Liu Mei Huei v. HKSAR

[English Translation – 英譯本]

CACV 185/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 185 OF 2012

(ON APPEAL FROM HCA NO 1698 OF 2011)

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BETWEEN

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Before: Hon Lam VP, Yuen JA and Chu JA Court

Date of Hearing: 24 July 2013

Date of Written Supplemental Submission: 12 and 26 August 2013

Date of Judgment: 30 April 2015

JUDGMENT

Hon Chu JA (giving the Judgment of the Court):

Introduction

1.The plaintiff commenced the action of HCA 1698/2011 in the Court of First Instance against the defendant to make claims on the grounds that the Legal Aid Department, the Police Force, the District Council, the Ombudsman and the Hospital Authority had “public officers who were remiss on their duties, were collectively fraudulent, and committed crime(s) jointly” and that “the Hong Kong Government had committed a tortious act by reason of lacking prudence in governance”.

2.Pursuant to an application the defendant made by way of summons, a Master of the High Court made an order on 28 March 2012 to strike out the statement of claim the plaintiff had filed in respect of the said action, dismissed all the claims she made in it, and ordered her to pay the costs of the defendant.

3.The plaintiff appealed against the decision of the Master. The appeal was dismissed by Mr Justice Anthony To of the Court of First Instance on 3 August 2012. He ordered the plaintiff to pay the defendant’s costs in the appeal.

4.The plaintiff appealed to this Court against the decision of To J.

FCMC 7558/2000

5.The claims the plaintiff made against the defendant originated from FCMC 7558/2000, a matrimonial matter before the District Court.

6.The plaintiff was granted Legal Aid in that matter to petition for divorce from her then husband (“ex-husband”). The court granted a decree nisi on 29 January 2001 and ordered the ex-husband to pay the plaintiff the nominal sum of $1 each year as maintenance. On 23 April 2001, upon the ex-husband undertaking that he would bear all the necessary costs of living of the two children of the family and the consent of both the plaintiff and the ex-husband, the court ordered that there be joint custody, care and control of the two children between the plaintiff and the ex-husband.

7.The plaintiff claimed that the ex-husband had failed to honour the undertaking since May 2007. He did not pay the costs of living of the children and was out of reach.

8.On 6 July 2007, the plaintiff went to Cheung Sha Wan Police Station to make a report. She complained that her ex-husband had not paid the maintenance of the children since 4 May 2007 and she had not been unable to contact him. She reported that he had deceived her. The Police was of the view that there was no criminal element in the case and so only made a record of it and suggested that the plaintiff commence civil proceedings in the District Court and seek help from the Social Welfare Department.

9.On 11 July 2007, the plaintiff went to the Legal Aid Department regarding the ex-husband’s failure to honour the undertaking he had given to pay the maintenance of the children.  According to the plaintiff, on the advice of the staff of the Department, she filled in and submitted a “Questionnaire for Variation (Increase) of Maintenance” and a “Questionnaire on Application for Variation of Custody/Access Order”. In the two questionnaires, she put down “unable to get in touch, unable to communicate” in the parts where questions were asked on whether she had ever contacted the ex-husband to enquire him of his opinion on varying the order.

10.Later, on 10 August 2007, she submitted two legal aid application forms to apply for legal aid to take legal action to “increase the maintenance and living expenses of the children” and for “variation of custody”. She furnished some information regarding her financial situation in response to the request the Legal Aid Department made. Upon completion of the vetting of her means, the Legal Aid Department accepted that she had passed the means test and was qualified to receive legal aid.

11.On 9 November 2007, she wrote to the Legal Aid Department to provide further information. She said that she learned from the information obtained from the Business Registration Office that her ex-husband’s company had already been closed down and that his contact telephone number had also been cancelled. She still had not been able to reach him up till then.

12.On 9 November 2007, the Director of Legal Aid informed her by letter that her two legal aid applications had been rejected on the grounds that she had not been able to prove the financial situation of her ex-husband and provide his contact address or telephone number. The letter at the same time informed her that she could appeal to a Master of the High Court regarding the decisions to reject her applications for legal aid within 14 days. She did not appeal against the decisions of the Director of Legal Aid.

The claim in HCA 1698/2011

13.The plaintiff brought the action HCA 1698/2011 on 7 October 2011.

14.When the application by the defendant for “striking out” was heard before the Master, the plaintiff applied to amend the statement of claim to withdraw the claims against the District Council, the Ombudsman and the Hospital Authority so as to claim only against the Legal Aid Department and the Police Force. She at the same time applied to withdraw the allegations of the commission of fraud and crime jointly and the claims arising therefrom. In their stead, she added the allegation and claim of perverting the course of public justice.

15.In paragraph 1a of the statement of claim, the plaintiff accused the Legal Aid Department of the following:

“In 2006, when my ex-spouse deliberately faked disappearance, I went to seek legal aid immediately in 2007 (file number: LA/MAT/16143/2007(S01) & LA/MAT/16142/2007(S01)). But the responsible member of staff of the Department, Miss Lee (transliteration) did not inform me that I could apply for a committal order against the ex-spouse before the Court of First Instance to solve the problem. Nor did she assist me. Instead, she required me to fill in (forms) to request for variation of the court’s orders regarding maintenance and custody etc. I filled them in as instructed and it took a long time to vet my financial situation. Miss Lee kept requesting me to provide various items of information, including the information of a property situated in Dongguan, Mainland China, at very short notice. The running about as a result of the requests tired me out. My application was nevertheless rejected in the end on the ground that I was unable to provide information about the residential address of the ex-spouse. However, I had already clearly explained this to Miss Lee when I applied and made it very clear in the information filled in in the application forms”.

16.In paragraph 1b, she accused the Police Force of the following:

“I went to the Cheung Sha Wan Police Station in mid 2007 for making a report in respect of my ex-spouse’s deliberate disappearance and abandonment of children. But the officers at the Station refused to take up the matter on the ground that it did not involve any crime. Nor did they tell me that I could apply to the Court of First Instance for the committal of my ex-spouse. All they did was to record and close the case sloppily. I query if they had handled the matter justly. They went so far as to suggest: “you can also leave the children behind to place them in the care of us the police and the social welfare department” to encourage me to fake disappearance so as to dodge parenting responsibility. I have made a complaint to the Complaint Against Police Office. The case is still outstanding. There are still many cases in the same case which are being followed up by Inspector Tam (transliteration) of the Task Force, Cheung Sha Wan. I have yet to hear from him the result of the investigation.”

