Xu Fangwen v. Deputy Registrar of the High Court and Another

HCAL 1853/2019

[2019] HKCFI 2332

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1853 OF 2019

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BETWEEN

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D E C I S I O N

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INTRODUCTION

1.In this application for leave to apply for judicial review commenced on 3 July 2019 (“the Second JR Application”), the Applicant seeks to challenge:

(1)  the decision of the Director of Legal Aid (“the Director”) on 3 January 2019 refusing to grant legal aid to the Applicant in relation to CACV 561/2018 (“the Second Legal Aid Decision”); and

(2)  the decision of Deputy Registrar Kot on 3 June 2019 in Legal Aid Appeal No 161 of 2019 (“the Second LAA”) dismissing the Applicant’s appeal against the Second Legal Aid Decision (“the Second LAA Decision”).

2.For reasons which I shall explain below, the Second JR Application is not reasonably arguable, and has no realistic prospect of success.  Accordingly, the application for leave to appeal for judicial review stands to be dismissed.

BASIC FACTS

3.The Applicant was a student of Hong Kong Baptist University and the Deputy Chief Editor of San Po Yan (新報人), a Chinese language news publication of the Department of Journalism of Hong Kong Baptist University and a registered publication under the Registration of Local Newspapers Ordinance (Cap 268).

4.In HCAL 99/2016, which was commenced by the Applicant on 27 May 2016 (“the First JR Application”), the Applicant sought to challenge that the decision of the Director of Information Services Department (“the ISD”) on 28 February 2016 refusing student reporters of San Po Yan access to the designated Media Centre for the Legislative Council By-election for the New Territories East Geographical Constituency.  The Applicant contended that the ISD’s decision was “illegal” because it interfered with the student reporters’ rights under Article 16(2) of the HKBOR, ie freedom of expression, including freedom to seek, receive and impact information and ideas, without justification.

5.On 16 August 2016, the Applicant amended the Form 86 in the First JR Application to include a challenge of a similar decision made by the ISD on 2 August 2016 in relation to a press event for the Legislative Council General Election to be held in September 2016.

6.The Applicant applied for legal aid in relation to the First JR Application (“the First Legal Aid Application”).  On 9 January 2017, the Director informed the Applicant’s solicitors that he had obtained Senior Counsel’s advice that there were no reasonable grounds for continuing the First JR Application, and decided to refuse the First Legal Aid Application (“the First Legal Aid Decision”).  The Applicant then lodged an appeal in LAA 26/2017 (“the First LAA”) against the First Legal Aid Decision.

7.On or about 14 February 2017, the Director provided written “Reasons for Refusal of Legal Aid” for the purpose of the First LAA.  In those reasons, the Director gave a summary of Senior Counsel’s advice, to the effect that there was no infringement of the Applicant’s rights, and furthermore the First JR Application had become academic by reason of a new practice or policy (“the New Policy”) adopted by the ISD since September 2016 which permitted up to 4 journalism students from each of the 7 local post-secondary institutions to be admitted into designated press areas for selected government media events of public importance.

8.On 15 May 2017, the First LAA was heard by Deputy Registrar J Wong, who dismissed the appeal on 26 May 2017 (“the First LAA Decision”).

9.On 16 June 2017, the First JR Application (together with another application for leave to apply for judicial review) came before Au J (as he then was).  The Applicant was represented by leading and junior counsel.  On 14 November 2018, Au J handed down a judgment ([2018] HKCFI 2517, “the Judgment”) refusing to grant leave to apply for judicial review in the First JR Application, on the ground that “the proposed judicial review challenges … [had] already been rendered academic, and the court should not entertain it” (see paragraph 37 of the Judgment).

10.On 28 November 2018, the Applicant filed and served a Notice of Appeal (“the Notice of Appeal”) against the Judgment of Au J (CACV 561/2018, “the Appeal”).  3 grounds of appeal were raised in the Notice of Appeal, which I shall discuss below.

