Chung Sau Wah v. Registrar of the High Court

HCAL150/2016

[2018] HKCFI 1489

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 150 OF 2016

BETWEEN

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of the documents only;     or
	consideration of the documents and oral submissions by Senior Counsel for the Applicant in open court;

Order by the Honourable Mr Justice Au:

1.   Leave to apply for judicial review refused; and

2.   There be no order as to costs.

Observations for the Applicant:

1.The proposed grounds of judicial review raised by the applicant are not reasonably arguable for the following reasons.

2.The Director of Legal Aid (“the DLA”) refused to grant legal aid to the applicant and set out her reasons in the written decision (“the DLA’s Written Reasons”) dated 13 April 2016.  They are as follows:

“鍾秀華女士（下稱「申請人」）申請法律援助以向前夫史楊明先生（下稱「前夫」）申索一筆過的贍養費。

案件背景

2. 申請人與前夫於1986年結婚，雙方無兒女。前夫於1994年2月8日提交離婚呈請書（附件一），當時申請人稱不希望要求任何附屬濟助（附件二）。法庭於同年6月28日發絕對離婚令（附件三）。

3. 離婚當時申請人37歲，有自己收入。

4. 申請人現在想向前夫追索一筆過贍養費$5,040,000。此金額為她21年生活開支（每月$20,000）（附件四）。

物業

5. 前夫於1986年買入一個大埔中心的單位（附件五），該單位由前夫付款，雙方於約1991年搬到警察宿舍而前夫以125萬元賣出大埔中心的單位。於1993年4月14日，雙方以聯權方式買入康栢苑（居者有其屋）一個單位（下稱「物業」）（附件六）。當時物業售價為$978,700。

6. 離婚後申請人居於公屋。申請人稱前夫答應讓她住在她母親名下的公屋直至她能成功申請公或居屋為止（附件七）。申請人稱前夫現欲收回母親的公屋單位。

7. 申請人早於1999年10月2日將她於物業的權益無償轉讓給前夫（附件六、八及九），當時尚有按揭欠款$644,157.64（附件八）。有關物業按揭欠款已於2011年12月清繳（附件六）。

8. 申請人否認她有將物業權益轉讓給前夫。她稱她於2015年突然欲了解一下物業權益狀況，才發現物業權益已轉讓予前夫，她之前並不知情。

拒絕法援原因

9. 本署不認為申請人有充份理據於離婚後22年向前夫追討任何贍養費，乃至於前夫須負責她離婚後21年來的生活費。離婚當時雙方只結了婚8年，其間申請人亦有獨立經濟能力，申請人離婚時為37歲左右，申請人對家庭的經濟貢獻亦有限（她稱她買傢俬、電器及食物，但前夫曾還給了她$200,000作「買菜錢」）（附件十）。

10. 申請人離婚當時以書面形式表達不索取任何贍養費，因此，法庭當時並無作出任何附屬濟助命令。

11. 本署認為法庭現在不會對此案作出任何贍養費的命令或給予申請人申請附屬濟助的許可（根據婚姻訴訟規則第 68(2) 項）（附件十一）。申請人在22年後才提出申請，無疑有嚴重延誤，而此延誤亦令前夫有虛假的安全感 (false sense of security)，以為申請人不會對前夫提出申請，而對前夫做成不公（見R v R (Leave to Apply for Ancillary Relief) [2007] HKFLR 92）（附件十二）。這申請亦不符合法庭鼓勵徹底分割 (clean break) 的原則。

12. 有關物業方面，本署不相信申請人當時沒有簽署同意轉讓物業權益。本署對比過申請人申請法援文件上的簽署（如附件四、十三及十四）及當時轉讓文件上申請人的簽署（附件八及九），認為同屬一人筆跡。而且，有關的物業轉讓書於律師行簽署（附件八），本署認為簽署真實性有一定保證。申請人有就懷疑偽冒簽署報警（附件十五（惟申請人於提供該口供予本署時稱口供不準確而進行了頗多修改）），但警方並無作出檢控。

13. 總括而言，本署看不到有任何證據証明有關簽署為偽冒。相反，本署認為法庭會相當質疑申請人的誠信及口供的真確性；本署相信申請人當時自願放棄物業權益（如有）。而且，物業是由前夫付款，申請人不認為申請人有理由以歸復信託等名義向前夫申索物業的任何權益（或以其於物業權益名義申請一筆過贍養費）。

