KMM v.TORTURE CLAIMS APPEAL BOARD

HCMP 1934/2015

MISCELLANEOUS PROCEEDINGS NO. 1934 OF 2015

(ON AN INTENDED APPEAL FROM HCAL NO. 46 OF 2015)

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JUDGMENT
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Hon Lam VP (giving the Judgment of the Court):

1.  In this matter, leave to appeal was granted on paper on 1 September 2015 on certain grounds (focusing on the liability of the Director of Immigration as Interested Party for costs though he did not contest the judicial review against the decision of the Torture Claims Appeal Board [“TCAB”]) whilst leave was refused on other grounds. Mr Kat SC on behalf of the Applicant applied pursuant to Order 59 Rule 2C(1) for an oral hearing to consider whether leave should also be granted in respect of those other grounds. Mr Ismail appearing on behalf of the Director of Immigration opposed leave regarding Grounds 15 and 16. The TCAB adopted a neutral stance and indicated that it would abide by the decision of the court. Having heard submissions from counsel, we decide to refuse leave in respect of Grounds 1 to 7 and 15 to 16 in the draft Notice of Appeal.

2.  Grounds 15 to 16 are in the following terms:

“ 15. The Judge also failed to consider and apply the law and principles applicable to legally aided cases set out by the UK Supreme Court in In re JFS [2009] 1 WLR 2353 (UKSC) at §§59-62 and by the English Court of Appeal R (Bahta) v Secretary of State [2011] 5 Costs LR 8 (CA), [59]-[62] as to the impropriety of making “no order as to costs” where the successful applicant for judicial review is legally-aided.

“16. It is wrong in principle and unjust for the Legal Aid Fund (or the lawyers for an applicant) to be required to bear the burden of costs incurred in such cases in considering a claim for review, correspondence, bringing and conducting the proceedings up to and through the leave stage where such rights are involved, and especially where a decision is so egregiously bad.  The jurisdiction of the Court under s.52A of the High Court Ordinance, Cap.4 and the intent of Order 1A and Order 62, rule 5(d) is available and may be exercised so as to ensure that there is no “lacuna” preventing a just order for costs in such cases.”

3.  These grounds sought to raise the issue that the Judge erred in making no order as to costs so that the burden would be borne by legal aid.  However, it is plain from the judgment of 21 May 2015 that the Judge did not apply any special rule by reason of the fact that the Plaintiff is legally-aided.  The Judge simply applied what he perceived to be the law in the same manner as in the case between non-legally aided parties.  Mr Kat SC did not suggest that a party who is legally-aided should receive special treatment in terms of costs. Such a proposition is plainly unarguable in light of section 19(1) of the Legal Aid Ordinance.

4.  Mr Kat however relied on In re appeals by Governing Body of JFS [2009] 1 WLR 2353 at paragraphs 24 and 25; R (Boxall) v Waltham Forest London BC [2000] 4 CCLR 258 paragraphs 10 to 12 and R (Bahta) v Secretary of State for the Home Department [2011] 5 Costs LR 857 paragraphs 59 to 62 and advanced the submission that the Judge erred in awarding no order as to costs in publicly-funded cases.

5.  Whether it is right to award no order as to costs against the Director is a topic to be considered in the substantive appeal for which leave had been granted. Some of these authorities might be relevant in that context and it is not appropriate for us to discuss them in such context in the present judgment.

6.  In relation to Grounds 15 to 16, we are not persuaded that these authorities establish a general proposition that the court must approach legally-aided cases in a different manner from those involving non-legally aided parties. In Boxall, the judge reiterated that the court should apply the normal principles in deciding the proper order for costs irrespective of whether a litigant is publicly funded, see the citation of the judgment from R v London Borough of Wandsworth ex p Heshmati (unreported 4 Nov 1997) at paragraph 11 and the conclusion at paragraph 13 in Boxall. Bahta, like Boxall, was a case where the English Court of Appeal held that it was not a good reason to decline to make an order for costs against a defendant that those acting for the publicly funded claimant will obtain some remuneration even if no order for costs is made against the defendant. We have no quarrel with this proposition which is just a facet of the immateriality of the legal aid status of a party. These cases do not go further to support a proposition (as Mr Kat seemingly suggested we should adopt in Grounds 15 and 16) that in a case where it is appropriate to make no order as to costs under normal principles, the court should have special regard to the fact that the successful party is a legally aided person and consider making a different order because of that. This is precisely the point made by Pill LJ at paragraph 62 of Bahta,

