The Director of Legal Aid v. Van Can on and Others

Civil Appeal No. 24 of 1997

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H E A D N O T E

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Vietnamese asylum-seekers were refused refugee status (screened Out) by the Director of Immigration (DOI) and the Refugee Status Review Board (RSRB). They made a late application for judicial review (JR) of the decisions of the DOI and the RSRB and were granted leave to apply.

In order to pursue their applications for JR, they applied for legal aid. Legal aid was refused by the Director of Legal Aid (DLA). The DOI provided the "screening" documents to the DLA under s.9 of the Legal Aid Ordinance on condition that they were not provided to the applicants.

The applicants appealed to the Registrar under s.26 of the Ordinance against the refusal of legal aid. The appeal came before the master. He concluded that in order for him to hold a fair hearing, the applicants should have access to the documents. He therefore adjourned the appeal and "recommended" that the DLA should provide them to the applicants. The DLA declined relying upon the confidentiality imposed by DOI and Bui Thi-Chin v DLA [1994] HKC 441.

The applicants did not restore their appeal before the master but applied for JR of the DLA's decision not to provide the screening documents, alleging that the decision was "procedurally unfair".

Keith J agreed and granted JR. He quashed the DLA's decision and by mandamus required the DLA to supply copies of the documents to the applicants. The DLA complied with the order but appealed the judge's order.

Held: (per Nazareth V-P and Mortimer JA, Liu JA dissenting). Appeal allowed. Procedural unfairness in the DLA's decision not demonstrated. The procedural unfairness alleged related to the hearing by the master and no procedural unfairness in that hearing was shown.

The appeal ought to have been restored before the master. It was his duty to hold a fair hearing. There was no reason to conclude that he was powerless to do so.

The application for JR ought to have been refused.

Per Mortimer JA. Comments on "satellite" litigation.

IN THE COURT OF APPEAL

1997, No. 24
(Civil)

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Coram: Hon Nazareth V.-P., Mortimer and Liu JJ.A. in Court

Date of hearing: 1 May 1997

Date of handing down judgment: 29 May 1997

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J U D G M E N T

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Nazareth V-P:

1. The applicants are asylum-seekers from Vietnam. They sought asylum in Hong Kong. They were all refused refugee status by the Director of Immigration ("the DOI") and later by the Refugee Status Review Board ("the RSRB"). They wished to challenge those decisions and for that purpose applied for legal aid. To enable the Director of Legal Aid ("the DLA") to determine those applications, copies of various documents concerning the applicants were supplied to her by the DOI. They were supplied to her on condition that they were to be used only to enable her to assess the merits of the applications for legal aid, and on condition that she did not supply them to anyone else.

2. The DOI's practice is to supply such documents to asylum seekers or their representatives only if a request is made to him for the purpose of applying for judicial review of the decision of the RSRB within three months of the asylum seeker being informed of the decision. Because the applicants' requests were not made within that period, the Director refused to provide the documents. The DLA also refused to supply copies of the documents to the applicants, because she regarded herself as bound by the condition imposed upon her by the DOI, that she was not to supply them to anyone else.

3. In due course the applicants' applications for legal aid were refused by the DLA. The applicants lodged appeals against the refusal of legal aid with the Registrar of the Supreme Court pursuant to s.26(1) of the Legal Aid Ordinance (Cap 91). In support of her decision, the DLA supplied copies of various documents she relied upon to the Registrar. When one of the appeals, that of Van Can-on, was heard on the 11th March 1996 by Master Jones acting in place of the Registrar, the applicants' solicitors complained that they had not seen the documents on the basis of which Master Jones was being asked to reject the appeal. The version of what then transpired duly approved by the master is that:

"The master ... made the following recommendation to the Director of Immigration:

'That such papers as the Legal Aid Department wishes to refer to or which may otherwise be relevant be released to the representative of the appellant.'

The master took a strong view that, in the interests of natural justice, a fair hearing was impossible unless the appellant has access to the documents that have been put before the master, and which are relevant to the appeal."

He then adjourned the matter.

4. The applicants' solicitors wrote to the DOI and DLA asking for the documents. Notwithstanding the master's strong views, the DOI refused to provide the applicants' solicitors with copies of the documents. So, too, did the DLA by her letter of 12th April 1996. It was to challenge these refusals that the applicants sought leave to apply for judicial review. However, the applicants in the event decided not to pursue their challenge to the DOI's refusal.

5. When the matter with leave came before Keith J in October 1996 and in December 1996 he accepted the applicants' submissions and made orders quashing the decision of the DLA and ordering the DLA to supply to the applicants' solicitors copies of the documents she intended to rely upon or refer to at the hearing of the s.26 appeal to the Registrar. He also ordered the DLA to pay to the applicants their costs of the proceedings. The DLA now appeals to this Court and seeks an order setting aside the judgment of Keith J and refusing the applications for judicial review of the DLA's decision not to provide the solicitors with copies of the documents for the applicants' appeals against her refusals of legal aid.

6. These proceedings would effectively have brought the Government's programme to resolve such asylum-seekers' status and repatriate non-refugees to a halt. Accordingly a policy decision has been taken to enable the programme to continue. Where necessary for that purpose, the documents in question are supplied to asylum-seekers. In reality therefore these appeals are academic, the applicants having already been supplied with the documents ordered to be provided by Keith J. Nevertheless, it is the desire of all the parties that the appeals and the questions they raise should be determined for the purpose of future and pending proceedings, and also to dispose of the matter of costs.

