Ponomarova Olena v. Master Kent Yee, Deputy Registrar of the High Court

CACV 313/2022, [2023] HKCA 1170

On Appeal From [2022] HKCFI 2243

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 313 OF 2022

(ON APPEAL FROM HCAL NO 249 OF 2022)

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J U D G M E N T

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

INTRODUCTION

1.There are before the Court the following matters:

(1)  the Applicant’s appeal against the order of Coleman J dated 26 July 2022 (“the Order”) refusing to grant her leave to apply for judicial review of the decision of Master Kent Yee dated 25 January 2022 dismissing her legal aid appeal (“the Master’s Decision”); and

(2)  the Applicant’s 3 summonses filed on 28 October 2022, 11 September 2023 and 18 September 2023 respectively seeking leave to (i) admit new evidence, and/or (ii) rely on a Supplemental Notice of Appeal, in support of the appeal.

BASIC FACTS

2.On 22 July 2019, the Applicant entered into a contract of employment with a company called Northcroft Hong Kong Limited (“Northcroft”), which carried on business as chartered construction consultants. She was employed as Business Development Project Manager for a term of 1 year from 10 September 2019 to 9 September 2020, and her salary was $30,000 per month plus other benefits.

3.According to the Applicant, Northcroft failed to pay her any wages. On 25 May 2020, she commenced proceedings against Northcroft in the Labour Tribunal (LBTC 380/2020) to claim arrears of wages for the period from 10 September 2019 to 30 April 2020 (7 months and 21 days) in the total sum of $231,000. Northcroft’s main defence was that the Applicant failed even to start her employment and thus she was not entitled to receive any wages.

4.On 23 March 2021, the Applicant obtained leave to amend her claim to divide it into 2 parts, namely, (i) arrears of wages in the sum of $37,451.61 for the period from 10 September 2019 to 17 October 2019, and (ii) damages in the sum of $193,548.39 ($231,000 - $37,451.61), apparently for unlawful termination of the employment contract.

5.On 27 April 2021, the Labour Tribunal made a consent order, under which Northcroft was to pay to the Applicant the alleged arrears of wages in the sum of $37,451.61, leaving the Applicant’s remaining claim for damages outstanding for determination.

6.By an “Award/Order” dated 1 September 2021, the Labour Tribunal refused the Applicant’s application to include a claim for an order of “reinstatement” under s 32N of the Employment Ordinance (Cap 57) on the ground that the claim for reinstatement was not filed with the Registrar of the Labour Tribunal within the statutory time limit under s 32I(b) of the Employment Ordinance. The Labour Tribunal also gave directions concerning the further conduct of the trial of the Applicant’s remaining claim for damages against Northcroft, and fixed the trial for hearing on 19 and 20 October 2021.

7.Notwithstanding the existence of the aforesaid pending action in the Labour Tribunal, on 24 September 2021, the Applicant made an application for legal aid (“the 1^st LAA”) to pursue an intended claim against Northcroft in the High Court for “unlawful termination and breach of contractual obligations by the employer”. On 12 October 2021, the Applicant withdrew the 1^st LAA.

8.On 20 October 2021, the Applicant made another application for legal aid (“the 2^nd LAA”). In the “Application For Legal Aid (Civil)” for the 2^nd LAA, the Applicant stated, under Part 2 (Nature of Intended Application to the Court for Proceedings/Proceedings Already Commenced in Court), that her intended claim was for “Breach of contract (Please, refer to the old case)”. In Part 7 (Extra Information), the Applicant stated: “For detailed information pertinent to this application form, please, refer to my previous application. Reference number: LA/MCE/17599/2021 (ASO1)”. It is clear that the 1^st LAA and 2^nd LAA related to the same subject matter, namely, an intended claim in the High Court against Northcroft for unlawful termination of employment contract and breach of contractual obligations by the employer.

9.On 3 December 2021, the Director of Legal Aid (“the Director”) refused the 2^nd LAA for the reasons that (i) the Applicant’s intended claim fell within the exclusive jurisdiction of the Labour Tribunal, (ii) legal aid was not available for proceedings in the Labour Tribunal, and (iii) the Applicant’s allegation that she was an “investor” of Northcroft was not substantiated by any evidence.

10.The Applicant lodged an appeal against the decision of the Director refusing the 2^nd LAA (Legal Aid Appeal No 1185 of 2021). The legal aid appeal was heard by Master Kent Yee on 14 January 2022.

