Chan Chung Sing v. The Registrar of the High Court

HCAL 279/2025

[2025] HKCFI 570

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 279 OF 2025

________________________

________________

_________________

D E C I S I O N

_________________

A.  Introduction

1.It would be a significant understatement to say merely that the Applicant is deeply dissatisfied with the way in which his application for legal aid was dealt with by the Legal Aid Department (“LAD”), leading to the refusal of legal aid by the Putative Interested Party (“DLA”).

2.In the body of his Form 86 dated 20 January 2025, the Applicant states that he seeks leave to apply for judicial review of the DLA’s decision to reject his application for legal representation, under grounds headed with titles such as “Corruption and Misconduct”, “Downplaying Damages”, “Omissions in Counsel’s Opinion”, “Dragging and Evasive Attitude”, “Malicious Framing”, and “Low-Quality Work”.

3.The Applicant’s affidavit dated 24 January 2025 also speaks to these allegations. He has exhibited numerous documents, many of which go to the underlying dispute for which he sought legal aid.

4.In both the Form 86 and the affidavit, the Applicant seeks by way of relief: (1) the grant of a Legal Aid Certificate to him; (2) damages in the sum of HK$2.5 million to be paid to him by the LAD; and (3) an official statement of apology to him from the LAD.

5.Having considered the materials, I am satisfied that it is appropriate to deal with the application on paper.

6.This is my Decision.

B.  Wrong Target

7.As the heading to this Decision identifies, the Applicant has named the Registrar of the High Court as Putative Respondent, and the identified decision which is impugned is described as:

Decision of appeal for the decision of Director of legal aid in refusing legal aid certificate in LAA No. 781/2024.

8.However, as the introduction above makes clear, the Applicant actually complains about the decision of the DLA, and the process of his application for legal aid as conducted by the LAD. For present purposes, there is no need to go into the fine detail of his complaints.

9.There is no criticism at all of the Registrar’s decision in the legal aid appeal.

10.Instead, in his Form 86, the Applicant has suggested the following:

In comparison to judges in judicial review, the Registrar’s role in the appeal is more limited. The Registrar primarily focuses on procedural aspects and the correctness of the Legal Aid Director’s decision based on the provided information. Judges in judicial review, on the other hand, have broader authority to examine the legality, reasonableness, and fairness of administrative decisions, including those made by the Legal Aid Director.

11.But these various matters identify that the Applicant is mistaken and has simply focused on the wrong and impermissible target. This is also clear from the applicable principles traversed below.

C.  Decision of DLA is not amenable to review

12.It is well-settled that there are different tests to be applied between (1) when the DLA/Registrar is considering an application/appeal for legal aid, and (2) when the Court is considering an application for judicial review of a decision refusing to grant legal aid. If authority is needed for such a proposition, reference can be made to Xu Fangwen v Deputy Registrar of the High Court [2019] HKCFI 2332 at §§17-20.

13.The starting point is that, under section 10(3) of the Legal Aid Ordinance Cap (“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.

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

15.But the question to be answered by the Court when considering an application for leave to apply for judicial review of the Registrar’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 Registrar’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 of the legal aid appeal, so as to determine whether the intended application for judicial review is reasonably arguable and has a realistic prospect of success.

16.Further, as described above, the appeal to the Registrar under section 26 of the LAO is a full appeal. Therefore, where the applicant for legal aid has exercised the statutory right of appeal against the DLA’s decision, it follows that the underlying DLA’s decision is in principle not amenable to judicial review: see the Xu Fangwen case at §§ 21-22, adopting by analogy the reasoning of the Court of Appeal in Re Moshin Ali [2018] HKCA 549.

D.  No Grounds of Review Identified

17.It is trite that an applicant for leave to apply for judicial review must, amongst other things, state the grounds of intended review on which relief is sought.

18.Where the Applicant has identified the impugned decision as the Registrar’s dismissal of his legal aid appeal, it was a mandatory requirement for him to have stated the grounds of intended review against that decision. However, as set out above, the Applicant has not done so.

19.This is fatal to the application.

E.  Result

20.Following the rejection by the DLA of his application for legal aid, the Applicant had a statutory right of appeal to the Registrar. The Applicant exercised that right, and his appeal was dismissed. The Applicant’s clear intention to revisit DLA’s decision seeks to impugn a decision which is no longer amenable to judicial review.

21.The Court exercising its judicial review jurisdiction does not sit as a further tier of appeal. But the Applicant has failed to identify any grounds of review – let alone any reasonably arguable grounds of review – to challenge the Registrar’s decision.

22.It can also be pointed out that the Court exercising its judicial review jurisdiction does not grant Legal Aid Certificates, nor order apology statements – and awards of damages in judicial review proceedings are also extremely rare and inapplicable to the current circumstances.

23.As a result of these points, individually and/or cumulatively, the Applicant’s application for leave to apply for judicial review stands to be dismissed. I so order.

24.I make no order as to costs.

The applicant, acting in person