11.On 19 December 2019, the Applicant made an application for legal aid (“the Second Legal Aid Application”) in relation to the Appeal.  In support of the Second Legal Aid Application, the Applicant submitted to the Director an “Advice on Merits of Appeal” dated 17 December 2018 from senior and junior counsel.

12.On 3 January 2019, the Director made the Second Legal Aid Decision refusing the Second Legal Aid Application.  The Applicant then lodged the Second LAA against the Second Legal Aid Decision.

13.On 26 April 2019, the Director provided to the Applicant’s solicitors written “Reasons for Refusal of Legal Aid” (“the Reasons”) for the purpose of the Second LAA.  I shall come back to the Reasons later in this decision.

14.On 29 May 2019, the Second LAA was heard by Deputy Registrar Kot.  On 3 June 2019, Deputy Registrar Kot made the Second LAA Decision dismissing the Second LAA.  In her “Memorandum of Notification that a Party’s Appeal Has Been Dismissed” dated 3 June 2019, the Deputy Registrar stated as follows:

“TAKE NOTICE that I, following the directions set out in Nguyen Trong Son v Director of Legal Aid (LAA 20/1999, unreported, 15 December 2000) and having thoroughly considered the Applicant’s case and arguments, have dismissed the appeal, as I agreed with the decision of and the reasons given by the Director of Legal Aid.”

15.On 3 July 2019, the Applicant made the present application for leave to apply for judicial review to challenge the Second Legal Aid Decision and the Second LAA Decision.  Two proposed grounds of judicial review are raised in the Form 86:

(1)  In respect of the Second Legal Aid Decision, the Applicant contends that the Director gave no independent reasons for agreeing with the reasons of Au J in the Judgment and failed to consider the merits of the Applicant’s case at all, and thus the decision was unfair, irrational and inconsistent with Section 10 of the Legal Aid Ordinance, Cap 91 (“the Ordinance”) (see paragraphs 36 and 37 of the Form 86).

(2)  In respect of the Second LAA Decision, the Applicant contends that Deputy Registrar Kot simply agreed with the Director and failed to give reasons for agreeing with the Director, and there was absolutely no attempt to address and engage with the Applicant’s arguments. Thus, it is said, the Second LAA Decision was procedurally unfair, irrational and in breach of Section 26(6) of the Ordinance, and effectively deprived the Applicant of her statutory right of appeal (see paragraphs 30 to 33 of the Form 86).

16.On 4 July 2019, the court directed that the application for leave to apply for judicial review should be considered at an inter-partes oral hearing on 13 September 2019.  As stated in paragraph 1 the Skeleton Submissions of the Applicant dated 9 September 2019 lodged for the purpose of the leave application, the issue before the court is whether the Deputy Registrar’s decision of 3 June 2019 “[satisfies] the statutory criteria and administrative law principles to reach the necessary threshold of having provided ‘adequate reasons’ for dismissing the statutory appeal”.

DISCUSSION

17.I shall first explain the different questions required to be answered by:

(1)  the Director when considering an application for legal aid;

(2)  the Deputy Registrar when considering an appeal against the Director’s decision refusing to grant legal aid; and

(3)  a judge when considering an application for leave to apply for judicial review of the Deputy Registrar’s decision dismissing a legal aid appeal.

18.Under Section 10(3) of the Ordinance, 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.  In the context of the Applicant’s application for legal aid in relation to the Appeal, the Director has to ask whether the Applicant has shown that she has reasonable grounds for the Appeal.  For this purpose, “reasonable grounds” requires the Applicant to show that there is a reasonable, as opposed to a fanciful, chance of the Court of Appeal overturning the Judgment of Au J (see Nguyen Trong Son v Director of Legal Aid, LAA 20/1999, 15 December 2000, per Keith JA; Chung Yuk Ying v Registrar of the High Court [2013] 5 HKLRD 78, at paragraph 10 per Queeny Au-Yeung J).  Although the Director does not have to be satisfied that the Appeal will more probably than not succeed before he may decide to grant legal aid, in view of the fact that Au J’s Judgment was ultimately based on an exercise of discretion, the Director is entitled to take into account the high threshold for an appeal against an exercise of discretion by a first instance judge.

