MUI MEI FUNG v. COMMISSIONER FOR LABOUR

HCAL 145/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

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R E A S O N S   F O R   D E C I S I O N

A N D

D E C I S I O N   O N   C O S T S

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1.  This is the applicant’s leave application to apply for judicial review against the Commissioner for Labour (“the Commissioner”)’s decision (“the Decision”) made on 31 January 2012.  By way of the Decision, the Commissioner refused to pay compensation to the applicant under the pneumoconiosis ex gratia scheme (“the Scheme”).

2.  After hearing submissions, I refused to grant leave with reasons to be given later.

3.  These are my reasons.

4.  Under the Scheme, a compensation would be paid to, inter alia, a cohabitee of someone who dies from pneumoconiosis. The Scheme however requires that the cohabitee has to be cohabitating with that person for at least two years (“the two-year period”) before his death.

5.  In the present case, a Mr Lee died in October 2010 resulting from pneumoconiosis.

6.  The applicant claims that she had been cohabitating with Mr Lee since 1999, at No 3A Ma On Shan Sheung Tsuen (“No 3A”).

7.  She therefore applied for the compensation under the Scheme after Mr Lee’s death as his cohabitee.

8.  At the same time, it is her own case that she was married to a Mr Ho in May 1999, until they were formally divorced in November 2008 (they jointly filed a divorce petition in June 2008).  Mr Ho had been living at a unit at No 212 Ma On Shan Sheung Tsuen (“No 212”), which was near to No 3A.  She initially lived with Mr Ho, but then moved to cohabitate with Mr Lee at No 3A.

9.  She had provided the following evidence to the Commissioner in support of her claim that she had been cohabitating with Mr Lee at No 3A since 1999:

(1) A statutory declaration made by her and Mr Lee dated 25 February 2010 that they had been cohabitating since 1999.

(2) The divorce decree absolute between her and Mr Ho dated 14 November 2008.

(3) Medical bills, receipts and envelopes of the Hospital Authority in respect of Mr Lee as proof of residential address at No 3A.

(4) An envelope of the Labour Department showing that the address of the applicant was the same as Mr Lee, with the postage date 8 October 2010, which is after the death of Mr Lee. The letter was issued by the department to the applicant at Mr Lee’s address upon her advice.

(5) Mr Lee’s death certificate, HKID card, Mainland Entry permit, house keys, medical cards, bags of unconsumed medicine, clothing and photographs of Mr Lee, the applicant and the applicant’s own granddaughter taken together.

(6) A statutory declaration made by the applicant herself on 17 March 2011 at Messrs Lim & Lo that she had been cohabitating with Mr Lee since 1999.

(7) An electricity bill for the period between 25 June and 24 August 2010 in respect of No 212 with the applicant as the registered customer.

(8) An agreement dated 27 September 2010 between the applicant and Mr Lee’s daughter to the effect that the applicant would give to the daughter $300,000 out of the $700,000 given to the applicant by Mr Lee for arranging Mr Lee’s funeral in future.

(9) The applicant’s medical registration form on her attendance at Yuen Chau Kok Chest Clinic on 20 January 2011 (ie, after the death of Mr Lee).  The registration form contains a statement that “Husband …died of…pneumoconiosis.”

10.  It is also the applicant’s case that she had attended the Labour Department with Mr Lee on a number of occasions since 2004 to help him applying for periodic payments.  They had also met the staff at the department together.

11.  The Commissioner refused her application on the ground that she has failed to prove and show on the balance of probabilities that she had been cohabitating with Mr Lee since 1999 as alleged, or for at least the two-year period.

12.  The only ground raised in the Form 86 to challenge the Decision is that there is simply no evidence before the Commissioner to suggest that Mr Lee and the applicant did not cohabitate for at least the two-year period, even if she could not show that they had been doing so since 1999.  This, the applicant says, amounts to an error of law, and/or in any event shows that the Decision is irrational or Wednesbury unreasonable.