11.On 25 January 2022, the Master dismissed the Applicant’s legal aid appeal, stating that he agreed with the decision of and the reasons given by the Director. The Master also gave the following additional reasons for his decision:

“1. I cannot accept the allegation that the Appellant was in fact or treated as an investor of Northcroft. The Appellant took me through the transcript of an audio recording of the conversation between Mr Lai of Northcroft and her via WhatsApp and asserted that she was treated as an investor. This assertion is baseless and not supported by evidence. It is also contradicted by the nature of proceedings in her application form specified by her sent to the Legal Aid Department.

2. The Appellant submits that if one works for another person without being paid, then he is treated as an investor. This submission defies logic and lacks legal basis. It must be rejected.

3. The Appellant’s objection to Ms Chow’s appearance on behalf of Legal Aid Department at the hearing is wholly unreasonable and groundless. The Legal Aid Department has complete freedom in its choice of legal representation.”

12.On 22 April 2022, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Master’s Decision. As pointed out by the Judge at §40 of his written decision dated 26 July 2022 (“the Decision”), the Form 86 did not identify any proper ground of review. Nevertheless, at the hearing of the leave application on 21 July 2022, the Applicant identified and enumerated 4 grounds of review which the Judge summarized at §41 of the Decision, as follows:

“(1) the Master disregarded relevant facts, and concentrated instead on irrelevant considerations, and in particular the question as to whether the Applicant was an ‘investor’ in the Employer;

(2) there was a failure in due process, including that the Master failed to ask any questions of the representative for the DLA (not Ms Ngai), who was not sufficiently familiar with the papers in the case (as she apparently self-confessed), which confirmed the Applicant’s concerns that the Master was prejudiced;

(3) there was a failure by the Master to give adequate reasons for his decision; and

(4) the Applicant’s right of access to justice was violated.”

THE DECISION

13.In the Decision, the Judge considered and rejected all 4 intended grounds of review, and refused to grant the Applicant leave to apply for judicial review.

14.In respect of Ground (1), the Applicant’s complaint was that the Master put all his effort and attention on a single matter, namely, to secure an excuse for rejection of her application by shifting focus from the main issue (namely, whether all or part of her claim for unlawful termination should be heard by the High Court) to a minor unrelated issue (namely, the use of the word “investor” in a statement to the Labour Tribunal). The Applicant said that the Master kept repeating the same question, and pushed her to state particular pages or phrases in the transcript of the WhatsApp call between the Applicant and one Mr Lai of Northcroft on 24 June 2020 which showed her to be an investor. The Applicant also said that the Master ignored her written and oral explanation about the context and irrelevance to her intended claim of her phrase “treated as an investor without any chance of return on my investment”, which she said could perhaps less elegantly but more accurately be stated as “victim of a fraud”. The Applicant alleged that the Master failed to mention the context from which the extracted word “investor” came, and chose to ignore the fact that the damages claim in the Labour Tribunal did not cover remedies for unlawful termination but only for unpaid wages.

15.The Judge found the Applicant’s criticism of the Master to be both unfair and misplaced. He considered that the starting point was that the 2^nd LAA was made to seek legal aid to pursue a claim in the High Court against Northcroft for breach of employment contract. Such a claim clearly fell with the exclusive jurisdiction of the Labour Tribunal. Further, legal aid was not available for proceedings in the Labour Tribunal under the Legal Aid Ordinance (Cap 91). Hence, if the Applicant were to be granted legal aid, it would have to be for a different form of claim not caught within the exclusive jurisdiction of the Labour Tribunal. In those circumstances, the Judge considered it perfectly understandable – and ought not to be a matter leading to complaint – that the Master would investigate the suggestion that there might have been some other form of claim based on the Applicant’s suggestion that she was an “investor”. In any event, if it was no part of her case that she was in fact an “investor”, the refusal of legal aid on the basis that there was no sufficient arguable case that she was an investor would be of no import. The Judge held that it was not reasonably arguable that there was any procedural impropriety merely because the Master tried to test what the Applicant meant by her reference to “investor” and see whether there was any basis for that as might identify a claim for which legal aid might lie. The Judge further considered that there was no reasonably arguable basis to suggest that the Master failed to take into account any relevant matters, or had not thoroughly considered the Applicant’s case and arguments (see §§52-57 of the Decision).