19.Since a legal aid appeal is in the nature of a de novo hearing, the Deputy Registrar, when hearing an appeal against the decision of the Director refusing to grant legal aid, should adopt the same approach.

20.The question to be answered by a judge of the Court of First Instance when considering an application for leave to apply for judicial review of the Deputy Registrar’s decision dismissing a legal aid appeal is a different one.  The focus of the judge in such application is the decision of the Deputy Registrar.  In the context of the present application, the question for the judge is not whether the Applicant has a reasonable chance of success in the Appeal, but whether her intended application for judicial review of the Deputy Registrar’s decision is reasonably arguable and has a realistic prospect of success.  It is not the judge’s function to re-examine the Deputy Registrar’s decision afresh, or consider whether he would have granted legal aid to the Applicant in relation to the Appeal.

(1)  “A judicial review application is not an appeal from either the Director or the Master’s Decision.  The court in a judicial review is concerned with legality and not with merits.  Relief will only be granted if the applicant can demonstrate that the Director has committed an error of law, or has acted Wednesbury unreasonably in arriving at the conclusion” (see Chung Yuk Ying v Registrar of the High Court [2013] 5 HKLRD 78, at paragraph 11 per Queeny Au-Yeung J; Wong Chun Tak v Registrar of the High Court [2015] 3 HKLRD 449, at paragraph 17 per Queeny Au-Yeung J).

(2)  “In a judicial review of the decision of a master in a legal aid appeal, as in the case of a judicial review of other administrative decision, the court is not sitting as a further tier of appeal.  The court’s function is confined to review the legality, rationality and fairness of the process” (see Chan Chiu Kwan v Registrar of the High Court [2015] 1 HKC 533, at paragraph 8 per Lam VP).

21.In the present application for leave to apply for judicial review, the Applicant seeks to challenge both the Director’s Second Legal Aid Decision and the Deputy Registrar’s Second LAA Decision. In so far as judicial review of a decision of the Director refusing to grant legal aid to an applicant is concerned, it should be noted that the applicant has a statutory right of appeal against the Director’s decision to the Registrar of the High Court under Section 26 of the Ordinance.  The appeal is a full appeal in the sense that it –

“does not take the form of a review of the decision of the Director of Legal Aid. The Registrar is not deciding whether the decision of the Director of Legal Aid was one which it was reasonably open to her to make on the materials before her. He is deciding whether, in his view on the materials before him, legal aid should be granted. The whole structure of section 26 of the Ordinance suggests that the Registrar is exercising an appellate jurisdiction, rather than a supervisory one” (see Van Can On v The Director of Immigration [1997] HKLRD 89, at 94G-I per Keith J, as he then was).

That being the position, I consider the reasoning of the Court of Appeal in its recent judgment in Re Moshin Ali [2018] HKCA 549 that a decision of the Director of Immigration refusing a non-refoulement claim is generally not susceptible to judicial review once an appeal to the Non-refoulement Claims Petition Office/Torture Claims Appeal Board is pursued by the non-refoulement claimant to be equally applicable to the situation where a legal aid applicant has pursued an appeal to the Registrar against the Director’s decision refusing to grant legal aid to him/her.

22.In the present case, the Applicant has exercised her statutory right of appeal against the Director’s Second Legal Aid Decision.  It follows that the Second Legal Aid Decision is, in principle, not amenable to judicial review.  It is, nevertheless, necessary to examine the Reasons given by the Director for the Second Legal Aid Decision because, as earlier mentioned, the Deputy Registrar agreed with and adopted the Reasons in dismissing the Second LAA.

23.3 grounds of appeal against the Judgment have been raised by the Applicant in the Notice of Appeal.

