Martnok Thanradee v. Director of Legal Aid

LAA 702/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LEGAL AID APPEAL NO. 702 OF 2013

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BETWEEN

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DECISION

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THE APPEAL

1.This is an appeal from the decision of the Director of Legal Aid by the appellant, who is represented pro bono by counsel, Mr. Lawrence Man.  Mr. Edmund Chan, Senior Legal Aid Counsel acts for the Director of Legal Aid (“DLA”).

2.It will be convenient to state the Court’s jurisdiction in relation to this appeal.  Section 26 (4) of the Legal Aid Ordinance, Cap. 91 provides:

“(1) An applicant for legal aid or an aided person who is aggrieved by any order or decision of the Director made under any provision of this Ordinance may appeal therefrom to the Registrar of the High Court in chambers. (Amended 40 of 1989 s. 8; 25 of 1998 s. 2)

… …

(4) A decision of the Registrar on an appeal under this section shall be final, save that the Registrar may refer any appeal, and shall refer an appeal against any decision of the Director under section 4(3), for decision of a judge of the High Court in chambers, in which event the decision of the judge shall be final. (Amended 25 of 1998 s. 2)”

3.The hearing today was made by special arrangement by Deputy Judge M. Ng, the trial judge on 25 March 2014, who indicated to me that the trial will take place on 18 March 2014 and there is an outstanding issue of change of legal aid counsel, which is under appeal.  But the appeal has been scheduled to be heard after the trial has commenced.  This may be unsatisfactory as the appellant may raise this issue at the beginning of the trial.  Arrangements were therefore made for this urgent hearing today.  I am grateful for counsel’s assistance in the preparation of the Notes and written submissions on an urgent basis.

THE FACTUAL BACKGROUND

4.The appellant claims against the Commissioner of Police and the Secretary for Justice in HCA789/2011 for malicious prosecution.  The facts of the case as set out in Mr. Chan’s Notes to Registrar are as follows:

“2. There was no dispute that :

(a) On 19 December 2006 information was laid by the police before a magistrate that (i) AP had contravened sections 4(1) and (3) of the Noise Control Ordinance Cap 400 in, among others, making music which was a source of annoyance on 9 November 2006, and (ii) AP failed to personally supervise the premises on 15 November 2006 in contravention of item no 4 of her liquor license conditions contrary to sections 46(1) and (3) of the Dutiable Commodities Ordinance Cap 109, which secured the issuance by a magistrate of two summonses directing the plaintiff to appear at a magistrates’ court;

(b) On 18 January and 26 April 2007, AP appeared before a magistrates’ court, and after summary trial of the said information the summonses were dismissed whereupon the prosecution was determined.

3. AP summarized her claim (which the 1st and 2nd defendants denied) in her affirmation filed on 27 November 2013:

(a) AP and her late husband took over a karaoke business and she applied to the Liquor Licensing Board to change the liquor licensee and name of the business. In/about July 2006, such application was approved.

(b) After AP became the liquor licensee of the karaoke/bar, the police wanted her and her husband to appoint a “watcher” to their liking for accepting secret money. A police officer once told her if she were not cooperative they could play her to death, and police officers also told her and her husband that they had better close down the business otherwise the police would keep prosecuting her until she would go bankrupt.

(c) On the night of 27 September 2006, two women police constables went inside the karaoke disguised as customers for an operation against anti-erotic activities, but did not find any such activities. However they framed a false case against a Thai customer by saying he worked as a waiter serving customers and cleaning up tables after the customers asked for the bill. But there was in fact no waiter service and the customers did not ask for their bills. Due to such false allegations, AP was arrested that night for employing an unemployable person, detained in police station for several hours, and was subsequently released on bail with a condition for regular reporting to the police station. The Thai customer was subsequently charged, tried, convicted and sentenced to 12 weeks’ imprisonment. But his conviction was quashed on appeal.

(d) In the meantime, on 19 December 2006, the police laid information for the issuance of the two summonses referred to above.