14. 基於上述理由，本署認為申請人並無合理理據向前夫追索一筆過的贍養費，而在有關情況下，給予法援予申請人實屬不合理，因此本署拒絕了她的申請。”

3.After hearing the applicant’s appeal against the DLA’s refusal to grant legal aid on 20 May 2016, the learned Master dismissed the applicant’s appeal on 23 May 2016.  In the Memorandum of the same date, the Master stated that he agreed with the DLA’s reasons in dismissing the appeal as follows:

“I, following the directions set out in Nguyen Trong Son v Director of Legal Aid (LAA 20/1999, unreported, 15 December 2000) and having thoroughly considered the Applicant’s case, have dismissed the appeal, as I agreed with the reasons for refusal of the Director of Legal Aid.”

4.In this intended judicial review challenge, the applicant contends that the learned Master’s decision (“the Decision”) to dismiss the legal aid appeal lacks adequate or sufficient reasons, or commits errors of law.[1]  Mr Wong SC (together with Mr Edward Chan) has elaborated these grounds at the hearing in a number of ways.  I will consider them in turn.

5.First, Mr Wong complains that the learned Master in adopting the DLA’s reasons to dismiss the appeal must have also adopted her reason in forming the view that the applicant’s signature on the deed of assignment (“the Deed”) and those signed by the applicant on the legal aid application documents were of the same handwriting (see paragraph 12 of the DLA’s Written Reasons).  This however is erroneous, since the learned Master expressly indicated to the applicant’s counsel at the hearing that he would not take into account “the point made by the parties on the similarities or discrepancies between [the applicant’s] signature [on the assignment] and [her] signatures on other documents since the determination of such issue would require expert evidence”.[2]  In the premises, this part of the Master’s reasons is wrong in law, as he had either taken into account an irrelevant consideration (since he had expressly indicated that he would not take into account in considering the appeal issues relating to the signature handwriting similarities or discrepancy) or, if he had indeed adopted the DLA’s above conclusion on this point, it was not supported by evidence.

6.With respect, this complaint is unarguable.  The learned Master’s stated adoption of the DLA’s reasons must be understood in context of his above express indication at the hearing which was held just three days before the Decision.  His stated adoption of the DLA’s reasons must thus be reasonably understood to mean that he had adopted all the DLA’s reasons except the DLA’s view that the signature on the Deed was likely to be the applicant’s as that was similar to her other signatures on the legal aid application documents.  For the purpose of the rest of this decision, whenever I refer to the Master’s adoption of the DLA’s reasons, it should be similarly understood to be subject to that extent.

7.Second, Mr Wong’s further complaint about the Decision is this:

(1)   In arguing why the applicant’s intended claim against her former husband for the return of the half of the interest in the subject property had reasonable merits, the applicant’s then counsel (Mr Edward Chan) appearing before the Master had emphasized in his submissions that it was inherently improbable for the applicant to have voluntarily surrendered half of her registered interest in the property (by signing on the Deed) some five years after the divorce, and without claiming any maintenance from the husband upon divorce.

(2)   In this respect, Mr Wong has emphasized that, in running the inherent improbability argument before the Master, the applicant’s then counsel specifically submitted that:[3]

(a) it is inherently improbable for the applicant to give away her half interest in the property to her ex-husband five years after divorce at nil consideration (paragraph 14 of counsel’s skeleton);

(b) there is no evidence from the ex-husband explaining why the applicant would do so (paragraph 15 of counsel’s skeleton);

(c)  there is no evidence from the attesting solicitor explaining how the Deed was signed, what steps were taken to verify the identity of the signatory, etc. (paragraph 15 of counsel’s skeleton);

(d) there is no evidence from any handwriting expert on the authenticity of the purported signatures of the applicant and the DLA erred in failing to pay sufficient attention to the material discrepancies between the purported signature on the Deed and the applicant’s other signatures (paragraphs 10 - 13 of counsel’s skeleton);

(e) the corrections made by the applicant to her statement given to the police were not fatal or material to her credibility (paragraph 17 of counsel’s skeleton).

