Pang Chui Ping v. Registrar of the High Court

HCAL 1152/2022

[2024] HKCFI 2054

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1152 OF 2022

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J U D G M E N T

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A. Introduction

1.As the Rolling Stones sang, you can’t always get what you want. But there is also often a difference between what you want and what you need. It seems to me that the real contest in this case centres on that difference.

2.That contest arises in the following circumstances:

(1)  The Applicant married on 10 December 1981.

(2)  The Applicant and her now ex-husband (“Husband”) were divorced by decree absolute made on 26 November 2009.

(3)  The Applicant and the Husband had only one child, a son (“Son”).

(4)  Prior to the divorce, the Applicant and the Husband made an oral agreement (“Agreement”) subsequently reduced into writing (“Memorandum”) – though perhaps not every term – and signed by both parties on 2 October 2009.

(5)  The essence of the Agreement was that, in consideration of the Husband’s promise as to certain dealings with the former matrimonial home (“Matrimonial Home”), she would consent to the divorce and not make any claim for ancillary relief in the divorce proceedings.

(6)  The key terms of the Agreement were that:

(a)  notwithstanding the divorce, each of the Husband, the Applicant and the Sun would have the right to reside in the Matrimonial Home for life;

(b)  the Husband would continue to make mortgage repayments until he had fully paid off the mortgage;

(c)  upon full payment of the mortgage loan, the Husband would transfer the Matrimonial Home to the Son.

(7)  The Applicant also argues that there were additional considerations/conditions – including that the Husband could not bring any other woman to live there (“No Other Woman Condition”) – though they were not all recorded in the Memorandum.

(8)  The Applicant says that the Husband has acted in breach of the Agreement, including by bringing his new wife to live there, and by trying to evict the Son.

(9)  The Applicant wished to commence legal proceedings to establish and confirm her rights under the Agreement, and incidentally the Son’s rights under the trust created by the Agreement.

(10)  For that purpose, the Applicant applied for legal aid on 15 April 2021.

(11)  The Interested Party, the Director of Legal Aid (“Director”), rejected that application on 28 July 2021.

(12)  The Applicant appealed, and the legal aid appeal was heard by the Assistant Registrar/Master D To (“Master”) on 27 June 2022 and 28 July 2022.

(13)  The Master dismissed the Applicant’s legal aid appeal on 28 July 2022 (“Decision”).

(14)  The Applicant applies for judicial review of the Decision.

(15)  The judicial review application was made by Form 86 dated 26 October 2022, and I granted leave on the papers as long ago as 3 November 2022.

(16)  The time taken between the grant of leave and the ultimate hearing of the substantive judicial review has, in essence, been the result of the contest between what is wanted and what is needed.

(17)  This is because it has been accepted on behalf of the Director that the Master fell into error in a number of respects, and therefore the Decision stands to be quashed by an order of certiorari.

(18)  Both the Applicant and the Director want me to make such an order.

(19)  But the Applicant also wants, and argues that she needs, an order of mandamus, directing the Master or the Director to grant her legal aid.

(20)  On the other hand, the Director argues that – whether the Applicant wants it or not – such an order of mandamus is neither needed, nor is it appropriate to the circumstances, which should lead to the matter being remitted to a Master for reconsideration de novo.

3.At the hearing, the Applicant was represented by Mr Neal Clough of Counsel. It is of note, and of some potential relevance, that Mr Clough and those instructing him have appeared with the benefit of a legal aid certificate issued for the purposes of these judicial review proceedings (noting that the certificate was first granted, then revoked, then reinstated).

4.At the hearing, the Director was represented by Ms Cherry Xu of Counsel (who had not appeared at the legal aid appeal hearing).

5.At the end of the hearing, I reserved my decision. This is my Judgment.

B.  Further Background

6.As indicated above, the Applicant’s application for legal aid was made on 15 April 2021. It was rejected by the Director on three grounds, being that:

(1)  the Applicant had no proof of her allegations (“No Proof Ground”);

(2)  because the mortgage was paid off in or before 2014, the legal limitation period for enforcing the Agreement had expired (“Limitation Ground”); and

(3)  the Director was of the view that given the doubtful legal merits and the value of the claim as well as the likely costs of pursuing it, a person of moderate means would not be advised to take proceedings at its own expense (“Doubtful Merits Ground”).

