Pang Chui Ping v. Registrar of the High Court

CACV 370/2024, [2025] HKCA 372

On Appeal From [2024] HKCFI 2054

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 370 OF 2024

(ON APPEAL FROM HCAL NO 1152 OF 2022)

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J U D G M E N T

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Hon Chu VP:

1.I have the benefit of reading in draft the judgments of G Lam JA and Chow JA. I agree for the reasons given in Chow JA’s judgment that the appeal should be allowed with costs, the order of mandamus made by the Judge be set aside and the Applicant’s appeal against the refusal of legal aid be remitted to another Master for reconsideration. I also agree that the remitter should be on the terms proposed, to which I wish to add a few words of explanation.

2.As the authorities cited by Mr Pao SC to us demonstrate (see §§7 and 53 below), the Court may in appropriate cases give guidance and directions for the purposes of the remitter, including the focus and parameters of the remitter. In deciding whether and how to do so, the Court has to bear closely in mind that its jurisdiction in judicial review is supervisory and that it should be cautious not to usurp the function of the decision-maker nor fetter the exercise of the decision-maker’s duty and power.

3.In the present case, the Applicant’s legal aid application was first made more than four years ago in April 2021. After she provided to the Director of Legal Aid a legal opinion (provided by counsel on pro bono basis) following the rejection of the application, the Applicant was invited by the Director to make a second legal aid application. The second application was also rejected, which led to the appeal to the Registrar and the decision of the Master that forms the subject matter of the judicial review proceedings in the court below. As highlighted by Chow JA (see §§21-26 below), the reasons given by the Director for refusing the legal aid applications and resisting the appeal against the second refusal had undergone significant changes, with some of them being expressly abandoned along the process. Mr Ma SC indicated in his submissions that the Director would not seek to revive grounds and arguments that had been abandoned or conceded. It is also clear from counsel’s submissions in this appeal that the Director’s refusal to grant legal aid is now grounded in section 10(3)(c) of the Legal Aid Ordinance (Cap 91), namely it was unreasonable that the Applicant should be granted legal aid in the particular circumstances of the case.

4.In the unusual circumstances of this case as outlined above, it is important that the reconsideration of the Applicant’s appeal against the Director’s refusal should be focused and directed at the real issue in dispute. It is accordingly appropriate, and in accordance with the supervisory role of the Court, for us to give direction on the scope of the remitted hearing as proposed by Chow JA.

Hon G Lam JA:

5.I agree that the appeal should be allowed for the reasons given by Chow JA and that the orders proposed by him should be made. I wish only to add a few words on the powers of the court on a remitter after the decision impugned has been quashed by way of judicial review. Both s. 21K(5) of the High Court Ordinance (Cap 4) and Order 53 rule 9(4) of the Rules of the High Court (Cap 4A) provide that on an application for judicial review, the Court may, in addition to quashing the decision in question, 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”.

6.Those findings may be findings of fact, though they are relatively rare in judicial review, or, more frequently, findings of law made by the court in coming to the conclusion that the decision should be quashed. I accept that the court may in addition make further findings or rulings relevant only for the purposes of the remitter, but they should in my view be based on requirements of the law. In fashioning the remedy upon granting judicial review, as in judicial review proceedings generally, the court is exercising a secondary, supervisory jurisdiction to ensure due observance of the law. In doing so the court should avoid any semblance of it assuming the function assigned by the legislature to the decision-maker: R v Barnet LBC, ex p Nilish Shah [1983] 2 AC 309, 350F-H. It follows in my view that upon a remitter, the decision-maker should generally be left free to deal with the case in accordance with his powers and duties based on the materials then available to him, subject to any constraints or fetters arising as a matter of law as found by the court: see West Glamorgan County Council v Rafferty [1987] 1 WLR 457, 478G-H; R (C) v Secretary of State for the Home Department [2011] 2 FLR 383, §16. This is to be contrasted with the wider powers of the Court of Appeal in ordering new trials in civil actions: see Order 59 rule 11.

7.In my view, the authorities cited by Mr Pao SC and Mr Marwah on behalf of the applicant do not detract from what I regard to be the general principle in judicial review but in fact illustrate it.

(1)  In R v Tower Hamlets London Borough Council, ex p Chetnik Developments Ltd [1988] 1 AC 858 at 878H-881E, upon quashing a local authority’s refusal to make a refund of overpaid rates, Lord Bridge went on to give guidance as to the matters which may and those which may not be taken into consideration in exercising the discretion under the statute in question. In so doing he was giving guidance on the law: specifically he identified factors that were relevant, which could therefore lawfully be considered by the rating authorities, and factors that were irrelevant, which could not therefore properly be taken into account.