7. It is important to note that the applicants do not challenge the DLA's refusal or failure to provide them with the documents in the context of her consideration and refusal of their applications for legal aid. Instead, no doubt advisedly, they do so in the context of their appeal to the Registrar. It may well have thought by their advisers that they had little prospect of success in the former context, given the statutory framework within which the applications for legal aid have to be dealt with by the DLA particularly s.9 of the Legal Aid Ordinance (see also e.g. Liu JA's judgment in Bui Thi Chin v The Director of Legal Aid [1994]1 HKC 441; 457).

8. Their applications were rejected because of the DLA's conclusion that there was insufficient merit in their applications for judicial review of the rejection by the DOI and RSRB of their claims to refugees status. Their case before Keith J was quite simply this. Fairness requires that a complete set of the documents relied upon should have been made available to them. Only then would their solicitors know in full the factual basis upon which the Registrar was going to be asked by the DLA to confirm that the applicants do not have reasonable grounds for challenging the decisions of the DOI and the RSRB. Keith J accepted that case holding that the duty to make prior adequate disclosure of relevant materials is one of the accepted elements of procedural fairness. He rejected the submissions made on behalf of the DLA that the proceedings were premature, that the applicants' interests could be met if the gist of the documents was explained to their solicitors, that the applicants would already have been aware of the substance of the screening documents, and that the issue of what procedural fairness required in the circumstances concerned had already been decided in Bui Thi Chin.

9. Considerable attention was directed below to the effect of s.9 of the Legal Aid Ordinance. This, for the purpose of dealing with applications for legal aid, empowers the DLA to make such enquiries as she thinks fit as to the means of the applicant and as to the merits of the case and, for the purpose of the latter, entitles her to be supplied free of charge with a transcript of the evidence in any proceedings to which the applications relate. It provides an important part of the statutory framework relied upon by Liu J in Bui Thi Chin for his conclusion that the documents acted upon by the DLA in similar circumstances need not be furnished to the applicants. The entitlement it gives to the DLA to be supplied free of charge with transcripts, etc was relied upon by Keith J in rejecting the condition of confidentiality sought to be impressed upon the documents supplied by DOI to the DLA. However, it was properly recognised before us, that s.9 is of peripheral and insignificant assistance, if any, in resolving the issue before us of whether these documents should be provided in the appeal to the Registrar.

Nature of appeal to the Registrar

10. The statutory provisions relating to appeals to the Registrar are minimal in the extreme. They are contained in s.26 of the Legal Aid Ordinance and only the following need be set out:

"(1) An applicant for legal aid ... 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 Supreme Court in chambers.

(2) An appeal under this section shall be initiated by a notice in writing to attend before the Registrar of the Supreme Court without a fresh summons, within 14 days of the order or decision complained of, or such further time as may be allowed by the Registrar.

(3) Unless otherwise ordered by the Registrar, there shall be at least one clear day between service of the notice of the appeal and the day of hearing.

(3A) A person who appeals under this section has the right to representation by counsel or a solicitor at his own expense on the hearing of the appeal.

(4) A decision of the Registrar on an appeal under this section shall be final, save that the Registrar may refer any appeal ... for decision of a judge of the Supreme Court in chambers, in which event the decision of the judge shall be final."

11. The principles that apply to such appeals are clear, and not in dispute. They were helpfully stated by Simon Brown LJ in Regina v Home Secretary, Ex parte Hickey [1995]1 WLR 734, 741H-742F in the following way:

"The principles applying to a challenge of this nature are not in doubt. Most I gratefully take from the speech of Lord Mustill in Reg v. Secretary of State for the Home Department, Ex parte Doody [1994] 1 AC 531:

(i) It is not enough for the applicants:

'to persuade the court that some procedure other than the one adopted by the decision-maker would be better or more fair. Rather, they must show that the procedure is actually unfair. The court must constantly bear in mind that it is to the decision maker, not the court that Parliament has entrusted not only the making of the decision but also the choice as to how the decision is made.' (See p 561.)

As Lord Mustill had said a little earlier in his speech, at p. 560 it is not 'the task of the court to say how it would choose to operate the scheme if given a free hand. The only issue is whether the way in which the scheme is administered falls below the minimum standard of fairness.'

(ii) The court is nevertheless the ultimate arbiter of what fairness requires.

(iii) The court 'will readily imply so much and no more to be introduced by way of additional procedural safeguards as will ensure the attainment of fairness.' (Lord Bridge of Harwich in Lloyd v McMahon [1987] AC 625, 703.)

(iv) 'The standards of fairness are not immutable. They may change with the passage of time, both in the general and in their application to decisions of a particular type.' (See Ex parte Doody [1994] 1 AC 531, 560E.)

(v) 'What fairness demands is dependent on the context of the decision, and this is to be taken into account in all its aspects ... An essential feature of the context is the statute which creates the discretion as regards both its language and the shape of the legal and administrative system within which the decision is taken.' (See p 560.)

(vi) 'Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result, or after it is taken, with a view to procuring its modification or both ... Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests fairness will very often require that he is informed of the gist of the case which he has to answer.' (See p 560.)"

