Re Chan Kai Wah

CACV 176/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 176 OF 2012

(ON APPEAL FROM HCAL NO. 93 OF 2012)

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JUDGMENT

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Hon Yeung VP:

1.The fact that the Leave Application was dismissed by the Court of Appeal is highly relevant to the exercise of the discretion whether to grant the applicant leave to judicial review the decision of the Council. The applicant did not disclose such a fact and claimed to have no information of the outcome of the Leave Application. The application to judicial review the decision of the Council not only is academic, but is also an abuse of the Court’s process. For reasons given by Chu JA, the appeal is dismissed.

Hon Chu JA:

A.  Introduction

2.This is the applicant’s appeal against the decision of Lam J (as he then was) refusing him leave to apply for judicial review against the decision of the Legal Aid Services Council (“the Council”) not to approve the applicant’s request for the provision of a certificate by counsel for the purpose of a review under section 26A of the Legal Aid Ordinance, Cap. 91.

B.   Background

3.The applicant is the appellant in CACV126 of 2010.  The case is an ex parte appeal against the refusal of leave to judicially review the decision of the Finance Committee of the Legislative Council to approve funding for a high-speed rail link between Hong Kong and Guangzhou.  On 15 March 2011, the Court of Appeal heard and dismissed his appeal.  The applicant applied to the Court of Appeal for leave to appeal to the Court of Final Appeal (“the Leave Application”).  The Leave Application was heard on 6 July 2012 when the applicant was absent.  The application was dismissed and a copy of the Ruling was sent to the applicant by ordinary mail.[1]

4.On 13 April 2011 the applicant applied for legal aid for the Leave Application.  By letter dated 26 May 2011, the Director of Legal Aid (“the Director”) refused his application.  The letter reads:

“I have considered your application for legal aid and have decided to refuse it for the reason(s) set out below:

You have failed to furnish information and/or documents as required by me for the purpose of considering your application namely:

(A) The past 3 months records of your HSBC A/C [number stated];

(B) Proof that you have divorced;

(C) Elaboration on your allegation of “non-disposable retirement and employee stock purchases under your former employer retirement and pension plans;

(D) Amount of “[petty] cash and insignificant balance” mentioned by you;

(E) The past 3 months records of your Citibank A/C [number stated].

I am satisfied that the question involved in the intended appeal is not one which, whether final or interlocutory, by reasons of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for its decision.

I am not satisfied that you have reasonable grounds for taking the proceedings to which your application relates to the Court of Final Appeal for its decision/ determination.

You have a right to bring my decision on review before a Committee chaired by the Registrar of the High Court.

If you wish to have a review, you must WITHIN 28 DAYS of the date of this letter deliver to me and the Chairman of the Committee your Notice of Review in writing accompanied by a certificate by counsel practising in Hong Kong stating that you have a reasonable prospect of success in the appeal and the grounds for that opinion. The Chairman may allow you to deliver your Notice of Review outside the above time limit.” 

5.The applicant duly applied to the Council for the provision of a certificate by counsel on the prospect of success of his intended appeal to the Court of Final Appeal so that he may bring the Director’s refusal of his legal aid application for a review before a review committee comprising the Registrar of High Court, a practising barrister and a practising solicitor, a procedure provided by section 26A(1) of the Legal Aid Ordinance.  It is a requirement under section 26A(3) that when initiating the review, the applicant must also furnish a certificate by counsel stating that the intended appeal to the Court of Final Appeal has a reasonable prospect of success in the appeal and the grounds for holding that opinion.

6.By an email dated 20 April 2012, the Council informed the applicant that his request could not be approved.  The relevant part of the email read:

“According to Section 26A of the Legal Aid Ordinance, an applicant who has been refused legal aid to appeal to the Court of Final Appeal may seek a review of the refusal. This Council may grant a certificate by counsel to qualified applicant who has passed the means test to facilitate his submission of legal aid review to the Registrar of the High Court.

We learnt from the Legal Aid Department that you have not successfully completed the means test and therefore are not qualified for the grant of the certificate by counsel. We regret to inform you that your request for the provision of a certificate by counsel cannot be approved.

…” 

7.The applicant responded by letter dated 20 April 2012, the penultimate paragraph reads:

“Nevertheless, your April 20, 2012 imposed a condition, “who has passed the means test”, on granting a certificate by counsel to a Legal Aid applicant like me.  Please advise the statute or authority limiting the LASC to exercise your power to grant a certificate by counsel to a Legal Aid applicant on a complex legal case like mine.”

