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F And Others v The Registrar Of The High Court

Judgment Cited authorities 2 Cited in 2 Precedent Map Related
Vincent
Judgment Date07 February 2012
Year2012
Citation[2012] 2 HKLRD 73
Judgement NumberHCAL54/2011
Subject MatterConstitutional and Administrative Law Proceedings
CourtHigh Court (Hong Kong)
HCAL54/2011 F AND OTHERS v. THE REGISTRAR OF THE HIGH COURT

HCAL 54/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 54 OF 2011

____________

BETWEEN

F 1st Applicant
M (on behalf of A) 2nd Applicant
M (on behalf of B) 3rd Applicant

and
THE REGISTRAR OF THE HIGH COURT Respondent

and
DIRECTOR OF LEGAL AID Interested Party

____________

Before: Hon Macrae J in Court

Dates of Hearing: 4 and 5 January 2012

Date of Judgment: 7 February 2012

______________

J U D G M E N T

______________

1. The 1st applicant, F, is the husband of M who acts as the 2nd and 3rd applicant on behalf of her two children, A and B respectively. All of them are refugees from Sri Lanka within the meaning of Article 1 of the United Nations Convention on Refugees, their status having been confirmed by the United Nations High Commissioner for Refugees in Hong Kong in 2006. They are currently awaiting resettlement in another country and, accordingly, hold recognizances issued under section 36 of the Immigration Ordinance, Cap 115 in order to enable them to subsist in Hong Kong.

The factual background

2. In the early hours of 28 July 2007, all four members of the family were together in a kiosk in a public park in Sham Shui Po celebrating the birthday of a friend together with a number of other people of South Asian origin. Beer was being drunk and songs were being sung. Following a noise complaint from a member of the public, two police officers, Sgt 10107 (“Officer X”) and WPC 5919 (“Officer Y”) attended the park at 00:52 hours to investigate the complaint. During the course of their investigation, Officer X requested those in the kiosk to produce their identification documents. However, M was unable to produce her recognizance. Exactly what happened next is in dispute and will fall to be examined by the fact-finding tribunal in due course. What is clear is that a number of those at the party became agitated by the actions of the police officers and emotions began to run high. Accordingly, Officer X requested assistance over his beat radio as a result of which a number of other police officers successively arrived at the scene. One of the first to respond was PC 2480 (“Officer Z”), who arrived at the scene at 01:00 hours.

3. At 01:15 hours, Officer X declared arrest on M for failing to produce any document of identification. What happened then is also in issue but it is reasonably clear on any version that there was a confrontation between Officer X and F, who was evidently in an emotional state as a result of the arrest of his wife. Both parties allege violence on the part of the other. The police allege that as a result of violence used by F against Officer Z, he was arrested for assaulting a police officer in the execution of his duty: whilst F alleges battery by police officers.

4. After his arrest, F was handcuffed and conveyed with his wife to Sham Shui Po police station. There they were each detained in a separate police cell and strip-searched.

5. Some time later, the two children were brought by a friend to the police station. There is an issue as to whether M asked for the children to be brought to her in the cell or whether they were placed with her there at the behest of the police. Whatever the position, both of the children were reunited with their mother in her cell.

6. At some stage after the arrival of the children at the police station, F inflicted wounds on his own arms and upper body using the broken casing of his mobile telephone. He was consequently taken for medical treatment for those wounds.

Subsequent legal proceedings

7. On 7 April 2008, after a trial before a magistrate at Kwun Tong Magistrate’s Court on the charge for which he had been arrested at the scene, F was found not guilty of assaulting Officer Z in the execution of his duty. On 27 July 2010, solicitors on behalf of F issued a protective writ against the Commissioner of Police (“the Commissioner”) for battery; wrongful arrest, detention and imprisonment; infliction of emotional distress/harassment; misfeasance in office; and violation of constitutional rights. On the same day M, acting as the mother and next friend of the two children, A and B, issued similar writs in respect of false imprisonment; misfeasance in office; negligence; and violation of constitutional rights.

The civil claims

8. During argument before me, F’s claim was broken down into four distinct incidents. The first incident involves an alleged battery by Officer X (the first incident); the second incident involves an alleged battery by a group of police officers (the second incident); the third incident includes the alleged wrongful arrest of F at the scene and his wrongful detention both at the scene and in the cell at Sham Shui Po police station (the third incident); and the fourth incident engages the alleged infliction of emotional distress/harassment and/or misfeasance in office through what is said to have been an unnecessary strip search (the fourth incident).

