Ponomarova Olena v. Master Phoebe Man Deputy Registrar of the High Court

HCAL 190/2023

[2023] HKCFI 1372

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 190 OF 2023

________________________

________________

_______________

J U D G M E N T

_______________

A.  Introduction

1.The Applicant credits the Courts with having far more advanced technology than they in fact enjoy. She suggests that there is or may be a speech recognition system used in Courts, with artificial intelligence as will record only those parts of what is said as will accord with a prior written decision, which the Court will then rubber-stamp. Whereas, in reality, many Court users worry whether there will even be a stable ‘Wi-Fi’ connection.

2.By Form 86 dated 9 February 2023, the Applicant seeks leave to apply for judicial review to challenge:

(1)  the decision dated 7 July 2022 (“DLA Decision”) made by the Director of Legal Aid (“Director”), refusing the Applicant’s legal aid application dated 27 May 2022 to proceed with her claim against her former employer Northcroft Hong Kong Limited (“Northcroft”), made in HCA 156/2022; and

(2)  the decision dated 10 November 2022 (“Master’s Decision”) made by Master Phoebe Man, Deputy Registrar of the High Court in LAA 607/2022, dismissing the Applicant’s appeal against the DLA Decision.

3.The Master was named as putative respondent, and the Director as the interested party. I gave directions for an Initial Response to the application, for a Reply to the Initial Response, and for the matter to be brought on for hearing.

4.As would be expected, the Master took a neutral stance, and was excused from participation in the proceedings. The Director filed an Initial Response.

5.The matter was originally fixed for hearing on 28 April 2023. But, on that date, the Applicant sought an adjournment to permit her more time to file and serve her Reply to the Initial Response. I set a deadline of 15 May 2023 for that Reply, which was met. I adjourned the hearing to 19 May 2023.

6.At that hearing, the Applicant appeared in person, and the Director was represented by Ms Bonnie Chung, Senior Government Counsel and Mr Gabriel Cheung, Government Counsel, who signed the Initial Response.

7.At the end of the hearing, I reserved my decision. This is my Judgment.

B.  No Recusal

8.Before turning to the substance of this application, I can deal with the question of recusal raised by the Applicant’s summons dated 19 October 2023 (“Recusal Summons”). As will be obvious, the Recusal Summons was issued after the argument on the Applicant’s application for leave to apply for judicial review, but before this Judgment.

9.I might add that the Applicant had written an earlier letter dated 11 July 2023 to the Court, essentially asking whether the information available at that point in time was sufficient for the purpose of making an impartial, independent, relevant and just decision with regard to her application for leave to apply for judicial review in these proceedings. I did not think that correspondence merited any response.

10.The Recusal Summons asks that I should be recused from handling and/or adjudicating and/or presiding over the proceedings in this present action.

11.As an aside, the Applicant has also issued an identical summons in HCAL 1163/2023, being proceedings in which the Applicant applies for leave to apply for judicial review so as to challenge a decision of Wilson Chan J made in the context of a High Court claim.

12.The basis of the requested recusal is stated to be:

a)  There is a well-established legal principle “It is not merely of some importance but is of fundamental importance, that justice should not only be done, but should manifestly and undoubtedly be seen to be done”, which is not complied with.

b)  There was a lack of good faith and the performance of duties of a Judge of the Court of First Instance of the Hong Kong SAR in the ambit of HCAL 249/2022, which led to deliberate misrepresentation of relevant facts and the applicant’s claims, which in turn lead to irrelevance, irrationality and illegality.

c)  The applicant’s case was inadequately interpreted and reflected by the Judge in the text of the 26-page ‘Decision’ dated 26.07.2022, resulting in additional confusion. This is particularly problematic in the context of an ongoing and protracted legal dispute with the applicant’s former employer Northcroft Hong Kong Limited.

d)  The applicant’s rights and public standing were and remain unfairly impaired due to the Judge’s performance in the ambit of HCAL 249/2022 and HCAL 190/2023.

e)  There are no actionable mechanisms in the High Court of Hong Kong to safeguard against repeated misconduct of the same judge in deciding related matters and causing delays and unavoidable expenses.

13.In essence, the Recusal Summons identifies that the Applicant does not like my previous Decision in HCAL 249/2022 [2022] HKCFI 2243 (“249 Decision”), or how it was reached. The 249 Decision arose in the context of a previous application for leave to apply for judicial review, also made in respect of a different Master’s decision dismissing the Applicant’s previous legal aid appeal, arising from a previous legal aid application which had also been refused by the Director (see below).

14.I have re-read the 249 Decision. However, I do not think the fact that I decided the previous application for leave to apply for judicial review against the Applicant – or the way in which the 249 Decision was expressed – could give rise to any reasonable apprehension of bias or other reason as would justify or require me to recuse myself from further handling of the present proceedings. For that reason, I would dismiss the Recusal Summons.

15.Indeed, the Applicant was well aware of the 249 Decision at the time of the argument in the present proceedings, and it seems to me that to seek to raise the recusal application by a summons after that argument has concluded is also too late. I would also dismiss the Recusal Summons on that basis.

16.In any event, the Applicant appealed to the Court of Appeal against the 249 Decision. The only ground raised in the Applicant’s Notice of Appeal was that:

The Section ‘E’ of the [249] Decision features instances of misdirection, where particular point of law and relevant facts were neglected, overlooked and directly suppressed evidence would 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.

