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Yousaf Akbar v The Registrar Of The High Court

Judgment Cited authorities 2 Cited in Precedent Map Related
Vincent
JurisdictionHong Kong
Judgment Date02 March 2023
Neutral Citation[2023] HKCFI 575
Year2023
Subject MatterConstitutional and Administrative Law Proceedings
Judgement NumberHCAL18/2023
HCAL18/2023 YOUSAF AKBAR v. THE REGISTRAR OF THE HIGH COURT

HCAL 18/2023

[2023] HKCFI 575

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 18 OF 2023

________________________

BETWEEN
YOUSAF AKBAR Applicant
and
THE REGISTRAR OF THE HIGH COURT Putative Respondent
DIRECTOR OF LEGAL AID Putative Interested
Party

________________________

Before: Hon Coleman J in Court
Date of Hearing: 22 February 2023
Date of Decision: 2 March 2023

_______________

J U D G M E N T

_______________

A. Introduction

1. By Form 86 dated 5 January 2023, the Applicant seeks leave to apply for judicial review of the decision dated 10 October 2022 (“Decision”) made by the Deputy Registrar of the High Court (“Master”) dismissing the Applicant’s appeal against the Director of Legal Aid’s refusal of his legal aid application made in the context of his claim in HCPI 409/2020 (“PI Action”).

2. The PI Action is a personal injury claim, commenced by generally endorsed writ on 7 October 2020, and brought against the Hospital Authority in respect of the allegedly negligent medical treatment provided to the Applicant between 8 October 2017 and 23 November 2018. There is as yet no filed statement of claim.

3. The Director refused the application for legal aid on 28 January 2022. The Master dismissed the appeal on 10 October 2022.

4. I gave directions to bring this matter to a hearing on 22 February 2023, including that the Director should provide an Initial Response to the application, and that the Applicant might provide a Reply. Both documents were helpfully provided. Further, at the hearing the parties agreed with my suggestion that the matter be treated as a ‘rolled-up’ hearing of the application for leave and any substantive judicial review application.

5. The Applicant was represented by Mr Damian Wong and Mr Jeffrey Tam of Counsel (both appearing on a pro bono basis, instructed by solicitors acting on the same basis). The attendance of the Master as putative respondent was excused. The Director, as putative interested party, was represented by Mr Patrick Siu of Counsel.

6. At the conclusion of the hearing, I reserved my decision. This is my Judgment.

B. Correct Approach

7. The proper approaches (1) in a legal aid appeal and (2) in considering an application for leave to apply for judicial review of a decision to dismiss a legal aid appeal are well-settled, and need no reference to authority.

8. A legal aid appeal to the Master takes the form of a de novo hearing, and it falls to the Master to decide whether, in his view of the materials before him, legal aid should be granted. In making that decision, the Master will apply the criterion provided in section 10(3) of the Legal Aid Ordinance Cap 91, namely that a person shall not be granted a legal aid certificate in connection with any proceedings unless he shows that he has reasonable grounds for taking, defending, opposing or continuing such proceedings. The Court does not have to be satisfied that it is more probable than not that the issue will be decided in the appellant’s favour. But it has to be satisfied that the appellant has shown that there is a reasonable, as opposed to a fanciful, chance of the Court at trial deciding that issue in his favour.

9. In deciding whether or not to grant legal aid, the Court has to and can only assess the merits of the intended claim by looking at the evidence materials available at that time as a whole; the credibility of the applicant’s allegations and the inherent probabilities and improbabilities can be taken into account, and it is not correct as a general proposition that whenever an applicant for legal aid intends to make a claim based on his or her own assertions, legal aid should be granted simply because there is as yet no evidence coming from the other side to explain the matter otherwise. The merits of each individual case must be assessed based on the available materials and evidence specific to that case.

10. But on any ensuing application for judicial review, the question for the Court is not whether the applicant has a reasonable chance of success in the intended underlying action, but whether the intended application for judicial review of the Master’s decision is reasonably arguable and has a realistic prospect of success. 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 adopted by the Master on the appeal.