“Equally, it is not an acceptable reason to make an order for costs in favour of a claimant …. that publicly funded lawyers are, or are claimed to be, inadequately remunerated. Whether to make an order for costs depends on the merits of the particular application. …”

7.  In re appeals by Governing Body of JFS, supra, was a decision in a very unusual context.  In that case, the Legal Services Commission [“LSC”] had funded a claimant who had been successful in the Court of Appeal.  The unsuccessful parties appealed.  LSC indicated that it would only continue to fund the claimant through the appeal if a protective costs order [“PCO”] was obtained.  Originally, the manager of the LSC suggested that the PCO should be that each side should be liable for its own costs of the appeal in any event.  But the claimant disagreed and only sought a PCO that whatever the outcome of the appeal LSC (and the claimant) would be immune from bearing the costs of the appellants in the appeal.  The application for PCO was dismissed and the Supreme Court held that the only reasonable decision open to the LSC was to continue to provide the successful party with public funding for the appeal without a PCO.

8.  Though counsel for the claimant did not seek a PCO in terms of a no costs order, Lord Hope had to comment on it given the LSC manager’s earlier suggestion.  And the observations of Lord Hope should be understood against the special arrangement under the U.K.  legal aid scheme in a high costs case, outlined by His Lordship at paragraph 24.  The upshot was that in that type of cases, there could be a huge difference between the fees recoverable by the lawyers from the public fund by reason of the caps provided under that scheme under a no costs order and the fees recoverable from the other side in a usual inter partes taxation under a favourable costs order.  

9.  As the Chief Judge observed at the hearing, the following dicta at paragraph 25 appears to be the part which Mr Kat would wish to rely on,

“It is, of course, true that legally aided litigants should not be treated differently from those who are not. But the consequences for solicitors who do publicly funded work is a factor which must be taken into account. A court should be very slow to impose an order that each side must be liable for its own costs in a high costs case where either or both sides are publicly funded.”

10.  We respectfully make several observations in this connection:

(a) Lord Hope affirmed the principle that legally aided litigants should not be treated differently;

(b) As far as the reference to the prejudice occasioned by making no order as to costs to solicitors doing publicly funded works is concerned, Lord Hope was considering it in the special context of high costs cases as discussed above;

(c) Taking the dicta to its highest, in general terms (as there should not be any different treatment between legally aided litigants and others, and in principle there should not be any different treatment between solicitors acting for legally aided litigants and solicitors acting for other litigants): if there may be real prejudice suffered by the lawyer acting for a successful party as a result of making no order as to costs as opposed to making an order for costs against the unsuccessful party, in terms of the remuneration for the successful party’s lawyer flowing from different bases of taxation, this is a relevant consideration when considering whether to make no order as to costs;

(d) It does not follow from the above that there should be special regard for legally aided litigant or the position of his lawyer when there is no real prejudice to the lawyer arising from any different bases of taxation in any event.

11.  We do not have the special legal aid scheme for high costs cases in Hong Kong.  Thus, Lord Hope’s comment in that specific context is not directly applicable in the present instance.  However, as we said, insofar as there is any real prejudice flowing from the different bases for taxation to those acting for the Applicant, whether flowing from his legal-aid status or otherwise, it is a matter to be taken into account.  As explained, it is not conferring special status on lawyers undertaking legal aid works as such.  The same principle applies even in cases where lawyers act for non-legally aided litigants.

12.  Mr Kat did not submit that there would be prejudice suffered by those acting for the Applicant in terms of fees recoverable from the public fund if the order of no order as to costs is upheld. In Hong Kong, legal aid taxation is conducted on common fund basis which usually provides better remuneration to the lawyers than usual party-to-party taxation. Regardless of the costs order inter partes, a lawyer acting in legal aid cases would obtain remuneration on common fund basis under legal aid taxation.