(e) After dismissal of the summons for failure to personally supervise the karaoke/bar on the ground of no case to answer, the police was called upon by the magistrate to explain why the police commenced prosecution without proper investigation, and the magistrate reiterated that the police ought to conduct thorough investigation before commencing any prosecution.

(f) Despite such observations by the magistrate, the police continued to prosecute the plaintiff on the other summons for making music that was a source of annoyance.  Such summons was also dismissed with no case to answer.  Thereafter, the police informed the magistrate via the prosecutor that her husband took a photograph of the prosecution witness inside a lift in the court building, which was untrue.  Her husband was arrested and detained for a few hours by the police before being released on bail.  Subsequently, he was discharged unconditionally.”

5.DLA assigned Mr. Tang Kwok Chuen of M/s Li Kwok & Law as solicitor and counsel Mr. Kelvin Leung to represent the appellant. 

6.DLA subsequently reassigned another counsel to act for the appellant, who disagrees with DLA and prefers Mr. Kelvin Leung as her own choice of counsel.  DLA disagrees.  Hence this appeal.

DLA’S GROUNDS TO CHANGE LEGAL AID COUNSEL

7.DLA made the decision of change of counsel for the appellant on the following reasons:

“(i) Counsel advised and represented AP during the legal aid appeal on 6.11.2013 and provided advice on merits but he did not disclose his relationship with AP and the legal aid appeal was allowed;

(ii) He did not apply for permission from the Bar Council or the Director beforehand that he is aware of his relationship with AP;

(iii) The application for jury trial has been made without our prior approval or knowledge;

(iv) His relationship with AP may compromise his independence and duty to the legal aid fund in particular the carrying out of Regulations 12 stated in paragraph 10 above.”[1]

8.As can be seen from the allegations above, they are serious allegations against Mr. Leung as a barrister, impinging upon his integrity.  This Court will require the proportionate burden of proof from DLA and has to examine the evidence as proved in order to determine whether those allegations are sustainable against Mr. Leung.  See paragraphs 64, 72, 74 & 116 in A Solicitor v The Law Society of Hong Kong [2008] 2 HKLRD 576.

9.I shall now consider each of the grounds above.

DISCUSSION

Non-disclosure of relationship by counsel

10.It is not disputed that Mr. Leung is a sibling of the appellant’s late husband and that he did not disclose the relationship to DLA when he was instructed to represent the appellant.  This issue arose out of a complaint from the Department of Justice, of the 2^nd defendant in the Action.  DLA considered that Mr. Leung might be in conflict as he might have been in breach of the Bar Association’s code of conduct on conflict of interest as follows :

(a) A barrister may not accept a brief or instructions in any case where by reason of his connection with the client it would be difficult for him to maintain his professional independence.  Examples of the operation of this rule are given in Annex 7.

(b) A barrister may not appear as Counsel

(i) In a matter in which he himself is a party or has a significant or significant pecuniary interest.

(ii) Either for or against any company of which he is an officer or in which he has directly or indirectly a significant pecuniary interest.  Exceptions may be authorized by the Bar Council.[2]

11.DLA refers me to a series of exchange of letters marked “B” in the file.  Suffice it to note, there had been correspondence between the Department of Justice (“DoJ”) and DLA, DLA and the assigned solicitors, Mr. Leung and DoJ and Mr. Leung and DLA. I shall simply outline the positions from the correspondence.  DoJ informed DLA of Mr. Leung’s relationship with the appellant. DLA made enquiry with the assigned solicitors.  Mr. Leung discussed the issue with DoJ. Mr. Leung had reported the matter to The Bar that he had been counsel for the appellant in the criminal trials and that he would not be a witness in this matter and he sought direction from The Bar.  The Bar raised no objection to his representation for the appellant.  DLA sought Mr. Leung’s consent to pursue the matter on conflict with The Bar.  Mr. Leung raised no objection.  According to Mr. Chan, DLA has not pursued the matter with the Bar because of this appeal.  However, DLA made the decision of substituting another counsel for Mr. Leung.

12.Mr. Man submits that DLA has not stated any rule of law or policy to support his view that such relationship will constitute a conflict of interest.