16.In respect of Ground (2), the Judge considered that it was not reasonably arguable that it was incumbent on the Master to interrogate the representative of the Director (Ms Chow) as to what steps had been taken by the Legal Aid Department to investigate the circumstances of the Applicant’s existing claim in the Labour Tribunal or her intended claim in the High Court. The Applicant was well able to have identified to the Master those matters which she said were relevant (and those which she said were irrelevant) to the overall assessment as to the grant or refusal of legal aid. The Applicant filed various written submissions, and was given an opportunity to make oral submissions. The fact that the representative of the Director might lack sufficient familiarity with the Applicant’s case to be able to provide full assistance to the Master were he to have asked questions of her could not arguably lead to any suggestion that the Master was not able to consider those matters relevant to his decision, or was prejudiced against the Applicant. It was also not reasonably arguable that the Master’s approach as regards his questions on the “investor” indicated his disregard of impartiality and fairness. There was no reasonably arguable complaint about any failure of due process (see §§60-61 & 66 of the Decision).

17.In respect of Ground (3), the Judge noted that the Master’s reasons for his decision fell into two parts: (1) his agreement with the reasoning of the Director in the Director’s refusal of the 2^nd LAA, and (2) the additional reasons relating to (i) the point about “investor”, and (ii) the objection to Ms Chow’s appearance on behalf of the Legal Aid Department. The Judge considered that the context in the present case was relatively simple and straightforward. The Applicant was seeking legal aid to pursue an intended claim for breach of the contract between herself and Northcroft. In rejecting the 2^nd LAA, the Director had given clear and succinct reasons for that rejection, in particular that the intended claim fell within the exclusive jurisdiction of the Labour Tribunal, so that it was not reasonable to commence proceedings in the High Court. By the Master’s statement that he agreed with both the decision and the reasons given by the Director, he perfectly and adequately identified the reasons for his own decision (to which he also added additional reasons on the other two points). The Judge considered that it was not reasonably arguable that the Applicant did not know from the Master’s decision the basis of the decision to refuse legal aid for her intended High Court action, or that there was any failure by the Master to give adequate reasons for his decision (see §§67-70 of the Decision).

18.Finally, in respect of Ground (4), the Judge held that the Applicant’s ability to bring proceedings in the Labour Tribunal which had exclusive jurisdiction to hear and determine her claim against Northcroft clearly provided access to justice in relation to that claim, while it was not reasonably arguable that her inability to obtain legal aid in such proceedings could be regarded as a violation of her right of access to justice (see §§72 & 74 of the Decision).

19.For the above reasons, the Judge concluded that none of the Applicant’s intended grounds of review was reasonably arguable or had any reasonable prospect of success. The Judge accordingly refused to grant leave to apply for judicial review.

THE NOTICE OF APPEAL

20.On 9 August 2022, the Applicant filed and served a Notice of Appeal against the Order. The only ground of appeal raised in the Notice of Appeal is as follows:

“The Section ‘E’ of the Decision features instances of misdirection, where particular points of law and relevant facts were neglected, overlooked and directly suppressed evidence that could lead to a complete picture. As a result substantially wrong conclusion was reached on the intended grounds of review. The refusal to grant leave for application for judicial review solidifies previous miscarriage of justice”

21.This ground of appeal consists of a series of bare allegations without particulars, and plainly cannot constitute a valid ground of appeal.

22.As correctly pointed out by the Judge, the starting point is that the Applicant’s 2^nd LAA was to seek legal aid to pursue an intended claim in the High Court against her former employer for unlawful termination of her employment contract and breach of contractual obligations by the employer[1]. Such claim plainly falls within the jurisdiction of the Labour Tribunal, by virtue of s 7(1) of the Labour Tribunal Ordinance (Cap 25) and §§1 and 7 of the Schedule thereto:

(1)  Section 7(1) of the Ordinance states that “[t]he tribunal shall have jurisdiction to inquire into, hear and determine the claims specified in the Schedule”.

(2)  The Schedule to the Labour Tribunal Ordinance, so far as relevant, states as follows –

“1. A claim for a sum of money, whether liquidated or unliquidated, which arises from –

(a) the breach of a term, whether express or implied …, of a contract of employment, whether for performance in Hong Kong or …

7. A claim for remedies under Part VIA of the Employment Ordinance (Cap. 57).”

23.Where a claim falls with the jurisdiction of the Labour Tribunal, it is not actionable in any other court in Hong Kong (in other words, the jurisdiction of the Labour Tribunal is exclusive) by virtue of s 7(2) of the Labour Tribunal Ordinance.