7.Mr Clough, then acting pro bono, provided to the Director an Advice on the merits of the Applicant’s claim. The Advice identified two potential routes of redress for the Applicant, being (1) to seek to reopen the ancillary relief proceedings to assert her interests in the Matrimonial Home, and (2) to commence new proceedings by herself and/or her Son to seek a declaration of trust in terms of the oral agreement and the Memorandum and in order to transfer of legal title of the Matrimonial Home to the Son – this being the preferable and intended route.

8.Upon receipt of the Advice, the Director was invited to make a second application for legal aid, but this was also rejected on new grounds not raised earlier, being:

(1)  the purpose of the intended proceedings is solely to obtain an order for the transfer of interests to the Son whose financial resources exceed the statutory limit prescribed in the Legal Aid Ordinance Cap 91 (“LAO”) (“Sole Benefit Ground”); and

(2)  the intended trust proceedings if commenced by the Son would seek a substantially similar outcome, so that the Applicant would not be prejudiced by not being able to take her own or joint proceedings (“Similar Interests Ground”).

9.The Applicant pursued her legal aid appeal (“Appeal”), and the parties filed submissions accordingly. By the Director’s Reasons for Refusal filed in opposition to the Appeal, he no longer relied on the No Proof Ground or the Doubtful Merits Ground, but merely on (1) the Limitation Ground, (2) the Similar Interests Ground and the (3) Sole Benefit Ground. Then, at the hearing before the Master on 27 June 2022, then legal aid counsel for the Director (a Ms Choi) expressly abandoned the Limitation Ground and the Similar Interests Ground, leaving the Sole Benefit Ground as the only ground for refusing legal aid.

10.However, after Mr Clough had completed his submissions, Ms Choi sought to introduce new grounds and new materials, including that certain conditions alleged as part of the Agreement were not set out in the Memorandum and that the Applicant had relinquished her rights to reside in the Matrimonial Home by what she allegedly said to Ms Choi during the first interview, and because the Applicant must have signed declarations to that effect when she applied for and obtained public housing.

11.The Master adjourned the matter to 28 July 2022 for oral decision, and directed the new materials and further submissions to be provided in the meantime, as indeed they were.

12.On 28 July 2022, the Master dismissed the Appeal on three grounds (all being different from the reasons pressed upon her by the legal aid counsel), being:

(1)  the ancillary relief claim is not open to the Applicant since no such claim was ever made by her in the first place in the divorce proceedings (“Ancillary Relief Ground”);

(2)  the Applicant was not the right person to sue, and instead the proper plaintiff should be the Son (“Proper Plaintiff Ground”); and

(3)  no cause of action had yet arisen for the Applicant to enforce her own rights under the condition that she should have the right to reside in the Matrimonial Home for life (“No Cause of Action Ground”).

C.  The Judicial Review and the Director’s Response

13.By her Form 86, the Applicant raised the intended grounds of judicial review that:

(1)  the Master had fallen into legal error on each of the three grounds relied on by her in reaching the Decision to dismiss the Appeal; and

(2)  there had been procedural impropriety in that:

(a)  the Master had allowed the Director to “shift the goalposts” by reference to the reasons for refusal changing during the hearing, including through the introduction of fresh evidence,

(b)  none of those grounds relied upon by the Master were raised by the Director, either when refusing the original applications for legal aid or during the Appeal, and

(c)  the Master had not raised these possible grounds to give the parties to the Appeal an opportunity to address her on them before she reached the Decision.

14.For present purposes, I do not need to address the other matters of criticism directed at the Master in the Form 86, as they are not in any way determinative. But I do note that Mr Clough has drawn specific attention to the concluding remarks of the Master that: “All in all, it appears that on the pretext of suing for her own interest, mother intends to sue for the benefit of the son using public funds. This is not permitted.” Though it is not entirely clear, it seems that comment was not intended by the Master to be acceptance of the Sole Benefit Ground for refusal advanced by the Director. In context, it seems to have been an additional comment on the Proper Plaintiff Ground.

15.The only relief sought by the Form 86 was for an order of certiorari to bring up and quash the Master’s Decision and for the Applicant’s legal aid appeal to be remitted to a different Master for fresh determination.