9. M’s claims (on behalf of A and B) involve two separate incidents: the first alleges negligence by the police in leaving A and B behind in the park after unlawfully arresting their parents (the fifth incident); and the second concerns the alleged false imprisonment of A and B in a detention cell and/or misfeasance in office (the sixth incident). At the hearing, Mr Deng on behalf of the applicants did not pursue any argument in relation to the fifth incident. Nevertheless, I shall later deal with it because it provides the background to the sixth incident.

The background leading to the impugned decision

10. On 17 May 2010, F and M (on behalf of A and B) applied to the Director of Legal Aid (“the Director”) for funding in respect of proposed claims against the police which were later taken out on 27 July 2010 (supra para 7). At the same time M also applied for legal aid to fund her own action against the Commissioner for unlawful arrest, unlawful detention and trespass to the person. All of the applications were subsequently supported by a pro bono legal opinion rendered jointly by Senior and Junior Counsel.

11. On 23 August 2010, the Director, relying upon a legal opinion from another Senior Counsel, pursuant to section 9(d) of the Legal Aid Ordinance, Cap 91 refused F’s application for legal aid as well as M’s applications (on behalf of A and B). So far as M’s applications (on behalf of A and B) were concerned, the Director considered that the children had no cause of action against the Commissioner. As for F, the Director concluded that since the only viable claims were in relation to possible battery, which could be adequately dealt with in the Small Claims Tribunal, legal aid could not be granted for such proceedings. The applicants were duly notified in a letter of refusal of their right to appeal against the Director’s decision to the Registrar of the High Court (“the Registrar”). Meanwhile, M’s application for legal aid in her own right was allowed.

12. F and M (on behalf of A and B) in due course did appeal to the Registrar. On 9 February 2011, the Registrar dismissed the applicants’ appeals, explaining his reasoning (to which I shall return) and essentially confirming the reasons for the Director’s refusal of legal aid.

13. On 19 July 2011, notice of application for leave to judicially review the Registrar’s decision was filed. The relief sought by F and M (on behalf of A and B) was for an order of certiorari to bring up and quash the decision of the Registrar of 9 February 2011 refusing their applications for legal aid. On 17 August 2011, leave for judicial review was granted to the applicants on the papers.

The ambit of the application

14. It was common ground throughout these applications that since the recognizance document granted to M was not a “proof of identity” as defined in section 17B of the Immigration Ordinance, Cap 115 and as applied by section 54(3) of the Police Force Ordinance, Cap 232, M had committed no offence by being unable to produce the said document for the inspection of the police. It was consequently agreed between the parties that the police had no right to arrest M for failing to produce her recognizance document. Accordingly, I have approached these applications - as have the parties - on the basis that the arrest of M was unlawful.

15. In relation to F’s civil claim, Mr Deng on behalf of the 1st applicant conceded at my invitation at an early stage of these proceedings that if all that were left of his claim were the allegations of battery (the subject matter of the first and second incidents), F’s case would properly constitute a small claim and fall to be dealt with by the Small Claims Tribunal. Accordingly, it could not be said if that were the case that the Registrar’s...

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2 cases
  • Wong Chun Tak v The Registrar Of High Court
    • Hong Kong
    • High Court (Hong Kong)
    • June 5, 2015
    ...Ng Ai Kheng v Master M Yuen, (unrep., HCAL 46/2003, [2004] HKEC 313), Carlye Chu J (as she then was); F v Registrar of the High Court [2012] 2 HKLRD 73, Macrae J (as he then 18. In Chung Yuk Ying v Registrar of the High Court (supra), the applicant was initially granted legal aid for her co......
  • Weera Narayana Mudalige Basile Fonseka v Director Of Legal Aid
    • Hong Kong
    • Court of First Instance (Hong Kong)
    • January 25, 2021
    ...Ng Ai Kheng v Master M Yuen, (unrep., HCAL 46/2003, [2004] HKEC 313), Carlye Chu J (as she then was); F v Registrar of the High Court [2012] 2 HKLRD 73, Macrae J (as he then was).” 21. This approach was confirmed in Wong Chun Tak v Registrar of the High Court[15]. DISCUSSION 22. The first h......

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