13.As DLA has not cited the law in support of his conclusion, the only ground that he may rely upon is the conducts of a barrister under the Bar Code.  DLA relies upon §§58 and 60 of the Bar Code as referred to paragraph 10(a) and (b) supra. §58 of the Bar Code provides:

“A barrister may not accept a brief or instructions in any case where by reason of his connection with the client it would be difficult for him to maintain his professional independence. Examples of the operation of this rule are given in Annex 7.”

The examples are:

“(1) Membership of or connection with various bodies, such as companies or professional organizations;

(2) Deputations; and

(3) Taxation.”

14.Mr. Man therefore submits that nothing in the Bar Code forbids counsel from acting for a relative, not to mention such relationship in the present case has been broken long time ago by reason of the death of appellant’s husband.

15.It is provided in Annex 8 of the Bar Code as follows:

“Appearance before Relatives

(2) It is not considered improper for a barrister to appear before his parents or near relative in the Court of First Instance, Court of Appeal, or the Court of Final Appeal. But a barrister should not appear before his or her spouse except in the Court of Final Appeal.”[3]

16.Paragraph 60 of the Bar Code provides:

“A barrister may not appear as Counsel:

(a) in a matter in which he himself is a party or has a significant or significant pecuniary interest.

(b) either for or against any company of which he is an officer or in which he has directly or indirectly a significant pecuniary interest. Exceptions may be authorised by the Bar Council. (Examples of the operation of this rule are given in Annex 7.)”[4]

17.Mr. Man therefore submits that Mr. Leung has not been in contravention with the Bar Code.  As such, it was unnecessary for him to obtain prior approval of the Bar before he could accept instructions from DLA to act for the appellant.

18.Mr. Chan argues that under Regulation 12 of the Ordinance, the solicitor and counsel have the duty to report unreasonable behaviour of the aided person.  If counsel is related to the aided person, counsel may compromise his position not to report to DLA.  I shall consider this to be speculative as there is no evidence to show this is the case.  In fact, there was the instructing solicitor in the legal team.  There is no allegation from DLA that there has been a collusion of the assigned solicitor and counsel to incur more costs for this matter.  The question turns on whether the relationship per se will constitute suspicion.  So far, Mr. Chan is unable to show me any authority that the relationship between Mr. Leung and the appellant will constitute a conflict of interest.  If this is the position, it will be unfair to blame Mr. Leung not to disclose his position at the outset, viz. at the time when he gave legal advice on the merits or at the time when he decided to apply for a jury trial.  Whether the application was made reasonably is another matter.

No permission from The Bar or DLA

19.This ground is premised upon Mr. Leung’s knowledge of his relationship with the appellant.  This requirement can only arise if his relationship with the appellant will constitute conflict of interest or other breach of the law or the Bar Code and Mr. Leung knew it to be so at the material time. DLA has not been able to show that the relationship requires permission from the Bar or DLA.  In my view, Mr. Leung has reason to believe that such relationship did not require the Bar’s permission or consent from DLA.

20.It seems that DLA has also relied upon other grounds to say that Mr. Leung should have obtained his permission.  I shall consider other grounds as well below.

Application for jury trial without DLA’s prior approval

21.DLA refers to section 13 of the Legal Aid Ordinance, Cap.91:

“(1) Where a legal aid certificate is granted, the Director may act for the aided person in any proceedings, or party of any proceedings, and the Director may assign counsel or solicitor, to be selected by the aided person, if he so desires, or otherwise selected by the Director, and the Director shall endorse on the legal aid certificate the name of any counsel or solicitor assigned.

(2) The Director may, if he is of the opinion that any proceedings are, or may become, of exceptional difficulty or importance, state in the certificate that the aided person should be represented by 2 counsel, one of whom may be leading counsel, in such proceedings.”

22.In further elaboration of section 13, DLA says this in the Notes:

“9. If it appears to the aided person’s solicitor necessary for the proper conduct of the proceedings for an act to be done, but that act is either unusual in its nature or involves unusually large expenditure, he must request for the Director’s prior approval of the act, and, where such prior approval has been obtained, no question as to the propriety of the act shall be raised on taxation as between solicitor and client.”

