XCHRX NGUYEN TRONG SON v. DIRECTOR OF LEGAL AID

1999 LAA No. 20

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

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J U D G M E N T

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The application for legal aid

1. The Appellant was an asylum-seeker from Vietnam. He was repatriated to Vietnam in March 1997. While in Vietnam, he granted Mrs. Pam Baker of Messrs. Pam Baker & Co., a firm of solicitors in Hong Kong, a power of attorney over his affairs pursuant to the Powers of Attorney Ordinance (Cap. 31). In June 1997, the solicitors applied for legal aid on his behalf to fund an action which he wanted to bring against the Department of Correctional Services.

2. The action is a claim for negligence. It relates to his property which he lodged with officers of the Department of Correctional Services in 1992 for safe-keeping while he was detained in Whitehead Detention Centre. It is common ground that his property was not returned to him when he applied for its return in June 1996. The Department of Correctional Services claims that it had already been returned to him in October 1993 when he had asked for its return at that time. It is claimed that he even signed for his property then. The property consisted of his life savings, namely US$6,900.00 in cash, two gold necklaces and a gold ring.

3. On 25th September 1997, the Director of Legal Aid refused the Appellant's application for legal aid on two grounds. First, the Appellant was said to have failed to show that he had reasonable grounds for taking proceedings against the Department of Correctional Services. Secondly, it was said to be unreasonable that he be granted legal aid in the particular circumstances of the case. The Appellant's solicitors filed a notice of appeal on his behalf to the Registrar of the High Court pursuant to section 26(1) of the Legal Aid Ordinance (Cap. 91) on 3rd October 1997. For reasons which it is unnecessary to go into, a fresh notice of appeal was filed on 7th January 1999, and it was not until 2nd March 1999 that the Appellant's solicitors were sent the written reasons for the refusal. These reasons showed that, prior to refusing the application for legal aid, the Director of Legal Aid had taken into account various documents provided to him by the Department of Correctional Services. They included (a) the Department of Correctional Services' investigation report, (b) an investigation report prepared by the police to whom the Appellant had referred his complaint, (c) the statements of various witnesses taken by the police, and (d) the report of a forensic scientist who had compared the Appellant's known signature with what was alleged to be the Appellant's signature on the form completed in October 1993 requesting the return of his property. Copies of those documents had not been provided to the Appellant's solicitors.

4. The Appellant's solicitors assumed, correctly as it turned out, that copies of these documents had been sent to the Registrar. They requested the Legal Aid Department to provide them with copies of the documents. That request was refused on the ground that to do so would contravene the Personal Data (Privacy) Ordinance (Cap. 486). In a subsequent letter, the Legal Aid Department said that whether the documents should be released to the Appellant's solicitors was for the court to decide. The letter expressed the Legal Aid Department's position as follows:

"... as a matter of principle, we strongly object to the releasing of the whole legal aid file to you for copying. As a matter of procedural fairness, you are only entitled to those documents that are relevant to our decision in refusing legal aid, provided that any disclosure of these documents will not be in breach of the provision[s] of the Personal Data (Privacy) Ordinance."

5. The appeal came before Master Poon on 12th March 1999. The Appellant's solicitors asked that copies of the documents in the Legal Aid Department's file be provided to them or that the file itself be produced to them for a few days for copies of the relevant documents in the file to be made. In the meantime, they asked for the hearing of the appeal to be adjourned. The master thought that an important principle was at stake. According to the Appellant's solicitors, the master thought that the way all legal aid appeals are handled would be affected by a finding that the Appellant was entitled to copies of all of the documents provided to the court by the Legal Aid Department. He therefore adjourned the hearing of the appeal to a date to be fixed, with a time estimate of three hours, for the issue as to whether the Appellant's solicitors should be provided with copies of the documents to be decided. He requested that counsel be assigned if possible, and that relevant practice directions be observed, particularly the filing of skeleton arguments. Subsequently, the Acting Registrar of the High Court exercised her power to refer the appeal to a judge of the High Court for decision. The hearing before me today has been that appeal. Leading counsel were instructed, Ms. Gladys Li S.C. appearing for the Appellant on a pro bono basis.

Is the appeal properly constituted?

6. A preliminary point is taken by Mr. William Marshall S.C. for the Respondent. He contends that the appeal is not properly constituted. That is because the notice of appeal has to be signed either by the Appellant or by his lawful attorney. Neither of the notices of appeal were signed by either the Appellant or by Mrs. Baker. The first notice of appeal was signed by Pam Baker & Co., and the second notice of appeal was not signed at all.

