Negligence – duty of care – alleged failures by police and Legal Aid Department to carry out statutory duties – did not give rise to duty of care at common law
In divorce proceedings between W and H, the Court made orders for maintenance to be paid by H and, on his undertaking to bear all necessary living costs of their children (“Cs”) (the “Undertaking”), joint custody of Cs. Subsequently, W complained to the police that H had breached the Undertaking by failing to pay Cs’ maintenance, and could not be contacted. The police responded that no crime was involved and suggested W commence civil proceedings against H and seek help from the Social Welfare Department. W then applied for legal aid to issue proceedings for variation of Cs’ maintenance and custody orders. The Legal Aid Department (“LAD”) rejected W’s applications for failure to prove H’s financial status and provide his address or telephone number. W did not appeal against the refusal of her applications. However, four years later, W brought proceedings against the Government for breach of statutory duty, specifically against: (a) the LAD under the Legal Aid Ordinance (Cap. 91) (the “LAO”) for not informing her to apply for a court order requiring government departments to disclose H’s personal data and commit him to custody to facilitate civil proceedings; and (b) the police force under the Police Force Ordinance (Cap. 232) for its categorisation of her complaint as a civil dispute and failure to investigate H’s “criminal” acts, namely his disappearance and abandonment of Cs and failure to pay their living expenses. A Master struck out W’s claim. Subsequently, the Judge dismissed W’s appeal (see  1 HKLRD 1232). W appealed, arguing that inter alia the Judge failed to disclose that he was an appointed Panel Judge under s. 6 of the Interception of Communications and Surveillance Ordinance (Cap. 589) (the “ICSO”) to scrutinise and approve police work, resulting in apparent bias.
Held, dismissing the appeal, that:
- There was no apparent bias such as to disqualify the Judge from hearing W’s appeal and to nullify his decision. W’s argument was based on an inference drawn without any proper factual basis. There was no connection between a Panel Judge and the LAD nor any common interest between a Panel Judge and the police force or the Government. Panel Judges functioned independently in scrutinising applications by the police and other law enforcement agencies. Further, the ISCO did not stipulate that a Panel Judge was entitled to remuneration and allowances, as claimed by W. There was nothing to show that the Judge was a party to the litigation or had any financial or personal benefit to gain from the outcome of the hearing, so that a fair-minded and informed observer would conclude that there was a real possibility of bias towards the Government.
- W’s complaint that H had failed to honour the Undertaking was a civil, and not criminal, contempt of court.
- The police did not owe W a duty of care at common law. As a matter of public policy, the police generally owed no duty of care to victims or witnesses in the investigation and suppression of crime and were exempt from civil actions for negligence in respect of such activities. Even if the police had wrongly considered W’s complaint involved no criminality or wrongly decided not to investigate and arrest H, the nature of her claim still fell within this core principle and did not constitute exceptional circumstances.
- Nor did the LAD owe W a duty of care at common law. Such duty could not be imposed on a statutory duty if it would conflict with the proper discharge of the statutory duty. The legislative intent of the LAO was that if the Director of Legal Aid (the “Director”) breached his duty in law, an applicant could seek relief by lodging an appeal or applying for judicial review in public law. It did not confer on him a civil cause of action. Further, imposing such duty would affect the proper discharge of the Director’s statutory duty to examine applicants’ means and the merits of their cases in order to prevent abuse of legal aid services.