WONG CHUN TAK v. THE REGISTRAR OF HIGH COURT

HCAL 4/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 4 OF 2016

____________

____________

____________________

D E C I S I O N

____________________

FACTUAL BACKGROUND

1.  This is an application for leave to apply for judicial review against the Registrar’s decision dismissing the applicant’s legal aid appeal in LAA 712 of 2013.

2.  The action for which legal aid was sought was for the applicant’s claim in professional negligence against his former solicitors (“the Claim”). The writ was filed on 27 December 2001, ie 15 years ago.  The applicant’s legal aid appeal in LAA 712/2013 (“the 1^st LAA”) was dismissed by Master Chow on 19 March 2014 (“the 1^st Decision”).  The applicant applied for judicial review of the 1^st Decision. Pending hearing of the judicial review, the applicant applied again for legal aid but was refused.  He lodged LAA 392/2014 (“the 2^nd LAA”).  A 5^th Section 9 Opinion dated 20 April 2015 (“the 5^th Opinion”) was prepared by Ms Cruden in respect of the merits of the Claim.

3.  On 5 June 2015, in HCAL 67/2014 (“the JR Judgment”), I quashed the 1^st Decision with a direction that the 1^st LAA be remitted to the learned Master for reconsideration forthwith and reach a decision in accordance with the legal principles set out in paragraphs 17, 18 and 20 of the JR Judgment.  In summary, the legal principles are that the criterion for granting legal aid on the merits ground is that there are “reasonable grounds for taking a legal action”.  That may be established even in cases where the “chance” or “prospect” of success is considered less than 51%.  It is not meaningful to use percentages for a case. The only pertinent question to ask is whether there is a reasonable, as opposed to a fanciful, chance of the court at trial deciding that issue of fact in favour of the applicant.

4.  The applicant withdrew the 2^nd LAA.  Master Chow conducted a rehearing for the 1^st LAA (“the Rehearing”) and dismissed it again on 9 October 2015 (“the 2^nd Decision”).  The learned Master agreed with the 5^th Opinion.

5.  The applicant now seeks leave to apply for judicial review of the 2^nd Decision.  The putative respondent takes a neutral stance in these proceedings.  The putative interested party (“DLA”) has, through the Department of Justice (“DOJ”), filed an Initial Response.

INTENDED GROUNDS FOR JUDICIAL REVIEW

6.  The applicant has advanced 4 broad grounds:

A. Alleged procedural impropriety;

B. Alleged irrationality and unreasonableness;

C. Alleged legitimate expectation;

D. Alleged illegality.

7.  The applicant seeks a certiorari to quash the 2^nd Decision. He also seeks an order of mandamus directing the putative respondent to apply the law on merits test to reconsider the Decision without taking into account “extraneous evidence”, ie the 5^th Opinion.  Alternatively, he asks for an order directing the Master to order the DLA to appoint 2 counsel to make 2 independent written merit submissions specific for the 4^th and 5^th Opinions to the Master for her re-consideration.

8.  Permeating through the 4 Grounds are the questions of proper procedure on a rehearing and whether Master Chow could have taken the 5^th Opinioninto account.

PROPER PROCEDURE ON REHEARING

9.  The effect of an order of certiorari is that (subject to any contrary provision) there should be a hearing de novo or reconsideration by the relevant decision-maker of the subject matter.  New evidence can be taken into account. A fresh decision has to be made by the relevant decision-maker. See Kingswood District Council v Secretary of State for the Environment & anor (1987) 57 P & CR153:

“At the end of the day I am firmly of the view that the Secretary of State has to start again de novo with a clean sheet. In that clean sheet situation he is under the obligation to have regard to the development plan and other material considerations, and indeed he is obliged by virtue of the statutory provisions to have regard to matters that may be material considerations which have arisen since the date when the matter was originally considered. Otherwise, as explained by Forbes J, there will be an absurd artificiality about the whole exercise, apart from the fact that there would be a breach of the clear duty under the relevant sections.” (from last paragraph on page 162 to 3^rd complete paragraph on page 163)

See also R (Perrett) v Secretary of State for Communities and Local Government [2010] PTSR 1280, §18, CA.