24.Further, legal aid is not, as a matter of law, available for proceedings in the Labour Tribunal under the Labour Tribunal Ordinance, by virtue of s 5(1) of the Legal Aid Ordinance (Cap 91), and §10 of Part 2 of Schedule 2 thereto.

25.Hence, the Director was correct to refuse the 2^nd LAA for the reasons he gave, and Master Kent Yee was correct to reject the Applicant’s appeal against the Director’s decision for the same reasons.

26.The Applicant argued that she chose to pursue her intended claim for breach of the employment contract and unlawful termination in the High Court because, in addition to procedural reasons which barred the Labour Tribunal from inquiring into and/or hearing her intended claim for reinstatement, “mixed claims founded in both contract and tort are excluded from the jurisdiction of the Labour Tribunal”[2]. She failed, however, to give any detail or particulars of any cause of action in torts which she intended to bring against Northcroft. The Applicant’s 2^nd LAA was to seek legal aid to advance a claim for “unlawful termination and breach of contractual obligations by the employer”. It was clear that the claim for which the Applicant sought legal aid in the 2^nd LAA was a claim for a sum of money which arose from a breach of contract of employment, not any claim for damages in torts. That this was so was confirmed by the fact that in the subsequent High Court action (HCA 156/2022) that she commenced against Northcroft on 4 February 2022, it was expressly stated in the Writ that her claim was for “remedies for breach of contract by the employer and unlawful termination”, and she asked the Court “to establish the relevant date of termination and assess damages caused to [her] by the breach of contract and unlawful termination”. There was no claim for any cause of action in torts raised in the Writ issued by the Applicant.

27.In her skeleton submissions dated 21 September 2023, the Applicant states that when it became apparent that her dispute with her former employer involved complicated matters of fact and law, she applied for legal aid “in order to have a professional representation in the Court of First Instance, which had unlimited jurisdiction to hear the claims, including the power to restore jurisdiction and refer the case for adjudication to the Labour Tribunal”. While it is correct that, generally speaking, the jurisdiction of the Court of First Instance of the High Court is “unlimited”, the extent of its jurisdiction is subject to limits imposed by legislation, including the Labour Tribunal Ordinance, which, as earlier mentioned, vests in the Labour Tribunal the exclusive jurisdiction to hear those claims referred to in the Schedule to that Ordinance. The Court of First Instance has, as a matter of law, no jurisdiction to hear the Applicant’s intended claim against Northcroft referred to in the 2^nd LAA. There was thus no basis on which the Director could have granted legal aid to the Applicant to pursue such claim against Northcroft in the Court of First Instance.

28.We have also considered the 4 grounds of intended judicial review raised by the Applicant before the Judge, and his reasons for rejecting them. None of the 4 intended grounds of judicial review has merit. We agree with the Judge’s analysis, and are unable to see any valid ground of appeal against his decision.

29.At the hearing of the appeal, the Applicant sought to expand the scope of her intended application for judicial review to challenge what she contended to be systemic deficiencies or procedural injustice of the legal aid process in Hong Kong and/or the practice and procedures of the High Court of Hong Kong. However, the only matter which the Applicant identified in the Form 86 as being the subject matter of her intended application for judicial review was “Legal Aid Appeal No 1185 of 2021”. The Applicant’s complaints about the legal aid process in Hong Kong, or the practice and procedures of the High Court of Hong Kong, plainly fall outside the scope of her application for leave to apply for judicial review as identified in the Form 86, and cannot constitute any valid or proper ground of appeal against the order of Coleman J refusing to grant leave for judicial review.

SUMMONS DATED 18 SEPTEMBER 2023 - SUPPLEMENTAL NOTICE OF APPEAL

30.On 4 September 2023, the Applicant filed and served a Supplemental Notice of Appeal dated 31 August 2023 without leave of the court, contrary to (i) §6 of the directions given by Master Ho on 14 February 2023 (namely, that save as specified in §§2 to 4 of the said directions, no further document or submission shall be lodged without leave of the court), and (ii) Order 59, rule 7(1) of the Rules of the High Court, Cap 4A (which permits a notice of appeal to be amended by supplemental notice without leave provided, amongst other things, that it is served before the date on which a hearing date of the appeal is fixed in accordance with a direction referred to in rule 6A[3]).

31.In Ms Ho’s Skeleton Arguments dated 11 September 2023, she objected, on behalf of the Director, to the Applicant’s late filing of the Supplemental Notice of Appeal without leave of the court.