C. Background Facts

11. The necessary background facts can be stated with some economy, and I do not think it necessary to set out the level of detail as is provided in the Form 86.

12. In short, from 8 October 2017 onwards, the Applicant was admitted to and/or treated at the Pamela Youde Nethersole Eastern Hospital (“Hospital”) for various complaints including severe back pain and contractions and weakness in both legs. The Applicant underwent various tests, including MRI. On 14 October 2017, the Hospital fitted a sternal occipital mandibular immobiliser (“SOMI”) brace to immobilise and protect the Applicant’s upper thoracic spine. But the Applicant subsequently complained of discomfort and refused to use it.

13. On 31 October 2017, it was recorded that the Applicant indicated he was not keen for operation. On 2 November 2017, surgical treatment was suggested after reassessment. On 4 November 2017, the Applicant refused surgery and various treatments. On 6 November 2017, the Applicant again refused surgery – albeit at a time that the Applicant says he was very drowsy from the various medications, and in circumstances where he only has a primary level education and his English and Chinese proficiency is not that high.

14. What was or was not said in discussions between the Applicant and the doctors treating him is the substance of the dispute giving rise to the claim in the PI Action on whether or not there was “informed consent”. In particular, the main issue relating to consent is whether the doctors in fact told the Applicant of the risks and possible consequences of not having the surgery. It is on that issue of consent that the legal aid appeal was argued, and decided by the Master.

15. In a draft witness statement of the Applicant prepared for the PI Action, it is stated (at §14):

About 5 November 2017, the attending doctor came to me and told me that I should undergo a surgery. I asked the doctor about the surgery and he told me that it was a very big and very risky surgery that would be done by cutting my chest open. The doctor said there was a chance that I might be completely paralysed. I asked the doctor what I should do and the doctor then suggested that it would be better not to perform the surgery. I was confused and scared. The doctor was discouraging me from doing the surgery so I followed the Doctor’s advice. I am a simple-minded person. I did not ask further questions and neither did the doctor elaborate further. He never told me that if I decided not to do the surgery, my legs would keep on contracting and that that time was a golden time for the surgery. At that time, I was scared of the surgery as I am a layman and I did not know that there was an option of doing the surgery from the back which was less risky and safe. I was never told by the doctor that the surgery could actually be done from the back and that there is a time limit or golden time for doing it. Now I know I made a mistake, and without thinking clearly, quickly said no but they did not bother to elaborate further to convince me that it would save my legs from contracting and that without surgery, I would be disabled for life. …

16. The Applicant also says that no family member was contacted by the Hospital about the pros and cons of the surgery.

17. It is common ground that the various medical records of the Applicant at the Hospital do not contain any notes as to what advice and explanations were given to the Applicant about either having or not having surgery, or any particular surgery. In essence, the medical records merely note the Applicant’s hesitancy as to, and then refusal of, surgery.

18. The Applicant later underwent surgery in December 2019/January 2020. But his claim in the PI Action is apparently based on the allegation that the surgery then performed was too late, whereas earlier surgery would have been more beneficial.

19. It is also helpful here to make reference to correspondence subsequent to the Applicant’s concerns arising. On 4 October 2018, the Society for Community Organisation wrote to the Chief Executive of the Hospital summarising the complaints it had received about the Hospital’s care provided to the Applicant. One matter summarised related to the question of informed consent to surgery, and the section of the letter reads (sic):

Doctor from Ward A9 suggested Mr Akbar to receiving operation. Since Mr Akbar is only a primary school graduate and is simpleminded person, he has very little education and understanding of his illness. He thought that he has not fractured or broken any bones. On top of that, doctors were also scaring him of the high risks and unsuccessful rate of the operation which made him feel that he should not be going for it. Doctors never told him what will happen if he doesn’t do it and they never bother to let the family or at least one close family member understand the risk and pros and cons of the surgery. Thus, Mr Akbar was not fully aware of the purpose...

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