10.  There was a 4^th Opinion dated 8 August 2010, made 6 years before the Rehearing.  It was referred to in the 1^st LAA and the JR Judgment.  Things have changed since.  The 5^th Opinion was relevant to the merits of the Claim and the 2^nd LAA.  Accordingly, Master Chow was not only entitled to but duty bound consider the 5^th Opinion: Kingswood. 

11.  The JR Judgment expressly remitted the matter back to Master Chow (not another Master) for reconsideration.  The court had refrained from making the decision in her stead, and did not “command” her (as alleged by the applicant) to reconsider her 1^st Decision based on past materials or the prior Opinions only.

12.  I now come to the individual Grounds.

Ground A: Alleged procedural impropriety

13.  The applicant contends that Master Chow has mixed the evidence in both LAAs and wrongly took into account new extraneous evidence instead of granting him legal aid in accordance with the JR Judgment.  She also did not recuse herself to avoid any bias.

14.  What happened was that the 5^th Opinion was initially adduced only for the 2^nd LAA but that appeal was withdrawn.  Since the Claim is ongoing, I will not cite the 5^th Opinion in detail except to say that the 5^th Opinion pointed out that the Claim had considerable legal and evidential difficulties.  Ms Cruden took the view that the claim was liable to be struck out for want of prosecution and such risk had increased since she gave such advice as long ago as in 2007 (§§101-112 of the 5^th Opinion).

15.  The transcript of the Rehearing shows that:

(a) The applicant submitted fresh material:  (pages 21U-22A and 25B-C of the transcript);

(b) The Master did inform the applicant that she was entitled to review the available information and to take into account the 5^th Opinion and the fresh material submitted by the applicant (pages 1N-P, 4J-K, 5K-O of the transcript);

(c) Both the DLA and the applicant had made submissions on the 5^th Opinion although the applicant’s submission was made under protest (§148 of his submission for the Rehearing and page 14N-P of the transcript);

(d) The Master indicated that if necessary, counsel would be asked to clarify if there were any outstanding points in the 5^th Opinion (page 42 J-R of the transcript).

16.  In my view, Master Chow correctly directed herself under paragraphs 11(b) and (d) above.  She has fairly conducted the Rehearing by giving an opportunity to both DLA and the applicant to make submissions on the 5^th Opinion.

17.  I reject the applicant’s suggestions that Master Chow had a judicial duty to inform DLA to make another judicial review to set aside the JR Judgment, or that the issuer of the 5^th Opinion had to amend the JR Judgment before using the 5^th Opinion.

18.  The applicant claims thatthat there were factual errors in the 4^th and 5^th Opinions.  The applicant essentially alleges that Master Chow had failed to determine the factual disputes raised by him against the 5^th Opinion.

19.  With respect, in a legal aid appeal, a Master is not supposed to conduct a mini-trial of disputable facts: Nguyen Trong Son v Director of Legal Aid LAA 20/1999 (15 December 2000), Keith JA.

20.  In the present case, it is important not to lose sight of the bigger picture.  One part of the 5^th Opinion was Ms Cruden’s analyses of the facts with a view to demonstrating that there were difficulties with establishing the Claim.  It is pointless to nit pick some factual errors in her analyses here and there.  The other part, equally substantial, which Ms Cruden described as “separate and distinct” (§106 of the 5^th Opinion) was to demonstrate lack of readiness of the Claim to face a trial and the risk of the Claim being struck out for want of prosecution. 

21.  The learned Master indicated that she might further seek counsel’s opinion if necessary.  In the end, she did not do so.  By agreeing to the 5^th Opinion, Master Chow clearly rejected the applicant’s allegations without conducting a mini-trial of facts and did not find it necessary to obtain a further opinion.  Her acceptance of the separate and distinct part of the 5^th Opinion would have justified her 2^nd Decision anyway notwithstanding the alleged errors of facts.

22.  The applicant claims that at the time of the Rehearing, he has still not completed his comparison of the 4^th and 5^th Opinions, so Master Chow did not have the opportunity to see any of his “Re-Check Notes” that contained inconsistent inferred facts between the 2 Opinions.