17.That appeal – CACV 313/2022 – was heard by the Court of Appeal (“CA”) on 22 September 2023. By its Judgment dated 7 November 2023, [2023] HKCA 1170 (“CA Judgment”), the CA dismissed the Applicant’s Notice of Appeal.

18.In doing so, the CA also considered the four grounds of intended judicial review raised by the Applicant before me, and my reasons for rejecting them in the 249 Decision. The CA held that none of those four grounds had merit, and agreed with my analysis.

19.Further, on 4 September 2023, shortly before the argument on the appeal, the Applicant had filed and served a Supplemental Notice of Appeal dated 31 August 2023 without leave of the court, and subsequently a summons dated 18 September 2023 seeking leave to rely on the Supplemental Notice of Appeal. As part of the consideration of that summons, the CA considered the merits of the intended grounds of appeal raised in the Supplemental Notice of Appeal.

20.It can be seen from §33 of the CA Judgment that the intended further grounds of appeal are substantially overlapping with, and were essentially the same as, the complaints now raised by the Applicant in her recusal summons issued in these proceedings (see above). As described or summarised by the CA, those intended grounds were as follows:

(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 [249] 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 remain 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 as possible;

(6)  the [249] Decision and Order was plainly wrong and cause significant injustice and prevented a fair trial of the issues;

(7)  there are fresh developments, as well is 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 [249] Decision should be rectified to accurately reflect the Applicant’s stated case.

21.The CA held – at §34 – that Grounds (1) to (6) consisted of bare, general allegations without particulars, and failed to point to any specific error(s) in the 249 Decision, such that they could not constitute any valid ground of appeal.

22.As regards Ground (7), the CA held – at §35 – that the current proceedings HCAL 190/2023 are irrelevant to the matter raised in HCAL 249/2022, and there was also no good reason why the two applications should be heard and investigated together as suggested by the Applicant.

23.As to Ground (8) and the various suggested “flaws in interpretation and statement” of her case, the CA held – at §36 – that, upon analysis, none of the complaints raised by the Applicant was material to the 249 Decision. The CA then briefly stated the gist of each of the Applicant’s complaints and its comments on them.

24.For those reasons, the application for leave to rely on the Supplemental Notice of Appeal was refused by the CA. But, had there been any unfairness in reaching the 249 Decision, that was capable of being cured by the Applicant’s appeal from that decision. That also seems to me to be a reason for dismissing the present recusal application.

25.As an aside, I might also add that the 249 Decision was written at perhaps greater length than it might have been, precisely to try to assist the Applicant in understanding the procedural matters dealt with therein. It is, therefore, unfortunate that the intended assistance was either inadequate or misunderstood.

26.In conclusion, for all of the above reasons, the Applicant’s recusal application made by her summons dated 19 October 2023 is dismissed. Dealing with the summons has not involved anyone other than the Applicant and, on that summons, I make no order as to costs.

C.  Background

27.The background to these proceedings has a significant overlap with the background giving rise to the previous proceedings, leading to the 249 Decision. Much of it was traversed in the 249 Decision, and again in the CA Judgment. A further and updated summary of the background can be set out as follows (though I would make the caveat that not all of the background is necessarily strictly relevant to the question to be determined on this application).

28.On 22 July 2019, the Applicant entered into a contract of employment with Northcroft, which carried on business as chartered construction consultants. She was employed as Business Development Project Manager, for a term of one year from 10 September 2019 to 9 September 2020, at the salary of $30,000 per month plus other benefits.

29.It is the Applicant’s position that Northcroft failed to pay her any wages. Hence she commenced proceedings against Northcroft in the Labour Tribunal on 25 May 2020. Those proceedings – LBTC 380/2020 – claimed arrears of wages for a period of seven months and 21 days from 10 September 2019, in the total sum of $231,000. Northcroft’s main defence was that the Applicant had failed even to start her employment, and that she was not entitled to receive any wages.

30.On 23 March 2021, the Applicant obtained leave to amend her claim to divided into two parts, namely (1) arrears of wages in the sum of $37,451.61 for the period from 10 September 2019 to 17 October 2019, and (2) damages in the sum of $193,548.39 (being $231,000 less $37,451.61) apparently for unlawful termination of the employment contract.

31.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 (but without any admission liability), leaving the Applicant’s remaining claim for damages outstanding for determination.

32.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 section 32N of the Employment Ordinance Cap 57 (“EO”), on the ground that the claim was not filed within the statutory time limit set by section 32I(b) of the EO. The Labour Tribunal also gave directions as to the further conduct of the trial of the Applicant’s remaining claim for damages, and fixed trial for hearing on 19 and 20 October 2021.

33.Those trial dates were later vacated. Notwithstanding the pending action in the Labour Tribunal, the Applicant made an application for legal aid (“1^st LAA”) on 24 September 2021, so as 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.

34.On 20 October 2021, the Applicant made another application for legal aid (“2^nd LAA”), stating that the nature of the intended claim was for “Breach of contract (Please, refer to the old case)”. The Applicant made clear that the 1^st LAA and the 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 owed by the employer.

