AKTER MABIA v. THE REGISTRAR OF HIGH COURT

HCAL 1439/2025

[2026] HKCFI 5246

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1439 OF 2025

________________________

________________

__________________

D E C I S I O N

__________________

A. Introduction

1.  By Form 86 dated 23 June 2025, later amended (“AF86”), the Applicant sought leave to apply for judicial review of the decision dated 24 March 2025 (“Decision”) made by the Deputy Registrar of the High Court (“Master”) dismissing the applicant’s appeal against the refusal by the Director of Legal Aid (“Director”) of her legal aid application made in the context of her claims in employee’s compensation in DCEC 832/2024 (“EC Claims”) and intended claims in personal injuries (“Intended PI Claims”).

2.  As would be expected, the Master took no stance in these proceedings.  I gave directions permitting the filing of an Initial Response by the Director, and a Reply by the applicant.  The Initial Response was served by Ms Cassandra Fung, Senior Government Counsel (Ag), and Ms Rhoda Tsang, Government Counsel, of the Department of Justice.  The Reply was filed by Mr Kay K W Chan, Ms Aria Cheung, and Ms Grace Chan, Counsel for the Applicant.

3.  Having considered the materials provided, I am satisfied that this application can be appropriately dealt with on the papers.  This is my decision.

B.  Background

4.  The Applicant is a Bangladeshi national.  She was employed as a foreign domestic worker from 3 April to 29 September 2022.  The Applicant alleges that, throughout her employment, she was subject to multiple occasions of rape and assault by her employer, and as a result, had suffered personal injuries.  These alleged incidents form the basis for her EC Claims and Intended PI Claims.

5.  To consider the intended grounds of review in proper context, it is useful to set broadly out the events preceding the Applicant’s legal aid applications, some of which are contested, and some of which are not.

6.  Obviously, it does not fall to me in these proceedings to resolve contested matters of underlying fact.  However, the relevant events as put forward in the Applicant’s account, in the AF86, affirmation, and Reply to the Director’s Initial Response, are:

(1)  The Applicant started working for her employer on 3 April 2022.  Days after her arrival, the employer began sexually harassing, assaulting and raping her.  In doing so, the employer would threaten her with the prospect of firing her and sending her back to Bangladesh if she did not comply.  He would also utilise his authority as head of the household to subdue her.  The Applicant was also under the impression that he had control over her mobile phone and was able to monitor her.

(2)  The first alleged incident of rape occurred on 13 April 2022.

(3)  Many occasions of rape and assault also occurred from April to August 2022, with the Applicant successfully rejecting the employer at times, but was then subject to assault.

(4)  On 19 August 2022, the Applicant rejected a sexual advance from the employer, and he used his belt to hit her left upper back and hip.  He then punched her face and threw her to the ground.  She injured her right wrist when she used it to break the fall, and her right wrist became swollen immediately.

(5)  There was a further instance of rape, and two failed sexual advances in mid-September 2022.

7.  The following events are uncontested:

(1)  On 9 September 2022, the Applicant attended the West Kowloon General Out-patient clinic due to a right wrist injury and right buttock contusion.  She was then hospitalised at the Caritas Medical Centre alone for 3 days.  It is to be noted, however, that the reason for the injury and hospitalization is disputed amongst the parties.  The medical reports indicate that the injury occurred due to a slip and fall whilst doing housework on 3 September 2022, whilst the Applicant contends that the injury occurred due to the alleged incident that took place on 19 August 2022.

(2)  On 29 September 2022, the Applicant confronted her employer at his premises.  After an argument, the Applicant left the premises, which her employer reported to the police.  Upon the Applicant’s return to the premises, the police provided the Applicant with the telephone number of the Bangladesh Consulate, following a conversation in relation to the alleged incidents.  She then called the Consulate and informed them about the alleged incidents.

(3)  Later that same day, with assistance from the Bangladesh Consulate, the Applicant filed a police report, accusing her employer of rape and assault.  The Applicant was later informed on 3 July 2023 by the Department of Justice that no prosecution would take place in respect of these accusations, due to the lack of reasonable prospect of conviction.

(4)  On 3 December 2022, the Applicant was arrested for indecent conduct towards her employer’s elder son, and misleading the police by falsely accusing her employer of rape.  These charges were later withdrawn on 10 July 2023.

8.  To pursue her claims against her employer, the Applicant submitted multiple legal aid applications on two separate occasions: (1) 6 applications for 3 EC Claims and 3 Intended PI Claims on 17 April 2024 (“1^st Batch of Applications”); and (2) 13 applications for 13 Intended PI Claims on 20 June 2024 (“2^nd Batch of Applications”).