17.The plaintiff asked the defendant to apologize and pay financial compensation of a total of 9 million dollars.

18.In her affirmation[1] opposing the defendant’s application for “striking out”, the plaintiff alleged that the Legal Aid Department and the Police Force had breached their duties.

19.As far as the Legal Aid Department is concerned, she said that according to the long title and section 6 of the Legal Aid Ordinance, Cap 91, Laws of Hong Kong, the Legal Aid Department had the duty to tell her the steps preliminary or incidental to any proceedings,namely, to apply to court for an order that the government departments to disclose the personal data of her ex-husband. But when she told the staff of the Legal Aid Department that she had lost contact with her ex-husband and wanted to chase him for the living expenses of the children, all they did was to instruct her to fill in the questionnaires to vary the maintenance and the custody of the children and did not assist and tell her to apply to the court for an order that the SAR government shall disclose the data of her ex-husband and to commit him to custody to smooth the way for the institution of civil proceedings. It was a breach of duty.

20.Where the Police Force is concerned, the plaintiff alleged that according to the Police Force Ordinance, Cap 232, Laws of Hong Kong and the objective set by the Police Force, the primary duty of the Police includes the prevention of crimes which includes minimizing the chance of members of the public to become victims of crimes and the loss caused by crimes. She alleged that the ex-husband had, in contempt of court, disappeared and stopped paying the living expenses of the children. This also constitutes abandonment of children in violation of section 27 of the Offences Against the Person Ordinance, Cap 212, Laws of Hong Kong. That the police listed her complaint as a civil dispute was a deliberate breach of duty.

Decision of the Master

21.The defendant applied by way of summons to strike out the plaintiff’s claim on the grounds that it lacked a reasonable cause of action, was frivolous and vexatious and an abuse of court process.

22.The Master granted the application. He held that the Legal Aid Department had not mishandled the plaintiff’s application for legal aid in refusing it, because if she was unable to furnish the information regarding the financial position of her ex-husband and was not able to find him, there was no way that the legal proceedings to vary the maintenance could be proceeded with. The Master also took the view that the plaintiff could apply to the court for relief on the ground that the ex-husband had failed the honour the undertaking to pay for the living expenses of the children, but it did not necessarily constitute a criminal offence. In view of the fact that it is the duty of the Police Force to maintain law and order and not to give legal advice to the public or get involved in their civil disputes, there was nothing improper in the way the Police Force handled her report/complaint.

Decision of To J

23.The plaintiff advanced 10 grounds before To J to appeal against the decision of the Master. They are as follows:

(1) The ex-husband of the plaintiff was the party who should bear the responsibility of providing financial support;

(2) The ex-husband of the plaintiff disappeared deliberately, abandoned the children of the family and committed criminal offences;

(3) The ex-husband of the plaintiff was in contempt of the court and committed criminal offences;

(4) The ex-husband of the plaintiff committed fraud intentionally and committed criminal offences;

(5) The Police Force and the Legal Aid Department owed the plaintiff a statutory duty of care;

(6) In breach of the statutory duty of care they owed her, the Police Force failed to investigate the criminal offences that her ex-husband had committed and the Legal Aid Department had failed to grant her legal aid;

(7) With the assistance of a lawyer, the Legal Aid Department had the duty todemand the Police Force to find out the information of the ex-husband (who had disappeared) and make available such information;

(8) The staff of the Legal Aid Department deliberately made a false statement in an affirmation in support of the defendant’s “striking out” application;

(9) A policeman performed an act to obstruct the course of public justice; and

(10) The Master had deprived the plaintiff of the right to amend her statement of claim.

24.In respect of ground (1), To J did not agree with the plaintiff’s argument that the Master had wrongly interpreted the order made on 23 April 2001. He also found that there was no connection between the interpretation of the order and whether or not the ex-husband had committed criminal offence.  As regards grounds (2) to (4), To J found that the plaintiff’s allegations that the ex-husband disappeared and defrauded with intent and was in contempt of the court did not constitute the commission of criminal offences. As far as grounds (5) and (6) are concerned, To J found that the Police Force and the Legal Aid Department did not owe the plaintiff any duty of care.  In relation to grounds (7) and (8), To J found that the Legal Aid Department did not have the duty to investigate the matter before the issuance of a Legal Aid Certificate. Besides, the complaint involved in ground (8) had nothing to do with the dispute in the present case. It could not possibly constitute a cause of action. To J also took the view that ground (9) was based on the plaintiff’s erroneous view that the ex-husband had committed criminal offences. He further considered that ground (10) was the result of the plaintiff’s mistaken understanding of legal procedures. In the result, To J dismissed her appeal.

Plaintiff’s grounds of appeal

25.The plaintiff advanced 6 grounds in her Notice of Appeal to appeal against the decision of To J. During the hearing, she applied to amend the Notice of Appeal to add the further ground of appeal that To J was biased. At the same time, she applied by way of summons to adduce new evidence during the appeal to support this ground of appeal. This Court considered these two applications on a de bene esse basis.

26.Her grounds of appeal can be grouped under the following 4 heads:

(1) When dealing with the appeal, To J did not disclose that he would be appointed by the Chief Executive as a Panel Judge under section 6 of the Interception of Communications and Surveillance Ordinance, Cap 589, Laws of Hong Kong. This constituted bias. To J was thus automatically disqualified from hearing the matter and his decision was void too.

(2) The background of the case set out in paragraphs 1 to 8 of the judgment was not the whole truth.

(3) To J erred in holding that the ex-husband’s breach of the undertaking he had given to the court and failure to pay for the living expenses of the children were not criminal acts.

(4) To J erred in holding that the Legal Aid Department and the Police Force did not owe the plaintiff a duty of care in the case.

Bias

27.The additional ground of appeal the plaintiff intended to advance alleged that as To J was appointed a Panel Judge under section 6 of the Interception of Communications and Surveillance Ordinance on 27 July 2012, it could be deduced that he should have known that he might be so appointed since 27 April 2012, that is before the hearing on 13 June 2012. Nevertheless, he did not disclose this fact to the parties of the action. In the view of the plaintiff, To J would be paid a monthly salary of $200,000 to perform a duty that involved scrutinizing and approving police work. Therefore, in accepting this appointment, he was accepting an economic benefit the defence gave him. She also cited R v Bow Street Magistrate, Ex p. Pinochet (No.2) [2000] 1 AC 119, 132G-133C to argue that if a presiding judge was closely linked with a party to the litigation or  had related interest, unless he had made sufficient disclosure in this respect, he was disqualified from hearing the matter. The plaintiff argued that the Police Force was one of the government departments of the SAR, its relationship with the defendant resembled one that existed between a parent company and its subsidiaries.  By accepting the appointment offered by the Chief Executive to become a Panel Judge, To J had accepted an advantage the defendant offered and it gave rise to a conflict of interest.