13.  Counsel however submitted that those acting for the Applicant would be prejudiced by reason of the non-recoverability of pre-legal aid certificate preparatory works undertaken by the lawyers.  We have not heard submissions on whether a lawyer could undertake such work with a view that he or she could recover fees for such work should there be an order for costs in favour of his client but not if such order is not made.  We shall therefore refrain from expressing any views on the point.  However, we note that it is not a prejudice arising from the different bases of taxation.

14.  As a matter of practicality, we have reservations on whether one should have regard to prejudice to the lawyers flowing from matters other than the different bases of taxation in circumstances similar to those adverted to by Lord Hope. It would involve the court delving into the funding arrangement between a litigant and his lawyers (and as we said there should not be any distinction between a legally aided litigant and a non-legally aided litigant as a matter of principle).  It would involve the court asking questions like whether the solicitor holds adequate costs on account, and whether we should have one approach for litigants who have no means to pay their solicitors and another approach for those who have substantial means. We also highlight some issues that have to be explored in the context of a CAT claimant’s challenge of the decision of the TCAB at para 16 below.   

15.  In light of Mr Kat’s submission of prejudice, we have examined the submissions canvassed before the Judge.  Though there were references to the authorities mentioned above, including JFS, there was no reference to such pre-legal aid certificate works as the potential prejudice suffered by the Applicant’s lawyers. This is not surprising as an examination of the lower court file immediately reveals that it is a completely false point. The Applicant was represented by Ms Ho of Daly & Associates under the Duty Lawyer Scheme before the TCAB. After the TCAB gave its decision on 13 December 2013, the Applicant applied for legal aid on 20 December 2013. Legal aid was promptly offered on 6 January 2014 with nil contribution. Legal aid certificate was issued on 24 January 2014. Counsel was assigned on 4 March 2014. The Form 86 was prepared and signed by the assigned counsel and it was filed on 7 May 2014. There is simply no basis for suggesting that the lawyers have undertaken any pre-legal aid certificate works in the present case.

16.  If an issue of pre-legal aid certificate works were to arise in a different case, the judge would have to call for evidence in respect of the nature and circumstances under which such works were undertaken and give consideration to the issues raised at paragraph 14 above, assuming that one should look beyond the bases of taxation. The judge would also have to consider why it was necessary for such works to be done before legal aid certificate was obtained and to what extent the works overlapped with works already remunerated under the Duty Lawyer Scheme in respect of the representation of torture claimants before the Director and the TCAB.     

17.  Thus, the merits of the present appeal should be focused on what should have been the position irrespective of the legal-aid status of the Applicant. Grounds 15 to 16 are not germane in the intended appeal.

18.  As regards Grounds 1 to 7, they revolve around the question whether the TCAB should be held liable for costs. Those grounds are as follows:

“ 1. The learned Deputy Judge (the Judge) erred in law by not having regard to basic rule that costs follow the event as set out by Dyson J in R v Lord Chancellor, ex p. CPAG at 355H to 356C, including in public law matters, as emphasised by the Court of Final Appeal in Leung Kwok Hung v The President of the Legislative Council of the Hong Kong Special Administrative Region (unrep.) HCAL 87 of 2006 at §14, and by failing to hold that a departure from this position should be the exception, not the rule, including in public law proceedings: Chu Hoi Dick v Secretary for Justice per Lam J (as he then was) at 433, 434; see also Chan Noi Heung v Chief Executive (Decision on Costs) per Ma CJHC (ahtw) at §§8, 9, 12(1), (3) and by Kwan JA in Pfeiffer GmbH v Cheng Hay Kit (unrep.) CACV 245 of 2013 at §§20-23.

In particular, if a public official is made aware of the unlawful nature of his or her decision but refuses to reconsider or otherwise remedy the position until brought before the Court, he or she takes on the risk as to costs in accordance with O.62 rr.3 and 5 RHC just as any other party to litigation; the starting point is the same. Like any other litigant, the public law respondent is to be taken to know of that risk.