32.On 18 September 2023, the Applicant issued a summons seeking leave to rely on the Supplemental Notice of Appeal. In her Skeleton Submissions dated 21 September 2023 (which was filed and served out of time, contrary to the directions given by Master Ho on 14 February 2023), by way of explanation for her delay in filing the Supplemental Notice of Appeal, the Applicant stated that she “believes that she acted diligently in her attempt to comply with numerous ritualistic obligations and rules, but her available mental, financial and physical resources in the existing circumstances did not allow for impeccable compliance”[4]. We do not accept this bare statement as a good explanation for the Applicant’s substantial delay in filing the Supplemental Notice of Appeal. In what follows, we shall consider the merits of the intended grounds of appeal raised in the Supplemental Notice of Appeal.

33.The Supplemental Notice of Appeal contains 8 grounds:

(1)  lack of good faith in the performance of duties of a Judge of the Court of First Instance;

(2)  the Applicant’s case was inadequately “interpreted and reflected in the text of the 26-page” Decision of Coleman J;

(3)  the Decision features instances of misdirection, where “particular points of law and relevant facts were neglected, overlooked” and evidence was “directly suppressed”;

(4)  “the Applicant’s rights and public standing were and remained unfairly impaired”;

(5)  the assessment of the merits of the Applicant’s intended grounds for judicial review was (i) in disregard of principles and procedures consistent with a fair process, and (ii) under a miscomprehension as to the facts; further (iii) the Judge failed to take into account relevant matters, and (iv) the conclusion which he reached was outside the generous ambit within which a reasonable disagreement is possible;

(6)  the Decision and Order was plainly wrong and caused significant injustice and prevented a fair trial of the issues;

(7)  there are fresh developments, as well as the Applicant’s second application for leave to apply for judicial review in HCAL 190/2023 pending determination by the same Judge, and the two cases should be heard and investigated together; and

(8)  the existing flaws in the interpretation and statement in the Decision should be rectified to accurately reflect the Applicant’s stated case.

34.Grounds (1) to (6) consist of bare, general allegations without particulars, and fail to point to any specific error(s) in the Decision. They plainly cannot constitute any valid ground of appeal.

35.In respect of Ground (7), the Applicant’s second application for leave to apply for judicial review in HCAL 190/2023 relates to another legal aid appeal (LAA 67/2022) heard by Master Phoebe Man on 10 November 2022, and is irrelevant to the Master’s Decision sought to be challenged by the Applicant in the proceedings below. Quite apart from the fact that the application for leave to apply for judicial review of the Master’s Decision has already been heard and determined, we can see no good reason why the two applications should be heard and investigated together as suggested by the Applicant.

36.Under Ground (8), the Applicant complains about various passages in the Decision which she says amount to “flaws in interpretation and statement” of her stated case. As will be seen below, most of the complaints relate to facts or matters which the Applicant contends should have been mentioned, but have been omitted by the Judge, in the Decision. Upon analysis, none of the complaints raised by the Applicant is material to the Judge’s decision refusing to grant leave to apply for judicial review. In what follows, we shall briefly state the gist of the Applicant’s complaints and our comments on them:

(1)  In respect of §6 of the Decision, the Applicant complains that the Judge failed to explain the reason or background as to why her claim in the Labour Tribunal proceedings was amended and split into 2 parts.

Comment - the Judge was under no obligation to recite all the facts or details which the Applicant might want to be included in the Decision. We do not see that the matters mentioned by the Applicant is relevant to the issues to be determined by the Judge or his reasons for refusing to grant leave to apply for judicial review in the present case.

(2)  In respect of §7 of the Decision, the Applicant complains that the following observation of the Judge, namely, “[t]he main issue created seems to be as to the end date of any period of employment, so as to be able to calculate any proper amount of damages arising from any failure to pay wages and/or money in lieu of proper notice”, is contradicted by the “Award/Order” of the Labour Tribunal dated 1 September 2021, where the Deputy Presiding Officer directed the parties to file their statements on the Applicant’s alleged breach of implied term of trust and confidence.

Comment - we do not see that the Judge’s understanding of the issue to be determined in the Labour Tribunal proceedings is contradicted by the aforesaid direction of the Deputy Presiding Officer.

(3)  In respect of §8 of the Decision, the Applicant complains that the Judge omitted to mention that her remaining claim against Northcroft was for “breach of implied term of trust and confidence by the employer”.

Comment - we repeat our comment in (1) above.