23.  With respect, it is too late to complain now.  Pending the decision of Master Chow, the applicant has not sought to make further submissions or produce his “Re-Check Notes”.

24.  The applicant also claims that DLA did not tell Master Chow whether DLA had abandoned the 4^th Opinion for the Rehearing and led Master Chow to accept the 5^th Opinion which was prepared for the 2^nd LAA. He says that Master Chow did not consider the 4^th Opinion at all at the Rehearing. 

25.  As stated above, Master Chow has expressly told the applicant that she would consider the 5^th Opinion.  Ms Cruden has reviewed her past advice, including the 4^th Opinion when preparing the 5^th Opinion, giving her updated views (§9 of the 5^th Opinion).  Neither Ms Cruden nor DLA had abandoned the 4^th Opinion for the Rehearing.

26.  Master Chow had made an error of law in the 1^st Decision but there was nothing to suggest that she had any bias towards the applicant. The JR Judgment did not require her to recuse herself.  Neither did the applicant apply for her recusal at the Rehearing.  An informed and fair-minded observer would not conclude that Master Chow was biased toward the applicant.

27.  In any case, there was nothing to show that Master Chow had departed from the principles in the JR Judgment.  How she weighed the evidence before her was within her discretion which cannot be the subject of judicial review. 

28.  Ground A is not arguable.

Ground B: Alleged irrationality and unreasonableness

29.  The applicant alleges that Master Chow had “mixed” the evidence in both LAAs in the Rehearing.  The 5^th Opinion was only for the 2^nd LAA.  She also allegedly failed to adjudicate on the alleged “wrongly inferred facts” raised by the applicant.

30.  I repeat the analyses in paragraphs 13-25 above.

31.  Applying The Liquidators of Wing Fai Construction Co Ltd v Yip Kwong Robert [2012] 1 HKLRD 589, Ms Crudenheld the view that the Claim might be struck out for want of prosecution.  The applicant contends that Wing Fai has virtually eliminated such applications.  He submits that the alleged 15 years’ delay were due to acts out of his control. 

32.  I do not think the applicant’s interpretation of Wing Fai was correct.  Wing Fai confirms that striking out should be a remedy of last resort and should only be used for plain and obvious cases.  The foundation for the jurisdiction to strike out for delay must be abuse of process (§§68, 69, 73, in particular §75 that deals with cases like the present one that straddle the CJR).  Post-CJR, courts have greater case management powers which should be used than resorting to the draconian remedy of striking out. 

33.  Ms Cruden’s views in §§101-112 of the 5^th Opinion were based not just on delay but also abuse.  There was no error of law shown.  Even looking at the matters set out in §§29(10) to (14) of the applicant’s reply submission, there had been a full 4 years in which the Claim had not progressed.  The matters which Ms Cruden stated had to be dealt with “now”, “immediately” or “without further delay” in her previous Opinions have not been addressed.  Her views were open to her to take and open to Master Chow to accept.

34.  Ground B is not arguable.

Ground C: Alleged legitimate expectation

35.  The applicant claims that various promises or representations had been made:

(a) That DLA has, before the JR Judgment, promised the court and the applicant that the 5^th Opinion was relevant to the 2^nd but not the 1^st LAA.

(b) That Master Chow promised the court that she would abide by the court ruling as may be delivered, like the JR Judgment.

(c) That the JR Judgment was framed by taking the DLA and the Master’s promise into account but excluding the 5^th Opinion.

(d) That paragraph 9 of the JR Judgment made a finding of fact after considering Ms Cruden’s 4^th Opinion, to which the “legal principle” should be accordingly applied.  Master Chow said that she would consider asking Ms Cruden to give a further opinion but did not do so and did not provide the applicant a chance to respond to the further opinion.  She also did not determine the factual dispute before making the decision.

(e) That Order 53, rule 9(4) of the Rules of the High Court requires Master Chow to apply the law to the finding of facts.

36.  The applicant contends that by reason of the alleged promises and representations, if Master Chow had complied with the JR Judgment, “the legitimate expectation would have given rise to [a decision] in the Applicant’s favour so that the Applicant can be reinstated to be eligible to legal aid”.