Chan Noi Heung v Chief Executive (Decision on Costs) (unrep.) CACV 197 of 2007, 16^th March 2009 at §12(1) per Ma CJHC

2. While an appeal board or tribunal discharging a quasi-judicial function should not enter the arena on review so as to compromise that function: Dato Tan Leong Min v Insider Dealing Tribunal, Nattrass v A-G as affirmed in Orrico (CA), once it is aware of such a flaw there is no reason why it should not indicate that it would not consent to an order quashing its decision.

3. The Judge further erred in law in his interpretation and application of the decisions in R (Davies) v Birmingham Deputy Coroner [2004] 3 All ER 543 as approved and applied in Hong kong in Orrico (CA) at §19, R (Boxall) v Waltham Forest LBC [2000] All ER (D) 2445 and their previous Hong Kong application, as follows:

(a) The Judge failed to apply the test in paragraph 22(iv) of R (Boxall): “Was it obvious that the Applicant would have won had the matter proceeded to a hearing”;

(b) The Judge also erred in his application of principle (i) in R (Davies), as approved and applied in Orrico (CA) at §34, that costs may be awarded against such a decision-maker where there was “a flagrant instance of improper behaviour”, by failing to consider or to take into account that:

(i) In cases settled before permission had been granted, costs would follow in ‘a very clear case’ as per R v R.B. Kensington and Chelsea ex p. Ghebregiogis.

Costs would also follow where, on a ‘look at the merits’ leave (permission) would have been granted and the action of a third party, prompted by the existence of proceedings, had pre-empted the application.

(ii) Similarly, for cases discontinued after permission but before a substantive hearing, the decision of Scott Baker J in (R) Boxall following Simon Brown J (as he then was) in R v Liverpool CC ex p. Newman, that it may be just that when the respondent who settles does that which the challenge is designed to achieve because he would be highly likely to lose, he should ‘indeed pay the applicant’s [costs]’. Aliter if that respondent was “sensibly deciding to short-circuit the proceedings”.

On the face of this Decision and the application for review, leave (permission) was an inevitability and that “third party” was the Intended Respondent Director.

(iii) The Judge also erred by failing to have regard to the decisions of the Court of Appeal in CLP v Warner Banks, Coroner to which he was referred, which sets out the domestic, Hong Kong interpretation of the ‘flagrant instance of improper behaviour’ requirement in R (Davies) principle (i).

In CLP v Warner Banks the Court applied the test laid down by Parker CJ in R v Liverpool Justices, ex p. Roberts holding the term covers circumstances where the [decision-maker] tribunal had:

“ obviously acted perversely or with disregard for the elementary principles which every tribunal ought to obey.  ‘Flagrant’ in that criterion means no more than ‘obvious and blatant … contrary to accepted principle or practice that it should otherwise have complied with and adhered to, and which it ought to have known.”

The Court of Appeal in Orrico (CA) also held at §§40, 41 that the criterion to be applied is that set out in R v Liverpool Justices, ex p. Roberts, a “stringent” test requiring “flagrant impropriety” at §44, albeit without reference to CLP v Warner Banks.

The Judge failed to apply either formulation of that test.  This question is therefore open for the decision of the Court of Appeal.

4. This was a “blatant and obvious” case within Davies principle (i), whether as restated for Hong Kong by the Court of Appeal in CLP v Warner Banks or as stated in Orrico v The Municipal Services Appeal Board.  The impugned Decision, dated 13^th December 2013, in its particular context, called for the Court’s disapproval.  The Respondent TCAB is an expert tribunal concerned only with Convention decisions, on which it had been expressly and recently corrected and quoted by this Court.  The Decision was so blatantly and obviously contrary not only to fundamental and accepted principles of the Convention which the TCAB is to be taken to have known and was bound to apply but also contrary to fairness at common-law, so as to be “flagrant” in its impropriety.  In those exceptional circumstances, the Court will reflect its disapproval by ordering costs against the decision-maker itself notwithstanding its quasi-judicial function.