(3)   Mr Wong submits that however the learned Master, in adopting the DLA’s reasons, had simply failed to refer to and deal with at all the inherent improbability submissions.  It is thus simply unclear to the applicant as to whether the learned Master had taken the submissions into consideration at all and, if even so, on what basis he had rejected them.  Further, without explaining why the inherent improbability submissions were rejected (if they were indeed rejected), it is also unclear as to why the DLA’s reasons (which were adopted by the learned Master) were sufficient to do so.  In the premises, the Decision lacks adequate or sufficient reasons.[4]

8.With respect to Mr Wong’s skilful submissions, I am unable to agree.

9.It must first be remembered that in deciding whether or not to grant legal aid to an applicant, the DLA has to and can only assess the merits of the applicant’s intended claim by looking at the evidence and materials available at that time as a whole.

10.Bearing this in mind, the DLA’s reasons in rejecting the applicant’s legal aid application for her intended claim for the recovery of her interest in the property must be understood as a whole and in proper context. When so properly understood, what the DLA was saying was that the applicant’s case of forgery was on balance of probabilities incredible and would likely to be doubted by the court when considered against the following available objective or not disputable evidence (which were adopted by the learned Master), pointing towards the incredibility of the applicant’s allegation of forgery:

(1)    From the evidence, the property was purchased all by the husband’s own funds, and the applicant had not contributed anything of substance to the family finances at the time of divorce (see paragraphs 5, 7, 9 and 13 of the DLA’s Written Reasons).

(2)    The Deed was prepared by, and the applicant’s signature was witnessed by, a solicitor.  This supported significantly that the signature was a genuine one by the applicant (see paragraph 12 of the DLA’s Written Reasons).

(3)    The applicant indeed made a report to the police complaining the forging of her signature on the Deed.  However, the police had not taken any prosecution. Further, when providing her police statement to the DLA when applying for legal aid, the applicant then said there were many inaccuracies and errors on the statement, and she purported to make changes to it (see paragraph 12 of the DLA’s Written Reasons).

(4)    On the contrary, there was no other evidence, save as the applicant’s own allegation, to support that the signature was a forged one (paragraph 13 of the DLA’s Written Reasons).

11.In adopting these reasons, objectively, it must be the learned Master’s view that the above evidence and matters even considered against the inherent improbability submissions still pointed to the conclusion that, on balance of probabilities, the applicant’s allegation of forgery was not credible.

12.As far as this court can see, this conclusion is in any view a reasonable one open to the learned Master to reach based on those available evidence, in particular when considered against the following indisputable position:

(1)    The burden was squarely on the applicant to prove the allegation of forgery, which was the fundamental basis of her intended claim.[5] The success of this therefore rested upon her credibility at trial.  However, the standard of proving fraud (and forgery) is a high one, albeit on a balance of probabilities.  The applicant must prove it at trial with cogent and clear evidence.

(2)    Bearing the above burden and standard of proof in mind, when the applicant’s mere allegation of forgery was considered against all the objective or undisputed evidence taken into account by the DLA and thus the Master, it must be reasonably open to the learned Master to conclude that, despite the inherent improbability submissions, the applicant’s intended claim had no reasonable chance of success and thus the DLA was correct in refusing legal aid.

13.Mr Wong then says the learned Master has not specifically dealt with counsel’s specific points made under the inherent improbability argument as summarized at paragraph 8(2) above.  These included in particular the absence at this stage of evidence from the ex-husband, the attesting solicitor and the handwriting expert to rebuke the applicant’s case.  It is therefore simply unclear in the learned Master’s reasons why these specific points did not support the merits of the applicant’s claim.

14.I do not think this assists Mr Wong.  As fairly pointed out by leading counsel himself, in assessing the adequacy or sufficiency of reasons, it has been said that it may not be necessary for the decision maker to address every single issue, provided “the reasons should show that the issues that arise for serious consideration have been considered”: Oriental Daily, at paragraph 42.

15.In this respect, all the above specific submissions were made to support or demonstrate the applicant’s inherent improbability argument.  The critical issue was thus still whether, balancing the inherent improbability argument against the then available evidence, the applicant’s case based on the allegation of a forged signature was credible and bore a reasonable chance of success at trial.