37.  It is trite that a legitimate expectation can only be constituted by clear and unambiguous representation: King Glare Ltd v Secretary for Justice [2008] 6 HKC 450 at §62, citing Ng Siu Tung v Director of Immigration (2002) 5 HKCFAR 1. 

38.  Item (a) could not be a promise as DLA had treated the 5^th Opinion as relevant and Master Chow had invited submission on it.  Even assuming all items in paragraph 35 were “promises”, they were at best promises to discharge duties properly.  They could not give rise to any expectation that legal aid would be granted to the applicant.  This court certainly did not indicate that it would grant legal aid, otherwise it would have reversed the Master’s decision instead of remitting the matter to her.

39.  Further, the alleged expectation would not be legitimate or enforceable as being ultra vires and against the statutory duties of DLA or Master Chow (upon appeal) to substantively examine the merits of the legal aid application: Fairland Overseas Development Co Ltd v Secretary for Justice [2007] 4 HKLRD 949 at §91.

40.  Ground C is not arguable.

Ground D: Alleged illegality

41.  Once again, this Ground alleges that Master Chow had wrongly relied on the 5^th Opinion and that she had inadvertently assisted DLA to hear the 2 LAAs together. For reasons already given, this Ground is not arguable.

42.  In summary, none of the Grounds put forth can satisfy the reasonable arguability test in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, §§14-17.

EXERCISE OF DISCRETION

43.  As noted in §§18–20 of the Notes to Master prepared by DLA for the Rehearing, it was clearly unreasonable that the applicant should be granted legal aid in the particular circumstances of the case given the delay in prosecuting the Claim. There were also unresolved factors and costs implications in continuing to grant the legal aid.  There was ample evidence to support the view that a person of moderate means will not be advised to take the proceedings with his own expenses in the circumstances of this case and that it was unreasonable that the applicant should be granted legal aid under section 10(3)(c).

44.  The learned Master did not expressly refer to the Notes to Master in the 2^nd Decision.  I make no comment on the same.

45.  For reasons given under each Ground, the application for leave to apply for judicial review should be dismissed. Other matters in Form 86, the supporting affirmation and the reply submissions are but repetitions which have no impact on my decision.

COSTS

46.  In Television Broadcasts Ltd v Communications Authority & anor, HCAL 3/2013 (22 July 2013) at §§6(1) to (7), Au J set out a non-exhaustive list of factors for awarding costs against an unsuccessful applicant for leave:

(1) The “hopelessness” of the application, in particular, in a situation where the applicant should have been aware of that;

(2) Whether the applicant has sought to pursue the judicial review to advance principally his own interest or in the interest of the public;

(3) Whether the unsuccessful applicant has substantial resources which it has used to pursue the unfounded claim and which are available to meet the costs;

(4) Whether the putative parties attended the leave hearing only upon the court’s invitation or direction, provided helpful assistance and refrained from conducting themselves in an unreasonable manner that would lead to increase in costs. In this respect, whether the hearing is in nature ex parte or otherwise is not determinative of the question of costs;

(5) Whether the applicant was seeking interim injunctive relief against any putative party;

(6) Whether the applicant had to apply for an extension of time on which the putative party is entitled to be heard; and

(7) Whether the applicant in effect had a rolled-up substantive hearing of his judicial review application.

47.  Factors (1), (2) and (4) are particularly pertinent.  The present application is hopeless and purely for the advancement of the applicant’s own private interest.  The applicant ought to be aware of the hopelessness as the 5^th Opinion has been available to him for some time.  The Initial Response of the DoJ was succinct and helpful and was served on him on 8 April 2016, well in advance of this hearing.

48.  Accordingly, I decline to grant leave for judicial review and order the applicant to bear costs of DLA to be summarily assessed on 11 May 2016, at 4:30 pm in chambers.  DLA shall file and serve a statement of costs by 3 May 2016.  The applicant shall file and serve his grounds in opposition by 10 May 2016.

49.  I am most grateful to Mr Suen Sze Yick for his assistance to the court.