5. Each of the following failings was plain on the face of the Decision:

(a)  A basic constituent of the TCAB’s fact-finding task when inquiring into a Convention claim, repeatedly stated to be the law by the Court of Final Appeal, the Court of Appeal and the Court of First Instance prior to the TCAB’s Decision, is to take into account the Country of Origin Information put before it and to say how that related (or did not relate) to the Applicant’s claim in the reasons for its decision.

The TCAB blatantly did not do so: see the Form 86 at Section E3, §§121-134, 140-145.

(b)  The TCAB also plainly failed to consider the contents of a highly relevant witness statement from the Applicant’s father which supported his claim, and other critical, relevant factual evidence put before it.  That material was simply ignored and omitted from the TCAB’s Decision: see the Form 86 at §§137-139, 142-145.

Both William Lam (who chaired this Board) and his deputy Betty Kwan (who also sat) had previously made the same gross and basic error of failing to consider the COI and/or other evidence before them in a number of other cases which had previously been brought before the Court, in each of which the TCAB was itself Respondent (and the Director an Interested Party).

By way of example only, Mr Lam’s previous decision was quashed inter alia on the ground of failing to consider the COI in AM v Director of Immigration and William Lam HCAL 102 of 2012 dated 20^th November 2013; on 21^st March 2014, Mrs Kwan’s decision was also quashed on that same, particular ground in MDB v Betty Kwan: see the Form 86 at §121.

(c)  There was a further, basic ‘blatant and obvious’ unfairness in the TCAB’s procedural conduct and its substantive approach to Convention risk.  In this case, the TCAB was invited by the Applicant to assess that risk on the basis of the UNCAT Guidelines (and their Canadian equivalent and the UK OGN).  The TCAB simply ignored those criteria and chose to decide the claim on its own view of the use and effect of an English ‘Country Guidance’ decision alone.  That this was fundamentally unfair was also made apparent to the TCAB in the decision of 26^th June 2014 in ST v Betty Kwan and The Director of Immigration (CA).

(d) In addition, this Board yet again repeated a fundamental error of law on the very test it is charged to administer on such claims, set out for the decision-maker in s.37U of the Ordinance, and notwithstanding the previous decisions of this Court directing it as to the correct interpretation and application of that test:

At §§20, 53, 55 and 56 of its Decision, the TCAB misconstrued the purpose and the (separate) perpetrator (State or non-State actor) elements of the Convention test and muddled them together so as to dismiss the Applicant’s claim to protection: see Section E2 §§116-120 of the Form 86.

The requisite purposes of the torturer concerned are expressly set out in s.37U (a) & (b).  They do not include “a purpose which relates … to the interests of the torture risk state” as Mr Lam and Mrs Kwan wrote in §20 of the TCAB’s Decision.

Nor does the Convention require that the author or perpetrator of that torture may only be ‘a public official or other person acting in an official capacity’, or that the State concerned ‘would have had consented’ to it, as the TCAB wrote at §§53, 55 & 56.

Where the risk State does not provide protection against conduct amounting to torture by non-State actors for Convention-prohibited purposes, that failure amounts to ‘acquiescence’ within the Convention definition.  This is basic Convention law.  It is in General Comment No.2; it was set out and explained in 2011 by Lam J (as he then was) in TK v Jenkins at §55 (‘extended acquiescence’) and reasserted by the Court of Appeal in 2013 in TK v Jenkins at §33; it is explained in the primary Convention textbook Nowak & Arthur at §§117, 118; and only 3 months before, in September 2014, the Court of Appeal in AM (McWalters J) had again restated the law, with a clear direction to the Board to know and apply the principle of extended acquiescence and its limits.

This Convention law must have been known to the TCAB.  They recited s.37U (a) and (b) and referred specifically to “state acquiescence in the risk or threat posed by a non-state agent” at §§7 and 20 of their Decision.  They referred to TK v Jenkins (HC) at §30, n.16 of their Decision.