9.  Upon a request for information to the Commissioner of Police, the Legal Aid Department was informed on 7 May 2024 that the decision not to prosecute the employer for rape and assault was due to concerns over the Applicant’s reliability and credibility.

10.  The Director refused the 1^st Batch of Applications on 27 June 2024, and the 2^nd Batch of Applications on 3 September 2024.  The Applicant then appealed against the refusals, on 17 September 2024 and 23 October 2024 respectively, and requested that all appeals be heard together.

11.  On 24 March 2025, the Master heard the consolidated appeals, and dismissed all appeals with oral reasons.  On the same day, the Master handed down a written decision in which he adopted the reasons given by the Director.

C.  Applicable Legal Principles

12.  The principles applicable to the consideration of a judicial review regarding legal aid appeals are well-established.  It is to be distinguished from the test used by the Master in considering an appeal for legal aid.

13.  Under section 10(3) of the Legal Aid Ordinance (Cap. 91), a person may only be granted a legal aid certificate where they have shown that they have reasonable grounds for taking, defending, opposing or continuing such proceedings.  This is the approach that is to be taken by the Director in considering applications for legal aid.

14.  The Master, in hearing an appeal for legal aid, is to take the same approach.  He is not undertaking a review of the decision of the Director, nor is he considering whether the Director has made a reasonable decision on the materials.  He is considering the case de novo.  The Master decides afresh whether, in his view of the materials before him, legal aid should be granted.  In his consideration, the Master can assess the merits of the intended claim by viewing all the available materials as a whole.  This may include the credibility of the applicant’s allegations, and the inherent probabilities or improbabilities.

15.  But in the consideration of an application for judicial review, the Court does not consider whether the Applicant has a reasonable chance of success, or whether it would have granted legal aid to the applicant.  Rather, the Court is confined to reviewing the legality, rationality and fairness of the process adopted by the Master in the appeal.  Leave to apply for judicial review can only be granted where the claim is advanced on public law grounds of review which are reasonably arguable and have a realistic prospect of success.

D.  Grounds of Review

16.  The AF86 raised four grounds of judicial review, as follows:

(1)  Ground 1: The Master erred in law in making a factual conclusion on the very issue of the case, i.e. the Applicant’s credibility as a witness.

(2)  Ground 2: The Master’s decision that the Applicant had no reasonable chance of success at trial was unreasonable.

(3)  Ground 3: The Master’s decision that the Applicant had no reasonable chance of success at trial was tainted with apparent bias.

(4)  Ground 4: The Master took into account irrelevant considerations, such as the Applicant’s ability to use Google Translate on the Internet, in forming the conclusion that the Applicant would therefore know how to obtain legal protection for herself in Hong Kong.

17.  It appears to me that there is some degree of overlap between these grounds.  Hence, whilst I will deal with each ground individually, I will keep in mind the points that are relevant to multiple grounds.

E.  Ground 1: Finding of fact

18.  The essence of the Applicant’s first ground of review is that the Master conclusively made a finding of fact in relation to the Applicant’s credibility, and wrongfully relied on such a finding to dismiss the appeal.

19.  Particularly, the Applicant draws attention to the Master’s conclusion at p13 lines B-D of the Transcript: “I’m afraid I cannot be satisfied that there is a reasonable chance of success with this two timeline which so significantly changed, back – getting into the background that – of such a serious assault against her, a series of assaults.”

20.  The Applicant contends that without further elaboration of “two timeline[s]” by the Master, a logical explanation is that the Master is referring to the ‘different versions’ of the Applicant’s account of events before and after her departure from her employer’s premises on 29 September 2022.  The submission is made that such a conclusion, along with the Master’s enquiries into timelines, evidently shows that the Master exhibited a conclusive view that the Applicant must have been inconsistent in her statements before and after 29 September 2022.

21.  I disagree.  Upon reading the Transcript as a whole, it seems to me that the Master was simply pointing out the inconsistencies and improbabilities in the Applicant’s evidence, which goes to whether or not the Applicant has a reasonable chance of success in the claim.  Indeed, this was expressly stated by the Master at p8 line S: “I’m not ruling on the thing but following what Keith J said, looking at the whole things, how can that be?”, and at p9 lines B-C: “I’m looking at it both ways, but I am not trying to test her credibility.  I don’t need to go into that at all.  But this is a sequence of events happening, one would say, does – presenting that, would that stand a reasonable chance?”