16.As indicated above, I granted leave to apply for judicial review on the papers. I invited the parties to liaise so as to propose case management directions, as well as to provide available dates for Counsel for the first half of 2023.

17.In March 2023, the Applicant gave notice of intention to amend the Form 86, in particular to add the further relief of an order of mandamus requiring the Registrar of the High Court to direct the Director to issue a legal aid certificate to the Applicant in respect of the proceedings in relation to which she had made the application for legal aid. The previous relief seeking that the legal aid appeal be remitted to a different Master for fresh determination was proposed to be moved to being an alternative to the order of mandamus.

18.There was a delay caused by the application for legal aid for these judicial review proceedings, and whilst the parties sought to resolve matters by way of correspondence. I need not set out those details. Eventually, the parties wrote to me by letters from the solicitors for the Applicant dated 21 March 2024 and from the DOJ for the Director dated 22 March 2024. The DOJ’s letter stated – obviously on an open basis, apparently for the first time – that:

(1)  the Director had proposed to dispose of the judicial review by seeking the Applicant’s consent to quash the Decision and remit the legal aid appeal before a different Master for fresh determination;

(2)  the Director has accepted that the judicial review application should be allowed by reason of errors identified in the Decision being;

(a)  the Master erred in law in holding that the ancillary relief claim is not open to the Applicant since no such claim was ever made by her in the first place in the divorce proceedings – i.e. the Master erred in law on the Ancillary Relief Ground;

(b)  the Master erred in law in holding that the Applicant was not the right person to sue on a contract for the declaration and specific performance at the Agreement for the benefit of all recovery of detriment suffered by third-party (the Son) – i.e. the Master erred in law on the Proper Plaintiff Ground; and

(c)  the Master erred in law for failing to take into account the relevant considerations relating to the alleged breach of the No Other Woman Condition, when holding that no cause of action had yet arisen for the Applicant to enforce her right under the Agreement – i.e. the Master erred in law on the No Cause of Action Ground.

(3)  These “concessions” accepted that the Master committed the above errors in making the Decision, hence the disposal for these proceedings proposed by the Director.

19.By reference to the content of that correspondence, I responded on the same day 22 March 2024, stating amongst other things that:

(1)  the proceedings were by then relatively stale, though I appreciated that attempts had been ongoing to settle matters amicably;

(2)  it was suggested by the Applicant’s solicitors that the parties had not been able to reach a settlement, so that they were instructed to proceed with the judicial review proceedings;

(3)  however, in circumstances where the named respondent would remain neutral and the interested party had accepted that the judicial review application should be allowed by reason of various errors identified in the Decision, I questioned why the proceedings still required a fully argued substantive hearing, rather than being dealt with in accordance with the appropriate consent procedure to be found in Practice Direction SL3;

(4)  I would give the parties a further 14 days to seek to resolve matters in a way which would not require a fully argued substantive hearing.

20.Though further negotiation by correspondence ensued, no final agreed settlement was able to be reached between the parties.

D.  The Contest

21.As will by now be obvious, the central stumbling block has been as to the appropriate relief to be granted, and in particular whether it should include the now requested order of mandamus. But there are also disputes between the parties as to the proper boundaries to the conduct of, and the procedural steps and decisions open to the Registrar or Master hearing, a legal aid appeal.

22.With the benefit of the rather full written submissions filed by Mr Clough and Ms Xu, as well as their more succinct and focused oral submissions at the hearing, I think the contest between the parties can be summarised by me as follows.

23.For the Applicant, Mr Clough submits that:

(1)  The background to the legal aid applications and the Appeal are important.

(2)  That background identifies that the Director’s reasons for refusing legal aid have varied over time.

(3)  One variation was to seek to raise new matters and/or new evidence at the hearing of the Appeal, which the Master should not have permitted.

(4)  That should not have been permitted because the Guidance published by the Legal Aid Services Council sets a protocol requiring a legal aid appellant to be provided with the Director’s “Reasons for Refusal” in advance of the hearing of the appeal, and which should comprise, amongst other things, (a) a list of documents considered to be relevant to the appeal and relied upon in refusing the legal aid application, (b) the reasons for the decision to refuse the legal aid application – and where the Reasons document will serve as the written submissions to the Registrar or Master hearing the legal aid appeal.