28.Under the common law, there are two types of bias. The first is actual bias. Once proved, it will render the person exercising the judicial function to lose his relevant qualification. The second is apparent bias. The standard of test is “the reasonable apprehension of bias” test, that is, whether, having ascertained all circumstances which have a bearing on the matter, a fair-minded and informed observer will conclude that there was a real possibility that the tribunal was biased (Porter v Magill [2001] UKHL 67, considered and applied in paragraphs 18 to 21 of Deacons v White & Case LLP & Others (2003) 6 HKCFAR 322).

29.According to the legal principle of apparent bias, if the judge is a de facto party to the litigation, or has financial or personal benefit in the outcome of the hearing, then on the basis that he is “a judge in his own cause”, he will automatically be disqualified from dealing with the matter (Re Pinochet (No.2) 132G-H,140B-C). Besides, if the outcome of the hearing will promote matters that both the judge and a party of the ligation are concerned with, he will also be automatically disqualified from dealing with the matter (Re Pinochet (No.2) 135C-D).

30.In the present case, it is not the submission of the plaintiff that To J was actually biased, nor did she put forward any evidence in this respect.

31.It is the plaintiff’s case that there was apparent bias in the case but the argument was based on inference drawn without any proper factual basis. First, although the defendant in the present case is the Government of the HKSAR, the actual entities that the plaintiff was seeking to claim from were the Legal Aid Department and the Police Force. There was no connection at all between the Legal Aid Department and the functions and duties of a Panel Judge appointed under the Interception of Communications and Surveillance Ordinance. As regards the Police Force, it is one of the law enforcement agencies whose applications for authorization a Panel Judge has to scrutinize and approve pursuant to the Ordinance. The Panel Judges have no interest at all in any of the law enforcement agencies including the Police Force. To J will not, on account of his taking up the appointment of a Panel Judge, share common interests or has mutual beneficial interest with the Police Force.

32.Besides, although the Panel Judges are appointed by the Chief Executive, they exercise their functions independently to scrutinize the applications for authorization of interception of communications submitted by the law enforcement agencies. Section 6 of the Interception of Communications and Surveillance Ordinance expressly provides for the appointment and the tenure of the Panel Judges. The fact that To J has been appointed a Panel Judge will not give rise to any interest between him and the defendant.

33.Further, being a Panel Judge is different from being the Commissioner on Interception of Communications and Surveillance. The Interception of Communications and Surveillance Ordinance does not stipulate that a Panel Judge shall be entitled to remuneration and allowances (compare section 6 and section 39(4) of the Ordinance).  The plaintiff’s allegation that To J is paid a monthly salary of $200,000 for being a Panel Judge had no basis. Her allegation that by accepting the appointment, To J was accepting the economic benefit the defence gave him does not even have any factual basis at all.

34.The circumstances of Re Pinochet (No.2)that the plaintiff relied on were completely different from those of the present case. In that extradition case, Lord Hoffmann, one of the judges dealing with the appeal, was the Chairman and Director of a charitable organization under Amnesty International, the Intervener of the case, and it had always been the position of Amnesty International that the appellant be extradited back to the country to be tried, and it made submissions in the case in the capacity of an Intervener. The House of Lords took the view that in such circumstances, whether or not the appellant should be extradited back the country was something that both Lord Hoffmann and Amnesty International were concerned with, and the outcome of the hearing of the case would promote the matter, therefore, Lord Hoffmann would be “a judge in his own cause” to deal with the case and hence gave rise to apparent bias.

35.Nothing of the kind can be found in the present case. Panel Judges perform their functions independently to scrutinize the applications made by the Police Force and other law enforcement agencies. There is no question that they share a common interest with the Police Force or the defendant.  Therefore, there is no factual basis at all to show that To J is in fact a party to the litigation or has any financial or personal benefit to gain from the outcome of the hearing, or that the outcome of the hearing will promote matters that both he and the defendant are concerned with so that a fair-minded and informed observer will conclude that there is a real possibility that he was biased towards the defendant.

36.We do not agree that there was apparent bias in To J’s handling of the hearing of the plaintiff’s appeal, which disqualified him from hearing the matter and nullified his decision. This ground of appeal fails. As a result, there is no need for this court to consider the curative principle the plaintiff put forward.

37.As her application by summons to adduce new evidence during the appeal in support of this ground of appeal does not meet the legal requirement laid down in Ladd v Marshall [1954] 1 WLR 1489, we reject the application.

The background of the case set out in the judgment is not the whole truth

38.The first ground of appeal stated in the plaintiff’s Notice of Appeal alleged that the background of the case set out in the judgment does not contain the whole truth of the matter. Her main complaint was that no mention was made in paragraphs 3 to 8 of the judgment about the fact that when she made a report to the Police at Cheung Sha Wan Police Station, and back at the time when she submitted the two questionnaires to the Legal Aid Department, she had already made clear that the ex-husband had gone missing and was unable to be reached.

39.In our view, a judgment needs only set out a succinct summary of the background of the case and not a detailed account of everything covered. To J did summarize the important background facts in the part of the judgment concerning the background of the case. Although he did not mention in this part that the plaintiff had already told the police that she had not been able to reach her ex-husband, and that she mentioned the same in the Legal Aid Department questionnaires, the fact was that they were the important points of the plaintiff’s claim for which relevant documents had already been included in the bundles. As To J was a very experienced judge, they would not have escaped his attention and consideration.

40.The plaintiff also said that it was mentioned in paragraph 5 of the judgment that in the letter she gave the Legal Aid Department on 17 August 2007, she said she had nothing else to add. She said that was only in relation to the reason and the calculation regarding the application for the variation of maintenance only and not to the disappearance of her ex-husband. However, the letter did not expressly state she had “nothing else to add” in respect of what matter. To J only cited the content of the letter, he did not say that the plaintiff concealed anything or that the Legal Aid Department had never been made aware of the disappearance of the ex-husband. The plaintiff’s allegation that paragraph 5 of the judgment implied this is not supported by any objective fact.

