Doan Thanh v. Legal Aid Department

HCAL 2607/2019

[2019] HKCFI 2295

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2607 OF 2019

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D E C I S I O N

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1.On 9 September 2019, the Applicant gave “Notice of Application for leave to apply for judicial review” by filing a Form 86. The Form 86 wholly fails to satisfy the requirements of Order 53, rule 3(2) of the Rules of the High Court, Cap 4A. In particular:

(1)  In respect of the “Name and description of proposed respondent”, the Applicant puts down his own name.

(2)  In respect of the “Judgment, order, decision or other proceedings in respect to which relief is sought”, the Applicant puts down “Legal Aid Department”.

(3)  The Applicant fails to set out any “Grounds on which relief is sought”.

2.In his Affirmation dated 9 September 2019 filed in support of the application, the Applicant merely states as follows:

“I cannot return to Vietnam because of being bullied and dangerous to life. I make oath and say that the contents of this affidavit, affirmation are true.”

3.The materials put forward by the Applicant fail to identify any decision which may have been made by the Legal Aid Department sought to be challenged by the Applicant, or any grounds in support such challenge.  In Wong Ho Tong v Director of Lands [2018] HKCA 330 (CACV 40/2017, unreported, 7 June 2018), the Court of Appeal stated at [80] as follows:

“In the context of application for leave brought by a litigant-in-person, unless the application is obviously frivolous and without merit, we venture to suggest that it might be helpful if a judge should consider more readily calling for initial response from the putative respondent in order to have at least a more comprehensive picture of the matter. In this connection, the standard practice in judicial review brought by a litigant-in-person against the decision of the Torture Claims Appeal Board to call for copies of the relevant decisions from the Director of Immigration and the Board is of great assistance.”

4.It is clear from the above observation of the Court of Appeal that the procedure of seeking an initial response from the putative respondent does not apply to an application which is obviously frivolous and without merit.  There is nothing in the materials before the court to suggest that calling for an initial response from the Legal Aid Department in this case is likely to lead to disclosure of further materials which may give rise to an arguable case for judicial review.  It is unreasonable to require the Legal Aid Department to plough through its files to (i) ascertain whether the Applicant has made any application for legal aid, (ii) identify what decision may have been made in respect of such application (if any) and the grounds or reasons for its decision, and (iii) justify the decision.  I consider the present application for leave to apply for judicial review, on its face, to be obviously frivolous and without merit, and it would not be reasonable in the exercise of the court’s discretion to require the Legal Aid Department to incur time and expenses to make an initial response in the circumstances.

5.Accordingly, the application for leave to apply for judicial review is dismissed.

The Applicant, acting in person