(5)  Because, by their very nature, applicants for legal aid are normally unrepresented on legal aid appeals, it is fundamental that the Director acts in accordance with the protocols, and the Registrar or Master conducting the legal aid appeal follows the due process.

(6)  By the beginning of the Appeal, the only ground of refusal relied upon by the Director was the Sole Benefit Ground.

(7)  The Master dismissed the Appeal on three different grounds.

(8)  Not to give the Applicant an opportunity to address those grounds in advance of delivery of the Decision was a procedural impropriety.

(9)  In any event, the Master fell into legal error on all three grounds, as the Director has now conceded.

(10)  The judicial review is a review of the reasons given by the Master, and of any procedural impropriety alleged.

(11)  Once it is acknowledged/conceded that the Master fell into legal error on all of the reasons she gave for dismissing the Appeal, it logically follows that the Master (had she not erred) would have allowed the Appeal.

(12)  Put another way, once the Director acknowledges that the Applicant’s position on at least the second and third grounds is correct, the merits test is passed and legal aid should be granted.

(13)  An order of mandamus is an appropriate remedy where, based on the law and the circumstances, there is only one course open to the administrative body.

(14)  Indeed, whilst generally speaking the Court will not in the first instance order mandamus against a public body, it will do so where there are special features that indicate such an order is more appropriate.

(15)  This case has those features.

(16)  Alternatively, if no order of mandamus is granted, the matter should at least be remitted to a new Master for a fresh determination with the further direction that the Master reach a decision in accordance with the findings of this Court given in this Judgment.

(17)  This is to ensure that the sense of a de novo hearing is not stretched too far so that “everything is up for grabs” – not least where the Director appears to suggest that he can even revisit whether the Applicant has met the means test.

24.For the Director, Ms Xu submits that:

(1)  This is a judicial review of the Master’s Decision made on a legal aid appeal, not the Director’s original decision to refuse to grant legal aid.

(2)  Legal aid appeals are heard on a de novo basis by reference to the evidence and submissions presented to the Registrar or Master at the appeal, as available at the time of the appeal.

(3)  The burden is on the applicant in a legal aid appeal to show that he or she has reasonable grounds for taking, defending, opposing or continuing the intended proceedings – and it is for the applicant to advance all relevant representations are matters which are objectively and reasonably within his or her expectations to be relevant and of concern to the case.

(4)  There is nothing inherently improper in a Master permitting the Director to adduce fresh evidence or raise fresh arguments on an appeal, so long as that is achieved in a procedurally fair manner.

(5)  In this case, the Master fairly granted the adjournment to permit the parties to adduce and address by way of submission the intended new evidence and argument.

(6)  The Director has properly acknowledged/conceded that the Master fell into legal error as regards each of the three grounds or reasons relied upon by her to dismiss the Appeal.

(7)  The Director also accepts that he cannot in future resile from the concessions now made as to what was the correct legal approach which ought to have been taken by the Master.

(8)  The acknowledgements/concessions are, however, limited to a certain extent.

(9)  The concession on the Ancillary Relief Ground is limited to the possibility of reopening ancillary relief, and should not be taken as any acceptance by the Director that such an application by the Applicant would pass the merits test, which is a fact-sensitive issue which cannot be dealt with on the limited information currently before the Court.

(10)  The concession on the Proper Plaintiff Ground is limited to the issue of locus in a contractual claim on the basis of the Agreement, and should not be taken as any acceptance by the Director that the Applicant’s allegations regarding the existence and terms of the Agreement are credible or that the Agreement is legally enforceable, where it is well-established that an agreement to compromise an ancillary relief application does not give rise to a contract enforceable in law.

(11)  The concession on the No Cause of Action Ground is limited to the point about the No Other Woman Condition.

(12)  But, in any event, the proper relief to grant is to quash the Decision and to remit the matter to a new Master for fresh consideration of the Appeal.

(13)  Whilst it is unnecessary to go so far as to suggest that an order of mandamus can never be made in a judicial review such as the present, it is necessary to keep in mind that such orders should be made only in extremely rare cases.

(14)  In this case, it is inappropriate to grant an order of mandamus, as it does not logically follow that once the legal errors made by the Master have been corrected that legal aid must necessarily be granted.

(15)  This is (a) because of the limited nature of the concessions as to the legal errors made by the Master, and (b) because it remains open to the new Master on a fresh consideration of the Appeal to take all matters into account as are fairly appropriate as at the time of the re-hearing of the Appeal.