35.On 3 December 2021, the Director refused the 2^nd LAA, for the reasons that (1) the Applicant’s intended claim fell within the exclusive jurisdiction of the Labour Tribunal, (2) legal aid was not available for proceedings in the Labour Tribunal, and (3) the Applicant’s allegation that she was an “investor” of Northcroft was not substantiated by any evidence.

36.The Applicant lodged an appeal against the decision of the Director refusing the 2^nd LAA. That appeal was dismissed by Master Kent Yee by his decision dated 25 January 2022.

37.On 4 February 2022, the Applicant commenced HCA 156/2022, and the claim identified in the writ was for “remedies for breach of contract by the employer and unlawful termination” on the basis that “there is no valid reason for defendant to terminate my employment contract without notice and payment in lieu of notice was never made or offered either”. By her later Amended Statement of Claim filed on 16 May 2022, the Applicant claims relief in the form of (1) certified information about previous employment normally provided to the employee in Hong Kong, when the employment contract is terminated lawfully (i.e. employment period, position and reason for termination), and (2) damages for breach of employment contract and unlawful termination, as well as damages to her reputation caused in tort as the court may deem fit.

38.On 22 April 2022, the Applicant filed a Form 86 in HCAL 249/2022, to apply for leave to apply for judicial review of Master Kent Yee’s decision. That application was dealt with by me, and dismissed in the 249 Decision.

39.On 27 May 2022, the Applicant made another legal aid application (“3^rd LAA”), to continue with her claim for “remedies for breach of contract by the employer and unlawful termination” in HCA 156/2022. The application also stated in the area for ‘Extra Information’, “For information on pages 2-6 please refer to my previous files in the LAD”.

40.On 7 July 2022, the Director refused the 3^rd LAA, namely by the DLA Decision. The Applicant appealed against the DLA Decision, and the appeal was heard by Master Phoebe Man. The appeal was dismissed on 10 November 2022 by the Master’s Decision.

41.In the meantime, by an Award/Order dated 30 September 2022 made in LBTC 380/2020, the Applicant was given until 3 November 2022 to make any application for leave to add a claim for damages to reputation, with the statement setting out the basis of claim with qualification and supporting documents to the Tribunal Officer. It is not clear whether the Applicant made any such application to the Labour Tribunal.

42.By a further Award/Order dated 3 February 2023, made by consent, the Applicant’s “remaining claim” – a term not defined in the Award/Order – was transferred to the Court of First Instance. Those proceedings were registered as HCA 258/2023 on 20 February 2023.

43.As I have already indicated, the Applicant appealed against the 249 Decision in CACV 313/2022. She also applied for legal aid for that appeal, which was refused by the Director, and subsequently on her legal aid appeal LAA 65/2023 by Master Matthew Leung in a decision dated 15 June 2023.

44.The appeal in CACV 313/2022 was heard by the CA on 22 September 2023, and dismissed by the CA Judgment on 7 November 2023 (as I have already traversed above).

45.It also seems that the Applicant may have applied for legal aid in relation to these proceedings, but the process of the application was not completed prior to the oral hearing in these proceedings on 18 May 2023.

D.  The Master’s Decision

46.The Master’s Decision was apparently delivered orally at the appeal hearing, and expressed in the following terms (as reduced into writing):

1. This is the Appellant’s appeal against the Legal Aid Director’s refusal of legal aid for HCA 156/2022.

2. HCA 156/2022 shares the same factual background as LBTC 380/2020. The Appellant’s legal aid application for the transfer of LBTC 380/2022 to the High Court was refused, the appeal against the Legal Aid Department’s refusal as well is the judicial review against the Master’s dismissal of the appeal also failed.

3. The Appellant’s claims in HCA 156/2022 for remuneration, gratuitous bonus, annual leave, MPF/Insurance, Public Holidays, termination of employment fall within the exclusive jurisdiction of the Labour Tribunal.

4. In addition to damages for breach of employment contract and unlawful termination, as part of the relief claimed, the Appellant also claims “certified information about previous employment normally provided to the employee in Hong Kong when the employment contract is terminated lawfully” and “damages to my reputation caused in court”.

5. The former seems to refer to a letter certifying employment or a reference letter, the entitlement of which would also fall within the exclusive jurisdiction of the Labour Tribunal.

6. As to “Damages to my reputation caused in court”, the matters pleaded in the Amended Statement of Claim in HCA 156/2022 do not clearly refer to what statements, written or spoken amounted to defamation. There is some suggestion of the non-provision of “a support letter from the employer to the Immigration Department” which discredited the Appellant from the authorities in Hong Kong. If the Appellant is alleging defamation, proceedings wholly or partly in respect of defamation are excepted proceedings under paragraph 1(a), Part 2 of Schedule 2 of the Legal Aid Ordinance (Cap 91).

7. Insofar as the Appellant says the damages to reputation are not based on defamation, such damages would/could only stem from the alleged breach of the employment contract, and thus would fall under the exclusive jurisdiction of the Labour Tribunal.

8. The appeal is dismissed.

47.In short, the Master decided that either (1) the Applicant’s claim was based upon a contract of employment, in which case it would fall within the exclusive jurisdiction of the Labour Tribunal, which proceedings are not eligible for the grant of legal aid, or (2) if and insofar as the claim was based upon defamation, in addition to the fact that such a claim is not clearly or sufficiently pleaded, that claim would in any event fall outside the type of proceedings which might be eligible for the grant of legal aid.