(4)  In respect of §12 of the Decision, the Applicant complains that the Judge incorrectly stated that she made her 2^nd LAA on 8 November 2021, whereas her application was in fact filed and accepted for processing in October 2021.

Comment - we note that the date of “8 NOV 2021” mentioned by the Judge appeared in a box marked “Official Use” at the top right hand corner on page 1 of the “Application for Legal Aid (Civil)” for the 2^nd LAA, while it was stated on page 6 of the form that the “date of submission” was “20.10.2021”. We also note that at §12 of the Decision, the Judge stated that the 2^nd LAA was made “by a form dated 20 October 2021”. In our view, even if the Judge mistakenly stated the date on which the Applicant submitted the 2^nd LAA to the Legal Aid Department, this mistake is immaterial to the proper determination of the Applicant’s application for leave to apply for judicial review of the Master’s Decision.

(5)  In respect of §13 of the Decision, the Applicant complains that the Judge only mentioned 1 out of 3 questions on which she was asked by the Legal Aid Department to provide information, and failed to make clear that her explanation of the calculation of the claimed damages of $193,548.39 was in reply to Question (1), not Question (2).

Comment - at §13 of the Decision, the Judge stated that the Applicant was requested to give a written response to “questions”. The Judge also set out a specific question posed by the Legal Aid Department (namely, Question (2) – what exactly was her intended claim, what were the basis and reasons for the claim, and what relief was intended to be sought from the High Court) as well as the Applicant’s response to that question. The Judge then referred to the fact the Applicant gave an explanation of the calculation of the claimed damages of $193,548.39. In the Applicant’s handwritten reply to the 3 questions posed by the Legal Aid Department, she did not identify which part of her reply was in response to which question. In any event, even if the Applicant’s explanation of the calculation of the claimed damages of $193,548.39 should properly be regarded as her response to Question (1) and not Question (2), we fail to see how §13 of the Decision could be regarded as a “manipulation” which “misleads the readers and obfuscates the applicant’s case” as alleged by the Applicant.

(6)  In respect of §20 of the Decision, the Applicant complains that the Judge omitted to mention that in a note prepared by Ms Samantha Ngai (Senior Legal Aid Counsel) dated 11 January 2022 filed in opposition to the Applicant’s legal aid appeal, in addition to matters relating to the claim for an order of “reinstatement” (which the Labour Tribunal refused to allow the Applicant to add to her claim), Ms Ngai also mentioned that the Applicant could seek other remedies (ie damages) against Northcroft if her claim for unlawful dismissal was established in the Labour Tribunal.

Comment - in our view, the fact that the Applicant is able to claim damages against the Northcroft if her claim for unlawful dismissal was established in the Labour Tribunal is a point against the Applicant’s intended action to pursue her claim against Northcroft in the High Court. We do not see that there could be any legitimate complaint by the Applicant about the Judge’s omission to refer to the said submission of Ms Ngai in the Decision.

(7)  In respect of §21 of the Decision, the Applicant complains that the Judge omitted to mention that in her “Comments on ‘Note to Master’ (dated 11 of January, 2022 and signed by Miss Samantha Ngai) by the Appellant against the Decision by the Legal Aid Department to Refuse Legal Aid” dated 12 January 2022, in addition to her submissions concerning the issue of “reinstatement”, she also raised some additional justification for filing a claim for unlawful termination in the High Court.

Comment - as earlier mentioned, the Applicant’s intended claim against Northcroft for damages for unlawful termination of employment contract and breach of contractual obligations by the employer plainly fell within the exclusive jurisdiction of the Labour Tribunal. That matter was fully dealt with by the Judge at §§53-54 of the Decision. The omission complained of by the Applicant is immaterial.

(8)  In respect of §23 of the Decision, the Applicant complains that the Judge only referred to paragraph 1 of the Indorsement of Claim in her Writ dated 4 February 2022 in HCA 156/2022 (which identified the Applicant’s claim against Northcroft as being for “remedies for breach of contract by the employer and unlawful termination”), but omitted to mention paragraphs 2 and 3 thereof relating to (i) her grounds for claiming that the termination of her employment by Northcroft was unlawful, and (ii) the remedies claimed (namely, establishing the date of termination of her employment and assessment of damages).

Comment - in our view, what was material was the nature of her proposed claim against Northcroft, which was sufficiently indicated in paragraph 1 of the Indorsement of Claim. The matters referred to in paragraphs 2 and 3 of the Indorsement of Claim were not material for the purpose of the Judge’s proper consideration of the Applicant’s application for leave to apply for judicial review of the Master’s Decision.