(2)  In R (Balakoohi) v Secretary of State for the Home Department [2012] EWHC 1439 (Admin), the judge quashed the decision of the Secretary of State refusing the applicant indefinite leave to remain and granted a further declaration that the Secretary may not rely in any future consideration of the applicant’s application on certain facts arising from an earlier decision to curtail the leave for her to remain. The declaration was granted on the basis that the curtailment decision had been found by the judge to be flawed and “should never have been made” (even though it was too late for the applicant to apply for the curtailment decision itself to be set aside), and any reliance by a future decision-maker on that decision would therefore be wrong in law. The declaration, which sought to prevent the risk of any future misuse of the curtailment decision, was thus granted to give effect to the legal findings made by the court.[1]

(3)  Likewise, in R (Essex County Council) v Secretary of State for Education [2012] EWHC 1460 (Admin), a county council challenged the Secretary of State’s decision on allocation of education funding, on the grounds that there was (i) lack of consultation, (ii) irrationality in the choice of criteria, and (iii) a failure to fulfil statutory duties under the equalities legislation. The judge rejected the first two grounds and upheld the third and then only in a limited respect. Accordingly the court quashed the decision and directed that it be re-taken but only to give effect to the Secretary’s obligation under the relevant legislation, and expressly stated that he need not reopen or reconsider any other issue. Given that the court had actually held that the Secretary was not under any obligation to consult and had adopted rational criteria, and the matter was remitted to the same decision-maker, the order made seems to me simply to reflect the judge’s findings, in effect saying that it would be lawful for the Secretary, in re-deciding the matter, to proceed in the same way as before in those respects. It may also be noted that the judge directed that the Secretary “need not” (rather than “must not”) reconsider the other issues on which the council had failed, thus recognising that ultimately the matter was one for the Secretary.[2] This illustrates the statement in Supperstone, Goudie & Walker, Judicial Review (7^th ed), §16-17, that on quashing a decision in judicial review, the court can direct the decision-makers to “restrict themselves to deciding one or more issues on which they originally misdirected themselves in law.” In R (Moss) v The Service Complaints Ombudsman of the Armed Forces (No 3) [2024] EWHC 669 (Admin) at §22, Fordham J said that Balakoohi and Essex County Council were cases about designing an order to give effect to what had been decided in the judgment of the court. I respectfully agree.

(4)  In Director of Immigration v Cheung Yuk-sai (HCMP 1522/1986, 30 July 1986), at p 8, Power J quashed the decision of the Immigration Tribunal and directed the Tribunal to re-hear the matter, indicating that “in the absence of any further evidence, there is only one conclusion to which it can come”. This is plainly a finding of law, to the effect that the only conclusion legally open to the Tribunal (in the absence of any further evidence) was the one indicated by the judge.

(5)  In R v Secretary of State for the Home Department, ex p Benwell [1985] 1 QB 554 at 574, after quashing the Secretary of State’s decision to dismiss the applicant from his employment as a prison officer, the court remitted the matter to the Secretary for his reconsideration, indicating that the Secretary should only have regard to certain previous disciplinary proceedings against the applicant up to a certain point in time and not thereafter. The reason was that the proceedings after that time were found by the judge to have been “tainted with unfairness”. Clearly this was a direction giving effect to the findings made by the court and preventing the Secretary upon reconsideration from relying on such tainted matters, which would be an error in public law.

8.In the present case, given that the decision of Master D To on the legal aid appeal has been quashed, there is an extant appeal brought by the applicant under section 26 that remains to be determined. This is going to be remitted to a different Master. As is common ground, such an appeal is in the nature of a de novo decision on the legal aid application, and the Master exercises administratively the statutory power vested in the Registrar under the Legal Aid Ordinance: see §31 of the Judgment of Coleman J. This is an exercise entrusted by statute to the Registrar, not to the courts, and the courts must therefore be cautious before acting in effect to curtail that exercise. For the same reason that an order for mandamus requiring the grant of legal aid should not be made unless the court is satisfied that that is the only result legally open to the Registrar (as explained by Chow JA in §45 below), I think that the court should also refrain from setting limits to the scope of the remitter to the Registrar unless it is satisfied that it would be wrong in law, including public law, for the Registrar to go beyond those limits.

9.The Director had in the course of the proceedings abandoned certain arguments and made certain concessions. As part of his argument for the appeal Mr Ma SC confirmed to us that the Director would not be seeking to resile from them. In the light of this and having regard to the history of the matter, I agree that the remitter should be limited as set out by Chow JA, on the basis that it would not be consistent with public law principles for the remitted hearing to go outside such limit.

Hon Chow JA:

INTRODUCTION

10.The issue in this appeal is whether Mr Justice Coleman was correct to grant an order of mandamus to compel the Registrar of the High Court to direct the issue of a legal aid certificate to the Applicant, instead of (i) granting an order of certiorari to bring up and quash the decision of Master D To made on 28 July 2022 rejecting the Applicant’s legal aid appeal, and (ii) remitting the matter to another Master for fresh consideration.

BACKGROUND FACTS

11.The basic facts of this matter are not in dispute and have been fully set out in the judgment of the Judge dated 16 August 2024 (“the Judgment”). For the purpose of disposing of this appeal, the following brief summary should suffice.

(i)  The Agreement between the Applicant and her ex-husband

12.The Applicant and her ex-husband (“the Husband”) were married in 1981, and divorced in 2009 upon the Husband’s petition. They had only one child (“the Son”), born in 1982. During their marriage, a property (“the Property”) under the Home Ownership Scheme of the Housing Authority was purchased in the sole name of the Husband, and used as their matrimonial home between 1996 and 2009. The Applicant claims that she was entitled to a beneficial interest in the Property by virtue of her substantial contributions thereto.

13.According to the Applicant, prior to the decree absolute dated 26 November 2009, she and the Husband had entered into an oral agreement (“the Agreement”), under which she agreed to consent to the divorce and not to make any claim for ancillary relief in the divorce proceedings in consideration of the Husband’s promise that:

(1)  notwithstanding the divorce, the Husband, the Applicant and the Son would have the right to reside in the Property for life;

(2)  the Property would become the Son’s matrimonial home when he married in future;

(3)  the Husband would not bring any other woman to live in the Property;

(4)  the Husband would continue to repay the mortgage loan in respect of the Property until the loan had been fully paid off;

(5)  upon full repayment of the mortgage loan, the Husband would transfer the Property to the Son; and

(6)  the Husband would not, under any circumstances (including re-marriage or otherwise), resile from the above promises or sell the Property.