12. The following dicta quoted in Bui Thi Chin at 451B-F are also of assistance particularly in their emphasis upon the statutory framework within which the requirements of fairness must operate:

"My Lords, the so-called rules of natural justice are not engraved on tablets of stone. To use the phrase which better expresses the underlying concept, what the requirements of fairness demand when anybody, domestic, administrative or judicial, has to make a decision which would affect the rights of individuals depends on the character of the decision making body, the kind of decision it has to make and its statutory or other framework in which it operates. In particular, it is well established that when a statute has conferred on anybody power to make decisions affecting individuals, the court will not only require the procedure prescribed by the statute to be followed but will readily imply so much and no more to be introduced by way of additional procedural safeguards as will ensure the attainment of fairness." (per Lord Bridge in Lloyd v McMahon [1987] AC 625, 702-703)

"Good administration and an honest or bona fide decision must, as it seems to me, require not merely impartiality nor merely bringing one's mind to bear on the problem but acting fairly; and to the limited extent that the circumstances of any particular case allow and within the legislative framework under which the administrator is working, only to that limited extent do the so-called rules of natural justice apply." (per Lord Parker CJ in Re HK (An Infant) [1967]2 QB 617, 630C-D)

The applicants' submissions

13. For the DLA Mr Tang QC, who with Miss Selina Lau, appears for the DLA, submits (as does Miss Gladys Li QC, who with Mr Philip Dykes QC, appears for the applicants) that the primary question is what is required to satisfy the minimum standard of fairness in a s.26 appeal.

14. Bui Thi Chin, Mr Tang says, is correct in determining for the purpose of the applicants' appeal under s.26, that it is sufficient that he should have been given the reasons for refusal of legal aid. It would be anomalous, he says, if the applicants were not entitled to the documents in their application for judicial review, but are so entitled in their appeals against the DLA's refusal of legal aid (to mount that application for judicial review).

15. The appeal under s.26, Mr Tang continues, is an appeal de novo (which is not in dispute: see Bui Thi Chin at p.446A). The Registrar is in the same position as the DLA. It is for the Registrar to decide how much is to be disclosed to an applicant.

16. Although the ground that the application for judicial review was premature was taken before and rejected by Keith J, it was not expressly taken before us in that way by Mr Tang. But the question whether it was premature inevitably arises upon Mr Tang's submission that what documents should have been provided was a matter for the Registrar and was never decided by him; and that it was open to him to conclude that the gist of the evidence or even a rather more detailed oral explanation of the evidence, including the contents of the documents, was all that was required to meet the minimum standard of fairness. Had the master done so he could only be challenged on the ground of irrationality which was plainly unlikely to succeed.

17. Mr Tang stresses that what has to be borne in mind is that this is not an appeal about the determination of refugee status or procedural error in such determination, but about the question, somewhat removed, whether legal aid should be granted for judicial review of the former.

18. Before proceeding to address Mr Tang's submissions, and in that process those of Miss Li, it is convenient to touch upon the matter of the Registrar's powers to order discovery in a s.26 appeal. The absence in s.26 of express power to do so has already been indicated. Counsel do not contend that the Registrar has such power, recognising that the position is not clear. In Bui Thi Chin, Liu J held that as such appeals are not judicial proceedings, the Registrar does not have the power to order discovery. The master was no doubt not satisfied that he had such power in adopting the somewhat unusual if understandably course he did. That, of course, does not explain why the applicants did not go back to him when his recommendations and strong views failed to produce the solution he no doubt hoped for.

19. The matter was addressed by Keith J in the context of Miss Lau's submission before him that if there was no procedural unfairness in the way the DLA reached her decision not to provide the applicants with the documents, the correct way to challenge that unfairness was to wait until the legal aid appeals had been determined. If the appeals failed, it would then be open to the applicants to seek judicial review of the appeals. Keith J rejected that submission upon the authority of the following passage in the judgment of Simon Brown LJ in R v Secretary of State for the Home Department ex p Hickey (No.2) [1995]1 WLR 734, 757F-758A:

"[Counsel] submitted that the court could not properly entertain what he argued was a free-standing procedural challenge - an application to quash a refusal to disclose material before any substantive decision had been taken. The argument was based upon Otton J.'s decision in ... R v Secretary of State for Defence ex p. Sancto [1993] C.O.D. 144, [in which he] ruled that such an application is 'Premature ... in effect, an application for discovery in an administrative process.' It is sufficient for present purposes to note that [counsel] no longer maintains this stance. Rather he now accepts that the court does indeed have jurisdiction to intervene in advance of a substantive ... decision. I have no doubt that his concession is rightly made. The court's jurisdiction to entertain a procedural challenge cannot be limited to ex post facto review. Albeit not hitherto expressly decided, the court's recognition of this position is implicit in decisions such as R v Parole Board ex p. Wilson [1992]Q.B. 740. That is not to say, however, that the courts will readily intervene to regulate procedures in advance of a substantive decision. Generally, no doubt, they will in their discretion refuse to do so. The present cases, however, are clearly exceptional. To decline relief here on grounds of prematurity would plainly be wrong."