E.  The Intended Challenge

48.In the Form 86, the Applicant seeks the following relief:

1. to grant me leave to apply for judicial review or hold an oral hearing if the leave is not granted based on my written submissions;

2. quash the decision by Master Phoebe Man to dismiss my appeal;

3. to quash the underlying decision by the Legal Aid Department as it was made as a result of systemic failure in due process for the legal aid appeal;

4. to take urgent measures against further crippling of the Hong Kong’s legal system through adoption and use of flawed Artificial Intelligence based software in operations of the Hong Kong Judiciary, related governmental agencies and their service providers during processing of documents and oral statements in natural language, projecting outcomes and costs of court cases, applying tests and drafting decisions etc;

5. costs and damages as this Court deems fit.

49.The section of the Form 86 dealing with the ‘grounds on which relief is sought’ states as follows:

1. the Master failed to observe due process and look into the actual merits of my ongoing [HCAL 156/2022] and simply rubber-stamped pre-drafted decision based on misrepresented information by the Legal Aid Department;

2. the Master failed to apply proper test;

3. the Master failed to act independently and impartiality;

4. my right of access to justice was violated;

5. I have delayed filing for leave to apply for judicial review, because I am not a professional lawyer, hence preparation of documents for this application required significant amount of time. In addition to that I can not generate income in Hong Kong and mustering 1045 HK Dollars in order to file this application required months of food deprivation and staying homeless in Hong Kong. In addition to preparation of documents pertinent to this application, I was occupied with preparation and filing of urgent documents for the ongoing HCA 156/2022, CACV 313/2022 and LBTC/2020 cases.

50.I can address the four main grounds below. As to the last point on delay, the Director does not take issue with any delay on the part of the Applicant in taking out the current application, and I need not further consider any delay.

51.In her original affidavit filed in support of the present application, as well as in a supplemental affidavit, the Applicant repeated the reasons why she chose to pursue her intended claims for breach of the employment contract and unlawful termination in the High Court, and that her employment contract was likely a misrepresentation of an intended contractual relationship by Northcroft. She also elaborated on this in her oral submissions, which can be briefly set out as follows:

(1)  When the Applicant started her claim in the Labour Tribunal, she considered herself to have been in an employment relationship.

(2)  Only after commencing that claim, by which she tried to get Northcroft to comply with the contract, did the shape of the case seem to change.

(3)  As the case progressed, the Applicant kept trying to “fix the relationship”, and to do what had been discussed she should do in scope of work.

(4)  There were also related issues about the right to remain in Hong Kong, where the Immigration Department (“ImmD”) has not said anything about the legality of the contract. Indeed, the fact that she was given an employment visa does not mean that ImmD certified that she was in an employment relationship.

(5)  Her skill set is not readily available in Hong Kong, and on her side it was not a sham contract. Therefore, the claim was based on her perception that she was in an employment relationship with Northcroft.

(6)  In 2021, the Applicant gained the knowledge that Mr Lai of Northcroft had a different intention from what the Applicant had thought when she entered into what she thought was an employment relationship.

(7)  So the Applicant had to decide how to put her claim, and she decided the safer course was to make a claim in the High Court in case the tort element is real.

(8)  If there really was an employment contract, then the Applicant was entitled to claim on it. But if it was avoidable, or not really a contract, then it is some other claim, for common law damages or misrepresentation as to status.

52.In her affidavits, the Applicant also raised other matters which might be summarised as follows:

(1)  The Legal Aid Department (“LAD”) disregarded the actual circumstances of her case, and failed to process her evidence and submissions.

(2)  There was an unauthorised use of dysfunctional software by the LAD, and all case analysis was outsourced by LAD to Artificial Intelligence.

(3)  Master Phoebe Man chose to “rubber-stamp” the pre-drafted decision based on a single test, and did not go through the Applicant’s submissions.

(4)  The Master also ignored significant information contained in the Applicant’s written statement, asked no relevant question with regard to controversies and inconsistencies and assumed the representative of the LAD was familiar with her case, not caring whether he would be able to assist with the information.

(5)  The room where the appeal hearing was conducted “was likely already equipped for the speech to text processing, which only extracts those fragments of conversations that are consistent with pre-drafted decisions”.

(6)  The “processing of legal aid applications and appeals through unrestrained automation and the use of Artificial Intelligence, Machine Learning and Natural Language Processing will only lead to further crippling of the Hong Kong’s legal system and catastrophic repercussions in society”.

(7)  As to the amenability of the DLA Decision, the problem with assessment of applications by the LAD, as well as “subsequent rubber-stamping of pre-drafted appeal decisions by the High Court Masters are links from the same chain of violations” in the due process.

53.In her Reply to the Initial Response, the Applicant explained her personal living conditions, and how they have deteriorated over time. She also canvassed the following points, amongst other things (and in my summary of them):

(1)  She is unable properly to address in writing or legal arguments by the deadline for filing the Initial Response, but hopes that the qualified lawyers involved in the application would make an effort to look into the actual cause of her dissatisfaction, leading her to initiate two sets of judicial review proceedings, and make an effort to take an opportunity to contribute to finding solutions / protocol / mechanism, which will prevent similar disruptions to her and others in future.

(2)  The Applicant does not have a clear understanding about an application in judicial review proceedings, and so should be given an opportunity to have sufficient time to read manuals.

