Akhter Rana Shahid v. Director of Legal Aid

HCMP 234/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 234 OF 2016

(ON AN INTENDED APPEAL FROM HCAL 51/2015)

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J U D G M E N T

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Hon Barma JA (giving the judgment of the court):

1.This is an application, made on 29 January 2016, by Mr Akhter Rana Shahid seeking an extension of time for appealing against the decision of Au J dated 28 April 2015, refusing Mr Shahid’s application dated 14 April 2015 for leave to bring judicial review proceedings against the Director of Legal Aid, in respect of the Director’s decision dated 28 June 2013 discharging a legal aid certificate which had been granted to Mr Shahid. The Director’s decision was affirmed on appeal by the Registrar on 11 July 2013.

2.Au J dismissed the application for leave to apply for judicial review on the merits, holding that it disclosed no reasonably arguable case with any realistic prospect of success.  He also noted that the application was well out of time (being made over 20 months after the decision complained of, whereas RHC Order 53 rule requires applications for judicial review to be made as promptly as possible, and in any event within 3 months of the decision sought to be challenged), and held that there were no good reasons to extend time.

3.Notwithstanding Au J’s observations as to the delay in the application to him, this application was itself made only some 9 months after Au J’s decision.  It is therefore well outside the 14 day period within which an appeal against a refusal of leave to apply for judicial review should be lodged.  This delay is clearly inordinate.  The reasons put forward by Mr Shahid for the delay are that he has been unable to obtain legal advice, and that he is poorly educated.  While this makes him deserving of some sympathy, we regret to say that they cannot be regarded as making the delay excusable.  As a result, it is necessary for Mr Shahid to demonstrate a real prospect of success on the merits, and not just a reasonable prospect of success, in order to obtain the extension of time sought (see Lee Chick Choi v Best Spirits Co Ltd, unreported, HCMP 371/2015, 21 May 2015, per Kwan JA at paragraph 19).  However, as we explain below, the outcome of this application would have been the same, whichever standard were to be applied.

4.The background to this application is as follows:

(1) Mr Shahid is a claimant for protection under Article 3 of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, whose claim is pending determination.

(2) Mr Shahid suffers from diabetes and heart disease.  It appears that his condition is serious, and requires special diet, monitoring and treatment.

(3) Since making his claim under the Convention, Mr Shahid was provided with food and other assistance by the Social Welfare Department (“SWD”), through the non-governmental organization International Social Services (“ISS”) (which is the entity through which the SWD provides assistance to all torture claimants).

(4) Unfortunately, Mr Shahid’s experiences with ISS have been extremely unhappy, and the relations between them have been very poor.  Mr Shahid brought unsuccessful proceedings against ISS in the Small Claims Tribunal in 2009, and was the subject of a complaint to police in respect of alleged criminal intimidation against ISS staff, which resulted in a prosecution in 2011, of which Mr Shahid was acquitted.  Mr Shahid felt that he was not being provided with adequate assistance, particularly having regard to his medical condition.

(5) This led to Mr Shahid being granted legal aid to bring judicial review proceedings against the SWD relating to the provisions that were made for his welfare.  Initially, his assigned solicitors were Messrs Barnes & Daly.  However, at Mr Shahid’s request, the case was re-assigned to Messrs Tso Au Yim & Yeung, with Mr Timothy Parker of counsel also assigned to act for him.

(6) Messrs Tso Au Yim & Yeung sought to negotiate with the SWD for improved provision for Mr Shahid, and appeared to have met with some success.  However, the SWD insisted that whatever provision was made for Mr Shahid should be channelled through ISS, a condition which Mr Shahid refused to accept.

(7) At this point, Mr Shahid’s solicitors and counsel came to the view that having regard to the improvements that had been negotiated, the judicial review proceedings against the SWD no longer had any prospect of success.  They therefore recommended to the Director of Legal Aid in March 2013 that, having regard to this, Mr Shahid’s legal aid certificate should be discharged.  Acting on this advice, the Director discharged the legal aid certificate on 28 June 2013.

(8) It was this decision of the Director that formed the subject matter of the application for leave to apply for judicial review dealt with by Au J.

(9) As noted above, Mr Shahid appealed against the discharge of his legal aid certificate, but his appeal was dismissed by the Registrar on 11 July 2013.

5.In this application, Mr Shahid has repeated the complaints that he made to Au J.  However, he has not (perhaps because of his lack of legal knowledge) attempted to identify the respects in which it could be said that Au J erred in coming to the decision that he did.

6.In our view, although the situation in which Mr Shahid finds himself may be deserving of some sympathy, it is impossible to regard his proposed appeal as having any prospects of success, whether reasonable prospects or real prospects on the merits.  As Au J correctly pointed out, the decision of the Director of Legal Aid to discharge Mr Shahid’s certificate, based as it was on the advice of assigned solicitors and counsel (which would itself appear to be entirely justified), cannot possibly be regarded as containing any error of law, or as being Wednesbury unreasonable.  Similarly, as Au J pointed out, insofar as any complaint was made of the Registrar’s decision on appeal, this too, could not possibly be the subject of successful challenge, for the same reasons.  That being so, Au J was, with respect, quite right to refuse the leave to apply for judicial review that was sought.

7.As the proposed appeal has no merit, the extension of time sought must be refused.  Whatever sympathy one may have for Mr Shahid, no purpose would be served by granting an extension of time in respect of an appeal with no prospects of success.

8.The application for an extension of time for appealing is therefore dismissed.  As Mr Shahid was unrepresented, and the Director of Legal Aid has not had to respond to this application, we make no order as to costs.

The applicant, in person

The respondent did not appear and was not represented