This passage does not seem to me to have application to what happened in the s.26 appeal hearing that had already commenced before the master. Whether or not the applicants were to be provided with the documents for the purposes of the appeal before him was a matter for him to decide, in the first instance at any rate. A proper analysis of what occurred seems to me to be this. The master not unreasonably thought that an expedient solution to the appellant not having the documents relied upon by the DLA, was to make his recommendation. The refusal of the DLA to provide the documents was not a decision or procedural unfairness by the master in the appeal (although it could have been in the application for legal aid before the DLA where she herself was the authority adjudicating upon the application). What the applicants should have done is gone back to the master. If he had then decided, for example, that his recommendation had finally disposed of the applicants' complaint (or application for the documents, for that is what it really was) or that he had no power to provide the applicants with the documents submitted or access to them, or if he provided only the gist, that then, it seems to me, would be amenable to judicial review. But his recommendation, even as reinforced by his "strong view", was neither a decision nor procedurally unfair. It was simply a recommendation that he thought might work. In the event it did not, and the proceedings should have gone on from where they were diverted in the hope of an expedient solution.

20. By contrast in ex p Hickey there was a refusal by the Secretary of State, the authority dealing with the petition to refer the conviction concerned to the Court of Appeal under s.17 of the Criminal Appeal Act 1968 (see p.739B and G). In that regard, it is of assistance to note that the reference to the "substantive decision" in the passage quoted from the judgment of Simon Brown LJ, appears to be a reference to the decision disposing of the petition, in advance of which it was held the earlier decision or procedural unfairness in denying the material of which disclosure was sought, could be judicially reviewed in exceptional circumstances.

21. Nor does R v Council of the Borough of Poole ex p. Cooper 27 HLR 605, to which we were referred by Miss Li, avail the applicants, for there the authority under s.60(1) of the Housing Act 1985 had concluded in the light of information it had not disclosed, that the applicant was intentionally homeless. It had thereby both decided the application for housing (the substantive decision) and in the process taken the decision that the information in question would not be disclosed. In no sense was the application for judicial review of the decision not to disclose the information, premature, or one that was not taken by the authority.

22. The reasons given by Keith J and convincingly amplified by Miss Li before us, not to mention the master's "strong view" point very strongly to the applicants being entitled to at least the gist of the material upon which the DLA intended to rely before the master to support her refusal to supply the documents sought by the applicants which are plainly not confidential, and likewise to the desirability of this being supplied in documentary form prior to the commencement of the hearing of the appeal. Indeed, in individual circumstances that may be necessary, particularly in the case of Vietnamese asylum-seekers with their linguistic and other handicaps and difficulties. But all that is nothing to the point. It was for the master to decide what information was to be provided to the applicants, in what form, and when and for him to meet the minimum requirements of fairness. Only after he had decided those procedural matters would it be open to the applicants to challenge them by judicial review; and, in exceptional circumstances, challenge them before the master had decided the s.26 appeal (i.e. the substantive decision).

23. Miss Li has sought to meet such a conclusion by pointing not only to the necessity for disclosure of the documentary evidence, but also to the applicants' advisers having first done all they could, i.e. raised the matter with the master and conveyed the master's views to the DLA in their renewed request on 12th April 1996. They were simply continuing to battle against the odds to try and obtain information required for the purposes of the applicants' appeal, and to see whether the DLA was right in her refusal of legal aid on the ground of merits. Given the view I take of the words of Simon Brown LJ relied upon by Keith J, these and the other possibly exceptional matters Miss Li eloquently advanced do not avail.

24. The prematurity of the application for judicial review is not an obstacle of merely a technical nature. Fairness is to be determined in the context of the particular circumstances. It is for the master to determine what is to be disclosed and how. Apparently it is the DOI's practice to send his entire file to the DLA. Even if the relevant documents are carefully screened out and only those relied upon sent on by the DLA to the master, some of these may contain some material that is not only irrelevant but that should remain confidential for good reasons, e.g. the record of an entire interview covering all sorts of matters. The gist of the evidence may in particular circumstances suffice, as might the reading out by the Registrar of such material as is in his view relevant or potentially relevant to the applicants' case. The latter is apparently the procedure used by RSRB. Likewise the DLA apparently provides very full reasons for refusal of legal aid, in one case mentioned in these appeals extending to 20 pages and dealing with the merits of the application for judicial review for which legal aid was sought. The information already supplied and why it should not be sufficient are matters best addressed by the Registrar. Informal access to the documents sought by the applicants without actual discovery may meet the minimum requirements of fairness. This, too, must be within the power of the Registrar besides being most appropriately resolved by him. It is interesting in that regard that the master's strong view was that "access" was necessary, and not, for instance, the provision of copies by the DLA which would amount to discovery and raise the difficult question of the Registrar's power. As to the latter, the reluctance of counsel on both sides to take a stand on the existence of such power and the total absence of submissions on the point effectively precludes this Court from reliance upon, or even taking a view upon that question. It will have to await argument on another occasion, regrettably, for it might provide what would be a natural and expedient solution to a possibly recurring difficulty.

25. It remains to touch shortly upon Mr Tang's contention that it would be anomalous for the disclosure for which, it is common ground, there is no entitlement in the judicial review proceedings, to be allowed in s.26 appeals in the context of applications for legal aid to mount the judicial review pleadings. That both may be de novo proceedings seems to me to be irrelevant. It is the statutory framework applicable that seems to me to be determinative. That in respect of applications for legal aid made to the DLA is far more elaborate and strongly indicative of an inquisitorial nature militating against disclosure; whereas the most minimal of framework is provided for s.26 appeals with nothing to militate against the prima facie requirement of fairness for disclosure of documents relied upon, fortified by the judicial trappings of the office of the Registrar of the Supreme Court.