(1)  In relation to Ground 1, the Applicant argues that the First JR Application is not academic because, as put by Mr Albert Wong on her behalf, “policy is not law” and the ISD can revert back to the old policy (namely, refusing student reporters access to designated press areas for government media events) at any time.  This is the “flip-flop” argument referred to by Au J in paragraph 33 of the Judgment, which the learned Judge rejected as being “nothing more than a mere speculation and assertion” (see paragraph 36 of the Judgment).  The Director adopted this reasoning of Au J to come to the view that Ground 1 had no merits (see paragraph 5(1) of the Reasons).  In my view, the Director made no error of law, and his view that Ground 1 had no merits was not Wednesbury unreasonable.  The reason given by the Director for rejecting Ground 1 was also proper and sufficient.

(2)  In relation to Ground 2, the Applicant argues that even if the First JR Application has strictly become academic by a subsequent change of policy, the court should nevertheless hear and determine the application because the ISD has a continuing duty to exercise its powers in relation to all forms of media, and a determination of the legality of the old policy would guide his future conduct.  This point was dealt with by Au J in paragraphs 30 and 35 of the Judgment, where the learned judge held that whether the New Policy would involve an unjustified restriction of the freedom of expression and of the press falling foul of the proportionality test was a fact-sensitive question, which could only be properly assessed and debated in a relevant factual context.  In his consideration of whether to continue to hear and determine the First JR Application, Au J was plainly aware of the relevant principles established in Chit Fai Motors Co Ltd v Commissioner for Transport [2004] 1 HKC 467, at paragraph 20 (see paragraphs 18 to 19 of the Judgment), and decided, in the exercise of his discretion, not to entertain the First JR Application (see paragraphs 20 to 37 of the Judgment). It is well established that the Court of Appeal will not disturb the exercise of a discretion by a judge at first instance save on well recognized grounds (which have no application in the present case).  In his consideration of Ground 2, the Director stated that Au J had properly considered the principles set out in Chit Fai Motors, and came to the conclusion that, in view of the adoption of the New Policy by the ISD, there was no real possibility that the Applicant’s complaints in the First JR Application would arise again in future (see paragraph 5(2) of the Reasons).  In my view, the Director’s reasons for rejecting Ground 2 cannot be faulted.  The Director did not make any error of law in coming to the view that Ground 2 had no merits, and this view was not Wednesbury unreasonable either.  Finally, I should mention that although the New Policy applies only to student reporters, in so far as the ISD may adopt other policies in relation to other forms of media, the legality of those policies would likewise raise fact sensitive issues which it would not be appropriate for the court to consider or determine in a vacuum.

(3)  In relation to Ground 3, the Applicant argues that the ISD’s change of policy was made to target the First JR Application, and thus it would be an injustice to the Applicant to dismiss the application. In this regard, the Applicant relies upon this court’s decision in Law Mei Mei v Airport Authority [2018] 4 HKLRD 312.  In will be recalled, however, that in Law Mei Mei, there was evidence that the change of the relevant rules was made specifically in view of the legal challenge which had been raised (see paragraph 48 of the judgment in that case).  No such evidence exists in the present case.  Ground 3 is, in my view, a non-starter.

24.In dismissing the Second LAA, the Deputy Registrar stated that she agreed with the reasons given by the Director.  Such reason given by the Deputy Registrar is, in my view, sufficient in the circumstances (see Chung Yuk Ying v Registrar of High Court [2013] 5 HKLRD 78, at paragraph 14 per Queeny Au-Yeung J).

25.I should add, for the sake of completeness, that if I am wrong in my conclusion that the Second Legal Aid Decision is not amenable to judicial review, I would hold, nevertheless, that no sufficient case has been made out for judicial review of that decision for the purpose of granting leave to apply for judicial review.

DISPOSITION

26.The application for leave to apply for judicial review is dismissed with no order as to costs, this being the costs order that the parties agreed the court should make in the event that it should dismiss the application for leave to apply for judicial review.

Mr Albert N B WONG and Ms Peggy P Y PAO, instructed by Ho Tse Wai & Partners, for the Applicant

The 1^st Putative Respondent was absent

Ms Katherine CHAN, Government Counsel, instructed by Department of Justice, for the 2^nd Putative Respondent