very broad summary of the place of legitimate expectations in public law might be expressed as follows. The power of public authorities to change policy is constrained by the legal duty to be fair (and other constraints which the law imposes). A change of policy which would otherwise be legally unexceptionable may be held unfair by reason of prior action, or inaction, by the authority. If it has distinctly promised to consult those affected or potentially affected, then ordinarily it must consult (the paradigm case of procedural expectation). If it has distinctly promised to preserve existing policy for a specific person or group who would be substantially affected by the change, then ordinarily it must keep its promise (substantive expectation). If, without any promise, it has established a policy distinctly and substantially affecting a specific person or group who in the circumstances was in reason entitled to rely on its continuance and did so, then ordinarily it must consult before effecting any change (the secondary case of procedural expectation). To do otherwise, in any of these instances, would be to act so unfairly as to perpetrate an abuse of power.”

24.  The first two types of legitimate expectation plainly have no application in the present case.  The first type of legitimate expectation (procedural) refers to the paradigm case where there was a distinct promise to consult those affected or potentially affected (as in AG v Ng Yuen Shiu [1983] 2 AC 629).  The second type of legitimate expectation (substantive) refers to the case where there was a distinct promise to preserve an existing policy for a specific person or group who would be substantially affected by the change.

25.  That leave the third type of legitimate expectation (also procedural) where there was established a policy distinctly and substantially affecting a specific person or group who in the circumstances “was in reason entitled to rely on its continuance” and did so.  Further guidance on the circumstances in which this type of legitimate expectation may arise can be found in §§47-49 of Laws JA’s judgment:

“[47] I posed the question earlier: what are the conditions under which a public decision-maker will be required, before effecting a change of policy, to afford potentially affected persons an opportunity to comment on the proposed change and the reasons for it where there has been no previous promise or practice of notice or consultation? Under this head I will first cite one of the cases given by Simon Brown LJ in Ex p Baker as ‘clear examples’ of this kind of legitimate expectation. In Ex p Schemet [1993] 1 FCR 306 the claimants were the parents of two children who went to a school outside the local authority’s district. The local authority had paid for the elder child’s travel costs, but then changed their policy. They stopped paying for the elder child’s travel, and never paid for the younger’s. There had been no promise or practice of notice or consultation. Roch J as he then was nevertheless held (324C - D) that the claimants enjoyed a legitimate expectation that the benefit would continue in relation to the elder child until there had been communicated to them some rational ground for withdrawing it on which they had been given an opportunity to comment. It might be thought that the decision was a generous one. However, again, the affected persons were few in number. And Roch J’s reason for upholding the expectation was expressed thus (324D - E):

‘There could well be cases where the withdrawal of a travel pass would mean that the child would have to change schools, and it would seem right and sensible that the local education authority should pay some regard to the effect that a change of schools would have on that particular child before finally deciding whether to withdraw that advantage.’

[48] The next case is Ex p Unilever. The facts were very stark. The case concerned the Inland Revenue’s treatment of a taxpayer’s claims for loss relief against corporation tax. A time limit for making such claims was stipulated in the legislation, but (as was common ground) the Revenue enjoyed a discretion to entertain late claims. On thirty occasions over a period of more than 20 years the taxpayer submitted late claims and the Revenue accepted them. But then for the accounting years 1986, 1987 and 1988, with no prior notice, warning or consultation, they refused the taxpayer’s claims on the ground that they were not made within the statutory time limit. Sir Thomas Bingham MR as he then was said (691g):

‘On the history here, I consider that to reject Unilever’s claims in reliance on the time-limit, without clear and general advance notice, is so unfair as to amount to an abuse of power.’

It is plain both from Sir Thomas Bingham’s judgment and that of Simon Brown LJ (Hutchison LJ added no reasoning of his own) that the court regarded the Revenue’s conduct as outrageous (see for example Simon Brown LJ at 697c: ‘so outrageously unfair that it should not be allowed to stand’).

[49] I apprehend that the secondary case of legitimate expectation will not often be established. Where there has been no assurance either of consultation (the paradigm case of procedural expectation) or as to the continuance of the policy (substantive expectation), there will generally be nothing in the case save a decision by the authority in question to effect a change in its approach to one or more of its functions. And generally, there can be no objection to that, for it involves no abuse of power. Here is Lord Woolf again in Ex p Coughlan (paragraph 66):

‘In the ordinary case there is no space for intervention on grounds of abuse of power once a rational decision directed to a proper purpose has been reached by lawful process.’

Accordingly for this secondary case of procedural expectation to run, the impact of the authority’s past conduct on potentially affected persons must, again, be pressing and focussed. One would expect at least to find an individual or group who in reason have substantial grounds to expect that the substance of the relevant policy will continue to enure for their particular benefit: not necessarily for ever, but at least for a reasonable period, to provide a cushion against the change. In such a case the change cannot lawfully be made, certainly not made abruptly, unless the authority notify and consult.”