41.Likewise, paragraph 7 of the judgment only sets out two matters that happened on 9 November 2007, namely, the plaintiff wrote to the Legal Aid Department and the Legal Aid Department refused the legal aid application of the plaintiff in writing. The said paragraph does not, as alleged by the plaintiff, say that the plaintiff only informed them about the disappearance of the ex-husband when she wrote to the Legal Aid Department on 9 November 2007 and that the Legal Aid Department only learned about his disappearance on that day.

42.Further, paragraph 7 of the judgment does not criticize the plaintiff for being unreasonable in not appealing against the decision to reject her application for legal aid and yet bringing legal action subsequently. The plaintiff’s explanation on why she did not appeal against the decision of the Director of Legal Aid to refuse her application was only part of the submission she made in court. That had nothing to do with the dispute of the case. There was no need for To J to cover this in his judgment.

43.In our view, the complaint that the background contained in the judgment does not reflect the whole truth lacks merit. This ground of appeal fails.

The acts of the ex-husband constituted criminal acts

44.Grounds 2, 3 and 4 set out in the plaintiff’s Notice of Appeal centre on the complaint that the ex-husband failed to perform the undertaking that he had made to the court and that he had stopped paying for the living expenses of the children. The plaintiff is of the view that the former is a criminal act of contempt of court and the latter is a criminal offence under section 27 of the Offences Against the Person Ordinance.

45.At law, there are two types of contempt of court, criminal and civil. The former targets acts that threaten the administration of justice. Offenders are punished for the sake of the public interest. Examples include interfering with court proceedings and disseminatinguntruth that attacks the credibility or fair administration of justice of the court. The latter concerns the refusal to obey a specific order a court has made against a party to a civil action or the failure to perform an undertaking he has given to the court. Whether it is a criminal or civil contempt of court, the court can imprison or fine the person who is held to be in contempt.

46.The plaintiff said the ex-husband had failed to perform the undertaking he had given to the court for failing to pay the living expenses of the children since May 2007. This is a civil contempt of court and not a criminal contempt of court.

47.The plaintiff cited paragraphs 18 and 19 of Secretary for Justice v Yuen Oi Yee Lisa, unreported, HCMP 2390/2008 (date of judgment: 25 October 2010) to support her argument that the act of the ex-husband fell within the scope of criminal contempt of court. Paragraph 18 says that the standard of proof in respect of contempt of court is the criminal standard of proof, that is, it has to be proved beyond all reasonable doubt. However, the paragraph makes no distinction between civil and criminal contempt of court. The two cases referred to (Kao Lee & Yip (a firm) v Donald Koo Hoi Yan (2009) 12 HKCFAR 830 and Secretary for Justice v Choy Bing Wing, unreported, CACV 11 of 2004, 3 December 2004) were respectively a civil and a criminal contempt of court case. And in paragraph 19, the court expressly states that breaching a court order or breaching an undertaking given to a court is civil contempt of court. Paragraph 20 further says that criminal contempt of court covers acts that interfere with or threaten the administration of justice. Yuen Oi Yee Lisa does not support the plaintiff’s argument.

48.She also referred the court to Fortin v Zegarowicz, 204 Wis 2d 113, 552 NW 2d 899, 1996 WL 363669, a case before the Court of Appeal of Wisconsin, USA.  The defendant in the case was held to be in contempt of court for deliberately refusing to pay the living expenses of the children and was sentenced to 60 days’ imprisonment. However, that was a case of civil contempt of court: see paragraph 2 of page 2 of the judgment (top of page 3 of the copy the plaintiff provided to the court)[2]. This case does not support the plaintiff’s argument that the ex-husband was guilty of criminal contempt of court. We must also point out that it is expressly stated in page 1 of the copy the plaintiff provided the court that it is an unpublished opinion of the court and that according to Rules of Civil Procedures, unpublished opinions are of no precedent value and may not be cited generally[3].

49.As regards section 27 of the Offences Against the Person Ordinance, its full text is:

“(1) If any person over the age of 16 years who has the custody, charge or care of any child or young person under that age wilfully assaults, ill-treats, neglects, abandons or exposes such child or young person or causes or procures such child or young person to be assaulted, ill-treated, neglected, abandoned or exposed in a manner likely to cause such child or young person unnecessary suffering or injury to his health (including injury to or loss of sight, or hearing, or limb, or organ of the body, or any mental derangement) such person shall be guilty of an offence and shall be liable-

(a) on conviction on indictment to imprisonment for 10 years; or

(b) on summary conviction to imprisonment for 3 years,

and for the purposes of this section a parent or other person over the age of 16 having the custody, charge or care of a child or young person under that age shall be deemed to have neglected him in a manner likely to cause injury to his health if he fails to provide adequate food, clothing or lodging for the child or young person, or if, being unable otherwise to provide such food, clothing or lodging, he knowingly and wilfully fails to take steps to procure the same to be provided by some authority, society or institution which undertakes to make such provision for necessitous children or young persons.

(2) A person may be convicted of an offence under this section, either on indictment or by a court of summary jurisdiction, notwithstanding that actual suffering or injury to health or the likelihood of such suffering or injury to health was obviated by the action of another person.

(3) A person may be convicted of an offence under this section, either on indictment or by a court of summary jurisdiction, notwithstanding the death of the child or young person in respect of whom the offence is committed.”

50.The plaintiff argued that, under section 27(1), the ex-husband was “a person having the custody, charge or care”, because according to the undertaking he had given to the court, he had the responsibility of paying for the living expenses of the children, an undertaking that he had failed to perform. He willfully neglected and abandoned the children and hence he committed the offence under section 27(1). Although the children were free from actual suffering or injury to health due to the care given to them by the plaintiff, on the basis of section 27(2), the ex-husband can still be convicted of the offence. The plaintiff cited Child Maintenance & Enforcement Commission v Julian Davies [2010] Scot SC 26 and the Child Support Act 1991that the said case was concerned with to support her argument.