(16)  The Director is not intending to suggest that the Applicant now fails the mean tests, but the Director is entitled to reassess the question of means at regular (six monthly) intervals, and depending on when the Appeal can be reheard, the Director should not be precluded from being able to exercise his right of reassessment at the relevant time.

25.Before weighing those submissions, it is helpful to identify the proper legal context.

E.  Applicable Legal Principles

26.The principles applicable in the context of judicial review as regards decisions refusing legal aid are well-settled, and have been recently stated in a number of decisions, which I do not think need to be specifically referenced. Those principles can be repeated as follows – though it is also necessary to canvass additional points arising in light of the submissions in this case, which I shall add.

27.There are different tests to be applied between the two situations of (1) when the Director is considering an application for legal aid or the Master is considering a legal aid appeal, and (2) when the Court is considering an application for judicial review of a decision refusing to grant legal aid.

28.The starting point is that, under section 10(3) of the LAO, a person shall not be granted a legal aid certificate in connection with any proceedings unless he or she shows reasonable grounds for taking, defending, opposing or continuing such proceedings. That is the approach to be taken, and what needs to be assessed, by the Director when he decides whether or not to grant a certificate for legal aid for the intended proceedings.

29.A legal aid appeal to the Master is in the nature of a de novo hearing. It does not take the form of a review of the decision of the Director, and the question is not whether the Director made a decision which was reasonably open to be made on the materials. The Master is deciding afresh whether, in her view on the materials before her, legal aid should be granted. Therefore, when hearing an appeal against the decision of the Director refusing to grant legal aid, the Master should adopt the same underlying approach.

30.However, it may be helpful further to identify what is meant by a de novo hearing or full appeal in this context. Some context is, of course, provided by section 26 of the LAO, which in full provides:

26. Appeal from decision of Director

(1A) This section shall not apply to an order or decision of the Director made in relation to an application for legal aid to appeal to, or to apply for leave to appeal to, the Court of Final Appeal.

(1) An applicant for legal aid or an aided person 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 High Court in chambers.

(2) An appeal under this section shall be initiated by notice in writing to attend before the Registrar of the High 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, and shall refer an appeal against any decision of the Director under section 4(3), for decision of a judge of the High Court in chambers, in which event the decision of the judge shall be final.

(4A) A hearing under this section may be conducted in either or both of the official languages.

(5) The Registrar shall give written notice of the decision on an appeal under this section to the Director and to the person who made the appeal and shall adequately state in the notice the reasons for the decision.

31.Further, the ‘Legal Aid in Hong Kong’ Guidance published by the Legal Aid Services Council in 2006 – though only a guidance document – is instructive. It draws upon the provisions in section 26, as well as previous decision of the Courts about that section, and materially provides as follows (footnotes omitted):

Upon the initiation of the legal aid appeal, the appellant is to be served with a document entitled “Reasons for Refusal” (“the Reasons document”) by the Legal Aid Department at least three clear working days before the date of the hearing of the appeal. The Reasons document will set out, as far as practicable, the background of the application, a list of the documents considered to be relevant to the legal aid appeal and relied upon by the legal aid counsel when the decision was made, the reasons for the decision, the legal authorities, articles, textbooks (if any) relied upon when the decision was made, the particulars of evidence or other matters considered and relied upon when the decision was made, the opinion obtained from counsel or solicitor under the Legal Aid Ordinance, and the legal aid counsel’s own opinion and analysis of the issues of fact and/or law relevant to the case and the reasoning for such opinion. The Reasons document will serve as the written submission to the Registrar of the High Court. In addition to the Reasons document, the appellant should also be provided with copies of all such documents that are referred to or relied upon in the Reasons document, except documents provided by that person; documents which have been supplied by a third party subject to conditions which prevent disclosure to that person; and documents which cannot be disclosed without breaching the Personal Data (Privacy) Ordinance and any undertaking given by the Legal Aid Department to other organisations.