26.  It is clear that, where there was no distinct promise to preserve, or to consult before a change of, an existing policy, it would only be in a compelling case that the court would find that the recipient of a benefit under an existing policy has a legitimate expectation that the public body would not change the policy without first consulting that person or giving that person an opportunity to make representations against the proposed change.

27.  In the present case, there was no promise ever made by the Judiciary Administrator to the Applicant that the practice of sharing the List with Government B/Ds would be maintained or continued, or that such practice would not be changed without first consulting him or giving him an opportunity to make representation against any proposed change.  The purpose of the Judiciary’s previous practice of sharing the List with Government B/Ds was not to facilitate any PTI (including the Applicant) to secure work from Government B/Ds or other public bodies.  Further, the Applicant has been given a confirmation letter by the Judiciary Administrator which clearly states that his name is on the List.  Although the confirmation letter should be sufficient proof to any Government B/Ds or other public bodies of that fact, plainly the Judiciary Administrator can have no control over what other Government B/Ds would or would not accept as sufficient proof that the Applicant is on the List of registered part-time interpreters maintained by the Judiciary.  As stated in footnote 3 on page 2 of the 2016 LC Paper, although the Judiciary understands that some Government departments may also engage the Judiciary’s registered PTIs for the Government’s assignments, that is a matter for the Government departments concerned.  Lastly, there are perfectly sound and rational reasons for the Judiciary to stop sharing the List with other Government B/Ds (see paragraphs 11 and 12 above).  In these circumstances, I do not consider it to be reasonably arguable that the Applicant has substantial grounds to expect that the Judiciary’s pervious practice of sharing the List with Government B/Ds would enure for his particular benefit and would not be changed unless he has first been notified and consulted of any proposed change.

28.  I pause to add it is not the Applicant’s case that he should have been notified and consulted before the Judiciary changed the practice of sharing the List with Government B/Ds.  In his Form 86, at paragraph 48, he is seeking an order of mandamus “to compel the Judiciary Administrator to regularly share its updated list with other public departments and government agencies, in the same manner as was done continuously for many years”.  In other words, the Applicant is advancing a case of “substantive legitimate expectation”, which I do not consider to have any real prospect of success.

29.  In paragraphs 25 to 29 of the Form 86, the Applicant says that Government agencies have refused to consider him as a suitable candidate for providing interpretation service because his name is not on the List that was previously provided by the Judiciary, and argues that interpreters whose names are on the older versions of the List are unjustifiably advantaged compared to the newly registered ones even though they have the same level of qualifications and competence.  As a result of the Judiciary’s cessation of the practice of sharing the List with Government agencies, he has suffered significant loss of potential professional experience, and also significant loss of potential work and related income. The Applicant also complains that the Judiciary abruptly moves the goalpost after he has spent lots of time and effort to get registered on the List in reliance on the Judiciary’s practice of sharing the List with Government agencies.

30.  In paragraphs 30 to 33 of the Form 86, the Applicant further says that the Judiciary’s cessation of the practice of sharing the List with Government agencies and other departments has adverse effects on the public of Hong Kong, in that:

(1)     The older versions of the List relied on by Government agencies and other departments are outdated, and may include interpreters who may since have been de-registered by the Judiciary for poor performance/misconduct or have retired, and are therefore not fit or available to serve the public of Hong Kong.

(2)     The older versions of the List do not include newly registered interpreters, thus resulting in a “shortage” of interpreters who can provide necessary interpretation services.

(3)     Since Government agencies and other departments do not receive the updated List anymore, they would have to separately engage or appoint their own interpreters, a process which is wasteful in terms of time and cost, especially in light of the fact that the Judiciary already maintains an updated List of competent interpreters.

31.  It needs to be emphasized, however, that in an application for judicial review, the court is not concerned with the merits of the decision under challenge.  The court can only interfere where the decision is unlawful, or Wednesbury unreasonable, or has been reached in a procedurally unfair manner.  While this court has some sympathy with the position of the Applicant, it does not consider the Judiciary’s decision to cease sharing the List with Government B/Ds or other public bodies to be unlawful or Wednesbury unreasonable, or to have been reached in a procedurally unfair manner.

32.  In all, the intended application for leave to apply for judicial review is not reasonably arguable and has no realistic prospect of success.

33.  In passing, there are two other matters that I should mention.  First, with the court’s leave, the Applicant filed a further affirmation on 11 November 2019 after the hearing on 4 November 2019. I have considered the contents of that affirmation, but do not consider that it adds anything to the Applicant’s case.  Second, at the hearing on 4 November 2019, Mr Liu raised the issue of whether the Applicant required an extension of time to apply for leave to apply for judicial review.  Bearing in mind the somewhat unusual circumstances where the Putative Respondent is the Judiciary Administrator, if (contrary to my view) the intended application for judicial review is reasonably arguable, I would be prepared to grant the Applicant an extension of time to make the application for leave to apply for judicial review if required.

DISPOSITION

34.  The application for leave to apply for judicial review is dismissed, with no order as to costs.