51.Julian Davies was a case of the Scottish Sheriff Court. The court made a Liability Order against the respondent in a case of failing to pay for the living expenses of the children. The applicant of the case was a statutory body authorized to execute Liability Orders in respect of maintenance for children. As the respondent had not complied with the Liability Order to pay for the living expenses of the children, pursuant to an application the applicant made, the court set down the matter for hearing to decide if it should exercise its power to commit him to custody. He did not attend the hearing. As the court bailiffs were unable to contact him by means of his last known address and telephone number, pursuant to the Child Support Act 1991 and the Act of Sederunt (Child Support Rules) 1993, the applicant applied to the Sheriff Court for a warrant of his arrest to compel him to attend the court hearing for the purpose of finding out his financial position. The first instance judge refused the application. The plaintiff appealed against the decision. The Principal Judge allowed the application and pointed out that according to the aforementioned Rules, the Court must hold a hearing in the situation where a respondent failed to obey a Liability Order. To ensure his attendance, it was necessary to exercise the power the Act conferred on it to issue a warrant for the arrest of the respondent. The Principal Judge also pointed out that as the warrant was issued according to the legal procedures laid down in the Act, there was no question that it violated the rights enshrined in Articles 5 and 6 of the European Convention on Human Rights: See paragraph 27, 38-42 of the judgment.

52.Obviously, Julian Davies was based on the aforesaid legal provision and the legal procedures those provisions had laid down. Although Article 8 of the Basic Law provides that the laws previously in force in Hong Kong, including the common law, shall be maintained, except for any that contravene the Basic Law, and subject to any amendment by the legislature, laws enacted by the legislature of the UK or other common law jurisdictions will not automatically become part of the laws of Hong Kong. Neither the Child Support Act 1991 nor the Act of Sederunt (Child Support Rules) 1993 referred to in Julian Davies is part of the laws of Hong Kong. Julian Davies was a decision made based on these laws. It is not binding on the courts of Hong Kong. In any event, the cases decided in common law jurisdictions other than Hong Kong only have reference value to the courts of Hong Kong (Article 84 of the Basic Law) and are not binding on them. To J was correct when he said in paragraph 17 of the judgment that the Child Support Act 1991 and the cases decided according to UK laws were not applicable to Hong Kong. The criticism the plaintiff made in this respect has no legal basis. This ground fails.

53.Besides, the decision in Julian Davies does not support the submission the plaintiff made that it is a criminal offence for someone who has support and custody responsibility to move to another address, change the telephone number and go missing. In that case, the court issued a warrant of arrest against the respondent not because he failed to pay for the living expenses of the children and hence committed a criminal offence, but because of the need to ensure that he would attend the hearing that executed the Liability Order and enquired into his financial position.

54.As far as the applicability of section 27(1) of the Offences Against the Person Ordinance is concerned, To J was of the view (in paragraph 16 of the judgment) that it targets people who have actual custody, charge and care of the children or young person affected. But in the present case, the children of the family lived with the plaintiff who should in fact be the person who had the actual custody, charge or care of them. The plaintiff has no evidence to prove that the ex-husband was the person who had actual custody, charge and care of the children. To J also held the view that the plaintiff had not been able to prove that the intentional acts of the ex-husband might have caused unnecessary suffering or injury to health to the children.

55.In our view, it is arguable whether section 27(1) only targets people who have actual custody, charge or care of the children or young people affected. Whether or not someone has actual custody, charge or care also involves findings of facts which are dependent on the evidence adduced during trial: see R v Connor [1908] 2 KB 26. Besides, whether or not the acts of wilful ill-treatment, neglect, abandonment or desertion are likely to cause such child or young person unnecessary suffering or injury to his health is also a question of facts that requires a consideration of the evidence before the court at trial. However, in view of the finding we are going to make below on the question of duty of care, the success or otherwise of the plaintiff in this claim and the present appeal does not turn on whether the ex-husband had violated section 27(1).

Duty of care

56.The 5^th and 6^th grounds the plaintiff advanced in her Notice of Appeal are in respect of the findings To J made in paragraphs 24 to 30 of his judgment. In them, he pointed out that even if the plaintiff could successfully prove that the Commissioner of Police and the staff of the Legal Aid Department had respectively breached the duty of care under the Police Force Ordinance and the Legal Aid Ordinance (Laws of Hong Kong, Cap 91), it did not constitute a cause of action for breach of duty of care at private law. He explained as follows in paragraphs 26 and 27 of his judgment:

“26. The Police Force Ordinance provides for the constitution of the police force, police discipline and duties, police powers, procedure and miscellaneous matters. The statutory duties imposed by section 10 on the Police Force to investigate crimes and to arrest and prosecute offenders are for the protection of the public safety of the society as a whole, not for the protection of the interests of a limited class of the public. The Ordinance does not expressly provide that if the Police Force is in breach of a statutory duty, it has to be liable for the damage suffered by any member of the public protected by that duty as a result of such breach. Nor is there anything in the Ordinance which enables me to draw an inference that, apart from imposing the statutory duties on the police, the legislature also intended to make the police force liable for damage suffered by a member of the public protected by a statutory duty as a result of a breach of that duty. In my judgment, the Police Force Ordinance does not impose on the police force any civil duty of under private law. If the police force is in breach of a statutory duty, it will not give rise to a private law cause of action in favour of the general public.

27. The main objective of the Legal Aid Ordinance is to grant legal aid to people with limited means so that they can conduct civil proceedings.  The Director of Legal Aid is under a statutory duty to handle applications for legal aid and grant legal aid to eligible applicants.  This statutory duty is not intended to cater for the interest of a limited class of the public.  It is particularly worth noting that an applicant for legal aid who is aggrieved by a decision of the Director of Legal Aid refusing the application may, pursuant to section 26 or 26A (as the case may be), lodge an appeal to the Registrar of the High Court or bring the decision on review before a special committee formed by the Court of Final Appeal (sic).  These provisions indicate that the intention of the legislature in enacting the Legal Aid Ordinance is that, if the Director of Legal Aid is in breach of his statutory duty, the form of relief available to an applicant for legal aid is to seek an appeal or review, and the Ordinance does not give rise to a cause of action under private law.  Furthermore, as a matter of policy, if a duty of care under private law was imposed on the Director of Legal Aid in addition to the statutory duty, it would be difficult for LAD to operate effectively.  In order to avoid civil liability under private law, the LAD staff might, for fear of receiving complaints or becoming involved in legal proceedings, issue legal aid certificates indiscriminately, thereby causing abuse and wastage of resources; even worse, the whole legal aid system would come to a standstill, as a result of which those who were eligible for legal aid would not obtain the service they should receive.  Therefore, in my judgment, the legislative intent behind the Legal Aid Ordinance is to impose on the Director of Legal Aid certain statutory duties which are owed to the public, but these duties are not intended to give rise to civil duties of care under private law.  It follows that, even though the Director of Legal Aid was in breach of the statutory duty, it did not give rise to any cause of action in favour of the Plaintiff.”