7. I reject at least one of the premises on which this argument is based. I rather doubt whether a notice of appeal under section 26(1) has to be signed at all. It is true that Form LA 14, which is the form for notices of appeal under section 26(1) of the Legal Aid Ordinance, includes a space for either a signature or a chop. But section 26(2), which requires the appeal to be "initiated by notice in writing", does not require the notice to be signed. But even if the notice has to be signed in order to show that the Appellant really does wish to appeal against the refusal of his application for legal aid, it is sufficient if his notice of appeal is signed by his duly authorised agent. It does not have to be signed either by the Appellant himself or by his lawful attorney. There is no reason to doubt that Messrs. Pam Baker & Co., being his solicitors, are his duly authorised agents, and it follows that the appeal is properly constituted.

Are the documents necessary?

8. Ms. Li contends that, irrespective of the documents which the Director of Legal Aid obtained from the Department of Correctional Services, the Appellant has shown that he has reasonable grounds for taking proceedings against the Department of Correctional Services. Her core argument is so clearly set out in para. 10 of her written submissions that I reproduce it here verbatim:

"There is no dispute that the items were placed in the custody of the CSD in charge of the Whitehead Detention Centre in February 1992. On his making an application for the return of the items, they have not been returned to him. As a matter of law, this being a gratuitous bailment, it is for the bailee to establish that the items have been returned to the bailor or that the items have been lost without any negligence on the part of the bailees - Halsbury's Laws of England, 4th. ed., Vol. 2 on Bailment, para. 1885. At this stage, all of the elements necessary to plead a good cause of action are present and the onus lies on the potential Defendants to show that they are not liable. Whether the Defendants have a good defence or not cannot be determined at this stage i.e. before discovery and trial with evidence tested by cross-examination including such expert evidence as both parties would lead. Since the Appellant has a good prima facie case and since the strength or otherwise of the potential Defendants' case cannot be assessed without the taking of proceedings, the Appellant has satisfied the test for the granting of legal aid."

9. I cannot accept this argument. Let us assume that the burden of proof is on the Department of Correctional Services. The issue at trial would then be whether the Department of Correctional Services has proved, on the balance of probabilities, that the Appellant had withdrawn his property in October 1993. If the materials available to the Director of Legal Aid overwhelmingly point to the Appellant having indeed withdrawn his property then, the fact that the burden of proof was on the Department of Correctional Services would be neither here nor there. The Appellant would not, in the light of the materials available to the Director of Legal Aid, have shown that he had reasonable grounds for taking proceedings against the Department of Correctional Services.

10. In para. 3 of the reasons given by the Director of Legal Aid for refusing the application for legal aid, the Director of Legal Aid asserted that the Appellant had withdrawn his property in October 1993. Para. 6 of the reasons gave his reasons for that conclusion:

"There is no evidence of any crime having been committed. The Forensic Scientist is an experienced expert who gave unfavourable evidence on [the Appellant's] case. On the contrary, [the Appellant] gave bare allegations. He could not produce any evidence to support ... We must trust the independent investigation made by the Police Force."

Those passages prompted this comment in para. 11 of Ms. Li's written submissions:

"In determining whether a person has shown reasonable grounds for taking proceedings, it cannot be the Director's role to second-guess the outcome of any proceedings were they to be taken precisely because the strength or weakness of the case can only be determined at trial."

I agree with Ms. Li that it was not for the Director of Legal Aid to reach any conclusion as to whether the Appellant's version of events was true or false. But it was for the Director of Legal Aid to form a view as to the strength of the Appellant's case. If he formed the view, in the light of the materials before him, that the Appellant's case was a weak one, it may well have been open to him to conclude that the Appellant had not shown that he had reasonable grounds for taking the proceedings. It is true that the strength or weakness of the Appellant's case could only be conclusively determined at trial. But that did not prevent the Director of Legal Aid from having to make some assessment of the strength or weakness of the case for the purpose of deciding whether legal aid should be granted. Indeed, it was his duty to do so.

11. I note the reasons advanced by Ms. Li in para. 13 of her written submissions which are said to support the Appellant's version of events. It may be that these arguments should have been considered by the Director of Legal Aid. But this appeal is a hearing de novo, and I shall consider the arguments when I come to exercise my own independent judgment as to the strength or weakness of the Appellant's case in the light of all the available materials - including the documents supplied by the Department of Correctional Services to the Director of Legal Aid. It will at that stage be necessary to identify what the threshold is, i.e. how weak must the Appellant's case be before it can be said that he does not have reasonable grounds for taking the proceedings.