(9)  In respect of §30 of the Decision, the Applicant argues that her intended grounds for judicial review include “failure in due process” generally and are not limited to the legal aid appeal hearing before the Master on 14 January 2022, and thus the statement by the Judge that her 3^rd legal aid application and its refusal was irrelevant is “irrational”.

Comment - this complaint of the Applicant has no validity. She did not identify any proper ground of judicial review in the Form 86. At the hearing of the leave application before the Judge, she was allowed to enumerate her intended grounds of judicial review, which were summarized by the Judge at §41 of the Decision. The complaint about “failure in due process” raised by the Applicant at the hearing related only to the hearing before the Master on 14 January 2022, and that complaint was fully dealt with by the Judge at §§58 to 66 of the Decision. The Judge was correct to take the view that the Applicant’s 3^rd application for legal aid and its refusal were strictly irrelevant to the proceedings before him. It is not permissible for the Applicant to seek to enlarge the scope of her intended application for judicial review in the present appeal, and contend the Judge was wrong to take the view the 3^rd application for legal aid and its refusal were irrelevant to the proceedings before him.

(10)  In respect of §35 of the Decision, the Applicant complains that the Judge failed to mention her complaint about “systemic procedural unfairness and related irregularities, such as the absence of requested transcript way beyond the timeline stated in the performance pledge published on the judiciary website”.

Comment - the issue of the transcript of the hearing before the Master on 14 January 2021 will be dealt with in §§38 to 41 below in relation to the Applicant’s summons filed on 28 October 2022 for leave to adduce the transcript as new evidence. As for the Applicant’s complaint about alleged “systemic procedural unfairness and related irregularities”, for reasons mentioned above, they were outside the scope of the application for leave to apply for judicial review before the Judge.

(11)  Lastly, in respect of §82 of the Decision, the Applicant complains about various matters including (i) her attempt to obtain assistance from the Bar Association, (ii) her inability to obtain a student visa to enable her to pursue legal studies in Hong Kong so as to gain sufficient legal knowledge to conduct her own litigation, and (iii) her inability to secure a place for study of law.

Comment - these matters were correctly viewed by the Judge as being irrelevant to the proceedings before him for leave to apply for judicial review of the Master’s Decision.

37.For the above reasons, the Applicant’s application for leave to rely on the Supplemental Notice of Appeal is refused.

SUMMONS DATED 7 OCTOBER 2022 – TRANSCRIPT OF HEARING BEFORE MASTER KENT YEE

38.By a summons dated 7 October 2022 and filed in court on 28 October 2022, the Applicant applied for leave to (i) adduce the transcript of the hearing before Master Kent Yee on 14 January 2022 as evidence in support of her appeal, and (ii) include the transcript in the Appeal Bundle. At the hearing of this appeal, the Court received the proposed evidence on a de bene esse basis.

39.The transcript of the hearing was not before the Judge, and constitutes new evidence for the purpose of the present appeal. To justify the admission of the transcript as new evidence in this appeal, the Applicant has to satisfy the Ladd v Marshall conditions, namely, that the evidence:

(1)  could not have been obtained at the hearing below with reasonable diligence;

(2)  would or might, if believed, have a very important effect on the mind of the tribunal; and

(3)  is of a sort which inherently is not improbable.

See Hong Kong Civil Procedure 2023, §59/10/8.

40.The 3^rd Ladd v Marshall condition is not in issue in the present case. Insofar as the 2^nd Ladd v Marshall condition is concerned, the Applicant has failed to point to any part of the transcript of the hearing before the Master which would have a very important effect on the mind of the Judge (in other words, on the outcome of the leave application). We have read the transcript, but are unable to see how the transcript would have any real impact on the 4 grounds of judicial review advanced by the Applicant before the Judge. At §7 of the Applicant’s Affidavit filed on 31 October 2022 in support of the application for admission of the transcript as new evidence, the Applicant admitted that she “do[es] not know whether the availability of the Transcript would ‘have important influence on the result of the case’”. In our view, it is clear that the 2^nd Ladd v Marshall condition is not satisfied in the present case.