22.  That approach is also evident at other points of the Transcript, such as at p7 lines A-F: “This is all common sense approach.  I’m not trying to judge her, but one thing I always say that -- is that if her evidence is not the --- complete, then she may not be an unlawful -- unfaithful witness, but her witness may be unreliable”.

23.  The Master is entitled to take into account the apparent credibility of the Applicant in assessing the merits of her claim, and merely pointing out gaps in the Applicant’s evidence during questioning of the Applicant’s Counsel does not constitute forming conclusive findings on her credibility.

24.  The Applicant also submitted that any concern regarding potential omissions and inconsistencies that go to her credibility in relation to sexual crimes, should go directly to trial, and not be dealt with directly by the Master “prematurely”.  I do not accept that submission.  Under that kind of analysis, the Master would be incapable of assessing the merits of the Applicant’s case at all – given that her claims are premised on the alleged incidents.

25.  As to the Applicant’s submission that the Master should have considered the possible factors in relation to the Applicant’s delay in making a report to the authorities (which as acknowledged by the Applicant, may arise in the context of a criminal case), there is nothing to suggest that the Master did not consider those factors.  As seen in the Transcript, Ms Cheung for the Applicant raised these factors throughout the appeal hearing, and the Master recognised these points.  It seems to me that the Master simply chose to give less weight to those arguments, as he was entitled to do in the exercise of his discretion.  In any event, this does not provide any support to the Applicant’s claim that the Master conclusively made a finding of fact in relation to the Applicant’s credibility.

26.  Therefore, Ground 1 is not reasonably arguable with any realistic prospect of success.

F.  Ground 2: Unreasonableness

27.  The Applicant’s second ground is one of irrationality.  It is asserted that the Master’s decision is Wednesbury unreasonable, because: (1) the Master made an unsustainable conclusion of fact that there is no objective evidence capable of supporting the Applicant’s claims; (2) the conclusions drawn in relation to the Applicant’s credibility in the Director’s Reasons (as adopted by the Master) are not supported by the evidence when viewed as a whole; and (3) the Master failed to take into account the peculiarity of the Applicant’s circumstances.

28.  It is common ground that the threshold for establishing Wednesbury unreasonableness is high.  It has to be shown that the decision made is one that a reasonable decision-maker acting reasonably could not have reached, because for example it is so outrageous in its defiance of logic.  Hence, the burden lies on the Applicant to show – at this stage, on a reasonably arguable basis – that no reasonable decision-maker could have come to the same decision as the Master.

F.1  Unsustainable conclusion of fact

29.  The Applicant relied on the numerous medical reports proving the physical and psychological injuries (through her diagnosis of ADHD) suffered by the Applicant, and the confession evidence from the Applicant’s employer, to suggest that the view of the Master (and, by adoption, in the Director’s Reasons) that there is no objective evidence in support of her claims is Wednesbury unreasonable.  It was also submitted that the Director (in his Reasons) and the Master have both discredited the medical reports, as they are not contemporaneous to the relevant times of the alleged incidents.

30.  Firstly, it is important to note that upon a reading of the Transcript, it is clear that Ms Cheung referred to those evidential materials during the hearing, and that the Master acknowledged the submissions.  In the appeal, the Master was simply required to assess on the evidence as a whole, whether he considered that the Applicant’s claims have a reasonable prospect of success.  In that assessment, the weight to be attached to certain pieces of evidence was primarily a matter for the Master.

31.  There may be some force in the Applicant’s argument that the later medical reports may serve as a form of objective evidence.  However, I do not think that it was unreasonable for the Master to find that, in his view of the materials, that evidence was not sufficient to find a reasonable chance of success for the Applicant’s claims, particularly given that the lack of objective evidence has only been cited as one of the reasons for the Director’s (and subsequently the Master’s) refusal to grant legal aid.

32.  A similar view arises in relation to the concept of contemporaneity.  It was not inherently unreasonable for the Master, in his analysis, to place greater weight on contemporaneous evidence.  Therefore, a lack of contemporaneous evidence may further indicate to the Master that a reasonable chance of success cannot be shown.

33.  From a reading of the Transcript, it does not seem to me that the Master has entirely discredited the medical reports.  His comment at p12 line P that “My problem with this is these are all after September complaints”, when referring to the later medical reports, seems to me to be a comment that he would attach greater weight to evidence coming before 29 September 2022 (i.e. contemporaneous), and that there happens to be a lack of such evidence.