(3)  When it became apparent that what was started as a labour claim for the arrears of wages under the employment contract in an ongoing employment relationship in fact is a complicated matter of fact and law, the Applicant applied for legal aid in order to have legal representation in the CFI, which had unlimited jurisdiction to hear her claims.

(4)  The Applicant explained the history behind her various legal aid applications, including those matters which have given rise to her dissatisfaction.

(5)  As regards her first intended ground of judicial review, the Applicant stated that the Master failed to observe due process in that she failed to take into account the matters raised in her written submissions with regard to the nature of her dispute with Northcroft. The Master “blindfoldedly” upheld the findings provided by the LAD, and asked no questions at all with regard to the contents of the declaration which the Applicant intends to seek in HCA 156/2022, nor relevant questions with regard to the nature of damage to her reputation.

(6)  Mr Chong, the representative for the Director at the legal aid appeal, failed to respond to the question whether he was familiar with the materials of the Applicant’s case, nor does the Initial Response respond to that question.

(7)  The Initial Response features a misrepresentation, which will be elaborated on at the oral hearing.

(8)  The Master failed to apply the proper test because the single precedent mentioned by her is hardly applicable to the dispute founded in the questions of fact and the questions of law (presumably those raised at her §12: see below).

(9)  The Applicant has been denied access to justice because she has not had the benefit of legal representation, and does not have the ability to argue issues of great importance to her without having to sacrifice to almost all her time, mental, physical and financial resources to the legal dispute in a common law system – reflected in her deteriorating lifestyle and living conditions, and psychological exhaustion in having to produce written submissions within short timeframes and at the same time process and present the supporting evidence.

54.The Applicant also sought, at §12 of the Reply to the Initial Response, to explain her “extended legal dispute with Northcroft”, which she did in the following terms:

The matters in dispute between the parties include the questions of fact (such as whether my conduct in September/October 2019 entitled [Northcroft] to terminate me without a notice and/or payment in lieu; was that an inferior motive in actions and/or omissions by the offices of [Northcroft]; was there a deceitful assistance; is there a relationship of causality between actions and/or omissions by the offices of [Northcroft] and my damages; have I mitigated etc) and law (have the parties entered into a legal contract? is it an employment contract? if yes, what is the relevant date of termination? am I entitled to perceived intangible benefits as an employee under the contract in question: such as a proper termination letter, a reference letter, the status of a person who “was employed in Hong Kong on a relevant position for a period of at least six months”? was there an unlawful termination of employment? am I entitled to compensation as an employee under the Employment Ordinance or as a party to a contract in common law, if at all? etc).

55.It can be seen from that summary of her own legal dispute that the Applicant’s claim is essentially one arising out of, or based upon, the fact of employment, a contract of employment, or rights under the Employment Ordinance. Amongst the possible relief sought in the proceedings are damages for termination without notice or payment in lieu, other damages arising from the relationship between her and Northcroft, a proper termination letter, a reference letter, and compensation under the Employment Ordinance.

56.I take these various points into account. The Applicant, of course, also made further oral submissions at the hearing itself. In so far as the points that she made were additional to those already canvassed above, I can return to them later in this Judgment.

57.I would also point out that the Applicant has continued to try to make submissions even after the conclusion of the oral hearing. She has done so in correspondence sent to the Court, often headed by reference to (or with attachments with reference to) more than one of her actions, and on the basis of seeking directions or clarifications. Conducting litigation in this way is not appropriate, and the Court is entitled to ignore that correspondence.

58.I can refer in particular to a document dated 19 June 2023, sent by the Applicant to me and also addressed to the Director, Master Phoebe Man, Master David Chan, Master Matthew Leung, Master Kent Yee, and the Court of Appeals Registry. That document is headed by reference to both HCAL 190/2023 (i.e. these proceedings) and CACV 313/2022 (i.e. the appeal from the 249 Decision). It attaches various documents relating to LAA 65/2023, as well as matters arising in HCA 156/2022 and HCA 258/2023. The body of the document repeats various assertions made by the Applicant in her various previous submissions and correspondence, with the common theme of complaints about earlier decisions made by Judges and judicial officers, and complaints about the process of the making and consideration of applications for legal aid.

59.I acknowledge that the Applicant is a litigant in person, who has expressed her view that she is required to comply with – in her words – “a variety of rituals, forms and procedures of a legacy contentious litigation system”. But, whether the Applicant understands it or not, the rules of procedure (which are not mere “rituals”) exist for good reason, seeking to facilitate the fair and proper administration of justice. Even if, on occasions, some allowance is made in recognition that a litigant in person will likely be less familiar with court rules and procedures than would a legal representative, that does not mean that those rules and procedures can be ignored. Litigation is not some ‘rolling’ process, where parties can continue to make submissions as and when it occurs to them to do so. Some discipline is required.

60.Even overlooking the inappropriate attempt to litigate through correspondence, including after the oral hearing, this material is simply not helpful.