26. Although the restoration of the matter before the master was not raised by Mr Tang as being in the nature of an alternative remedy, the latter seems to me to arise from his reliance upon the former. I propose therefore to touch upon it, particularly as these appeals are pursued to obtain general guidance. Renewal of their quest for the documents before the master after the DLA refusal to provide them, was in a sense an alternative remedy to judicial review that was available. Moreover, it is implicit in the statutory framework provided by s.26. In that regard, even if the master has no power to order disclosure, it seems to me that he must have power to provide "access" (his own presumably carefully chosen expression) where that is required in the interests of fairness. Upon that basis the exercise of discretion to grant judicial review in this case must plainly have been wrong.

27. However that may be, for the reasons I have endeavoured to express above, it seems to me that the appeal must be allowed and the application for judicial review of the DLA's decision dismissed.

28. That said, I would add that the result should not be regarded as a vindication of the entire stance of the DLA. Keith J's views in his impressively reasoned judgment, rejecting the claimed confidentiality of the documents supplied by the DOI to the DLA and by her to the Registrar seem to me to be right, and likewise in principle his approach to the necessity for the applicants in the circumstances he described to have copies of the documents in the interests of fairness, which of course has to be determined by reference to the circumstances of each case.

29. As to costs, it seems to me that both parties contributed to the abortive proceedings. Accordingly, I would make an order nisi that there be no order for costs. That would, as it seems to me it should, leave undisturbed the costs order below.

Mortimer JA:

30. This is an appeal against the decision of Keith J on 19th December 1996 and his order of certiorari to quash a decision of the Director of Legal Aid (DLA) made on the 12th April 1996 not to provide the respondents (the applicants) with copies of screening documents with an order of mandamus requiring the DLA to supply the same to the applicants.

The background

31. The applicants are asylum seekers from Vietnam who were refused refugee status by the Director of Immigration and the Refugee Status Review Board. They made a late application for judicial review of these decisions and have applied for legal aid to pursue them.

32. Under s.9 of the Legal Aid Ordinance the DLA obtained documents from the Director of Immigration so that inquiries could be made on the merits of the case in determining the legal aid application. The Director of Immigration supplied the documents to the DLA on condition that they were not provided to the applicants. The DLA refused the applicants' legal aid. They appealed against that refusal under s.26 of the Legal Aid Ordinance to the Registrar of the Supreme Court.

33. The DLA supplied copies of the document to the master hearing the legal aid appeal on condition that they were not shown to the applicants. At the hearing the master concluded that in the interests of natural justice, the applicants should have access to the documents that had been put before him, and which are relevant to the appeal. He therefore adjourned the hearing and recommended that such papers as the Legal Aid Department wished to refer to or which may otherwise have been relevant be released to the appellant's solicitors.

34. With the master's approval the solicitors wrote to the Director of Immigration reporting the master's view that natural justice required that the applicants should have access to the documents and his recommendation that they should be released to them. Relying on Bui Thi Chin v Director of Legal aid [1994]1 HKC 441 the Director of Immigration refused.

The judicial review

35. On 1 April 1996 the applicants' solicitors wrote an "urgent letter before action" to the DLA asking for the release of the documents and informing her that failure to disclose the documents would be followed by an application for judicial review of the her decision not to release them. She also declined, relying upon the above decision and the conditions of confidentiality upon which the documents had been released to her by the Director of Immigration.

36. Following the refusal the applicants applied for judicial review without restoring the appeal before the master. At the hearing before Keith J the applicants sought relief against the DLA only. The Director of Immigration appeared as a person "directly affected" or "a proper person to be heard".

37. There is, of course, complete unanimity of view that the applicants are entitled to a fair hearing of their legal aid appeals with some speculation as to how this may be achieved.

The judge's conclusion

38. The judge's conclusion was that:

"Procedural fairness required the Director of Legal Aid to supply the applicants' solicitors with copies of the screening documents for the purpose of the appeal under s.26(i) of the Ordinance and neither s.9 of the Ordinance nor the terms imposed on the Director of Legal Aid by the Director of Immigration prevented the Director of Legal Aid from supplying them."

39. The order of mandamus which followed required the DLA to supply to the applicants' solicitors "copies of such screening documents ... as have been supplied to her, and which she intends to rely on or refer to at the hearing of the applicants' appeal against the refusal of legal aid or which have already been supplied to the Registrar of the Supreme Court." The DLA did not ask for a stay of the order pending appeal. She complied with the order and some of the appeals under s.26(i) have been heard and determined. Nevertheless - as is her right - the DLA seeks to prosecute this appeal as she submits that an important point of principle is involved.

40. The judge's decision is admirably reasoned. His decision was made against the background that the master had expressed the view that the disclosure of the document was necessary for him to hold a fair hearing. There was doubt whether he had power to order the DLA to disclosure the documents and in these circumstances the overwhelming merits of the case required an end to what seemed to be a senseless impasse.

41. However, in spite of the merits and the practicality of the order made, I am persuaded that there is in this appeal a wider point of principle which requires addressing.

The submissions on appeal

42. I hope I do no injustice to either side by summarising each case. Mr Robert Tang QC (Miss Lau with him) submits that these proceedings are inappropriate in that procedural fairness is relevant not to the DLA's decision refusing the documents, but to the hearing before the master. It is therefore for the master to decide how to deal with any documents relied upon by the DLA in the appeal and for him to decide how to achieve procedural fairness at the hearing whether by disclosure of the documents or by some other means. He did not specifically argue that the application was premature but his submissions cover the point which was made by his junior in the court below.