8.The Council replied by email dated 24 May 2012, the material part of which reads:

“(1) the Section 26A Scheme is an assistance scheme to provide a legal aid appellant who has been refused legal aid to appeal to the CFA with funds to obtain a certificate by counsel to enable him to seek a review of Director of Legal Aid’s refusal to grant legal aid. In this connection, the applicant has to pass the means test conducted by the Legal Aid Department to confirm that he is financially eligible for the assistance; and

(2) as stipulated in Section 26A(4) of the Legal Aid Ordinance, the committee (Review Committee which reviews Director of Legal Aid’s refusal to grant legal aid) may-

(a)   make such inquiries as it thinks fit as to the means and condition of the applicant and as to the merits of his case;

(b)   require the applicant to furnish such information and such documents as the committee thinks fit.” 

C.  Form 86

9.On 17 July 2012, the applicant applied for leave to judicially review the Council’s decision of 20 April 2012 not to approve his request for the provision of a certificate by counsel.  In the Form 86, the applicant set out three grounds in support of the application for leave to apply for judicial review. They are:

(1)  The Council has failed to perform its statutory duty.

(2)  The Council’s decision is biased, being influenced by what the Council learnt from the Legal Aid Department, which itself is the subject of challenge in the section 26A review.

(3)  The Council acted ultra vires in that it was not within its power to review and decide whether the applicant had passed the means test.

10.The applicant sought the following relief:

(1)   A mandatory order requiring the Council to grant his request for the provision of a certificate by counsel;

(2)   A pre-emptive order that he shall not be liable for costs of the Council and the Director (whom he has named as the interested party) in the event he was unsuccessful in the judicial review proceedings; and

(3)   An order allowing the correspondence and documents be in English and conducted electronically.

D.  Refusal of leave to judicial review

11.On 24 July 2012, Lam J refused to grant leave for judicial review, observing that “Section 26A does not require [the Council] to fund the obtaining of a certificate by counsel as to reasonable prospect of success. Rather it provides an appeal mechanism in respect of Legal Aid for appeal to the Court of Final Appeal. An applicant who wishes to utilise such mechanism to appeal against the decision of the Director on application for legal aid to appeal to the Court of Final Appeal has to obtain such certificate by his own means.”  

E.  The appeal

12.By a Notice of Appeal dated 8 August 2012, the applicant appeals against the refusal of leave to judicial review.  Three grounds of appeal are raised.  They are:

(1)   Lam J’s order did not faithfully apply the laws in the legal aid system.

(2)   The Council’s reliance on the Director’s decision in deciding whether to approve the request for a certificate by counsel contradicts the principle of “no one should be a judge in his own cause”. The Council’s decision on the applicant’s request for the provision of a certificate by counsel is biased and ultra vires.

(3)   The Council’s policy of providing the certificate by counsel required under section 26A has led the applicant to have a legitimate expectation that he would benefit from assistance of the Council and in turn would be heard on his review of the Director’s refusal of legal aid.  The requirement of the Council that he has to satisfy the means test conducted by the Legal Aid Department is inconsistent with the objective of section 26A to allow review of any order or decision of the Director in relation to application for legal aid to appeal to the Court of Final Appeal. 

F.  Discussions

F.1  Section 26A 

13.In considering the applicant’s grounds for judicial review and grounds of appeal, it is important to begin with an understanding of section 26A of the Legal Aid Ordinance and the extent of the Council’s involvement in a review brought under the section.

14.Section 26A(1) provides for a mechanism to review a decision of the Director on a legal aid application relating to an intended appeal to the Court of Final Appeal.  It reads:

“(1) An applicant for legal aid or an aided person who is aggrieved by any 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 may bring the order or decision on review before a committee composed of-

(a) the Registrar of the High Court, who shall be chairman;

(b) a barrister qualified to practise in Hong Kong who is eligible to be appointed as a judge of the High Court and who is appointed by the Chairman of the Hong Kong Bar Association; and

(c)  a solicitor qualified to practise in Hong Kong who has practised as a solicitor for not less than 10 years in a common law jurisdiction and who is appointed by the President of The Law Society of Hong Kong.”

15.Section 26A(3) requires the party seeking a review to produce a certificate by counsel on the prospects of success in the intended appeal.  The subsection provides:

“(3) A review shall be initiated by notice in writing delivered to the Director and the chairman within 28 days of the order or decision complained of or within such longer period as the chairman may allow and the notice shall be accompanied by a certificate by counsel practising in Hong Kong stating that the person aggrieved has a reasonable prospect of success in the appeal and the grounds for that opinion.”