There should be at least one clear day between service of the notice of the appeal and the date of hearing, unless otherwise ordered by the Registrar of the High Court. In practice, however, the Legal Aid Department will ensure that there are at least three clear working days between service of the notice of the appeal and the date of hearing. A hearing of a legal aid appeal may be conducted in either or both of the official languages. The appellant has the right to representation by counsel or a solicitor at his own expense, or on a pro bono basis, at the hearing of the appeal. He may, alternatively, be accompanied by another person or a trainee solicitor who, however, may not conduct the appeal on his behalf. A legal aid appeal is a hearing de novo from the decision of the Director and the Registrar exercises administratively the statutory power vested in him under the Legal Aid Ordinance, and his function is not intended to be ancillary of or incidental to exercise of judicial power. The Registrar has to ensure that the legal aid appeal is conducted in accordance with natural justice. The decision of the Registrar on a legal aid appeal is final.

32.Other than pointing to the fact that a legal aid appeal is intended to be dealt with quite swiftly, that the legal aid applicant may be represented or assisted on the appeal, and that the decision on the appeal must be adequately reasoned, section 26 itself does not (and probably does not need to) identify any particular procedures.

33.But the fact that the appeal is heard de novo does not seem to me to mean that a legal aid appeal is some free-wheeling open-ended boundless inquiry. It is, after all, an appeal – which by its very nature envisages some form of adversarial process before an independent arbiter. As stated, the appellant applicant for legal aid is entitled to be represented at the legal aid appeal, obviously to advance the applicant’s case as to why legal aid should be granted. If unrepresented, the applicant himself or herself would or could do the same thing. Further, the Director will be represented by legal aid counsel to explain the reasons why he has refused to grant legal aid, and to advance those reasons as the Director’s submissions as to why the Master should dismiss the appeal. Indeed, the Guidance states in terms that the Reasons document will stand as the Director’s submissions on the appeal.

34.Having said that, the appeal is heard by the Registrar or Master because of his or her qualifications, and he or she is exercising a power which is in essence administrative, though quasi-judicial. Natural justice and fairness are required, as appropriate to the circumstances of the legal aid appeal. But fairness does not necessarily require limiting the Director – or, indeed, the Master hearing the appeal – to those points raised by the Director in the Reasons document.

35.There may be cases where the Director can seek and be permitted to adduce new points and new materials, so long as that is dealt with by the Master in a manner which satisfies the requirements of fairness. But – not least where the Director is supposed to identify in advance and then to justify his reasons for refusing to grant legal aid – such cases are likely to be exceptional or rare.

36.Similarly, if a Master is minded to determine the appeal by reference to a point or points of substance not raised or canvassed in the submissions of the applicant for legal appeal and the legal aid counsel, fairness would indicate that the Master should identify the point or points and invite submissions on it or them prior to coming to a concluded view on the appeal.

37.It can also be noted that as the appeal to the Registrar/Master under section 26 of the LAO is a full appeal, as described above, where the applicant for legal aid has exercised the statutory right of appeal against the Director’s decision, it follows that the underlying Director’s decision is in principle not amenable to judicial review.

38.The question to be answered by the Court on any ensuing application for leave to apply for judicial review of the Master’s decision dismissing a legal aid appeal is a different one. The Court does not sit as a further tier of appeal, and does not re-examine the Master’s decision afresh, or consider whether it would have granted legal aid to the applicant. The Court’s function is confined to a review of the legality, rationality and fairness of the process, so as to determine whether the intended application for judicial review is reasonably arguable and has a realistic prospect of success. If leave is granted, the substantive review again focuses on the legality, rationality and fairness of the decision-making process conducted by the Master on the underlying appeal.

39.The Court exercising its judicial review jurisdiction does not itself grant (or refuse to grant) legal aid. The grant or refusal is a decision for the Director, or for the Master if there is a legal aid appeal.

40.But that fact does not prevent an order of mandamus where it is the appropriate remedy because, in the particular circumstances of the case and on the law applicable, there is only one course open to the administrative body. Put another way, there are cases where the Court exercising its judicial review jurisdiction can come to the conclusion that there could only be one result that is legally open to the administrative decision-making body. It can therefore make an order of mandamus to require that result to be arrived at. But it is important to stress that, in doing so, the Court is not undertaking the role of primary fact-finder or substituting its own judgment on the merits for that of the body whose decision is under review. The Court is merely recognising the existence of the situation in which a public authority, properly directing itself on the facts according to the applicable law, has only one choice legally open to it. I suppose it can be said that such cases will ordinarily be rare.