F.  Summons dated 14 March 2023

61.By a summons dated 14 March 2023 (“14 March 2023 Summons”), the Applicant sought various orders including:

(1)  an order to restrain the LAD, until final judgment in these proceedings, from using software based on Large Language Models and/or Artificial Intelligence and related technologies for the purpose of processing and/or assessing legal aid applications, complaints and letters by the Applicant in part or in whole;

(2)  an order to restrain the LAD from assigning particular named legal aid officers and all other officers who were previously involved in processing her legal aid applications from handling and/or processing her ongoing and future legal aid applications;

(3)  an order for disclosure of the details of the “established rule and procedure” (including copies of assignment policy documents, the names of persons who assigned those officers to handle her application for legal aid, what software was and is used to process applications and prepare letters by the LAD).

62.No affidavit was originally filed in support of the 14 March 2023 Summons. Instead, by her letter to the Court dated 14 March 2023, the Applicant invited the Court to grant her requested restraint orders promptly based on the information she had already provided to the Court.

63.I declined to do so, and said that I would deal with the 14 March 2023 Summons at the hearing of the application for leave to apply for judicial review.

64.Subsequently, as the Applicant had indicated in her Reply dated 15 May 2023, the Applicant filed an affidavit dated 18 May 2023 in support of the 14 March 2023 Summons. She said that the policies acted upon by the LAD are not aimed at better meeting the needs and interests of the applicants for legal aid, but rather combating public dissatisfaction with misspending money by LAD for cases without merit. Hence, decreasing costs through automation of processes by the use of appropriate technologies and recoverable costs against the amount spent seemed (to the Applicant) to be the most straightforward solutions.

65.She also stated that, through the present judicial review proceedings, she is attempting not just to challenge a particular decision, but to discover “the breaking points” starting from the filing of applications and all the way through to approvals, projections and appeals. She had asked for a restraining order because she did not know what actually happens to the documents and information collected from an applicant by the LAD officers, who are not trained lawyers. However, she also noted that it had been denied by the LAD that it was using AI and/or other related technologies for the purpose of processing of legal aid applications. She also stated that the discovery sought by the 14 March 2023 Summons is necessary to identify proper respondents for the purpose of the intended judicial review proceedings, and proper voluntary disclosure of information is a matter of adherence to transparency, consistent with social responsibility governance.

66.Having considered the arguments, I agree with Ms Chung that the 14 March 2023 Summons is misconceived, without merit, and should be dismissed. The orders sought by that summons are not relevant to the present application for leave to apply for judicial review, which is focused on the refusal of the Applicant’s 3^rd LAA.

67.In any event:

(1)  There is simply no evidence – and, as the Applicant has herself noted, the Director has denied – that the LAD has used or was using any software based on Large Language Models and/or Artificial Intelligence and related technologies for the purpose of processing and/or assessing the Applicant’s legal aid applications.

(2)  The LAD has previously explained to the Applicant in detail by letter dated 6 June 2022 the reason for assigning relevant case officers in handling her legal aid applications (where the statutory provisions in the LAO do not empower applicants fully delayed the right to choose their processing officers). In general, and subject to operational needs, the same officer will be assigned to process legal aid applications made by the same applicant, unless there is a conflict of interest. In the Applicant’s case, and so as to avoid any potential conflict of interest, two separate teams of officers have been assigned to handle (1) applications in relation to claims against Northcroft, and (2) the applications to challenge decisions concerning the dismissal of her legal aid appeal.

(3)  The LAD has no written document on the “assignment policy” concerning the assignment of case officers to process legal aid applications, and no software based on Artificial Intelligence or related technologies were used in relation to the Applicant’s legal aid applications or correspondence.

68.I dismiss the 14 March 2023 Summons.

G.  The DLA Decision

69.I can deal shortly with the intended challenge to the DLA Decision.

70.The Applicant had a right of appeal from the DLA Decision, pursuant to section 26 of the Legal Aid Ordinance Cap 91. She exercised that right. As it was an alternative remedy to her, and pursued by her, that precludes any judicial review claim against the DLA Decision. It is not amenable to judicial review. Indeed, in the 249 Decision, I explained why that was so.

71.There are different tests to be applied (1) when the DLA/Master is considering an application/appeal for legal aid and (2) when the Court is considering an application for judicial review of a decision refusing to grant legal aid. If authority is needed for such a proposition, reference can be made to Xu Fangwen v Deputy Registrar of the High Court [2019] HKCFI 2332 at §§17-20.

72.The starting point is that, under section 10(3) of the LAO, a person shall not be granted legal aid certificate in connection with any proceedings unless he or she shows reasonable grounds for taking, defending, opposing or continuing such proceedings.

73.A legal aid appeal to the Master is in the nature of a de novo hearing. It does not take the form of a review of the decision of the DLA, and the question is not whether the DLA made a decision which was reasonably open to be made on the materials. The Master is deciding whether, in his or her view on the materials before him, legal aid should be granted. Therefore, when hearing an appeal against the decision of the DLA refusing to grant legal aid, the Master should adopt the same approach.

74.But the question to be answered by the Court when considering an application for leave to apply for judicial review of the Master’s decision dismissing a legal aid appeal is a different one. The Court does not sit as a further tier of appeal, and does not re-examine the Master’s decision afresh, or consider whether it would have granted legal aid to the applicant. The Court’s function is confined to a review of the legality, rationality and fairness of the process, so as to determine whether the intended application for judicial review is reasonably arguable and has a realistic prospect of success.