43. For the applicants Miss Gladys Li QC (Mr Philip Dykes QC with her) points out that the master as the decision-maker in control of the legal aid appeal proceedings had concluded that procedural fairness required the provision of the documents to the applicants and therefore the DLA's decision not to supply them was itself procedurally unfair. She submits that the DLA had control of the documents and her decision not to provide them was amenable to review. Further, the judge's decision that it was open to him to review the fairness of the procedure before the legal aid appeals had been determined by the master was correct. See R v Secretary of State for the Home Department ex p Hickey (No. 2) [1995]1 WLR 734 relied upon by the judge. Finally, Miss Li submits that the judge's order was necessary to achieve justice as the master had no power to order the DLA to supply the documents.

Miscellaneous matters

44. I am prepared to accept - for the purposes of this appeal only - that the master had no power to order discovery of the documents. Also, in the absence of argument, I assume (with some reservation) that the refusal of the DLA to supply the documents was a decision which tended to affect the public law rights of the applicants. These rights must be identified and whether the decision actually affected them is a central issue to which I will turn. It is important to note that this is not a review of the master's decision making process in the legal aid appeal.

45. Further, it is necessary to note that even though the DLA received the documents subject to conditions of confidentiality upon which she relies in her decision not to release them, it cannot be suggested that the documents are protected by confidentiality or public interest immunity in the judicial review proceedings. If brought within 3 months, the Director of Immigration automatically discloses the necessary documents to an applicant.

46. Finally, these proceedings do not concern discovery of documents in the judicial review proceedings although the judge's order has the same effect.

Were the applicants' public law rights affected by the decision?

47. When the DLA refused to supply the documents (the decision) she relied upon confidentiality imposed upon her by the Director of Immigration. She was not in breach of any order of the master to disclose the documents. The public law rights of the applicants affected by this decision were the rights to a fair hearing in the legal aid appeal. No other basis has been urged.

48. The first question is whether it was shown that the decision challenged affected these public law rights. To determine this, the circumstances in which the decision was made and then challenged have to be considered. The master recommended the disclosure of the documents. He adjourned the hearing of the legal aid appeal pending the result of the recommendation. His recommendation was made in the hearing to ensure fairness. But the master remains in control of the proceedings. It is for him - and him alone - to ensure that the appeal is conducted in accordance with natural justice. When the applicants lodged an appeal under s.26(1) of the Ordinance, the DLA had to decide upon what documents she wished to rely in the appeal. It was for the master to decide what to do about documents disclosed to him on conditions, what documents were relied upon by the DLA and what were relevant. The procedure to achieve the necessary procedural fairness at the hearing is fundamentally within the control of the master.

49. In view of the doubt as to his powers, his mild approach in "recommending" the production of these documents was sensible even though it did not succeed. Thereafter, as the legal aid appeal was not restored before him decisions on how to achieve procedural fairness on the material in relevant documents at the hearing was taken out of his hands.

50. In my judgment, the appeal should have been restored before him for him to deal with the procedure appropriately within his powers. It is not this Court's task to say how he ought to exercise them but he has a number of options. At least two come to mind. First, he could require the DLA to inform him which documents she relies upon, making it clear that he will provide copies of them to the applicants. Alternatively, he may take the view that all relevant documents put before him by the DLA should be disclosed to the applicants in spite of the conditions she sought to impose. I have no doubt that if the master has documents put before him subject to conditions and he concludes that procedural fairness requires their disclosure, his overriding public duty is to disclose them whatever the conditions. See R v Council of the Borough of Poole ex p. Cooper (27) HLR 605. Every tribunal has an inherent power to achieve fairness by disclosing documents or exhibits which are physically before it to the parties. This is not to be confused with a power to order discovery before the hearing as to which see Bui Thi Chin v DLA (supra).

Conclusion

51. With regret I find I cannot agree with the judge below. I differ from him in principle for the following reasons:

(i) The public law rights of the applicants affected by the DLA's decision under review were rights to natural justice before the master. The review of the DLA's decision was collateral and premature. The master was the decision-maker. No procedural unfairness in his decision-making is demonstrated. It cannot be so demonstrated because the appeal was not restored before him to enable him to exercise his powers and conduct a fair hearing.

(ii) There is no reason to think that the intervention of the court at this stage was necessary or desirable. If the matter had been restored before the master, he would have completed the hearing and made his decision. These collateral proceedings tend to delay a resolution of the real issue between the parties. Indeed, had the DLA obtained a stay pending the appeal, the proceedings before the master would have remained part-heard for over a year.

(iii) I do not agree that the obiter dicta of Simon Brown LJ in Hickey's case (supra) at 757F to 758A is authority for the grant of relief against the DLA in this case. I do not question the principle that in exceptional cases the High Court may intervene to regulate unfair procedure in advance of the substantive decision. This passage in his judgment was in the absence of argument following a rightly made concession. For my part I would not extend the principle beyond that which is stated - in exceptional circumstances the court may intervene to regulate procedure by orders against the decision-maker in advance of the substantive decision.

52. In my judgment, therefore, the decision of the DLA under review was not shown to have affected the public law rights of the applicants to a fair hearing before the master. There is no reason to think that had the appeal been restored before the master that his inherent powers would not have allowed him to discharge his duty to hold a fair hearing and make a proper decision. These proceedings, therefore, against the DLA were not only collateral to the decision-making process but were not shown to be necessary and were in any event premature.