On each of these 4 grounds, the Decision was blatantly wrong on its face and indefensible on review, as the TCAB well knew or ought to have known.

6. The law as stated in Prabakar demands “high standards of fairness” and the “anxious scrutiny” of the Board when considering Convention claims.  Applying that standard, this Decision was perverse and “flagrant” in its disregard of the decisions of this Court, an impropriety.

7. The Judge failed to consider any of these points when coming to his unreasoned conclusion, at §22 of the Judgment, that this was not a “blatant and obvious” case, although they were drawn to his attention.”

19.  The relevant principles were discussed in Orrico v Municipal Services Appeal Board [2015] 4 HKLRD 111.  In his submissions advanced before us, Mr Kat focused on the question of what constitutes “flagrant improper behaviour”.  Counsel did his best to persuade us that the ignoring of documentary evidence, a witness statement and the COI, and the disregard of the law on acquiescence by a specialist tribunal despite previous authorities from the courts must be regarded as fundamental errors which merit such sanction.

20.  We have read the Form 86 and the Decision of the TCAB carefully.  With respect, we do not accept that all the criticisms advanced by Mr Kat against the TCAB were well-founded.  Whilst the manner in which the TCAB analysed the evidence was a proper subject for challenge (and relief being granted by consent), we do not think it is reasonably arguable that this is a case of deliberately closing one’s mind to the relevant evidence and legal principles. The TCAB attached to its written decision a list of documents which it had paid regard to and we should proceed on the basis that they had given due consideration to the same. Even for judicial judgments, it is recognized that the written reasons could not have fully ventilated each and every relevant arguments advanced at the hearing and the full reasoning process could not be adequately captured by written text: Eagil Trust Co Ltd v Pigott-Brown [1985] 3 All ER 119; Piglowska v Piglowski [1999] 1 WLR 1360 at p.1372D-F; English v Emery Reimbold & Strick Ltd [2002] 1 WLR 2409 at paragraphs 17-21; Welltus Ltd v Fornton Knitting Co Ltd [2013] 5 HKC 106 paragraphs 22 to 25; Henderson v Foxworth Investments Ltd [2014] 1 WLR 2600 paragraph 48.   

21.  We do not find any arguable basis for suggesting that the Judge erred in coming to the view at paragraph 22 of his judgment that:

“ At worst, TCAB was aiming to achieve justice and that it tried its best but unfortunately committed errors in its decision making process.”

22.  We reiterate what had been said at paragraphs 41 and 42 of Orrico.  We respectfully disagree with Mr Kat’s submission that the standard should vary with a specialist tribunal made up of former judicial officers tasked with administering torture claims.  The rationale for the rule in Orrico is as applicable to the TCAB as to the MSAB in that case.  As we have said at paragraph 42 of Orrico, “the criteria are stringent and not all obvious or even blatant errors on the part of a tribunal come within this test”. 

23.  As explained in Orrico, there are good reasons why there should be such a high threshold for a quasi-judicial appeal authority to be held accountable for costs in respect of its own decision. Otherwise, the impartiality of such authority would be undermined and valuable resources assigned for processing CAT or similar claims (as well as the time of the members of the TCAB) would have to be diverted by the authority to defend claims for costs. 

24.  The Applicant’s case comes nowhere near to meeting the high threshold.

25.  With great respect to Mr Kat, there was an unhealthy disposition in counsel’s submissions to invite this court to examine the track record of particular members of the TCAB.  We do not find it helpful at all.  Such a practice carries with it an invitation to this court to single out these members for criticism not only in respect of what they did in this case, but also in other cases which are not before the court.  We must say that this is entirely inappropriate. 

26.  For these reasons we dismiss Mr Kat’s application. In the usual circumstances, we would have ordered the Applicant to pay the costs of the Director in respect of this application. However, Mr Kat asked this court not to make any order for costs against his client as this renewed application was brought by the Applicant without legal aid and the lawyers acted on pro bono basis. We have not heard full arguments on this submission and we shall reserve the question of costs to the court hearing the substantive appeal (based on grounds for which leave had previously been granted).