34.  I also do not accept the submission that the Master’s decision was silent regarding the Applicant’s provision of evidence regarding her physical injuries.  There is no requirement for the Master to ask questions on the evidence if he finds the materials before him sufficient.  This is even more so where the Master has adopted the reasons given by the Director, which had already addressed the evidence, and had led to the conclusion that it did not show a reasonable chance of success for the Applicant’s claims.

F.2  Conclusions on credibility

35.  The Applicant also submitted that the conclusions drawn by the Director (as adopted by the Master) in relation to the Applicant’s credibility are not supported by an analysis of the evidence.  This is because the “whole of the evidence” analysis is equally applicable to the objective evidence provided by the Applicant after the trauma had been caused, particularly in relation to the medical report dated 17 April 2023.

36.  I believe this submission to be similar to the point above.  I do not think it was public law unreasonable for the Master to have placed more weight on contemporaneous evidence, as compared to the later medical reports, in his assessment of the Applicant’s credibility and the inherent probabilities and improbabilities of the allegations involved.  As previously stated, it was reasonably open to the Master to come to that decision.

F.3  Peculiarity of the Applicant’s circumstances

37.  The essence of this submission was that the Master failed to consider the potential adverse consequences of refusing the Applicant legal aid, namely that the Applicant does not have any alternative avenue to seek economic compensation from her employer, and that she may have to return to Bangladesh with debt and debilitating injuries.  This submission was premised on Reyes J’s comments in Z v Director of Legal Aid [2011] 4 HKLRD 362 (CFI).

38.  It is important to note that the context of that case was rather different from the one at hand.  It was one that warranted a highly cautious approach, and I do not think that it applies to the present situation.  The underlying case subject to the legal aid appeal in Z was a criminal appeal in relation to a conviction of indecent assault.  The applicant in that case was a refugee who was seeking resettlement in another country.  As a criminal case, Article 14(3) of the International Covenant on Civil and Political Rights (enforced through Article 39 of the Basic Law) applied – namely that any person facing a criminal charge shall be entitled, at a minimum, to legal assistance assigned to him in any case where the interests of justice require, and without payment by him in any such case if he does not have sufficient means to pay for it.  That is a fundamental right.  It is also common practice in criminal legal aid applications for the “Widgery Criteria”, a list of non-exhaustive factors to be taken into account, to be applied.  In the Z case, Reyes J made the finding that the Director did not apply the Widgery Criteria, and it was in that context that the criticism was made that the Director had not considered the “potentially devastating ramifications of a conviction on Z’s life”.  In explaining that comment, Reyes J noted that as a refugee convicted for the indecent assault of a 14-year-old minor, it would be close to impossible for Z to resettle in another country.

39.  On the other hand, the legal aid applications in the present case are in relation to the civil claims brought by the Applicant against her employer.  Whilst regard may be had to fundamental rights and standards, the Applicant is not in the same position as Z was.

40.  It is also important to keep in mind the point made in Nguyen Trong Son (LAA 20/1999), that the Master is to make his decision without a prolonged investigation, as that would degenerate into a mini-trial of the action itself.  To require the Master to consider the consequences that may affect the Applicant if legal aid were to be refused, would be effectively to engage in an extended investigation into the case.  As such, a failure to consider the Applicant’s “peculiar” circumstances and potential grave consequences cannot be seen as arguably unreasonable in the public law sense.

41.  But even if such requirement were crucial to the Master’s analysis in whether or not to give legal aid, I do not think that there is a basis for saying that the Master did not take these considerations into account.  On the facts, it seems to me that the potential consequences were clear to the Master, both through a reading of the documents provided, and through Ms Cheung’s oral submissions during the appeal.  Rather, it seems that the Master simply did not find it to be of significant importance, and hence allocated little weight to those factors in his consideration.

42.  Therefore, Ground 2 is not reasonably arguable with any realistic prospect of success.

G.  Ground 3: Apparent bias

43.  The relevant test for apparent bias is the “reasonable apprehension of bias” test, as endorsed by the Court of Final Appeal in Deacons v White and Case LLP (2003) 6 HKCFAR 322.  It requires the Court to determine whether the circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility that the decision-maker was biased.  The fair-minded and informed observer is not to be overly suspicious or sensitive.  He is assumed to acquire a full understanding of both sides of the argument before reaching a judgment, and in doing so, he will also put whatever he has read or seen into its overall context: CNG v G [2025] HKCFI 3598, at §§35, 103.

44.  A vague or general contention of “bias” is insufficient to mount a complaint, and the complaining party must specify how the judicial officer would appear to be biased towards a party or an issue.  The applicant must show a logical connection between the conduct giving rise to the apprehension of bias and the possibility of departure from impartial decision-making: ZN v Secretary for Justice [2016] 1 HKLRD 174, at §§39-40.