14.The Applicant says that the terms of Agreement were later recorded in a memorandum dated 2 October 2009 (“the Memorandum”). There are two versions of the Memorandum with similar contents, one apparently signed by the Applicant and the other by the Husband. The Memorandum contains provisions which reflect some, but not all, of the terms of the Agreement mentioned in §4 above.

15.The Husband denies making the Agreement, or the contents of the Memorandum. He claims that he signed on a blank piece of paper which became the version of the Memorandum with his signature.

(ii)  The alleged breach of the Agreement by the Husband

16.Sometime after the divorce, the Applicant left the Property and lived with her mother in a public housing unit. In 2011, she applied for a public housing unit of her own, and was eventually granted one in around early 2017.

17.In 2010, the Son graduated from the Chinese University of Hong Kong. He started to work in a law firm since about 2011, and married in December of that year. After his marriage, the Son, his wife, his son and his mother-in-law all resided in the Property.

18.In 2011, the Husband re-married. By January 2014, the Husband paid off the mortgage loan in respect of the Property.

19.The Applicant alleges that the Husband subsequently acted in breach of the Agreement, including by bringing his new wife to live in the Property in around end of 2018 / early 2019, and trying to evict the Son in March 2021. The Applicant wished to commence legal proceedings to establish and confirm her rights under the Agreement, and incidentally the Son’s rights in respect of the Property under a trust allegedly created by the Agreement.

(iii)  The Master’s decision

20.To that end, the Applicant applied for legal aid on 15 April 2021 (“the 1^st Legal Aid Application”).

21.On 28 July 2021, the Director of Legal Aid (“Director”) rejected the 1^st Legal Aid Application (“the 1^st Legal Aid Decision”) on the grounds that:

(1)  the Applicant had failed to show any proof of her allegations (“No Proof Ground”);

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

(3)  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 his own expense (“Doubtful Merits Ground”).

22.Subsequent to the 1^st Legal Aid Decision, the Applicant obtained a legal advice dated 12 August 2021 from counsel, who opined that the Applicant and the Son had a good arguable case against the Husband with a reasonable prospect of success, and the best way forward was for both the Applicant and the Son to take proceedings against the Husband to seek a declaration that he held the Property on trust for the Son and an order to compel him to transfer all his interest in the Property to the Son. The Applicant made a second application for legal aid (“the 2^nd Legal Aid Application”).

23.On 3 November 2021, the Director rejected the 2^nd Legal Aid Application (“the 2^nd Legal Aid Decision”) on the following grounds:

(1)  “It appears to me that it is unreasonable that you should be granted legal aid in the particular circumstances of the case. The purpose of the intended proceedings are solely to obtain an order for transfer of interests in the former matrimonial home to your son whose financial resources exceed the statutory limit as prescribed in the Legal Aid Ordinance” (“Sole Benefit Ground”); and

(2)  “For the intended trust proceedings, your son is concerned jointly with or having the same interest as you in seeking a substantially similar outcome of the proceedings and you would not be prejudiced by not being able to take your own or joint proceedings” (“Similar Interests Ground”).

24.The Applicant was not satisfied with the 2^nd Legal Aid Decision and lodged an appeal (“the Appeal”) against it. In the Director’s Reasons for Refusal dated 5 November 2021 (“Reasons for Refusal”) filed in opposition to the Appeal, the Director no longer relied on the No Proof Ground or the Doubtful Merits Ground, but continued to rely on (1) the Limitation Ground, (2) the Sole Benefit Ground, and (3) the Similar Interests Ground.

25.At the hearing of the Appeal before the Master on 27 June 2022, legal aid counsel for the Director (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. However, in the course of the hearing, Ms Choi sought to introduce some new grounds and materials, including arguments that (i) certain conditions alleged as part of the Agreement were not set out in the Memorandum, and (ii) the Applicant had relinquished her rights to reside in the Property by what she had allegedly said to Ms Choi during an interview, and because the Applicant must have signed declarations to that effect when she applied for and obtained her own public housing. In view of the new grounds and materials advanced on behalf of the Director, the Master adjourned the matter to 28 July 2022, and directed the new materials and further submissions to be provided in the meantime.

26.The Master received further written submissions from or on behalf of the Director and the Applicant on 22 July 2022 and 26 July 2022 respectively, and gave an oral decision on the Appeal on 28 July 2022 (“the Decision”). In her decision, the Master dismissed the Appeal for 3 reasons (“the 3 Reasons”), namely:

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

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

(3)  no cause of action had yet arisen for the Applicant to enforce her own right to reside in the Property for life.

Pausing here, it may be noted that the above reasons were different from the grounds relied or previously relied upon by the Director to refuse to grant legal aid to the Applicant.

(iv)  Application for judicial review

27.On 26 October 2022, the Applicant made an application for leave to apply for judicial review of the Decision, on the ground that the Master fell into legal error on each of the 3 Reasons, and also on the ground of procedural impropriety, in that (i) the Master allowed the Director to “shift the goalposts” by reference to different reasons for refusing to grant legal aid during the hearing, (ii) none of the 3 Reasons was raised by the Director, either when refusing the original applications for legal aid or during the Appeal, and (iii) the Master had not raised those reasons at the hearing of the Appeal to give the parties an opportunity to address them before she reached the Decision.