12. I should add that Ms. Li made the point that at the heart of the case was the report of the forensic scientist. The reasons for refusing the application for legal aid showed that that report said that the signature on the form was probably that of the Appellant. The case could well turn on the correctness of that opinion. Since the original of that form was unlikely to be in the Legal Aid Department's file, a solicitor advising a client whose financial position was such that he could not apply for legal aid would advise his client to take out proceedings so that, in the course of inspection of the documents disclosed on discovery, the form could be examined by an expert instructed by the Appellant. For that reason, it is said that the Appellant has shown that he has reasonable grounds for taking proceedings against the Department of Correctional Services, irrespective of the documents which the Director of Legal Aid received from the Department of Correctional Services. I cannot go along with that argument. The fact that the court has the benefit of the view of the expert engaged by the Department of Correctional Services or the police in the course of the investigation without the benefit of any views from an expert engaged on the Appellant's behalf is a factor to be taken into account in determining the strength of the Appellant's case. It does not mean that the rest of the documents can be ignored.

13. For these reasons, I reject Ms. Li's primary contention that, irrespective of the documents which the Director of Legal Aid obtained from the Department of Correctional Services, the Appellant has shown that he has reasonable grounds for taking proceedings against the Department of Correctional Services.

The disclosure of the documents

14. Ms. Li's written submissions addressed the question of what should happen if, contrary to her primary contention, it was held that the outcome of the appeal depended on an assessment of the strength of the Appellant's case in the light of all the available materials, including the documents supplied to the Director of Legal Aid by the Department of Correctional Services. Her stance in that event was that there should be an adjournment of the appeal so that

(a) copies of the relevant documents supplied by the Department of Correctional Services to the Director of Legal Aid could be supplied to the Appellant's solicitors, and

(b) the original of the document acknowledging the receipt by the Appellant of his property in October 1993 and allegedly signed by him could be made available to the Appellant's solicitors, so that they could carry out their own tests on the document.

15. The law on the topic was settled by the decision of the Court of Appeal in The Director of Legal Aid v. Van Can On [1997] HKLRD 635. That was also a case in which would-be litigants who had been refused legal aid appealed against that refusal. In that case as well, the court had been provided with the Legal Aid Department's file. The master hearing the appeal expressed the strong view that a fair hearing of the appeal could not take place unless the Appellants had access to those of the documents which were relevant to the appeal. However, instead of causing copies of the relevant documents to be provided to the Appellants, he merely recommended that the relevant documents be released to the Appellants. The Director of Legal Aid did not release them, and what was challenged in the case by way of judicial review was that refusal. The application ultimately failed because what the Appellants should have done, in the light of the refusal of the Director of Legal Aid to release the documents to them, was to return to the master and to request him to provide the documents to them.

16. In the course of their judgments, the members of the Court of Appeal addressed the question of the powers of the master in such cases. For present purposes, I need only cite two passages from the judgment of Mortimer J.A. (as he then was). At p. 646I-J, he said:

"... the master remains in control of the proceedings. It is for him - and him alone - to ensure that the appeal is conducted in accordance with natural justice. When the [Appellants] lodged an appeal under section 26(1) of the Ordinance, the DLA had to decide upon what documents she wished to rely in the appeal. It was for the master to decide what to do about documents disclosed to him on conditions, what documents were relied upon by the DLA and what were relevant. The procedure to achieve the necessary procedural fairness at the hearing is fundamentally within the control of the master."

At p. 647A-C, Mortimer J.A. said:

"It is not this Court's task to say how [the master] ought to exercise [his powers] but he has a number of options. At least two come to mind. First, he could require the DLA to inform him which documents she relies upon, making it clear that he will provide copies of them to the [Appellants]. Alternatively, he may take the view that all relevant documents put before him by the DLA should be disclosed to the [Appellants] in spite of the conditions she sought to impose. I have no doubt that if the master has documents put before him subject to conditions and he concludes that procedural fairness requires their disclosure, his overriding public duty is to disclose whatever the conditions ... Every tribunal has an inherent power to achieve fairness by disclosing documents or exhibits which are physically before it to the parties. This is not to be confused with a power to order discovery before the hearing ..."

It is necessary, therefore, for me to carry out the exercise required of me by the Court of Appeal in Van Can On.

17. For that purpose, I have read the Legal Aid Department's file provided to the court. The relevant documents in the file are as follows:

(i) the two statements of the Appellant dated 26th June 1996 and a further statement of the Appellant dated 15th July 1996;

(ii) the statement of Nguyen Thi Binh dated 27th June 1996;

(iii) the statement of Leung Sze Chung dated 13th December 1996;

(iv) the memo from the Commissioner of Police to the Commissioner of Correctional Services dated 30th December 1996;

(v) the memo from the Commissioner of Correctional Services to the Director of Legal Aid dated 8th September 1997;

(vi) the memo from the Commissioner of Police to the Director of Legal Aid dated 11th September 1997;

(vii) the documents headed Appendix C (iv)(3/4) and Appendix C (iv)(4/4).