13.  It is trite that findings of fact premised on the weighing or evaluation of conflicting evidence by the decision maker, which might justify a conclusion either way, are generally outside the purview of judicial review.  The court in the exercise of its supervisory jurisdiction would only review fact findings in limited circumstances where such findings are based on no evidence, or where the evidence, taken as a whole, is not reasonably capable of supporting the findings, or where, in other words, no tribunal could reasonably reach that conclusion on those evidence: Wade & Forsyth, Administrative Law (10^th ed), pp 229-230.

14.  In the present case, in addition to the materials provided by the applicant as set out above, the undisputed evidence shows that the Commissioner has in reaching the Decision taken into account also the following materials as set out in Ms Fong’s 1^st affirmation:

“21. As in the case of other beneficiaries of the Scheme, the Deceased’s [Mr Lee’s] condition was reviewed by the Department annually since he first became a beneficiary on 9 July 1993.

22. According to the Department’s record, the Deceased was accompanied by his daughter to the annual interviews at the Department in 2003, 2004 and 2005. During the interview on 29 October 2003, the Deceased mentioned for the first time that a woman had been introduced by his friend to look after him but the woman was still in the Mainland. At the annual interview on 12 October 2004, the Deceased further informed the Department that he was suffering from eye-sight and hearing deterioration.

23. The Deceased submitted his personal particulars in person on 8 June 2006, as such, he was not required to attend an annual interview in 2006.

24. In 2007, the Deceased was accompanied by the Applicant (together with another female claimed to be her daughter) for the first time to the annual interview on 15 October 2007. On that occasion, the Applicant informed the Department that the Applicant came to Hong Kong in 2004 and was only a friend of the Deceased taking care of his daily living because of his poor health condition.

25. In 2008, the Applicant again accompanied the Deceased to the annual interview on 16 October 2008. On that occasion, the Deceased mentioned for the first time that the Applicant was his cohabitee since 1999, which did not sit well with what he had told the Department in the 2003 and 2007 annual interviews (see paragraphs 22 and 24 above). Further, on 1 March 2010, the Department received a statutory declaration dated 25 February 2010 jointly made by the Deceased and the Applicant that they had been cohabiting since 1999. However, it is noteworthy that on 24 February 2010 (ie the date immediately before), the Applicant had made detailed enquiry with the Labour Department about the eligibility and procedures for claiming death grant and funeral expenses under the Scheme subsequent to the Deceased’s death. Meanwhile the Applicant also submitted documentation to show her marriage to a Mr Ho on 3 May 1999 and a divorce order dated 14 November 2008, thereby raising doubt to the Commissioner as to the veracity of the claim that the Deceased and the Applicant had been in cohabitation since 1999. I crave leave to refer to a copy of the relevant marriage certificate exhibited under Exhibit ‘MMF-1’ and a copy of the relevant Decree Absolute exhibited under Exhibit ‘MMF-2’ to the Applicant’s Affirmation.

26. …

27. Having thoroughly reviewed all information and documentation from the Applicant as well as her explanations together with the relevant records of the Department as set out in paragraphs 16 to 26 above, on balance, the Commissioner was not satisfied that there was sufficient cogent evidence to establish the alleged status of the Applicant as a cohabitee living together with the Deceased as man and wife in the 2-year relevant period (ie from 7 October 2008 to 6 October 2010) in order for the Applicant to qualify for death grant under the Scheme. The Commissioner therefore upheld his 1^st decision in not granting death grant to the Applicant.

28. I wish to emphasize that the Commissioner considers each and every application from the family members of a deceased pneumoconiotic for death grant independently and on their own right. In the present case, even if there had not been any application from the Deceased’s daughter, the Commissioner would have rejected the Applicant’s application for death grant given the lack of sufficient cogent evidence in support.”

15.  Thus, the Commissioner, after weighing all the evidence and materials before her, effectively did not believe in the applicant’s assertion that she had been cohabitating with Mr Lee since 1999, or for at least the two-year period.

16.  As stated above, the court would not review such a decision unless there is no evidence in support of that conclusion or that the conclusion is Wednesbury unreasonable in light of all the evidence before the Commissioner.