28.Originally, the only substantive relief sought by the Applicant in the Form 86 was an order of certiorari to bring up and quash the Decision and an order that the Appeal be remitted to a different Master for fresh determination. However, following the grant of leave to apply for judicial review by the Judge on 3 November 2022, the Applicant applied on 29 March 2023 for leave to amend the Form 86 to include the relief of an order of mandamus requiring the Registrar to direct the Director to issue a legal aid certificate to her.

29.Prior to the substantive hearing of the application for judicial review, the Director accepted that the application should be allowed because the Master erred in law in respect of the 3 Reasons. The remaining major dispute between the parties concerned the appropriate relief to be granted, in particular whether the court should make an order of mandamus to compel the Registrar to direct the issue of a legal aid certificate to the Applicant.

THE JUDGMENT

30.In the Judgment, the Judge granted leave to the Applicant to amend the Form 86 to include the relief of mandamus, and went on to make an order of mandamus to compel the Registrar to direct the issue of a legal aid certificate to the Applicant. The Judge’s reasons for making such order were set out at §§46-54 of the Judgment, the relevant parts of which state as follows:

“[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.

…

[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.

…

[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…

[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.”

31.In short, the Judge departed from the usual course of remitting the matter back to the Master (or another Master) for fresh consideration of the Appeal in accordance with the law as set out in the Judgment because of:

(1)  the repeated significant shifting of the grounds relied on by the Director for refusing to grant legal aid to the Applicant;

(2)  the procedural unfairness to the Applicant occasioned by the Master’s decision to reject the Appeal by reference to the 3 Reasons which had not been directly raised by the parties and in circumstances where the Applicant had not been afforded an opportunity to comment on them; and

(3)  the implicit rejection by the Master of the remaining ground(s) relied upon by the Director, which meant that had the Master not made the legal errors in relation to the 3 Reasons, she would have granted legal aid. In other words, she would “in reality have only one choice legally open to her”.

THE NOTICE OF APPEAL

32.The Director was not satisfied with the order of mandamus granted by the Judge, and lodged an appeal against that order. In the Amended Notice of Appeal dated 14 November 2024, the Director raised 2 substantive grounds of appeal[3]:

(1)  The Judge erred in law and/or in fact in holding that the Master had in this case implicitly rejected “the reasons advanced by the Director for refusing the grant of legal aid” and/or the Master had “already excluded any other reasons for dismissing the appeal except for the reasons she gave” (“Ground 1”).

(2)  Even if (contrary to (1) above) the Judge were correct in finding that the Master had implicitly rejected the reasons advanced by the Director in refusing the grant of legal aid to the Applicant, given the Master had a fortiori not given any reason or reasons at all for such rejection, the Judge ought to have remitted the legal aid appeal to be considered afresh by a different Master, but the Judge erred in failing to do so and further and in any event erred in making the order of mandamus in such circumstances (“Ground 2”).

33.In the Respondent’s Notice dated 17 February 2025, the Applicant contended that the decision of the Judge should be affirmed because:

(1)  At the hearing before the Master on 27 June 2022, the only ground for refusing legal aid relied upon by the Director was the Sole Benefit Ground. To the extent that the Master had not already rejected it, the Sole Benefit Ground was not a proper basis to refuse legal aid in any event. It was without basis because its premise was flawed for the reasons set out at §2 of the Respondent’s Notice.

(2)  Apart from the Sole Benefit Ground, the Master had expressly rejected the Director’s contention belatedly raised for the first time during the appeal that the Applicant had relinquished her rights to reside in the Property. Moreover, irrespective of the Director’s concession, there was a cause of action for the Applicant to sue on the Agreement.

(3)  Accordingly, where the only real ground relied upon by the Director, ie the Sole Benefit Ground, to oppose the Appeal was demonstrably flawed and without merit, the Judge would have been fully justified to grant the order of mandamus.

GROUND 1: WHETHER IMPLICIT REJECTION OF DIRECTOR’S REMAINING GROUNDS?

34.In support of Ground 1, Mr Johnny Ma, SC (and, with him, Ms Cherry Xu) argues that:

(1)  Under s 10(3) of the Legal Aid Ordinance (Cap 91) [4], legal aid certificate can be refused on two different bases, namely, (i) mandatory basis by reference to the “merits” test (“unless he shows that he has reasonable grounds for taking, defending, opposing or continuing such proceedings or being a party thereto”), and (ii) discretionary basis by reference to the 7 statutory grounds identified in ss 10(3)(a) to (g), including, relevantly for the present purpose, the “unreasonableness” ground under sub-paragraph (c) (“it is unreasonable that the applicant should be granted legal aid in the particular circumstances of the case”).

(2)  The unreasonableness ground ensures that the resources of legal aid, which come from limited public funds, are made available only to those who really deserve such assistance. Where an applicant will gain no real benefit, legal aid will not be granted. “One particular aspect of the ‘reasonableness’ test involves consideration of whether the benefits to be obtained in any proceedings justify the likely costs, one of the most important factors for a private client considering litigation. The question for the Director is whether the game is worth the candle”: Legal Aid in Hong Kong (2006), at pp 119-120, issued by Legal Aid Services Council, and quoted by DHCJ Martin Hui, SC in To Kwan Ho v Deputy Registrar of High Court [2021] HKCFI 874, at §47.