57.The grounds the plaintiff advanced argued that according to Hill v Chief Constable of West Yorkshire [1989] 1 AC 53, 56A, like all other public officers, policemen may be held liable in tort for breach of a duty of care. She also argued that pursuant to section 4 of the Crown Proceedings Ordinance (Cap 300), the Government is legally liable for the torts committed by its employees or agents. Besides, Article 35 of the Basic Law provides that Hong Kong residents have the right to institute legal proceedings in the courts and to sue the executive authorities.

58.She further argued that the Police Force and the Legal Aid Department owed her a duty of care. She referred this Court to several of the paragraphs in pages 568, 879 and 882 of Booth & Squires, The Negligence Liability of Public Authorities (2006), to support her argument. She submitted that if it could be proved that there existed between her and the Police a special relationship, and that the Police owed her such a duty at public law, then she had a cause of action to sue on the ground that the police did not arrest the ex-husband who had committed a criminal offence. She further submitted that the ex-husband’s failure to support the children put their health and lives at immediate risk. Therefore, she and the children were not just random members of the massive population but amongst the handful of victims injured by the criminal acts. Therefore the police owed a special duty to them. As regards the claim against the Legal Aid Department, the plaintiff submitted that if there was no appeal mechanism for a claimant to challenge the acts of dereliction of duty on the part of public servants and where such derelictions were the result of executive errors, the public officers wouldalso have to bear a duty of care. She further submitted that her legal aid application was refused as a result of the failure of the staff of the Legal Aid Department to perform the duties set out in the Legal Aid Ordinance. It was the result of maladministration. She therefore had a cause of action to claim against the defendant. She argued that it was wrong for To J to think that the Legal Aid Department would hardly be able to operate effectively if the duty of care under private law was imposed on the statutory duties of the Director of Legal Aid.

59.Both the plaintiff and the defendant relied on Hill v Chief Constable of West Yorkshire in their submissions. Since that decision, the House of Lords in two other cases further elaborated on the question of law of whether or not policemen owed a duty of care towards victims or witnesses of crimes (Brooks v. Commissioner of Police of the Metropolis & Ors [2005] 1WLR 1495 and Smith v. Chief Constable of Sussex Police [2009] 1 AC 225). In view of this, we provided the parties with these cases during the hearing of the appeal. They both made supplemental written submissions in respect of these cases later.

60.The parties did not dispute that section 10 of the Police Force Ordinance set out a list of duties of the Police Force, which includes the duties to preserve the public peace, to detect crimes, to prevent injury to life and to apprehend all persons whom it is lawful to apprehend and for whose apprehension sufficient grounds exists. They also did not dispute that the Director of Legal Aid had the statutory duty to provide people of limited means with legal aid to pursue civil litigation as prescribed by the Legal Aid Ordinance. The difference between the parties was whether or not the Police Force and the Legal Aid Department had breached the above-mentioned statutory duties, and if the plaintiff could prove that they had breached the statutory duties, whether they owed her a duty of care under common law to constitute for her a cause of action at private law to claim against the defendant in this case.

61.We have already discussed in paragraphs 44 to 55 above the question of whether it was correct for the police to consider that no criminality was involved in the ex-husband’s failure to honour the undertaking he had given to the court to pay the living expenses of the children and made only a record of the plaintiff’s complaint without investigating or arresting ex-husband. As regards the question of whether or not the Legal Aid Department had breached its statutory duty as the plaintiff alleged, it will be dealt with later in this judgment.  The question the plaintiff raised in this respect in the appeal is whether or not the Police Force and the Legal Aid Department owed her a duty of care to give rise to a cause of action for her to make a claim against them under the common law.

62.As far as the broad principles are concerned, it is correct for the plaintiff to say that the Police Force and public servants might have to be liable in tort under the common law for their acts of negligence. However, just because the Police Force or public servants had been negligent in performing their statutory duties is not sufficient to renderthem liable for negligence under the common law.  It is also necessary for the claimant to show that the circumstances of the case were such that they owed him/her a duty of care under the common law: X (Minors) v Bedfordshire County Council [1995] 2 AC 633, 734H to 735A. He must satisfy the three-part test laid down in Caparo Industries Plc v Dickman [1990] 2 AC 605: (1) The harm the claimant suffered was a reasonably foreseeable consequence of the defendant’s negligence; (2) There existed between the claimant and the defendant a relation of sufficient proximity; and (3) It was fair, just and reasonable to impose the duty of care the claimant claims to have existed on the defendant.

63.Besides, in cases where the police are accused of having been negligent in the investigation of crimes and the apprehension of a criminal, whether or not they should owe the victim a duty of care also involves public policy considerations. In Hill v Chief Constable of West Yorkshire, the House of Lords held that the police owed the victim who was killed by a serial killer no duty of care not only because she was only a member of public who had no relationship of proximity with the police but also because of public policy considerations. In page 63, the House of Lords opined that once a duty of care had been imposed, when the police were executing their duties, they might become defensive to protect themselves in order to avoid legal liabilities. This is not in the public interest. Moreover, once the police are dragged into litigation, they will have to divert the time and resources that should have been used on performing their duties to deal with the litigation. Further, in this kind of litigation, the court will have to examine some of the internal police policy decisions, but it is not appropriate for the court to judge whether such policy decisions are reasonable or not. The House of Lords therefore held that the police should be exempted from being held liable for civil negligence in respect of the acts they performed for the purpose of investigating and suppressing crimes on the ground of public policy. This principle will hereinafter in this judgment be referred to as the core principle of Hill’s case.

64.In Brooks v Commissioner of Police for the Metropolis, the House of Lords examined the legal developments that had taken place since Hill, including some decisions of the European Court of Human Rights[4]. Although the five members of the House of Lords did not endorse the full breadth of what Hill had laid down,[5] they all agreed that the core principle of Hill’s case had remained unchallenged in the UK domestic jurisprudence and in European jurisprudence. They held that as a matter of public policy the police generally owed no duty of care to victims or witnesses in respect of their activities when investigating crimes and suppressing them[6]. Admittedly, the House of Lords did not rule out that in some exceptional circumstances, the police might owe them a duty of care.