23.There is no evidence that the matter is either unusual in its nature or involves unusually large expenditure to raise the alarm.  Even if there are such factors, section 13 provides that it is the solicitor’s responsibility to obtain prior approval of DLA.  It appears that Mr. Leung should not be liable for the solicitor’s responsibility, if such responsibility arose.  However, on the evidence available, it seems that the responsibility of obtaining prior consent from DLA had not arisen.

24.At paragraph 10 of the Notes, DLA further refers to Regulation 12 of the Legal Aid Regulations Cap 91:

“10. If an aided person’s solicitor or counsel has reason to believe that the aided person has required his case to be conducted unreasonably so as to incur unjustifiable expense or has required unreasonably that the case be continued; or has wilfully failed to comply with any regulation requiring him to provide information or in furnishing such information has knowingly made a false statement or a false representation, the solicitor or counsel must forthwith report the fact to the Director.”

25.None of the matters as provided under Regulation 12 is before me.  The requirement of reporting to DLA did not exist.

26.DLA may consider that the application for jury trial falls into this regulation.  But the regulation requires the aided person’s conduct which was unreasonable in the first place.  DLA has not complained against the appellant.  Instead, he complains that Mr. Leung had advised and proceeded to apply for a jury trial without his prior knowledge or consent.  He regards Mr. Leung’s decision and conduct unreasonable. The application has failed and more expense has been incurred.

27.In a letter dated 10 February 2014, Mr. Leung had explained to DLA that the matter should preferably be tried by jury.  He referred to Cropper v Chief Constable of South Yorkshire & Another [1989] 1 WLR 333(CA) and Cummings & Ors v the Ministry of Justice [2013] EWHC 33(QB).  By the date of this letter, the application for jury trial had been disposed of by Deputy Judge M. Ng as she had delivered her decision on 24 January 2014 (“the Decision”).

28.In the Decision, the Deputy Judge gave her reasons rejecting the application in the following paragraphs (in bracket) of the Decision:

a. The appellant had not made the request at the time of setting down (56 & 57);

b. The appellant might not be able to pay the jury deposit (58);

c. The plaintiff was not a prominent public figure, nor was the action involve any national interest or raise any constitutional importance, the modern trend being such case should be tried by a single judge (59);

d. The matter involved complex issues of law and evidence and if the trial were by a jury, it would take a longer time and the trial might have to be re-fixed (60);

e. The complicated issues would cause difficulty for the jurors (61);

f. There would be more than 100 pages of criminal trial transcript and other related material, which would be more conveniently dealt with by a Judge alone (62);

g. The matter required a reasoned judgment from a Judge, which a jury trial would not give (63);

h. Finally, the underlying objectives of CJR favoured trial by a Judge for economical deployment of court’s resources (64).

29.It can be seen that nowhere did the Decision comment that the application was unreasonable.  The costs awarded were on a party-to-party basis.

Compromise of independence because of the relationship with appellant

30.Finally, DLA put forth this ground by summarizing the above issues in paragraph 12 of the Notes:

“12. We have considered AP and Counsel’s submission and found that a clear case of conflict of interest or embarrassment arises because :

(i) Counsel advised and represented AP during the legal aid appeal on 6.11.2013 and provided advice on merits but he did not disclose his relationship with AP and the legal aid appeal was allowed;

(ii) He did not apply for permission from the Bar Council or the Director beforehand that he is aware of his relationship with AP;

(iii) The application for jury trial has been made without our prior approval or knowledge;

(iv) His relationship with AP may compromise his independence and duty to the legal aid fund in particular the carrying out of Regulations 12 stated in paragraph 10 above.”

31.It is unnecessary to repeat what have been said above here.  DLA has not said that on a hindsight, if not for Mr. Leung’s advice on the merits, legal aid should not be granted to the appellant.  Today, the issue for this Court is only whether DLA has reason to change legal aid counsel against the appellant’s wish.