41.Lastly, it can be mentioned that section 21K(5) of the High Court Ordinance Cap 4 provides that if the Court of First Instance quashes the decision to which the application for judicial review relates, the Court may remit the matter to the court, tribunal or authority concerned, with a direction to reconsider it and reach a decision in accordance with the findings of the Court. Though, as matter of practice, it would be preferable if any direction to reconsider a decision expressly states that the decision must be reached in accordance with the findings of the Court, I doubt a failure to state that expressly would permit the reviewed decision-maker to reconsider and reach a decision otherwise than in accordance with the findings of the Court. It is those findings which will have led to the quashing of the decision and remitting it, and they could not be ignored when the reconsideration exercise is conducted.

F.  This Case

42.There can be no doubt, and it is of course, ground, that the Decision stands to be quashed. But the question arises as to what further remedy should follow, in the exercise of the discretion which is triggered by the finding of grounds for review.

43.I can deal first with the Applicant’s need to amend the Form 86, at least for the purposes of seeking mandamus as the primary form of relief in the alternative to remitting the matter to a new Master for fresh consideration. I acknowledge that once leave to apply for judicial review is granted, that can normally be taken to have drawn a line in the sand as to the terms and scope of the proceedings, so that material amendments of the grounds of review should rarely occur. But, in this case, the material amendment is not exactly to the grounds of review, but rather to what is said to be the appropriate result if those grounds are established (which they have been). Ultimately, as in every amendment application, the decision whether to permit the amendment turns on what is fair and appropriate in all the circumstances.

44.Having taken into account all the circumstances, including the nature of the amendment (being as to the form of relief said to flow from the established grounds), the potential merit in the amendment, its relevance and significance to the appropriate way to deal with the consequences of the established grounds, and such that it can permit proper consideration of the alternative courses open to the Court in the exercise of its discretion, I am persuaded that it would be appropriate to permit the amendment. I do not think it unduly extends the scope of the present judicial review in any inappropriate way, but rather permits the Court to have the properly arguable potential remedies open to it for consideration in the discretionary role of a judicial review Court.

45.I acknowledge that the arguments deployed in this regard on behalf of the Director in these proceedings have been put forward on a principled basis, appropriate to a person acting in the allocation of (as well as being guardian of) public funds. But, contrary to the somewhat firmer stance adopted by Ms Xu in her written submissions, she properly accepted in her oral submissions that an order for mandamus might be possible, albeit only in rare and exceptional cases. The analysis requires determination of whether this is such a case.

46.Next, the particular circumstances of this case seem to me to be – and might be hope to be – rather unusual.

47.In particular, there has been significant shifting in the reasons advanced by the Director for rejecting the application for legal aid over time, including when inviting the Master to dismiss the legal aid appeal. As indicated above, most of the points previously taken were no longer taken on behalf of the Director by the time of the appeal. Then there was he change during the appeal process.

48.But, I see no procedural impropriety or unfairness in the Master’s having acceded to the then legal aid counsel’s application to raise a new point, and to adduce new evidence relevant to that point. As stated above, in an appropriate case, it is within the power of the Master hearing a legal aid appeal to adopt that course, so long as it is adopted in a way which satisfies the requirements of fairness. In this case, those requirements were satisfied by the Master’s granting the adjournment and permitting further written submissions to deal with the new point.

49.Nevertheless, the unusual nature of the case continued when the Master decided the appeal by reference to three points, which had not been directly raised by the parties and where she had not afforded them the opportunity to comment on her preliminary views. That seems to me to have created a procedural unfairness.

50.But, in any event, she then fell into legal error on each and every one of those three points. In the circumstances that it is common ground that the Master fell into legal error, it is unnecessary to address many comments to those errors. Suffice it to say that:

(1)  The concession made by the Director as regards the Ancillary Relief Ground was obviously properly made. The Master was simply wrong, and in any event the Applicant’s stance has always been that she is not seeking legal aid for the purpose of reopening the ancillary relief proceedings.