65.Later, in Smith v Chief Constable of Sussex Police, the House of Lords once again examined the core principle of Hill’s case. Four of the members (with Lord Bingham dissenting) endorsed the principle of the judgment in Brooks and reiterated that when deciding whether the police had to bear a duty of care, public policy was an important consideration. The majority decision of the case affirmed the core principle of Hill. It held that considering the question in the light of public policy and the collective interest of the society, no duty of care should be imposed on the police in their activities to investigate and suppress crimes for the reason that to do so would encourage defensive policing and divert manpower and resources from their function of suppressing crimes and apprehending criminals[7]. The four members did not endorse the liability principle Lord Bingham propounded. However, they did not deny that beyond investigating and suppressing crimes (that is, outside the scope defined in the core principle of Hill’s case), the police might have to bear a duty of care while pointing out that it would only be in very exceptional circumstances[8].

66.In her supplemental written submission, the plaintiff argued that Brooks and Smith were not capable of rebutting the claim that the Hong Kong Police did owe her a duty of care. However, her understanding of the facts and the reasons for judgment of the two cases was not entirely accurate. She argued that Brooks could be distinguished from the present case. In that case, the police had already spent massive resources to conduct investigation for as long as 59 days and yet were still unable to confirm the story of the plaintiff[9]. Besides, the original judgment for negligence in that case was only set aside on appeal[10].

67.The understanding of the plaintiff in these regards is wrong. In that case, the police mistakenly took the plaintiff as a suspect and did not investigate into the story he gave. It was only at a subsequent stage that an inquiry was held and a report (Macpherson Report) was submitted by an independent investigative team appointed by the government. The Report concluded that there was serious deficiency in both the handling of the plaintiff and the investigative work regarding the murder of his friend by the police and severely criticized them for these[11]. Besides, the case never went to trial because the defendant applied to the court for striking out on the ground that the claim lacked a cause of action. The application was allowed. However, the Court of Appeal overturned the decision and held that part of the claim should not have been struck out. The defendant appealed to the House of Lords against this decision. In the end, the House of Lords allowed the appeal and struck out the claim[12]. In our view, the legal principles laid down in that case are applicable to the present case.

68.As far as the paragraphs preceding page 251 in the report of Smith that the plaintiff referred the court to are concerned[13], they were only the submissions made by counsel representing the parties and not part of the judgment of the court. Besides, the judgment of Lord Bingham[14] and the liability principle he propounded (which she relied on) were only the views of the minority and not the ratio decidendi of the case given only in the majority judgment by the remaining four members. They did not, as alleged by the plaintiff[15], hold that the police owed no duty of care because the plaintiff of the case still maintained contact and lived with the assailant for several days after having been threatened by him to make the police believe that his life was not in immediate and sustained danger. While endorsing the core principle of Hill, the four members considered that there was nothing exceptional in the nature of the circumstances of the case to make it fall within the circumstances outside the core principle of Hill[16]. Besides, the plaintiff said the judges in the case considered that if the plaintiff of the case had made a choice in time, he would have successfully made out a cause of action of breach of duty[17]. Yet, in that paragraph[18], Lord Hope was describing a situation where the plaintiff had brought the claim under section 2 of the Human Right Act 1998, adding that he expressed no opinion on whether the plaintiff, if had chosen to do so in time, would have succeeded in establishing a cause of action of breach of duty[19].

69.The plaintiff also argued in her written submission that the claims of Brooks and Smith were founded on the basis of the UK Human Rights Act 1998, and queried that if the statutes outside Hong Kong were not applicable to Hong Kong, then these decided cases could not be accepted as legal bases either[20]. However, both Brooks and Smith were brought under law of tort in common law and not the Human Rights Act 1998.  Both decisions centred on the question of whether the police owed a duty of care under common law.

70.In our view, the principles in the decisions of Brooks and Smith and the core principle of Hill are applicable parts of the common law of Hong Kong. In view of the public policy consideration referred to in both cases, the police do not generally owe the victims or witnesses involved in criminal investigative work any civil duty of care.

71.In the present case, the plaintiff complained to the police that the ex-husband had breached the undertaking he had given to the court for having stopped to pay for the living expenses of the children. Even if the police had been wrong in thinking that the matter involved no criminality, or had been wrong in deciding not to investigate and apprehend the ex-husband, the nature of the plaintiff’s claim still falls within the core principle of Hill and constitutes no exceptional circumstances. The police owed the plaintiff no civil duty of care.

72.In her oral submission, the plaintiff said her claimed involved police operation, and therefore had nothing to do with the public policy that the core principle of Hill was concerned with. We do not agree with these submissions. The plaintiff’s claim was based on omissions on the part of the police, namely, their refusal to take on her complaint and failure to take investigative action and to effect arrest, thus causing harm to her and the children. Her claim was not made on the basis that the police had been improper or negligent in their execution of certain actions or duties and thus causing her harm. The plaintiff could not claim that her claim was related to police operation and by that assertion, evade the core principle of Hill and the relevant public policy considerations[21].

73.In the light of the above analysis, the plaintiff has failed to establish that the police owed her a duty of care. It is therefore unnecessary for this Court to discuss the question of whether or not there existed a relation of sufficient close proximity between her and the police. The plaintiff had no cause of action to make a claim in respect of the failure of the police to take on her complaint. The decision of the Master to strike it out was correct, so was To J’s dismissal of her appeal.

74.As regards the question of whether or not the Legal Aid Department owed the plaintiff a duty of care at common law, apart from considering the three-part test laid down in Caparo Industries Plc v Dickman, it must be borne in mind that any common law duty of care imposed on a statutory duty should not give rise to any conflict with the existing statutory duty or cause any impediment to the proper performance of the existing statutory duty: see page 739 C-E of X(Minors) v Bedfordshire County Council; Kaisilk Development Ltd v Urban Renewal Authority [2004] HKLRD 907, paragraph 43 at 923; and Desmond v Chief Constable of Nottinghamshire Police [2011] EWCA Civ 3, paragraphs 37-42.

75.Under the Legal Aid Ordinance, the statutory duty of the Legal Aid Department is to provide legal aid to people who meet the requirements stipulated in the Ordinance to take civil action. As To J pointed out in paragraph 27 of his judgment, this statutory duty is not created for the benefit of some particular members of the public. Just as Mr Suen had submitted, the Ordinance does not impose any restriction on the identity or category of the legal aid applicants.

76.Besides, the Legal Aid Ordinance has put in place an appeal mechanism. Pursuant to sections 26 and 26A, an applicant for legal aid can appeal against the decision of the Director of Legal Aid to reject his application.

77.We agree with the decision of To J. Judging by the legislative framework of the Ordinance, the legislative intent of the Legal Aid Ordinance is that should the Director of Legal Aid breach his duty at law, an applicant for legal aid can seek legal relief by lodging an appeal or applying for judicial review in public law. It does not confer on him a civil cause of action.