Procedural fairness

32.Now, this appeal turns on the appellant’s complaint that DLA has not respected her choice of counsel.  It therefore falls upon this Court to consider whether DLA has the reason to change legal aid counsel against the appellant’s wish under section 13(1) of the Ordinance.  DLA argues that the appellant does not have the right under Article 35 of the Basic Law to insist upon her own choice of counsel, relying upon Dr. Ip Kay Lo Vincent v Medical Council of Hong Kong (No 2) [2003] 3 HKC 579.

33.It should be noted that in the Court of Appeal case, the Court of Appeal discussed the right under Article 35 of the Basic Law on the basis that it found that the Medical Counsel Tribunal was a court within the meaning of the Basic Law.  However, the Court of Appeal’s decision on the meaning of “court” has been overturned by the Court of Final Appeal in The Stock Exchange of Hong Kong Ltd v New World Development Co Ltd & Others (2006) 9 HKCFAR 234 (per Ribeiro PJ):

“69. In my opinion, the same fundamental flaw regarding Art 35 affects the judgments in the Court of Appeal below as well as the relevant judgments in Dr Ip’s case and the Law Society case. They do not adopt the correct approach to interpreting Art 35 and consequently fail to interpret it in the context of the Basic Law’s evident purposes which involve laying the constitutional foundations for the exercise of the judicial power in the HKSAR.”

34.However, for the present discussion, the overruled part of the Court of Appeal’s judgment is not significant because we are dealing with the court within meaning of Article 35 of the Basic Law as decided by the Court of Final Appeal.

35.Section 13(1) of the Legal Aid Ordinance, §10 supra, clearly states that the appellant does have a choice of her own counsel and DLA has to take that into consideration before he makes his final decision on the choice of legal aid counsel for the appellant.

36.Mr. Man refers me to Keane v DLA, CACV 49/2000 (unreported 15 June 2000) where he submits that the Court of Appeal saw merit in an argument that holds that circumstances conceivably could develop in Hong Kong in which it was important that the aided person’s choice of counsel be regarded as inviolate, notwithstanding a difference of view on the part of the Director. (at p.14).

37.In fact, I consider the Court of Appeal had said more than that.  It said:

“If there had been a sufficient evidential foundation for concluding that the Director of Legal Aid’s practice is not to respect the legally aided person’s choice of counsel, declaratory relief along the lines sought by Mr. Keane might have been appropriate – on the assumption, of course, that Mr. Keane’s argument on the proper construction of section 13(1) was correct.”

38.Counsel only have had limited discussion on this issue.  DLA only refers to section 13(1) of the Ordinance, relying upon Dr Ip’s case and Mr. Man has not called upon me to deal with this issue in his written submission.

39.I consider that this issue is very much a matter of procedural fairness on the part of DLA when he exercised his discretion under section 13(1) of the Ordinance in the selection of the choice of counsel for the appellant.  I may seek guidance from the Court of Final Appeal on this issue.

40.In C & Others v Director of Immigration & Another and United Nations High Commissioner for Refugees FACV18, 19 & 20 of 2011 (25 March 2013), the Director of Immigration had issued an order of deportation against the appellant, deporting him back to his own country where the appellant said that he would be subject to persecution.  The Director relied upon the screening result made by the UNHCR’s decision without making his investigation himself.  The Director’s argument is that he was not obliged to do so as the Convention was not applicable to Hong Kong without domestication of the Convention, although it is the practice of the Department that humanitarian grounds will be considered.  The Court of Final Appeal held:

“But it is essential that the determination must be made by the Director and his duly authorized officers and that the determination must satisfy the high standards of fairness required. FB v Director of Immigration [2009] 2 HKLRD 346 provides an illustration of what might be required.” [5]

41.The Court of Final Appeal had a discussion on the procedural fairness.  At §29 of the judgment by Tang PJ, he cited the decision of CJ. Li in Secretary of Security v Sakthevel Prabakar (2004) 7 HKCFAR187:

“43. The question in this appeal concerns the standards of fairness that must be observed by the Secretary in determining in accordance with the policy the potential deportee's claim that he would be subjected to torture if returned to the country concerned. One is concerned with procedural fairness and there is of course no universal set of standards which are applicable to all situations. What are the appropriate standards of fairness depends on an examination of all aspects relating to the decision in question, including its context and its nature and subject matter: R v Home Secretary, ex p Doody [1994] 1 AC 531 at p.560D-G.