(3)  The mandatory basis gives rises to an anterior threshold for the grant of legal aid. The Director (and, on appeal, the Master) is entitled, and indeed duty-bound, to refuse legal aid if an applicant fails the “merits” test. In such a case, it would not be necessary to go on to consider the discretionary basis, although the Director or the Master can, if he or she so wishes, proceed to consider such further or alternative discretionary basis for completeness sake.

(4)  In the present case, the Director refused the Applicant’s legal aid application on the discretionary basis, essentially under the unreasonableness ground. The Director considered that it was unreasonable for the Applicant to be granted legal aid because –

(a)  “[T]he sole purpose of the application for legal aid by the [Applicant] is to benefit the Son … whose financial resources exceed the legal aid limit”[5] or, more aptly, the Applicant will gain no real benefit from the intended proceedings; and/or

(b)  if the Applicant had made false declarations to the Housing Authority, “justice renders it inappropriate, inequitable and unreasonable to expend public fund to assist the [Applicant]’s claim. It is inequitable to assist her for she does not come with clean hands”[6].

(5)  The 3 Reasons given by the Master went to the issue of whether the Applicant had shown reasonable grounds for taking proceedings, ie the merits test. Having reached the conclusion that the Applicant had failed to satisfy the merits test, the Master did not need to consider, and did not in fact consider, whether legal aid should also be refused on any of the discretionary bases.

(6)  The 3 Reasons given by the Master for refusing legal aid were not mutually exclusive with the Director’s reasons for refusing legal aid under the unreasonableness ground. Neither was it apparent from the Master’s oral decision that she must have rejected the Director’s reasons for refusing legal aid on the discretionary basis. This is a case where the Master, having refused legal aid on the mandatory basis, found it unnecessary to go on to consider the discretionary basis and address the Director’s reasons for refusing legal aid.

(7)  In the premises, the Judge erred in finding that the Master had implicitly rejected the reasons advanced by the Director for refusing the grant of legal aid. It also follows that the Judge erred in coming to the conclusion that the “only one choice legally open” to the Master was to grant legal aid.

(8)  The above conclusion formed an essential plank for the Judge’s decision to grant the order of mandamus. The order was made on an erroneous basis, and could not stand.

35.In response, Mr Jin Pao, SC (and, with him, Mr Shaphan Marwah) maintains that the Judge was correct to hold that there was an “implicit rejection” by the Master of the reasons advanced by the Director for refusing to grant legal aid, having regard to the manner in which the Director’s arguments were advanced before the Master and the context in which the Master reached her conclusions. In summary, Mr Pao argues that:

(1)  The Director’s abandonment of the Similar Interests Ground mentioned in the 2^nd Legal Aid Decision must be taken as an acceptance that the Applicant would be prejudiced by not being able to take her own or joint proceedings for the declaration of trust and specific performance.

(2)  It is important to appreciate how the Sole Benefit Ground was actually developed by the Director. Initially, it was mentioned in the Reasons for Refusal specifically with respect to the re-opening of the ancillary relief proceedings. It was said, in that context, that the sole purpose of the intended proceedings was to benefit the Son by seeking, inter alia, an order for the transfer of the Property to the Son. At the hearing on 27 June 2022, the only two supporting points made in oral submissions were that (i) some of the terms of the oral agreement were not recorded in the Memorandum; and (ii) the Applicant had relinquished her rights over the Property by signing Housing Authority declaration. Following the adjournment of the hearing on 27 June 2022, the Director’s written submissions dealt with the “sole benefit” issue by repeating the point about some of the terms of the Agreement not being recorded, and then by making extensive submissions on the Housing Authority declaration. The focal point of the Director’s submissions was to address the benefit that the Applicant would obtain from the intended proceedings.

(3)  The Master was plainly alive to the Director’s contention that some of the terms of the Agreement were not recorded in the Memorandum. The Judge concluded, rightly, that this was a point that would likely require a trial and, in any event, it did not detract from the other aspects of the Agreement being sued upon, namely, the trust or beneficial interest created in respect of the Property.

(4)  The Master was also acutely aware of the Director’s reliance on the Applicant’s declaration to the Housing Authority. She expressly rejected that point in her reasons by saying that there were factual disputes, that was a matter between the Applicant and the Housing Authority, and there was no authority which supported the relinquishment argument of the Director.

(5)  Since the only two main points made by the Director in support of the Sole Benefit Ground had been considered and rejected by the Master, the Judge was fully entitled to conclude that the ground as a whole had implicitly been rejected by the Master.

(6)  The Judge did not cross the boundaries of the role of the judicial review court. The Judge was clearly aware of the governing principles, and expressly stated that there was no attempt to substitute his judgment on the merits for that of the Master. It is abundantly clear from the contours of the arguments raised, the context of the proceedings, what had been abandoned, and her own reasons that the Master did not accept the arguments raised by the Director during the appeal. Instead, she relied on her own reasons which were in error. The appropriate remedy was mandamus. The Director has failed to show that the Judge was plainly wrong in reaching that conclusion.

36.I am unable to accept Mr Pao’s argument. While it is correct that the Master did consider the two main points advanced by the Director at the hearing of the Appeal, it seems to me clear that the Master’s consideration was given in the context of whether the Applicant had reasonable grounds for taking proceedings, ie in her consideration of the mandatory basis for refusing to grant legal aid.