45.  The Applicant’s submission referred to several questions raised by the Master in relation to the opportunities available to the Applicant to report the incidents prior to the report on 29 September 2022.  Namely, the four opportunities to which the Master’s questions referred included:

(1)  after the first alleged incident on 13 April 2022, the Applicant left the premises alone, and had the right to seek help from the public or the police;

(2)  after another alleged incident on 15 or 16 April 2022, her employer took her to the wet market, and at the time, the Applicant had the chance to seek help from the public;

(3)  during her hospitalisation at the Caritas Medical Centre, the Applicant could have complained to the medical staff, who could report to the police on her behalf; and

(4)  given that she maintained contact with her former employer in Singapore, the Applicant could have brought the incidents to his attention.

46.  The Applicant submitted that those questions reflected the Master’s focus on the ease of the Applicant to seek help, and suggested that the Master believed that because the Applicant did not seek help on those occasions, she must be lying about the alleged incidents.  It was submitted that, as a result, a fair-minded and informed observer would conclude that there was a real possibility that the Master was biased against the Applicant, as a victim of sexual and physical violence, and had chosen to place the blame on her.

47.  I respectfully disagree.  When viewing the Transcript as a whole, the Master was simply asking questions and raising possible doubts as to whether or not those were things that the Applicant could have done – which goes to the credibility of the Applicant, as well as the probabilities or improbabilities of her account.  It does not seem to me that he was suggesting that the Applicant should indeed have done those things, or that because she did not do those things, she must to be held as incredible.

48.  As to the reasons behind asking these questions, it is important to note that the Master was perfectly entitled to have a preliminary view of the evidence.  As observed by Le Pichon JA in PCCW-HKT Telephone Ltd v Telecommunications Authority [2008] 2 HKLRD 282 at §31, the use of forthright language is unobjectionable provided it is clear from the context that the views expressed are provisional.  It is clear from the context of the hearing that – having formed a provisional view from reading through the written submissions and relevant documents: see p2 lines C-E of the Transcript – the Master asked those questions to clarify and explore aspects of the Applicant’s account.

49.  The Applicant also raised the issue that the Master did not seem to take into account the particular circumstances of the Applicant in his determination, particularly the employer’s influence over her and the potential consequences she faced.  This is similar to the submissions under Ground 2 above.  I am not convinced that it is reasonably arguable that a lack of consideration of those particular factors would lead a fair-minded observer to find a real possibility that the Master was biased against the Applicant from the start.

50.  As such, Ground 3 is not reasonably arguable with any realistic prospect of success.

H.  Ground 4: Irrelevant consideration

51.  This ground focuses on the exchanges between the Master and the Applicant’s Counsel on the issue of the Applicant’s ability to use Google Translate and other technology to seek assistance.  The underlying points of this submission were similar to Grounds 1 and 2.  Essentially, the Applicant submitted that her ability to use technology could not have been a relevant consideration in the Master’s determination of whether she had a reasonable prospect of success, and even if it was a relevant consideration, the weight placed on that factor by the Master was Wednesbury unreasonable.

52.  With respect, I disagree.  Similar to the analysis in Grounds 1 and 2, the Master had posed those questions in seeking to explore the credibility of the Applicant and the potential improbabilities of her account.  I agree with Ms Fung that the Applicant’s ability to use technology could potentially explain whether her explanations behind her failure to seek help prior to 29 September 2022 were credible.  This also ultimately goes back to the analysis of whether the Applicant has a reasonable chance of success.

53.  There is no basis for saying that the weight placed on this factor in the Master’s assessment of the Applicant’s credibility is Wednesbury unreasonable.  The Master did not make any conclusive finding that the Applicant’s failure to exercise her ability to use Google Translate led to a finding of incredibility.  Rather, the questions posed by the Master simply displayed the exploration of potential concerns regarding the improbabilities of the Applicant’s case, which clearly arose as part of his reading of the materials prior to the hearing.

54.  Therefore, Ground 4 is also not reasonably arguable with any realistic prospect of success.

I.  Result

55.  This is a case in which it is certainly possible to envisage that the Director and/or Master might have reached a different view on the materials as to whether or not legal aid should be granted.  But, as I have stressed above and as is trite, this Court exercising its judicial review jurisdiction does not decide whether or not legal aid should be granted to an applicant.  The Court merely considers the integrity of the decision-making process.

56.  Therefore, for the reasons set above, the Applicant’s application for leave to apply for judicial review is dismissed.

57.  I make no order as to costs.