17.  When these materials and evidence are viewed in the round, it is clear to me that it is reasonably open to the Commissioner to disbelieve the applicant’s assertion (albeit also contained in the relevant statutory declarations) and come to the view that the applicant has therefore also not proved that she had been cohabitating with Mr Lee at No 3A for at least the two-year period.  The inconsistency and inherent probabilities identified by the Commissioner of the applicant’s assertions viewed against the objective evidence and materials that were before the Commissioner are reasonably open to him to make.

18.  It is therefore clearly a matter of weighing the evidence by the Commissioner in rejecting (or disbelieving) the applicant’s case on cohabitation.  The conclusion (even though some may find it to be a harsh one) is not one which no tribunal could reasonably reach in light of the above evidence.

19.  Mr Fan for the applicant at the hearing also submitted for the first time that, given that the Commissioner was looking at what was said at some of the annual interviews by Mr Lee and the applicant as recorded in the internal memos as something against the applicant’s application, the Commissioner should have at least given a chance to the applicant to explain.  There is therefore procedural unfairness in the decision making process.

20.  I am not convinced by these submissions.  Procedural unfairness is simply not raised as a ground at all in the Form 86.  Further, the reliance by the Commissioner on what was recorded to have been said at those interviews by Mr Lee and the applicant as something contrary to the applicant’s case has been set out expressly in the Department’s letters to the applicant respectively dated 31 January 2012 and 14 March 2012.  If there is any genuine or sustainable complaint against the correctness of these records and thus the unfair reliance by the Commissioner on them, it is unthinkable as to why it has not been raised by the applicant in any correspondence or as a ground of procedural unfairness in the Form 86.

21.  On this basis, I do not find any reasonably arguable case (having a realistic prospect of success) that the Commissioner’s finding was based on no evidence or that it is Wednesbury unreasonable or irrational.

22.  Leave must thus be refused on the above reasons alone.

23.  I would also mention the question of delay.

24.  As repeatedly emphasised by the court, the primary requirement of O53 r 4(1) of the Rules of High Court (Cap 4A) is promptness of an applicant to take out a leave application for judicial review.  The requirement of promptness has a sound basis in public policy.

25.  Thus, a failure to act promptly, and in any event within three months as required under the rule constitutes itself undue delay.  The court may refuse permission to grant leave unless it considers that there is good reason for extending the period.  Further, even if it considers that there is good reason, it may still refuse to grant leave if it believes that the granting of the relief sought would be likely to cause hardship or prejudice would be detrimental to good administration.  See: Law Chun Loy v Secretary for Justice (HCAL 13/2005, 26 October 2006) at paragraphs 5-12 per Hartmann J (as he then was).

26.  As graphically described by Hartmann J in Law Chun Loy, supra, at paragraph 13: any person who seeks by way of judicial review to challenge a public law decision is from the outset under a clear warning: “sleep on your rights and, even if your case is meritorious, you may find the gates locked against you”.

27.  In the present case, the Decision was made in January 2012.  There is therefore a 20 months delay when the applicant took out the leave application in October 2013.  This is by any standard a very long and undue delay.

28.  The applicant explained that it had taken her a long time to apply for and eventually be granted with legal aid[1].

29.  However, an application for legal aid is only but one of the factors that the court would consider whether there are good reasons to justify an extension of time notwithstanding a delay.  In particular, the court will still have to see in detail whether, among others, the effort of an applicant (and his legal advisers if and when represented) to pursue the case justifies an extension of time[2].

30.  I agree with Mr Suen for the Commissioner that, notwithstanding the legal aid application, the applicant is still guilty of at least some 7 months of further delay as follows:

(1) Being fully aware of the competing applications for the death grant by the deceased’s children[3], the applicant only took out the legal aid application on 5 April 2012, which is more than two months after the Decision was made on 31 January 2012.

(2) Legal aid certificate was received by the applicant’s solicitors on 17 April 2013.  However, the applicant started requesting for documents only on 21 May 2013 which is more than one monthafterwards.

(3) The applicant only applied for legal aid certificate to cover an application for extension of time on 26 June 2013 which is more than two months after legal aid certificate was first received. No explanation has been provided as to why such an application could not have been made earlier.