37.In respect of the first point that some of the terms of the alleged Agreement were not reflected in the Memorandum, Mr Pao relies on the fact that at the first hearing on 27 June 2022, the Master made it clear to legal aid counsel that the point did not have to be repeated, and submits that the point “was given short shrift”[7]. Even if one assumes that the Master did not think much of that point, Mr Pao accepts that it only goes to the merits test under s 10(3), i.e. whether the Applicant has reasonable grounds for taking legal proceedings, but is “irrelevant to the reasonableness of the grant of legal aid” under s 10(3)(c)[8]. It is, in any event, not a matter which Mr Ma relies upon in support of the Director’s position that it was unreasonable for the Applicant to be granted legal aid[9].

38.In respect of the second point about the false declaration that the Applicant was alleged to have made to the Housing Authority, the Master said the following in her oral decision:

“… Mother also asserted that she is claiming for her personal interest under condition 1, ie, she has the right to reside in the flat for life. The Legal Aid said the mother is not entitled to because she has already relinquished her right when she made the declaration and representation at the time she applied for public housing unit. I note that there are factual disputes over whether there was such relinquishment of right. But in any event, the declaration and representation is a matter between the mother and the Housing Authority. The authority can take action against the mother if the declaration and the representation are found to be false. There is no authority to support that the mother’s right to sue under the agreement for the right of occupation is thereby extinguished.”

39.In the above passage, the Master was considering the question of whether the Applicant’s claimed right under the Agreement to reside in the Property for life had been relinquished or extinguished by reason of the false declaration and representation that she had allegedly made to the Housing Authority when she applied for public housing in 2017. It seems clear that the Master’s focus was on the merits of the Applicant’s intended proceedings, but not on whether it was unreasonable for legal aid to be granted to the Applicant in the particular circumstances of the case before her. That the Master did not have in mind the question of reasonableness of granting legal aid to the Applicant is clear from the 3 questions which she posed at the beginning of her decision which she regarded as being relevant, namely:

“(1) On the evidence, are there any possible causes of action against the father?

(2) If yes, is the mother the right person to sue?

(3) If yes, is there a reasonable, as opposed to a fanciful, chance of success?”

40.These 3 questions all related to the merits of the Applicant’s intended action against the Husband, which were relevant to the question of whether legal aid should be refused on the mandatory basis, but not whether legal aid ought to be refused on any of the discretionary grounds.

41.It also does not appear from the Master’s oral decision that she had considered the other matter relied upon by the Director to contend that, because the sole purpose of the intended action against the Husband was to benefit the Son whose financial resources exceeded the relevant legal aid limit, it would not be reasonable to grant legal aid to the Applicant to pursue such action. While it is correct that the Director had abandoned the Similar Interests Ground under s 10(3)(g), it did not necessarily follow that the sole or, for that matter, dominant purpose of the intended action was irrelevant to the issue of reasonableness of granting legal aid under s 10(3)(c).

42.Mr Pao argues that, in light of the Master’s view that the Director’s reliance on the alleged false Housing Authority declaration was a not sufficient reason to prevent the Applicant from receiving legal aid, the Master must necessarily have accepted that the Applicant would stand to benefit from the intended action to secure her life interest in respect of the Property. It was, however, far from clear from the evidence and materials before the Master that the Applicant’s object or purpose of the intended action against the Husband was to secure her life interest in the Property. There was no evidence that the Applicant had decided to give up her public housing unit and return to live in the Property should she succeed in establishing her right to reside in the Property for life in the intended action against the Husband. When this matter was raised with Mr Pao at the hearing of this appeal, the best that he could point to was an equivocal statement appearing at §39 in a document prepared by the Applicant’s solicitors titled “Mother’s Reply to the Director’s Reasons for Refusal dated 5^th November 2021”, where it was said:

“The Mother is now 61 years old. She would like to spend more time with her Son and grandson as well as the option of moving back to the Flat when she gets older when the Son may take care of her. If she has such an option and chooses to exercise the same in due course, she is willing to give up her current public unit where required. Thus, there will not be any double benefit to her.”

43.The analysis now advanced by Mr Pao for contending that the Master did not accept (or had implicitly rejected) the Director’s reason(s) for refusing the grant of legal aid to the Applicant was not adopted by the Judge. The only reason which the Judge gave for holding that the Master had implicitly rejected the reason or reasons advanced by the Director was, apparently, the fact that the Master decided the case by reference only to the 3 Reasons[10]. There is, however, no logical or inherent inconsistency between the 3 (incorrect) Reasons given by the Master for refusing the grant of legal aid, which all related to the merits of the intended action, and the Director’s reason(s) for refusing to grant legal aid under the unreasonableness ground. The Judge’s view that the Master had implicitly rejected the reasons or reasons advanced by the Director for refusing the grant of legal aid is, I consider, unsound.

44.It also seems to me that the question of whether there was an implicit rejection by the Master of the reason or reasons advanced by the Director for refusing the grant of legal aid is off-focus. Once it was concluded that the Master erred in law in rejecting the Appeal, the Decision ought to be quashed and the matter remitted to the Master (or another Master) for fresh consideration, unless the court is satisfied that no reasonable tribunal, properly directed on the facts and law, could have refused the grant of legal aid to the Applicant. It is not a fruitful inquiry to ask whether the Master in this case, had she not made the errors in the 3 Reasons for rejecting the Appeal, would have granted legal aid to the Applicant.