53. For these reasons, albeit with some reluctance, I would allow the appeal and order that the application for judicial review of the DLA's decision be dismissed. I agree with the order nisi on costs proposed by the Vice-President.

Footnote

54. Judicial review provides one of the most important remedies available at common law. Its development over the past 25 years has provided the citizen with a powerful weapon against unjust decision-making and illegal decisions but it is a remedy available within boundaries which are sometimes ill defined. It is "satellite litigation". That is litigation the purpose of which is not to resolve the real issue between the parties.

55. The instant case illustrates the point. The real issue is whether each applicant is a refugee. This was decided by the Director of Immigration. The applicants appealed to the Refugee Status Review Board which upheld the Director of Immigration's decision.

56. The applicants desire to strike down the decision of the Director of Immigration and the Refugee Status Review Board in judicial review proceedings. This is the first satellite

57. In order to pursue the judicial review proceedings, the applicant applied for legal aid which was refused by DLA. This is the second satellite

58. The applicant appealed against the refusal of legal aid to the master. This is the third satellite

59. During the adjournment of the above hearing of the appeal, the applicant applied for judicial review of the DLA's decision not to disclose documents for use at the master's hearing. The fourth satellite

60. Such litigation must be kept under control. If allowed to develop too widely, unacceptable and unnecessary delay in the resolution of the real issues results with inevitable waste of time and money. In the instant case the boundaries were over extended. It was a step too far, taken too early.

Liu JA:

61. The Director of Legal Aid refused the respondents' applications for legal aid on merits. From that decision the respondents appealed to the Registrar under s. 26 of the Legal Aid Ordinance Cap. 91. The Registrar sitting on appeal is required by s. 26(5) to give a written notice of his decision to the Director of Legal Aid, in which the Registrar's reasons shall be adequately stated. The Director of Legal Aid was represented before the Registrar.

62. Much has been sought to be made of the decision in Bui Thi Chin v. Director of Legal Aid [1994]1 HKC 441. But what should not be overlooked are the two distinguishing features in Bui Thi Chin: first, the hearing of the appeal under s. 26 of the Legal Aid Ordinance on a referral from the Registrar had not commenced. See Bui Thi Chin supra, p. 459 E. Secondly, counsel for the appellant made the following concession: "Even after perusal of these documents asked for, the Legal Aid Officers' decision as it now stands may very well prove to be correct and insusceptible to judicial review." See Bui Thi Chin supra, p. 457 G.

63. Solicitors for the respondents recorded what transpired before Master Jones deputising for the Registrar in the s. 26 appeal. A letter was despatched to the Director of Immigration in these terms:

"The master upon finding that the appellant whom we represent, had none of his screening documents made the following recommendation to the Director of Immigration:

'that such papers as the Legal Aid Department wishes to refer to or which may otherwise be relevant be released to the representative of the appellant."

The master tooka strong view that, in the interests of natural justice, a fair hearing was impossible unless the Appellant has accessed to the documents that have been put before the Master, and which are relevant to the appeal. We enclose a copy of the Master's approval." (Emphases supplied).

The copy draft letter had been approved by Master Jones.

64. The s. 26 appeal was in fact heard on 11 March 1996 by Master Jones, at which he expressed the above view and made his recommendation before the case was adjourned. In addition, leading counsel for the respondents, Ms Gladys Li presses upon this court that her lay clients' best case could not be put before the master in the s. 26 appeal without the required documents. This case is wholly different from Bui Thi Chin in which hearing the appeal had not commenced, no strong judicial view as to the impossible attainment of justice was expressed and counsel had no difficulty in advancing lay clients' best case.

65. Moreover, at the hearing before the master, legal representative for the Director of Legal Aid did not address himself to the view expressed and the recommendation made. It was, however, explained to the master that the Director of Legal Aid had been saddled with an inter-departmental undertaking to use the relevant documents merely for her inquiry into the merits of the case for legal aid and not to pass them further on to a third party.

66. After a request was made to the Director of Legal Aid for the documents specified in the master's recommendation, on 12 April 1996, the Assistant Director of Legal Aid wrote:

"The [requested records] are supplied to the Director in confidence and strictly on the condition that the department could not release the document to any other parties. The Director must respect the conditions, otherwise documents would not be supplied at all. The Director has an important public duty, which cannot otherwise be efficiently discharge. With regret, we advise that we cannot accede to your request."

67. It seems to be the consensus that Master Jones' view and recommendation applied to all the s. 26 appeals. None of the parties before Master Jones could reasonably have been expected to return to him for a resumed hearing which could only be or be regarded as a futile exercise. The respondents took the Director of Legal Aid to judicial review. Keith, J quashed the decision taken by the Director of Legal Aid in her letter dated 12 April 1996. This is what the judge said after quashing the decision:

"In the normal course of events, the quashing of a decision in public law requires the decision-maker to reconsider the matter. This is not appropriate in this case, because there is nothing for the Director of Legal Aid to consider: I have ruled that the procedural unfairness required by the Director of Legal Aid is to supply the [respondents'] solicitors with copies of the screening documents. In these circumstances, I make an order for mandamus requiring the Director of Legal Aid to supply the [respondents'] solicitors with copies of such screening documents in relation to each of the [respondents'] as have been supplied to her, and which she intends to rely on or refer to at the hearing of the [respondents'] appeals under s. 26(1) of the Legal Aid Ordinance against the refusal of legal aid or which have already been supplied to the Registrar of the Supreme Court."