78.Further, due to limited government resources and the duty the Legal Aid Department has in respect of public funds, abuse of legal aid services has to be avoided. Therefore, the Director of Legal Aid also has the statutory duty to examine the applicants’ means and the merits of their cases. If in the discharge of this statutory duty, the Director of Legal Aid at the same time owes an applicant for legal aid a duty of care, it will obviously affect the proper discharge of the statutory duty by the Director. Therefore, it is not reasonable to impose the common law duty of care on the Director of Legal Aid on top of the statutory duty he has. This is also violates the principle laid down in X (Minors) v Bedfordshire County Council, namely thata duty of care that will affect the proper discharge of statutory duty should not be imposed.

79.The plaintiff cited A v Secretary of State for the Home Department[22][2004] EWHC 1585 (Admin) and comments on the case at paragraphs 18.16-18.23 of Booth & Squires, The Negligence Liability of Public Authorities. In that case, the claimant, who had his passport wrongly endorsed by an Immigration Officer was rendered unqualified to apply for social security. Keith J was of the view that the government was liable for the tort of negligence. He did not agree that to impose the duty of care on the staff of the Immigration Department would affect the effective use of the immigration control system and make the staff concerned adopt a defensive work attitude. The plaintiff argued that this case showed that it was wrong for To J to say that to impose the duty of care on the Director of Legal Aid would make it difficult for the Legal Aid Department to operate.

80.Booth & Squires put the case under the category of cases of public organization dealing with social security benefits, and considered that it showed that a duty of care might be imposed on the authority in question when two conditions are met. The two conditions are: (1) the claimant did not have available to him or her a means of challenging the failure to pay benefits through the statutory appeal mechanism; and (2) the negligence was an administrative decision made by the employee of a public authority and not a discretionary judgment. The authors of Booth & Squires made it clear[23] that where a statutory appeal mechanism existed, no duty of care would be owed at common law to ensure that the correct benefits were paid to the claimant. As pointed out earlier, there is an appeal mechanism under the Legal Aid Ordinance for an applicant for legal aid to appeal against the decision of the Director of Legal Aid.

81.What is more important is the comment Booth & Squire made on the case[24]. It said that the decision in A was significantly different from the decisions in other cases of the same type, in particular where it pertains to claims for pure economic loss. In those cases, the court generally would not hold that the public authorities owed a duty of care to avoid the economic loss suffered as a result of negligence. Besides, the doctrine of “general reliance” relied on in A was also not accepted by other courts. The conclusion Booth & Squire reached[25] was that the courts in the future would likely go back on the decision in the A case, or, at least, seek to narrow down its applicability.

82.As Booth & Squire has pointed out, we have reservations regarding the applicability of the A case, and whether or not it is applicable to the present case in the circumstances of the Legal Aid Department. We do not consider that Keith J’s approach on public policy consideration in Arendered it wrong for To J to hold that the Legal Aid Department owed the plaintiff no duty of care.

83.In view of the above analysis, we are of the view that the Legal Aid Department owed the plaintiff no duty of care. The appeal of the plaintiff on the question of duty of care fails.

Other arguments

84.The 6th ground the plaintiff advanced in her Notice of Appeal complains that the staff of the Legal Aid Department still proceeded to vet her financial situation and demand information from her when knowing full well that she was not able to contact the ex-husband, so that, as a result, she often had to take leave from work but was in the end denied legal aid assistance. Such conduct comes within the definition of “maladministration” in the Ombudsman Ordinance, Cap 397, Laws of Hong Kong. She therefore has a cause of action to lodge a claim. We do not accept this argument. The definition and provisions relevant to “maladministration” in the Ombudsman Ordinance are mainly applicable to the definition of the function, duties and investigative work of the Ombudsman.Even if there was indeed “maladministration” conduct as defined by the Ordinance, it does not mean that the plaintiff will therefore have a cause of action to pursue a civil claim.

85.In the 6th ground of appeal, the plaintiff also complains that in paragraph 30 of To J’s judgment, he wrongly thought that part of the vetting of the facts of the case was to demand the Government to make available the address of the ex-husband on behalf of the plaintiff, and it must be completed before the granting of legal aid. The plaintiff was of the view that enquiring the address of the ex-husband was only a preliminary step of the legal procedures which should only begin after legal aid had been granted. We do not agree with this criticism. What To J said in paragraph 30 was in response to the 7^th ground the plaintiff advanced in her appeal, that is, the Legal Aid Department had the duty to require the Police Force to find out and provide information about the ex-husband with the help of a lawyer. To J held that during the time when the legal aid application was being processed, the plaintiff had yet to be granted a Legal Aid Certificate, the Legal Aid Department therefore did not have the power to conduct investigative work on her behalf with public funds. In other words, before the Legal Aid Department had issued a Legal Aid Certificate, it could not make enquiries to find out the address of the ex-husband, nor did it have the duty to do so. Paragraph 30 is not saying that that the Legal Aid Department should already make enquiry to find out the address of the ex-husband on behalf of the plaintiff before it issued the Legal Aid Certificate. As a matter of fact, the real complaint of the plaintiff is that the Legal Aid Department should not reject her application for legal aid on the ground that she could not give the contact address of her husband. What it should have done was to grant legal aid first, and then enquired of the Police Force or other Government departments with the help of a lawyer on behalf of the plaintiff. But as the Master had pointed out, if the ex-husband could not be found, it was futile to apply for variation of maintenance and custody. Therefore, it was neither wrong nor improper for the Legal Aid Department to take into account whether or not the ex-husband could be found when vetting the facts of the case.

Conclusion

86.In view of the above analysis and reasoning, the appeal of the plaintiff fails. We dismiss it.

Costs

87.The general principle of litigation is that costs follow the event. We order that the plaintiff shall pay the costs of the defendant in this appeal to be assessed if not agreed.

Order

88.We make the following orders:

(1) The appeal is dismissed.

(2) The summons of the plaintiff to adduce new evidence during the appeal is dismissed.

(3) The plaintiff’s application for leave to amend the Notice of Appeal is refused.

(4) The plaintiff to pay the defendant the costs of the appeal, including those for the aforesaid summonses of the plaintiff, with the amount to be assessed by the court if not agreed.

The plaintiff, in person, present.

Suen Sze Yick, Senior Government Counsel (Acting), for the defendant.

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr P. Y. Lo, Barrister-at-law