45.An order of mandamus should only be granted in those “rare cases where the public law court is able to conclude that only one result was legally open to the body in question... Even there, however, the court does not undertake the role of primary fact-finder, substituting its judgment on the merits for that of the body reviewed. It merely recognizes the existence of a situation in which a public authority, properly directing itself on the facts according to the law, has only one choice legally open to it”: R v Ealing London Borough Council (1997) 29 HLR 179, at 185 per Laws J (as he then was), and quoted by Au J (as he then was) in Commissioner of Registration v Registration of Persons Tribunal (re: Wang Min) [2018] 4 HKLRD 810, at §61.

46.Whether it is unreasonable that the Applicant should be granted legal aid in the particular circumstances of the present case is a matter which ought to be assessed by the primary decision-maker, not the judicial review court. This question was not considered by the Master, nor by the Judge. It is not appropriate for this question to be determined by the Court of Appeal for the first time in the present appeal. Moreover, even if it is ultimately determined that legal aid ought to be granted to the Applicant, there could be issues as to the scope of the aid that should properly be granted, eg whether to direct the Director to first obtain a Section 9 opinion on the Applicant’s intended proceedings, or whether the legal aid certificate ought to be limited (in the first instance) to a part of the intended proceedings under s 5(1) of the Legal Aid Regulations (Cap 91A). These are matters which should generally be decided by the primary decision-maker (ie the Director or, on appeal, a Master), but not the judicial review court.

47.For the above reasons, I am of the view that Ground 1 is made out. The order of mandamus granted by the Judge should be set aside, and the Appeal should be remitted to another Master for fresh consideration. The question of the scope of the remittal will be considered later in this judgment.

GROUND 2: ABSENCE OF ADEQUATE REASONS GIVEN BY THE MASTER

48.Having reached the above conclusion under Ground 1, Ground 2 does not arise for consideration because it is predicated on the assumption that the Judge was correct in finding that the Master had implicitly rejected the reasons advanced by the Director in refusing the grant of legal aid to the Applicant.

49.In any event, this is a new point that was not taken before the Judge. No explanation has been offered by the Director as to why it was not taken below. Mr Ma’s only response is that no question of fact is involved, and the Applicant will not suffer any prejudice for the Court to entertain this new point on appeal. These are not explanations as to why the point was only taken for the first time in the Court of Appeal. Further, if this were the only point in the present appeal, having regard to the history of this matter, including the repeated shifting of grounds by the Director and the lapse of time since the Applicant first applied for legal aid (in April 2021), it is by no means clear to me that the Applicant will suffer no prejudice if Director is permitted to rely on Ground 2. In all the circumstances, I am not minded to allow the Director to rely on Ground 2 in the present appeal.

THE RESPONDENT’S NOTICE

50.The Respondent’s notice can be disposed of shortly. It is contended that the Sole Benefit Ground is without basis because, says Mr Pao, the very premise of the Director’s argument is fundamentally flawed and overlooks the fact that the terms of the Agreement are inter-related and part of a single composite agreement which only the Applicant has standing to enforce in its entirety. Mr Pao submits that the Applicant clearly has standing to make a contractual claim to compel the Husband to honour his promises to her at the time of their divorce. The Agreement provides for the Applicant’s right to reside in the flat for life, and if a declaration is made to that effect, this will bind all parties to that action. Moreover, the “no other woman” condition will still qualify any entitlement which the Husband may have to reside in the Property should he insist on living there after a transfer of the flat is made to the Son.

51.Three observations may be made in respect of these submissions by Mr Pao. First, insofar as it is said that only the Applicant has standing to enforce the Agreement in its entirety, that goes to the merits, but not the purpose, of the intended action. Second, insofar as it is said that the purpose of the intended action is to establish the Applicant’s right to reside in the Property for life, as earlier mentioned, the evidence before the Master was just an equivocal statement made on behalf of the Applicant that “[if] she has such an option [to move back to live in the Property] and chooses to exercise the same in due course, she is willing to give up her current public unit where required”. It is a matter for assessment by the primary decision-maker as to whether the Applicant’s purpose of the intended action is truly to advance her right to reside in the Property for life. Third, insofar as it is said that the intended action is to enforce the “no other woman” condition, it pre-supposes that the Husband intends to or will reside, or continue to reside, with his current wife in the Property after it has been transferred to the Son pursuant to the Agreement. Assuming that this is the case, it is again a matter for assessment by the primary decision-maker whether the maintenance of this condition is intended for the Son’s benefit or the Applicant’s benefit. Overall, it seems to me that the question of whether the purpose of the intended action is solely for the Son’s benefit and whether it is unreasonable that the Applicant should be granted legal aid in the circumstances of this case is an issue which ought properly to be assessed by another Master, and not the judicial review court.

52.The other matters raised by the Applicant in the Respondent’s Notice, such as overall delay on the legal aid application and the Director’s unsatisfactory history of changing the goalposts[11], do not, in my view, go to the question of whether, in principle, an order of mandamus should be granted in the present case.

SCOPE OF REMITTAL

53.An issue arose in the course of the hearing as to whether, upon an order for remitting the Appeal to another Master for fresh consideration, the Court had jurisdiction, and ought, to give any direction on the scope of the remittal. The parties have filed supplemental submissions on the court’s powers to limit the scope of the remittal for fresh consideration upon quashing a decision. Mr Pao refers the Court to various authorities which support the view that the judicial review court has wide and flexible powers to set the parameters of the remittal depending on the circumstances of the case to enable justice to be done, eg giving guidance as to “matters which may and those which may not be taken into consideration” by the authority taking a fresh decision (R v Tower Hamlets LBC, Ex p. Chetnik [1988] 1 AC 858, per Lord Bridge at 878H-879A); giving directions not to rely on certain matters (R (Balakoohi) v SSHD [2012] EWHC 1439 (Admin), per HHJ Thornton QC, at §§57-59, 121); directing that the decision maker should not have regard to certain facts and should have regard to others (R v SSHD, Ex p. Benwell [1985] QB 554, at 574C-E); and permitting the decision maker not to re-open certain issues relating to the lawful parts of the original decision (R (Essex Country Council) v Secretary of State for Education [2012] EWHC 1460 (Admin), at §85).

