Lee Chick Choi v. The Director of Legal Aid
Read the full judgment text of CACV 276/2018 on BabelCite. This Court of Appeal judgment was delivered on 8 March 2019 before Lam VP, Poon JA, Au JA.
Administrative law – legal aid – judicial review – remedy of last resort – statutory right of appeal – whether the applicant could challenge the DLA Decision by way of judicial review – whether the DLA's refusal of legal aid on merits ground was reasonable – whether the DLA's quantum assessment and reliance on Small Claims Tribunal jurisdiction was reasonable – whether judicial review serves any useful purpose after the underlying action was struck out – extension of time – costs. The applicant, who had previously been unsuccessful in pursuing the same PDPO claim against his former employer Best Spirits in HCA 2045/2012 (struck out by Deputy High Court Judge Kent Yee on jurisdiction and causation grounds, with leave to appeal out of time refused by the Court of Appeal in HCMP 371/2015), brought a fresh claim in DCCJ 1988/2017 and applied for legal aid, which the DLA refused on 18 September 2017. The applicant challenged the DLA Decision by way of judicial review, applying 6 months out of time, and his application for leave to apply for judicial review and his application for extension of time were dismissed by Chow J. On the applicant's appeal, the Court of Appeal held that the appeal should be struck out because the applicant had not obtained the leave to appeal required for an appeal from an interlocutory judgment (Kwok Cheuk Kin v Leung Chun Ying). In any event, the Court of Appeal held that the appeal was entirely without merit. On Ground 1, judicial review is a remedy of last resort and the applicant had an alternative statutory appeal avenue which he had in fact pursued. On Ground 2, the DLA's view that the claim lacked merit was not without basis or irrational in public law terms, and was in fact confirmed by HH Judge Andrew Li striking out the District Court Action. On Ground 3, the DLA's quantum assessment of not more than HK$15,000 was not Wednesbury unreasonable, and applying Lee Kwok Tung Albert v Chiyu Banking Corporation, a section 66 PDPO claim, while first to be commenced in the District Court, can be transferred to the Small Claims Tribunal where appropriate. On Ground 4, no useful purpose would be served as the underlying District Court Action had been struck out. On Ground 5, the Judge properly exercised his discretion to refuse an extension of time given the lack of arguable merits. On Ground 6, the costs order was properly made under the principles in Leung Kwok Hung v President of the Legislative Council (No 2) given the completely unmeritorious nature of the applications and the valuable assistance of the DLA's appearance. Appeal struck out and dismissed, with costs of the appeal to be paid by the applicant to the DLA, summarily taxed at $60,000.
Legal issues: Whether the appeal should be struck out for want of leave · Judicial review as remedy of last resort when statutory appeal exists · Reasonableness of DLA's refusal of legal aid on merits ground · Reasonableness of DLA's quantum assessment and Small Claims Tribunal jurisdiction point · Whether judicial review serves any useful purpose · Refusal of extension of time to apply for leave for judicial review · Costs order against unsuccessful judicial review leave applicant
Outcome: Appeal struck out and dismissed; the applicant was required to pay the costs of the DLA in the court below (as ordered by the Judge) and the costs of this appeal
Cited by 6 cases · Cites 11 cases
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CACV 276/2018 [2019] HKCA 275 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO 276 OF 2018 (ON APPEAL FROM HCAL 417 OF 2018) _______________
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__________________ J U D G M E N T __________________ Hon Au JA (giving judgment of the court): A. INTRODUCTION 1.The applicant brought a claim against his former employer Best Spirits under DCCJ 1988/2017 (“the District Court Action”). He claimed for compensation in the amount of HK$14.475 million for an alleged breach of Data Protection Principle 5 (“DPP 5”) in Schedule 1 to the Personal Data (Privacy) Ordinance (Cap 486) (“the PDPO”). For that purpose, he had applied for legal aid. 2.By way of a decision (“the DLA Decision”) made on 18 September 2017, the Director of Legal Aid (“the DLA”) refused the applicant’s legal aid application. 3.On 14 March 2018, the applicant applied for leave to apply for judicial review seeking to challenge the DLA Decision. As his leave application was made outside the statutory 3‑month period, he also applied for extension of time for making the leave application. 4.After hearing the applicant and the DLA, by his judgment dated 27 June 2018 (“the Judgment”), Chow J (“the Judge”) dismissed his application for leave to apply for judicial review, and the application for extension of time to apply for judicial review, with costs. 5.This is the applicant’s appeal against the Judgment. 6.With the applicant’s consent, this Court has directed that the appeal be dealt with on paper. The parties have since filed their respective written submissions for that purpose. B. BRIEF BACKGROUND 7.The brief background has been summarized by the Judge succinctly at paragraphs 2 - 17 of the Judgment as follows:
C. THE JUDGMENT 8.The Judge dismissed the applicant’s applications as he concluded that the applicant’s intended judicial review had no reasonable prospect of success for the reasons set out at paragraphs 20 - 23 of the Judgment as follows:
D. THIS APPEAL D1. Grounds of Appeal 9.The grounds of appeal as set out in the Notice of Appeal filed on 28 June 2018 are these:
10.Other than making submissions in support of the above grounds appeal, the applicant in his written submissions has also advanced arguments that are related to another legal aid application of his under LA/M/1882/2017, which concerns another of his action under FAMV 51/2018[1]. Those submissions are irrelevant to this appeal, and the court will not have regard to them. D2. No leave has been obtained by the applicant to appeal 11.As mentioned above, by way of the Judgment, the Judge also refused to extend time for the applicant to apply for leave to apply judicial review. This is in nature an interlocutory judgment, and the applicant must first obtain leave from the Judge or this court before he could properly bring an appeal against the Judgment[2]. 12.However, the applicant has not even applied, let alone having obtained, leave to appeal. Without leave, the appeal is improperly and invalidly brought and should be struck out on this basis alone. 13.In any event, even if the applicant was to ask this court to grant him leave to appeal by way of the present application, we would not grant it as, for the reasons explained below, we are of the view that the appeal is entirely without merit. D3. Merits of the appeal 14.An appeal against the refusal of leave for judicial review is not an occasion for the applicant to regurgitate arguments already advanced. The Court of Appeal would only reverse the decision of the Judge if it could be demonstrated that there were errors of law, that the Judge failed to take in account relevant matters, or the decision was otherwise plainly wrong: United Muslim Association of Hong Kong v Yusuf Yu [2018] HKCA 451 at [38] and [39]. 15.Bearing these principles in mind, we would now proceed to consider the merits of the applicant’s grounds of appeal. Ground 1 16.As pointed out by the Judge, it is trite that judicial review is a remedy of last resort. Save in exceptional circumstances, the court will not normally grant relief to a challenge by judicial review against a decision where there is an alternative remedy, such as by way of appeal. As recently reiterated by this court, judicial review is not to replace the statutory or administrative appeal avenue that is in place in respect of a challenge against an administrative decision. A person aggrieved by an administrative decision should challenge it by way of the appeal avenue instead of judicial review[3]. 17.In the present case, in the Form 86 as amended, the applicant sought leave to challenge by way of judicial review the decision of the DLA (ie, the DLA Decision) but not that of the Registrar hearing the legal aid appeal. Even when this was pointed out to him by the Judge at the hearing, the applicant confirmed and insisted that it was the DLA Decision but not the Registrar’s that he intended to challenge[4]. 18.In the premises, the Judge was entirely correct in law to refuse to grant leave based on the well-established principle that the court would not entertain and grant any relief to the applicant’s intended judicial review, since there was an alternative avenue of appeal that the applicant should and had in fact pursued to challenge the DLA Decision. 19.The first ground of appeal has no merits and should be rejected. Ground 2 20.The DLA refused the applicant’s legal aid application on the ground that, based on the evidence available, the District Court Action had no reasonable merits. The Judge concluded that the DLA’s view cannot be said to be without basis or irrational in public law sense and hence the applicant’s intended judicial review ground had no merits. 21.This court cannot see how the Judge’s said conclusion can be said to be plainly wrong, given the fact that the District Court Action had in fact been struck out. Quite to the contrary, the Judge was plainly right. 22.There is also nothing in this ground of appeal. Ground 3 23.Under this ground, the applicant complains that the Judge erred to have accepted the DLA’s assessment that his claimed compensation could be no more than $15,000. He says the assessment was wrong and without basis. 24.In this respect, it must be noted that in deciding whether to grant leave to apply for judicial review under this ground, the Judge was only concerned with whether there was no basis at all or it was Wednesbury unreasonable for the DLA to have formed that assessment. 25.The Judge concluded that the DLA was not Wednesbury unreasonable as that was based on counsel’s opinion after having assessed the available evidence with the relevant legal principle. It was also reasonable for the DLA to rely on counsel’s opinion. 