44. Here, the context is the exercise of the power to deport. The determination of the potential deportee's torture claim by the Secretary in accordance with the policy is plainly one of momentous importance to the individual concerned. To him, life and limb are in jeopardy and his fundamental human right not to be subjected to torture is involved. Accordingly, high standards of fairness must be demanded in the making of such a determination.”

42.In the discussion of the rule of law being the foundation of judicial review, Sir Anthony Mason NPJ cited Lord Hoffmann in R (Alconbury) v Environment Secretary :

“There is however another relevant principle which must exist in a democratic society. That is the rule of law. When ministers or officials make decisions affecting the rights of individuals, they must do so in accordance with the law. The legality of what they do must be subject to review by independent and impartial tribunals.”[6]

43.Therefore the questions that this Court should ask here are: what are the context and its nature and subject matter for DLA to consider under section 13(1) of the Ordinance?

44.Section 13(1) imposes an obligation upon DLA to take the appellant’s choice of counsel.  The relationship between the appellant and her counsel is between a trustee and beneficiary, a relationship of confidence of the appellant in her counsel.  DLA has the final discretion in the choice because he has the statutory power to administer the Legal Aid fund ensuring that it is properly deployed and to prevent abuse.

45.DLA may be right to say that in Dr. Ip’s case, Cheung JA had expressed a view that Article 35 of the Basic Law (on choice of lawyer) “is not concerned with the provision of free legal aid by the government” and “also does not enable the litigant to insist to have a particular lawyer, even though that lawyer may not be available to handle the case or is not willing to represent him”.[7]  It does not mean that DLA does not have the statutory duty to consider the appellant’s choice of counsel under section 13(1) of the Ordinance.

46.The appellant applied for legal aid and her rights must be subject to the statutory provisions.  DLA also has the duty and power to administer the department in accordance with the statutory provision, such as making the best economical deployment of resources and prevent abuse of the system.

47.However, if he rejects the appellant’s choice of counsel, for the sake of fairness, he has to give reasons for his decision because his decision is subject to appeal by the Court under section 26 of the Ordinance.  As in the C & Other’s case, Sir Anthony Mason NPJ cited Lord Mustill in R v Home Secretary, Ex parte Doody[8] at §79:

“where an Act of Parliament confers an administrative power there is a presumption that it will be exercised in a manner which is fair in all the circumstances.”[9]

CONCLUSION

48.I have examined the reasons given by DLA in support of his decision to change counsel for the appellant against her will.  I do not find those reasons sustainable for his decision.  It seems that he does not have the legal basis to support his conclusion that the relationship between Mr. Leung and the appellant, per se, will constitute any conflict of interest.

49.Furthermore, DLA’s conclusion that because of the relationship between Mr. Leung and the appellant, Mr. Leung would compromise his independence as counsel for the appellant is not supported by evidence.  He alleges that it is improper for Mr. Leung to apply for a jury trial without his consent or knowledge.  But as analyzed above, there is insufficient reason to support his views.

50.Having considered all the circumstances in this appeal, I consider that DLA has taken into consideration factors which should not be taken and he has also failed to take into consideration of the appellant’s choice.  His decision to substitute another for Mr. Leung as counsel for the appellant should not be supported.  By virtue of section 26 of the Ordinance, I set aside his decision and advise him to instruct Mr. Leung to represent the appellant in the trial, which is to take place soon.  It seems that Mr. Leung had been the counsel in charge of the matter and he would be able to make the preparation for trial within a short time.

51.Prompt action is required for this matter, lest Mr. Leung may not be available for the trial.  This will complicate the matter as change of the milestone date will be involved.

52.With the consent of the parties, this Decision is published.

Mr. Lawrence Man, instructed by Li, Kwok & Law, for the appellant

Mr. Edmund Chan, Senior Legal Aid Counsel for the Director of Legal Aid