41.This conclusion makes it unnecessary to consider whether the 1^st Ladd v Marshall is satisfied. For the sake of completeness, we shall state our views briefly on this issue. Prior to the hearing before the Judge, the Applicant had made an application to the Master on 7 February 2022 for a copy of the audio recording and a transcript of the hearing before the Master on 14 January 2022 for the purpose of her intended application for judicial review. The Master’s clerk replied to the Applicant by a letter dated 9 February 2022, stating that she “should provide [an] undertaking to pay the fees before the transcript and Audio CD is to be processed”, and informing her that “if the application is for provision of audio recording, the applicant has to give an [undertaking] that the audio recording will be used only in connection with the purpose mentioned in the application and that it will not be reproduced or released to any other person”. The Applicant refused to give the 2^nd undertaking mentioned above because, according to her, she intended to apply for judicial review with the assistance of lawyers and thus she could not give an undertaking not to release the requested audio recording to other persons who would be assisting her in preparation for the judicial review[5]. In our view, it is clear, upon a fair reading of the letter from the Master’s clerk dated 9 February 2022, that the purpose of the 2^nd undertaking was to ensure that the audio recording would only be used by the Applicant for her intended application for judicial review. If there was any doubt as to whether the Applicant could release the audio recording to her lawyers for the purpose of her intended application for judicial review, the Applicant could easily have clarified the matter with the Master. She did not do so. In all the circumstances, we are not convinced that the Applicant has shown that the transcript or audio recording could not have been obtained at the hearing below with reasonable diligence.

42.For the above reasons, the Applicant’s application for admission of the transcript of the hearing before the Master on 14 January 2022 as new evidence is refused.

SUMMONS DATED 11 SEPTEMBER 2023

43.By a further summons dated 11 September 2023, the Applicant applied for leave to adduce 2 letters dated 12 June 2023 and 19 June 2023 as “further evidence in support of [her] grounds for judicial review, as well as grounds for appeal stated in the Supplemental Notice of Appeal dated 31.08.2023”.

44.The Applicant’s letter of 12 June 2023, which was addressed to the Court of Appeal Registry, the Director of Legal Aid and Master Kent Yee, was for the purpose of, inter alia, seeking (i) “directions” from the court as to whether she should commence separate judicial proceedings to challenge a case management decision made by Master Kent Yee on 14 March 2023 in HCA 258/2023 (being the proceedings transferred to the High Court from the Labour Tribunal in LBTC 380/2020), or the matter should be dealt with as part of the existing proceedings in CACV 313/2022 (ie the present appeal); and (ii) a variation of the previous direction given by Yuen JA on 12 May 2023 excusing Master Kent Yee from attending the hearing of the present appeal[6].

45.The Applicant’s letter of 19 June 2023, which was addressed to various parties including the Court of Appeal Registry, a number of judges and judicial officers, and the Director of Legal Aid, was to “Request for Directions due to Change in Circumstance 2.0”.

46.In those 2 letters, the Applicant referred to various proceedings, including High Court actions, legal aid appeals and applications for leave to apply for judicial review all commenced by her arising out of her dispute with her former employer, and made a variety of disparate allegations or complaints concerning what she regards as “systemic procedural injustice” in the existing policies and operations of the Legal Aid Department, the Department of Justice and the Court of Hong Kong. It is unnecessary to deal with those allegations or complaints in this judgment, because they plainly fall outside the scope of the Applicant’s application for leave to apply for judicial review. As clearly stated in the Form 86 dated 22 April 2022, the only “judgment, order, decision or other proceeding in respect of which relief is sought” is the decision of Master Kent Yee in Legal Aid Appeal No 1185 of 2021. It is not open to the Applicant to seek to widen the scope of her intended application for judicial review to challenge the alleged “systemic procedural injustice” in the present appeal. Insofar as the Applicant intends to rely on the contents of her 2 letters in support of the Supplemental Notice of Appeal, we have already explained why the intended grounds of appeal raised in the Supplemental Notice of Appeal have no merits, and the Applicant’s application for leave to rely on the Supplemental Notice of Appeal should be refused.

47.For the above reasons, the Applicant’s application for admission of the 2 letters dated 12 June 2023 and 19 June 2023 as new evidence is refused.

DISPOSITION

48.The Applicant’s Notice of Appeal and her Summonses dated 7 October 2022, 11 September 2023 and 18 September 2023 are dismissed with an order nisi that the Applicant shall pay the costs of the Putative Interested Party to be taxed if not agreed. The above costs order shall become absolute unless an application is made to vary the same within 14 days from the date of this judgment.

The Applicant, acting in person

Ms Joycelyn Ho, Senior Government Counsel (Ag.), of Department of Justice, for the Putative Respondent and Putative Interested Party