26.However, the applicant has emphasized in his present submissions that as a matter of law, his claim seeking compensation under section 66 of the PDPO must be commenced at the District Court. Hence, the DLA and the Judge were in any event wrong in law to say that it was reasonable not to grant him legal aid because his claim should fall within the Small Claim Tribunal jurisdiction. 27.There is no merit in this complaint. In Lee Kwok Tung Albert v Chiyu Banking Corporation [2018] HKCA 123, 2 HKLRD 273 at [4.3] ‑ [4.22], this court has decided that although a section 66 claim under the PDPO should first be commenced at the District Court, the District Court does not have exclusive jurisdiction to hear such claims. When appropriate, a party can apply and the District Court can transfer the claim to the Court of First Instance to deal with it. In the premises, the Judge did not err as a matter of principle by relying on this authority to say that it was not unreasonable for the DLA to form the view that the applicant’s claim could be transferred to the Small Claim Tribunal[5]. 28.For these reasons, Ground 3 must also fail. Ground 4 29.This ground is a non-starter. Even if the applicant would be successful in his proposed grounds of judicial review challenging the DLA Decision, there is no chance that the court would exercise the discretion to quash it and remit it back to the DLA to consider granting legal aid to the applicant, as the underlying subject District Court Action has been struck out already. As rightly observed by the Judge, there is therefore no question of granting legal aid to the applicant to enable him to further pursue the District Court Action. The intended judicial review is academic and serves no useful purpose. The Judge is clearly right in this reason. Ground 5 30.Whether to grant an extension of time is a matter of discretion for the court. Hence, unless the Judge erred in principle or is plainly wrong when exercised his discretion not to extend time in the present case, this court will not interfere his exercise of discretion. 31.Under established principle, in exercising the discretion, the Judge is entitled to take into account the merits of the intended judicial review to decide whether to extend time[6]. 32.As we have said above, the Judge is entirely correct to form the view that the applicant’s intended judicial review had no merits and leave should not be granted. Given the clear lack of any arguable merits, it must be right for the judge to refuse to extend time for the applicant to apply for leave for commencing judicial review. 33.This ground is misconceived and must be dismissed. Ground 6 34.Again, costs is a matter of discretion for the Judge. Although the usual starting position for a contested unsuccessful judicial review leave application is no order as to costs, the court could depart from this position if it is of the view that there are good reasons to do so after taking into account all the circumstances of the case, which include whether the leave application is ill-conceived or unmeritorious, and whether the appearance of the putative respondent has provided valuable assistance to the court. See: Leung Kwok Hung v President of the Legislative Council (No 2) (2014) 17 HKCFAR 841 at paragraphs 17(1) ‑ (6) per Ribeiro PJ. 35.In ordering costs against the applicant, the Judge took into account “the completely unmeritorious” nature of the applicant’s leave and time extension applications, the applicant’s failure to set out all the relevant background facts, which justified the DLA appearance at the court’s direction, and the valuable assistance given to the court by the DLA’s appearance[7]. These are all relevant matters that the Judge is entitled to take into account and the Judge exercised the discretion in accordance with the above principle. The Judge therefore did not err in principle in ordering costs against the applicant. In any event, in our view, his decision on costs is plainly correct in light of the obvious ill-conceived nature of these applications. 36.The applicant’s complaint under Ground 6 is also entirely without merit and must be rejected. E. CONCLUSION 37.For all the above reasons, the appeal should be struck out and dismissed. 38.There are no reasons why costs should not follow the event. We further order that costs of this appeal be paid by the applicant to the DLA, summarily taxed at $60,000.
Ms Vivian Kao, instructed by Director of Legal Aid, for the putative respondent The applicant appeared in person [1] The DLA Decision relates to the applicant’s legal aid application under LA/M/16855/2017. [2] See: Kwok Cheuk Kin v Leung Chun Ying [2018] HKCA 419 at [39], [44] ‑ [45] per Lam VP. [3] See: 郭卓堅及法援署副署長莊因東 [2018] HKCA 512 at paragraph 10 per Lam VP and the authorities cited therein. [4] See paragraph 18 of the Judgment. [5] Applying the same analysis in Lee Kwok Tung Albert, the PDPO also has no provision to exclude the Small Claim Tribunal from hearing a section 66 claim transferred from the District Court (if the court comes to the view that compensation amount cannot be more than that of the Small Claim Tribunal jurisdiction). [6] See: AW v Director of Immigration [2016] 2 HKC 393 at [27] per Kwan JA, approving Re Thomas Lai [2014] 6 HKC 1 at [43] - [45]. [7] See paragraph 25 of the Judgment. | |||||||||||||||||||||
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