68. This is the appeal of the Director of Legal Aid from the judgment of Keith, J.

69. Therefore, not only had the master seized upon and entertained the s. 26 appeal, he categorically stated his firm view at the commencement that it was impossible for him to give a fair hearing without the designated documents. Counsel reiterates at bar that she could not present the respondents' best case without them.

70. The decision of the Director of Legal Aid as conveyed in her letter dated 12 April 1996 was amenable to judicial review. Should the judge, in the exercise of his discretion, disturb it? The stance taken by the Director of Legal Aid was that she was enjoined by the trust reposed in her not to part company with the requested documents. Insofar as the Director's refusal could be read to connote a rejection on some other basis, the Director seemed to rely also on the ratio of Bui Thi Chi that disclosure would not be necessary for the attainment of the minimum standard of fairness in a s. 26 appeal.

71. A strong view was given by the master at the hearing of the s. 26 appeal. He put a fair hearing beyond reach without the requested documents. The propriety of the master in expressing a view and his view so expressed are not explicitly sought to be tested. In this appeal, the Director of Legal wishes merely to argue that procedural fairness only required the disclosure of a gist of the screening documents coupled with an opportunity to be informed of the contents of any screening material on which the master happened to decide he should hear the respondents in their legal aid appeals. See ground 4 of the Notice of Appeal. Counsel for the Director of Legal Aid is highly critical of Master Jones' perhaps unconventional approach, but as it stands, there could be no better authority for assessing the right to a fair hearing on appeal than the master himself. The master must have felt impelled by grave concern to express his strong view. His recommendation must have been made with the determination to avoid putting at risk the respondents' right to a fair hearing. Leading counsel for the appellant, Mr Robert Tang submits that the parties should have returned to Master Jones for a resumed hearing of the appeal because procedural impropriety could not arise except from his decision-making process in that s. 26 appeal. That may be counsel of perfection, but this appeal must be decided against the setting brought about by the steps taken by the parties and the corresponding turn of events. The respondents had good cause to approach the Director of Legal Aid for the documents. Their requests were refused. It would have been absurd for them to return to the master. The decision of the Director of Legal Aid was decidedly susceptible to judicial review. Thus, it was open to the respondents to seek public law relief, and they had chosen so to apply under Order 53 RSC. The respondents might very well have had to face a somewhat different scenario if the master had not taken a strong view that a fair hearing was impossible or if they or the Director of Legal Aid had resolutely demanded the hearing to be nevertheless proceeded with. But that course was not followed. The respondents as persons affected were entitled to make their requests to the Director and challenge his decision if they felt aggrieved by any unfair treatment. That is what this case is all about. The question for the consideration of Keith, J. was, therefore, whether in the circumstances the Director's decision was reviewable. Matters having been taken thus far, it would have been equally ludicrous for the judge to send the respondents back to the master.

72. The Director of Legal Aid relied heavily, if not exclusively, on the confidence reposed in her by the restrictive undertaking she had given to the Director of Immigration. The judge balanced the competing factors of confidence and the right to a fair hearing. He concluded that strict observance of the practice in which disclosure had been denied on account of the Director's respect for such confidence ought to be overridden by the need for attaining the minimum standard of justice. The judge's balancing exercise was amply vindicated by the events that followed. First of all, there was no point taken by the Director of Legal Aid on the nature of the relief granted by Keith, J in terms of an order of mandamus. The Director of Immigration chose to remain a party in the proceedings below in order to support the Director of Legal Aid, but he did not intervene after judgment. The judge only ordered to be furnished "copies of such screening documents in relation to each of the [respondents] as have been supplied to [the Director of Legal Aid], and which [the Director of Legal Aid] intends to rely on or refer to at the hearing of the [respondents' s. 26] appeals". (Emphasis added). All these documents have now been made available, albeit in compliance with the order of mandamus pending appeal. The Director of Immigration has not apparently held the Director of Legal Aid to her undertaking. The real need for a mandamus order, the restrictive undertaking, the confidence reposed in Director of Legal Aid and the proprietorship of the documents have thus been all overtaken by their production.

73. If the Director of Legal Aid had grounded her refusal exclusively on the inter-departmental undertaking, for want of a fair hearing the judge was not persuaded that she was justified. Further, she would then have clearly failed to take into account a material consideration, viz. whether or not in the s. 26 appeal, the attainment of a fair trial could be achieved without the requested documents. Insofar as the Director of Legal Aid could be understood to have impliedly asserted that the absence of the documents would not abrogate or erode the respondents' right to a fair hearing, her decision must fly in the face of the adjudicator's unequivocably expressed strong view. Either way, the Director's refusal to supply the requested documents was reviewable under the rubrics of illegality and/or procedural impropriety. It was a discretionary relief, and the right to a fair trial is not a matter in respect to which judicial review relief can be lightly withheld. The judge's decision cannot be faulted. The exercise of his discretion has not been shown to be plainly wrong. I would dismiss this appeal.

Representation:

Mr Robert Tang QC and Ms Selina Lau (M/s Lo & Lo) for the Appellant

Miss Gladys Li QC and Mr Philip Dykes (M/s Pam Baker & Co) for the Respondents

Mr W.R. Marshall QC and Miss Joyce Chan (Interveners) for Director of Immigration and the Chairman of the RSRB