Having read these documents, it is apparent that they are the principal materials on which the strength or weakness of the Appellant's case is to be assessed. Subject to two arguments developed by Mr. Marshall, procedural fairness, in my view, requires their disclosure to the Appellant's solicitors. Only then will they be able to make informed representations to me as to the strength of the Appellant's claim.

18. Mr. Marshall's two arguments were as follows. First, the supply of the documents to the Appellant's solicitors would contravene the following principle relating to the use of personal data in the Personal Data (Privacy) Ordinance:

"Personal data shall not, without the prescribed consent of the data subject, be used for any purpose other than -

(a) the purpose for which the data were to be used at the time of the collection of the data; or

(b) a purpose directly related to the purpose referred to in paragraph (a)."

The data subjects in the present case are the makers of the statements and the authors of the memos. Their personal data consists of their names, addresses, telephone nos., ranks and qualifications. I reject Mr. Marshall's argument. Assuming, without deciding, that such data constitutes personal data, I doubt very much whether the data subjects would decline to give their consent in the prescribed manner to the use of this personal data for present purposes, and it is unfortunate that their consent has not been sought. But having analysed the true purpose for which the personal data was to be used when it was obtained, I find that it is no different from the purpose for which the personal data is now to be used if the documents in which that personal data are contained are to be provided to the Appellant's solicitors - namely, to enable the makers of the statements and the authors of the memos to be identified and contacted if necessary, and in the case of the statement of Leung Sze Chung to identify his qualifications so that the reader knows the basis of his expertise.

19. Secondly, it is said that the requirements of procedural fairness are met in the present case by the court informing the Appellant's solicitors of the gist of the contents of the documents. It may be that that is so, but once the problem raised by the Personal Data (Privacy) Ordinance has been overcome, there seems to me to be no downside in providing the actual documents to the Appellant's solicitors. The disadvantage of only providing them with the gist is that, in determining what the gist is, I might miss a point which is important. I like to think that that would not happen, but I cannot exclude that possibility. Mr. Marshall says that providing the Appellant's solicitors with copies of the documents may deter persons from providing information to the Director of Legal Aid in other cases in the future. I regard that as extremely unlikely because persons with useful information would want to provide the Director of Legal Aid with sufficient information to enable him to decide that the applicants for legal aid in such cases have little chance of success.

20. For these reasons, I have decided that the documents in the Legal Aid Department's file should be disclosed to the Appellant's solicitors. The only issue which then arises is which of the documents in the Legal Aid Department's file should be copied to them. Mr. Marshall contends for only those documents which relate to the strength or weakness of the Appellant's case, i.e. the documents in the seven categories which I have described. Ms. Li contends for the whole of the file. On this issue, I agree with Mr. Marshall. I accept that I will by definition have read documents which the Appellant's solicitors have not seen, but no harm will in fact have been done if the Appellant's solicitors have been provided with all the documents which relate to the strength or weakness of the Appellant's case. There is, I acknowledge, a danger that in my trawl through the documents I might have missed a document which is relevant to the strength or weakness of the Appellant's case. But that small risk is out-weighed by the need to preserve confidentiality in that part of the file which contains documents which do not in my opinion relate to the strength or weakness of the Appellant's case.

Conclusion

21. For these reasons, this appeal must be adjourned to a date to be fixed to enable copies of the documents to which I have referred to be supplied to the Appellant's solicitors. For the avoidance of doubt, I am not ordering the Director of Legal Aid to disclose them. That would presuppose a power to order discovery which was a question left open by the courts in Van Can On. I am simply directing that copies of the documents to which I have referred and which are in the file provided to the court by the Director of Legal Aid be supplied to the Appellant's solicitors. Since the file does not contain the original of the document in which the Appellant allegedly acknowledged the receipt of the property in October 1993, I make no order in respect of it.

22. Finally, I should add, in the interests of completeness, that I asked Mr. Marshall what lay behind the second reason for the refusal of the application for legal aid - namely, that it was unreasonable for the Appellant to be granted legal aid in the particular circumstances of the case. Was it being contended, for example, that the amount at stake did not justify the grant of legal aid, even if the Appellant had a strong case on the merits? Mr. Marshall disavowed any argument on those lines in the circumstances of the case. The second reason for refusal therefore added nothing to the first.