75.Further, as the appeal to the Master under section 26 of the LAO is a full appeal, as described above, where the applicant for legal aid has exercised the statutory right of appeal against the DLA’s decision, it follows that the underlying DLA’s decision is in principle not amenable to judicial review: see the Xu Fangwen case at §§21-22, adopting by analogy the reasoning of the Court of Appeal in Re Moshin Ali [2018] HKCA 549.

76.The Applicant’s offered explanation as to why she should be permitted to challenge the DLA Decision in this application – namely that both the DLA Decision and the Master’s Decision were tainted by the same “chain of violations” of due process – does not change the position. If there had been any violation of due process in reaching the DLA Decision, it was open to and incumbent on the Applicant to raise those matters as part of her legal aid appeal heard by the Master.

77.Therefore, insofar as the present application concerns any intended challenge to the DLA Decision, it must fall at the first hurdle.

H.  The Master’s Decision

H.1  Whether Master Failed to Observe Due Process

78.The Applicant submitted that Master’s failure to observe due process occurred because the Master failed to take into account the matters raised by the Applicant in written submissions regarding the nature of her dispute with Northcroft, and merely blindly upheld the view expressed by the Director. Further, the Applicant complained that the Master asked no questions as regards the relief apparently sought in HCA 156/2022 – so, she said, the Master did not make sure that she understood the Applicant and her claim.

79.Before me, the Applicant sought to emphasise that if she had really been a party to an employment contract, then she was entitled to claim. But if there was no contract, she has some other claim, and would be entitled to common law damages or something flowing from the misrepresentation as to the status of the relationship between her and Northcroft.

80.As to the representation of the Director by Mr Chong, the Applicant sought to draw a distinction between being familiar with the materials, and being familiar with the matter; they are not the same thing, and different criteria may apply.

81.The Applicant also submitted that the Director’s statement that he was entitled to understand the Applicant’s claim for certified information about previous employment upon lawful termination employment as a “reference letter” was wrong, and she could have been asked about it to confirm what she intended. On that point, it is difficult to see the error. As I pointed out above, the Applicant’s description of her own claim identifies that part of the relief she seeks is indeed a “reference letter” (as well as a “proper termination letter” and something setting out the status of a person who “was employed in Hong Kong on a relevant position for a period of at least six months”).

82.However, I accept the submission from Ms Chung that the Applicant has not adduced any sufficient evidence to support her allegation that the Master failed to observe due process or failed to look into the actual merits of her case in HCA 256/2022. On the materials, it I agree, and it seems to me, that:

(1)  The Applicant was given full opportunities to make written and oral submissions. She filed a Response on 8 November 2022, and she made further submissions at the hearing on 10 November 2022.

(2)  Acknowledging that the Applicant might not have been able to express matters in a precisely legally formulated matter, it nevertheless fell to the Applicant to seek to explain the nature of her claim, and why the Director had erred when he refused the grant of legal aid for the further pursuit of that claim.

(3)  In any event, a party to litigation is bound by his or her pleaded case, and the Applicant’s pleaded case in this instance was sufficiently clear to be understood.

(4)  There was no requirement for the Master to ask questions if she considered the materials before her already sufficient.

(5)  The giving of reasons orally by the Master at the hearing actually shows that the Master did not “rubber-stamp” any pre-drafted decision, and did not ignore the Applicant’s submissions.

(6)  Leaving aside the absence of evidence to suggest that the Director’s representative at the hearing lacked sufficient familiarity with the matter to provide assistance to the Master, in any event the Master was able to consider matters relevant to the decision with the Applicant being given full opportunities to identify to the Master those matters which the Applicant might consider relevant or irrelevant to the overall assessment as to the grant or refusal of legal aid. Quite simply, if Mr Chong failed to tell the Master something the Applicant should have been said, it was open to the Applicant to have informed the Master herself.

(7)  There is no evidence to support the Applicant’s suggestion that her appeal was processed “through unrestrained automation and the use of Artificial Intelligence, Machine Learning and Natural Language Processing”.

(8)  There was no evidence of “misrepresented information” having been provided by the Director to the Master. The Applicant’s real complaint is that the Master was not presented with information which led the Master to order the grant of legal aid.

83.The Applicant also submitted to me that she needed to correct any perception that she is an untrustworthy employee. She takes on high-risk projects, so needs people to trust her. Therefore, whilst the case is in part about money, it is not the money arising from this employment, but the other money that she could earn in future. However, those matters do not identify any failure of due process by the Master, nor any other public law ground of review.

84.Nor does the fact that the Labour Tribunal has – since the Master’s Decision – agreed to transfer the remainder of the Applicant’s claim to the High Court (now in action HCA 258/2023) assist the Applicant on this application for leave to apply for judicial review. First, the transfer had not been made at the time of the argument before the Master and her decision. Secondly, the legal aid appeal was in relation to the refusal of the grant of legal aid for the Applicant to pursue or continue her case as was made in HCA 156/2022. Thirdly, what precisely was the “remaining claim” that the Labour Tribunal thought it was transferring is not clear. Fourthly, the mere fact that a claim might be brought in or transferred to the High Court is not sufficient on its own to entitle the maker of that claim to the grant of legal aid.

85.There is no reasonable arguability in this proposed ground.

H.2  Whether the Master Failed to Apply the Proper Test

86.In the Master’s Decision, the Master referenced the authority of Nguyen Trong Son v Director of Legal Aid (unreported, LAA 20/1999, 15 December 2000).