54.As I understand from Mr Ma’s supplemental submissions on behalf of the Director, he does not suggest that the Court has no jurisdiction to give directions on the scope of the remittal. He submits, however, that the Court, in exercising its supervisory jurisdiction, should avoid any semblance of it assuming the function assigned by the Legislature to the decision-maker, namely, the power to decide (including, where appropriate, the exercise of a discretion) whether to grant or to refuse certain thing under a statute. He says that such decision-maker “must be left free” to deal with the situation as he thinks best “having regard to [his] duty and powers” as clarified by the Court’s decision, and “on the materials then available to him” when making the fresh decision. He also submits that under the Legal Aid Ordinance, the Registrar (hearing a legal aid appeal) has a duty to consider specific criteria (and the weight to be given to each criterion) in deciding whether to grant or refuse legal aid. The remittal should not pre-empt and fetter the Registrar’s decision making under the Legal Aid Ordinance.

55.As mentioned by the Judge at §§46-50 of the Judgment, there are some “rather unusual” circumstances in the present case, which have been set out at §21 above and do not have to be repeated here. The Director has now had many opportunities to identify with precision and elaborate on the grounds for refusing the grant of legal aid to the Applicant, including in the 1^st Legal Aid Decision, the 2^nd Legal Aid Decision, the Reasons for Refusal, the Submissions of the Director dated 22 July 2022 (the latter two being filed to resist the Appeal), at the hearing of the Appeal before the Master, as well as in the proceedings here and below. The only ground now relied upon and maintained by the Director is the Sole Benefit Ground, which goes to the question of whether legal aid should be denied on the unreasonableness ground. There has also been substantial delay since the Applicant’s initial legal aid application in April 2021. Inevitably, some further delay will be occasioned by the remittal of the Appeal to another Master for fresh consideration. In the interest of justice, I consider that the Director should not be permitted to pursue grounds which he has previously abandoned or shift his ground(s) of opposition again, but should be confined to the unreasonableness ground under s 10(3)(c) in the remittal.

56.It does not appear to me that limiting the scope of the remittal in the above manner would give rise to “any semblance of [the court] assuming the function assigned by the Legislature to the Registrar]”, or inappropriately “pre-empt and fetter the Registrar’s decision making under the Legal Aid Ordinance”, as argued by Mr Ma. The Director has not suggested that it has, or intends to pursue, any ground other than the unreasonableness ground to contend that the Applicant should be refused legal aid. On the other hand, limiting the scope of the remittal as aforesaid will assist the new Master to focus on the real issue in the Appeal, and ensure that he/she will not stray into irrelevant issues as happened in this case.

57.In all the circumstances, it is, I consider, appropriate to give a direction that, in the remittal, the Director should only be permitted to rely on the unreasonableness ground in resisting the Appeal.

DISPOSITION

58.I would allow the Director’s appeal, and set aside the order of mandamus granted by the Judge. I would further make an order that the Appeal, limited to the issue of whether it is unreasonable that the Applicant should be granted legal aid under s 10(3)(c) of the Legal Aid Ordinance, be remitted to another Master for fresh consideration. Priority should be given for fixing an early date for the re-consideration of the Appeal before another Master.

59.As for the question of costs: (i) taking into account the history of this matter and the eventual outcome of the judicial review, I would not be minded to disturb the Judge’s order that there be no order as to the costs of the proceedings below; and (ii) in view of the Director’s success on only 1 of 2 grounds of appeal, I would make an order that the Director shall have one-half of the costs of the appeal, to be summarily assessed. The Director shall have leave to file and serve a statement of costs for the purpose of summary assessment within 14 days from the date of this judgment, and the Applicant shall have leave to file and serve a statement of objections thereto (limited to 2 pages) within 14 days thereafter. Finally, the Applicant’s own costs shall be taxed in accordance with legal aid regulations.

60.The above order as to costs is an order nisi, which shall become absolute unless an application is made to vary the same within 14 days from the date of this judgment.

Hon Chu VP:

61.For the above reasons, we (1) allow the Director’s appeal; (2) set aside the order of mandamus of the Judge; (3) remit the Appeal to another Master for fresh consideration limited to the issue of whether it is unreasonable that the Applicant should be granted legal aid in the circumstances of the case under section 10(3)(c) of the Legal Aid Ordinance; and (4) make an order nisi that the Applicant pays the Director one-half of his costs of the appeal to be summarily assessed together with the directions for summary assessment set out in §59 above. We further direct that priority should be given for fixing an early date for the hearing of the Appeal before another Master.

Mr Jin Pao SC leading Mr Shaphan Marwah, instructed by J. Chan, Yip, So & Partners, assigned by Director of Legal Aid, for the Applicant

Attendance of Department of Justice for the Respondent was excused

Mr Johnny Ma SC and Ms Cherry Xu, instructed by Department of Justice, for the Interested Party