(4) The applicant requested the Labour Department to provide certain documents on two occasions (respectively on 22 May 2013 and 4 and 15 July 2013), ie more than one month after legal aid certificate was first received.  No explanation has been provided as to why such requests could not have been made earlier.

(5) By 7 August 2013, the applicant had received all the documents she sought from various bodies.  Nevertheless, it took almost two months’ time for the applicant to prepare and file the 6-page Form 86 on 2 October 2013.

31.  In light of the long time taken to eventually obtain legal aid in the present case, Mr Fan fairly accepted that after the grant of the legal aid certificate, it was even more incumbent on the applicant (and her legal advisers) to act and make the leave application expeditiously. He did not dispute the matters summarised above by Mr Suen concerning the extra time taken to make the leave application.  He however asked this court to consider the fact that the applicant speaks with a dialect which has rendered the taking of instructions more time consuming than someone commanding the punti dialect.

32.  As I said, the leave application is taken out way out of time.  In my view, even the application for legal aid in the circumstances of the present case itself would not have justified an extension of time.  This is particularly so in light of the matter set out in paragraph 30(1) above, and the fact that the applicant was already at times represented by legal advisers (not the present ones) when making the compensation application under the Scheme even before any grant of legal aid.  There are no good reasons why she did not promptly apply for legal aid in the first place, and (after having been refused initially) also could not have taken out the leave application (even if she was to act in person) after that refusal of legal aid, but chosen to wait until she could hopefully successfully appeal against the Director of Legal Aid’s refusal.

33.  The additional delay (as set out above) in making the application after the grant of legal aid further weighs against the exercise of discretion to extend time.

34.  In the premises, if I had to consider the question of delay, I would not have exercised my discretion in extending time to grant leave in the circumstances of the present case.

Costs

35.  Mr Suen for the Commissioner asks for costs of this unsuccessful leave application.

36.  It is now well established that the starting position on costs for an unsuccessful application (which is attended by the putative respondent) is that there should be no order as to costs.  The court would only award costs against an unsuccessful applicant for leave where there are unusual or exceptional circumstances to justify doing so.  Unusual circumstances are those that the court finds that there are “good reasons” to order costs, as opposed to the usual case of no order as to costs in an unsuccessful leave application: Sky Wide Development [2011] 5 HKLRD 202 (CA) at paragraphs 28 and 31 per Tang VP (as he then was); Re Ho Chun Yan Albert (HCAL 84/2012, 28 Sept 12), at paragraph 26 per Lam J (as he then was); Lister Assets v The Chief Executive in Council (CACV 172/2012, 25 Apr 13, Fok, Barma JJA, McWalters J) at paragraph 48.

37.  In considering whether there are good reasons or unusual circumstances to justify awarding costs against an unsuccessful applicant for leave, the court takes into account of various factors.  I have tried to summarise some of these factors in TVB v Communications Authority (unrep., HCAL 3/2013, 22 July 2013) at paragraph 6, and do not propose to repeat them here.

38.  After considering all the circumstances of the present case, I agree that the applicant should be required to bear the costs of the putative respondent in the present case given the following good reasons considered as a whole:

(1) For the reasons I have set out above, and particularly in light of the Commissioner’s letters mentioned at paragraph 20 above, it must be clear to the applicant (and her legal advisers) that the intended judicial review ground that the decision was based on “no evidence” (as understood in the context of public law) is without merits;

(2) The long and at least partly unjustified delay further underlines the obvious demerits of the intended application;

(3) Further, the need to apply for and justify an extension of time entitled the putative respondent to be heard;

(4) The putative respondent attended the hearing at the invitation of the court, and has provided helpful assistance and refrained from conducting herself in an unreasonable manner that may lead to increase in costs;

(5) The applicant was advancing purely her own interest in the application; and

(6) The applicant in effect had a rolled-up substantive hearing of her judicial review application.

39.  I therefore further order that costs of the leave application be to the Commissioner to be taxed if not agreed.  The applicant’s own costs be taxed in accordance with legal aid regulations.