87.The Applicant submitted that the Master failed to apply the proper test because the single precedent mentioned by her is hardly applicable to the dispute founded in the questions of fact and the questions of law (which she set out in §12 of her Reply to the Initial Response: see above).

88.However, that authority sets out the well-settled test for consideration of the grant or refusal of legal aid. It was an appropriate authority for the Master to consider, cite and rely upon – and the Applicant does not suggest any other particular authority which ought to have been considered and/or cited by the Master reaching her decision.

89.There is no reasonable arguability on this intended ground.

H.3  Whether the Master Failed to Act Independently and Impartially

90.The crux of the Applicant’s complaint in this regard appears to be that (1) it was wrong for the Master to assume that Mr Chong, representing the Director on the legal aid appeal, was familiar with the materials and (2) the Master did not care whether Mr Chong would be able to “assist with the information”.

91.There is nothing in this criticism. A similar point was run by the Applicant in HCAL 249/2022, and I dealt with it at §§60-61 of the 249 Decision. I remain of the view that it is not reasonably arguable that it was incumbent on the Master to interrogate the representative for the DLA 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 the intended claim in the High Court, or as to other matters or information. As already stated above, the Applicant was well able to have identified to the Master those matters which she would say were relevant (and those which she would say were irrelevant) to the overall assessment as to the grant or refusal of legal aid. The Applicant made written submissions, and was given the opportunity to make oral submissions.

92.Again, even if it is correct that the representative for the Director lacked sufficient familiarity to be able to provide full assistance to the Master were she to have asked questions of Mr Chong, that does not seem to me to identify that the Master was not able to consider those matters relevant to her decision, nor does it arguably suggest that the Master was prejudiced against the Applicant, or somehow lacked independence and impartiality.

93.There is no reasonable arguability on this intended ground.

H.4  Whether the Applicant has been Denied Access to Justice

94.This is a point also raised by the Applicant in HCAL 249/2022 and considered in the 249 Decision. What I stated there holds true for the circumstances of this case. I repeat it.

95.The legislature has determined that certain types of claim fall within the exclusive jurisdiction of the Labour Tribunal, meaning that those types of claim must be brought in the Labour Tribunal (though there also exists the power of the tribunal to decline jurisdiction for any reason and to transfer the case to, say, the High Court).

96.The ability to bring a claim in a tribunal which has exclusive jurisdiction to hear and determine that claim clearly provides access to justice in relation to that claim.

97.The legislature has also determined that legal aid cannot be granted for proceedings in the Labour Tribunal. Further, the legislature has also determined that certain types of claim – including claims in defamation – are not claims for which legal aid can be granted.

98.But, the inability to obtain legal aid (1) in proceedings in the Labour Tribunal and/or (2) on a defamation claim does not seem to me to be reasonably arguable as a violation of the Applicant’s right of access to justice.

H.5  Merits Overall

99.In light of the above, I do not think any of the intended grounds of review directed specifically at the Master’s Decision are reasonably arguable with any reasonable prospect of success.

100.Further, though I have pointed out that the Court (acting in its judicial review jurisdiction) does not act as a further tier of appeal in relation to the denial of the Applicant’s application for legal aid, I would express the view that it seems to me that the Master’s decision was in any event correct.

I.  Intended Wider or Systemic Challenge

101.As indicated above, the Applicant seeks a wider form of relief, of the kind also sought by the 14 March 2023 Summons.

102.In her Form 86, the Applicant asked the Court “to take urgent measures against further crippling of the Hong Kong’s legal system through adoption and use of flawed Artificial Intelligence based software in operations of the Hong Kong Judiciary, related governmental agencies and their service providers during processing of documents and oral statements in natural language, projecting outcomes and costs of court cases, applying tests and drafting decisions etc”.

103.There is no reasonable argument with any realistic prospect of success as could found the application for that form of relief.

104.With respect, this entire line of argument seems to me to be based on baseless surmise and unfounded suspicion. Even if, on occasions, applications for legal aid might appear not to have been dealt with on the most efficient basis, that does not logically lead to any proper inference of the kind invited by the Applicant. The does not seem to me to be any proper basis supporting what the Applicant described as her “main point”, namely that the whole process of applications for legal aid is not aimed at meeting the interests of the individual applicant. Indeed, that point seems itself to start from an incorrect assumption that an applicant for legal aid is simply entitled to be granted that legal aid, because that applicant regards the grant of legal aid as being in his or her interest.

J.  Result

105.The Applicant’s application for leave to apply for judicial review is dismissed.

106.I acknowledge that Ms Chung has put forward a strong argument in support of the costs order being made against the Applicant in this case. The Applicant has brought an application – indeed, another application – which is thoroughly ill-conceived and unmeritorious. It is also correct that I might have disposed of the leave application on paper, but for the Applicant’s request for an oral hearing of the leave application. Even when that oral hearing occurred, the Applicant displayed what might in my view be fairly described as at least “truculence”. There is no reason for an applicant to ask for an oral hearing if that hearing is then treated as in effect pointless.

107.However, ultimately, in the broad exercise of my discretion as to costs, I will on this occasion make no order as to costs.

The applicant, acting in person

The putative respondent was excused from court attendance

Ms Bonnie Chung, Senior Government Counsel and Mr Gabriel Cheung, Government Counsel, of the Department of Justice, for the putative interested party