16.Further, at that stage of legal aid application, there may not be full evidence coming from the prospective defendant. Despite that, it is the function and duty of the DLA (and the Registrar in hearing an appeal) (in considering whether public funds should be used to fund the potential litigation) to assess whether an applicant’s case, based on the then available evidence, meets the merits test.  It cannot be right as a general proposition that whenever an applicant for legal aid intends to make a claim based on his or her own assertions, legal aid should be granted simply because there is yet evidence coming from the other side to explain the matter otherwise.  The DLA and the Registrar (in an appeal) must still assess the merits of each individual cases based on the available materials and evidence specific to each case.  To be fair, I do not think Mr Wong is advancing that general proposition.

17.As far as I can see, viewed objectively, it should reasonably appear to the applicant (bearing in mind the submissions made at the appeal hearing) that, in adopting the DLA’s reasons, what the learned Master was saying is that based on the objective evidence that was available then, even pitched against the inherent improbability submissions, the applicant’s case of a forged signature was on balance incredible, and hence did not bear a reasonable chance of success.  As I have explained above, it is reasonably open for the Master to form that conclusion (see paragraphs 10 - 13 above).

18.For these reasons, I therefore do not accept it is reasonably arguable (with a realistic prospect of success) that the learned Master had either failed to take into account the inherent improbability submissions or had failed to explain why he rejected the argument.  This complaint is unarguable.

19.Third, Mr Wong also complains that the DLA’s Written Reasons in saying that his department believed that the applicant voluntarily surrendered her half interest in the property to the ex-husband, which had been adopted by the Master, was not supported by evidence at all.  This part of the reason is thus also tainted by an error.

20.There is just a flip side of the argument raised in the above second complaint.  As accepted by Mr Wong, the strongest evidence in support of the applicant’s voluntary surrender of the property was the Deed signed by her.  Hence, this complaint in substance is again a complaint that the DLA (and the learned Master) wrongly concluded that the applicant’s allegation of forgery was incredible.  But as I have said above, this is a conclusion reasonably open to them to make.  I therefore also reject this complaint.

21.Finally, Mr Wong submits that the learned Master applied the wrong test on merits in assessing whether legal aid should be granted, as he had adopted the reasons of the DLA, who herself had adopted the wrong test.  Senior counsel says the DLA had adopted the wrong test because:

(1)    In the DLA’s Written Reasons, the DLA did not refer to the correct test (ie, reasonable, as opposed to fanciful, chance of success).

(2)    In her reasoning, the DLA conducted a mini-trial and decided to “disbelieve” the applicant’s case that she did not sign the Deed and “believe” that the applicant voluntarily surrendered her half interest in the property to the ex-husband.

(3)    Further, in conducting such mini-trial, the DLA opined on matters that, apart from what appears on the face of the Deed in dispute, are unsupported by any evidence (eg, the applicant voluntarily surrendered her interest), and also on such matters that are within the purview of expert (eg, the comparison of the signatures).

(4)    In the premises, the DLA applied the wrong test in dealing with the applicant’s legal aid application.

22.With respect to Mr Wong, I do not think this complaint is reasonably arguable.

23.As rightly pointed out by Mr Wong, the learned Master had expressly reminded himself of the right test under Nguyen Trong Son as stated in the Memorandum.  It must thus be objectively the case that even by reference to the test of a “reasonable chance of success”, the learned Master agreed with the assessment of the DLA of the available evidence to say that the applicant’s case did not fair that chance, which conclusion is open to him to make.  On this basis alone, this complaint is not reasonably arguable.

24.In any event, by looking at the DLA’s Written Reasons alone, I also do not think the submissions that the DLA had applied the wrong test is arguable.  In determining whether the applicant’s case based on an allegation of a forged signature bore a reasonable chance of success, the DLA had to form a view, by assessing the then available evidence, as to whether that allegation was supported and likely to be accepted (and thus believed) by the court.  This is in substance what the DLA had done by assessing that potential possibility against the objective or not disputed evidence.  This is not a mini-trial or adopting a test of fanciful chance of success.

25.For all the above reasons, none of the grounds of judicial review raised by the applicant in the Form 86 and as advanced by Mr Wong at the hearing are reasonably arguable.  I therefore refuse to grant leave.

26.I must however once again commend Mr Wong and Mr Chan for acting pro bono for the applicant in this leave application.  There be no order as to costs.

Dated the 28^th day of June 2018.

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1