(2)  The Master erred in law as regards the Proper Plaintiff Ground, where the Applicant is clearly the correct plaintiff to sue upon a contract to which she is the relevant counterparty to the intended defendant, the Husband. As regards the contractual claim, it does not seem to me to be helpful to debate whether the ultimate claim is in contract or trust. But I think the intended proceedings are to sue on the contract which created the trust or beneficial interests (as well as the other rights and obligations to which the proceedings can also relate). In passing, I do not think Ms Xu is correct in suggesting that such an agreement would not be legally enforceable on the basis that it was an agreement compromising an ancillary relief application so not giving rise to a contract enforceable in law. The proper approach is to recognise that the contract is ordinarily enforceable between the parties, except that if addressed in ancillary relief proceedings it would not oust the jurisdiction of a matrimonial court to make ancillary relief provisions different from the terms of the contract, where the matrimonial court thought it necessary or appropriate and just so to do. But, as already emphasised above, the intended proceedings for which legal aid is sought are not such matrimonial ancillary relief proceedings.

(3)  The stated limit to the Director’s concession on the No Cause of Action Ground – i.e limited to the No Other Woman Condition – does not seem to me to be of any moment. That condition is but one of the terms asserted as being part of the Agreement, and even if there is any doubt about whether that condition will be established at trial (it being a point likely to require a trial), that does not detract from the other aspects of the Agreement sued upon – in particular as regards the beneficial/trust interests created. Anyway, it does not mean there is no cause of action.

51.Further, in deciding the case by reference only to those three points is the Master’s implicit rejection of the reason or reasons advanced by the Director for refusing the grant of legal aid. I accept that the Master did not have to address every point of argument placed before her, but she was required to provide adequate reasoning for reaching her decision, including by reference to the arguments placed before her.

52.Therefore, whilst I see some potential force in Ms Xu’s submission that correcting the legal errors of the Master does not automatically mean that legal aid should be granted, it does seem to me that it is possible to say with some confidence in this particular and unusual case that, had the Master not fallen into those legal errors, and where she had implicitly rejected the Director’s submissions, she would have granted legal aid. This is not a case where it looks at all likely that, had the Master not fallen into legal error, she would nevertheless have continued to weigh and balance the other features so as might have nevertheless led her to dismissing the legal aid appeal. Put another way, the Master in this case had already excluded any other reasons for dismissing the appeal except for the reasons she gave and which were in error.

53.Therefore, after careful consideration, I have come to the view that this is one of the very rare situations where it can be seen that the primary decision maker, properly directing herself on the facts according to the law, would in reality have only one choice legally open to her. This seems to me to set this case outside the ordinary case where the usual course would be to send the matter back to the Master for decision in accordance with the correct law.

54.Further, considerable time has passed since the original application for legal aid, during which time (amongst other things) a full range of reasons why the application should or might have been dismissed were ventilated, and later expressly abandoned or implicitly rejected. This is not a case where it is likely that any renewed consideration would bring into play features which have not already weighed in the balance of the decision-making process. That is not to say that I am attempting to substitute my judgment on the merits for that of the Master, but merely that the Master would at this juncture have only one choice legally open to her in the way I have described.

55.I also take comfort from the fact that, as the Applicant was legally aided in the context of these judicial review proceedings, so there seems no doubt that the Applicant currently satisfies the means test, and there is no need for that point to be revisited at this time.

G.  Result

56.In the circumstances which I have described above – and I emphasise the rarity or exceptional nature of those circumstances – this is a case where it is appropriate not only to quash the Decision, but to grant the order of mandamus directing the Master to direct the issue of a legal aid certificate to the Applicant in respect of the proceedings in relation to which she made the application for legal aid.

57.At the hearing, I reserved the question of costs to await submissions from the parties, once they have had sight of this Judgment and its reasoning. I will deal with the question of costs by way of paper submissions, and insofar as it may be appropriate make summary assessment of any party’s costs. For that purpose, I give the following directions: (1) the Applicant shall file costs submissions, including any statement of costs for summary assessment, by 30 August 2024; (2) the Director shall file costs submissions, including any statement of costs for summary assessment and/or list of objections as appropriate, by 13 September 2024; (3) the Applicant shall file costs submissions in reply, if any, and any list of objections, if any, as appropriate, by 20 September 2024.

58.I shall then proceed to making orders dealing with both the incidence and, if appropriate, the summary assessment of costs.

Mr Neal Clough, instructed by J. Chan, Yip, So & Partners, for the applicant

The respondent was excused from court attendance

Ms Cherry Xu, instructed by the Department of Justice, for the interested party