16.The only other provision in section 26A that deals with the certificate by counsel is section 26A(8), which provides:

“(8) The chairman may, if he thinks fit, order that-

(a)such fee of counsel for the certificate mentioned in subsection (3); and

(b) …

as determined by the chairman as being proper in the circumstances, shall be paid by the Director out of funds under his control which are available for that purpose.”

17.Section 26A makes no reference to the Council, who has no statutory role at all in the review mechanism.  The legislation has not created a duty on the Council to assist or finance the reviewing party to obtain a certificate by counsel.  Hence, generally speaking, it will be for the reviewing party, whether or not he is legally aided in the proceedings leading to the intended appeal to the Court of Final Appeal, to arrange for the certificate by counsel out of his means.  

18.Understandably, this may cause hardship to a legal aid litigant in that, being a person with limited means, he may not be able to afford the fee of counsel for preparing the certificate, without which he cannot seek a review.  To address this, the Council has put in place a scheme under which a litigant who is eligible to apply for legal aid may apply to the Council for the provision of a certificate by counsel free of charge. 

19.The scheme is an administrative scheme and not a statutory scheme.  Further, it is consistent with the objective of providing assistance to those appellants who do not have the means to fund the certificate by counsel that the scheme is only available to those who pass the means test and are eligible to be considered for legal aid.

F.2  Duty of the Council to fund a certificate by counsel  

20.Having regard to the fact that the scheme of assistance operated by the Council is not statute-based but is an administrative scheme, there is no basis for the applicant’s complaint in the Form 86 that the Council failed to perform its statutory duty.  Likewise, there is no merit in the first ground of appeal.  Lam J is correct in observing that the Council has no statutory duty to fund the provision of a certificate by counsel on the prospect of success in the intended appeal.

F.3  Bias

21.The applicant’s second ground in the Form 86 and on appeal is that the Council’s decision not to approve his request for the provision of a certificate by counsel is biased and ultra vires because, in reaching this decision, the Council had relied on the Director’s decision that he had failed to complete the means test.  The subject matter of the Council’s decision is whether to fund the provision of a certificate by counsel.  Under section 26A, the purpose of the certificate by counsel is to assess the merits of the intended appeal to the Court of Final Appeal.  Neither the certificate by counsel nor the scheme operated by the Council is to deal with the Director’s assessment and determination of an applicant’s means and eligibility to legal aid.  The principle that “no one should be a judge in his own cause” is therefore not engaged.  It also follows that there is no basis for complaining that the Council’s decision is biased or ultra vires.

F.4  The requirement of passing the means test

22.The applicant also contends in the Form 86 that the Council should not be concerned with whether he passes the means test when dealing with his request for the provision of the certificate by counsel.  However, given that it is an administrative scheme, the Council is entitled to formulate the policy and parameters for the operation of the scheme.  Further, having regard to the objective of the scheme and the fact that public funds are involved, it is legitimate for the Council to confine the assistance to litigants who pass the means test and are thus qualified to apply for legal aid.  The applicant’s complaint that the Council acted ultra vires in taking into account the fact that he had not completed the means test is unarguable. 

23.For the same reason, the applicant’s argument in the third ground of appeal that it is inconsistent with the objective of section 26A to make passing the means test a requirement for the provision of a certificate by counsel by the Council cannot stand.  It is inapt for the applicant to refer to section 26A as the parent legislation.  As pointed out in the earlier part of this judgment, the scheme operated by the Council is not created by section 26A or other statutory provision; it is merely an administrative scheme.

24.The applicant further says that he has a legitimate expectation that he will benefit from the assistance of the Council and that he will be heard on his review of the Director’s refusal of legal aid because the Council has, in the application form, published a policy of providing a certificate by counsel.  The form, which is entitled “Application for Provision of a Certificate by Counsel Pursuant to Section 26A of the Legal Aid Ordinance, Cap.91”, at the most only indicates that the Council has a scheme of providing a certificate by counsel to those who succeed in applying for it.  It does not state or otherwise indicate that anyone applying to the Council will invariably be granted assistance and provided with a certificate by counsel.  On the contrary, the fact that it has to be applied for suggests that it is a selective scheme.  The form cannot give rise to any expectation, let alone legitimate expectation, he will surely benefit from the scheme and that the Council will provide him with a certificate by counsel.  

F.5  The judicial review application is academic 

25.In order to obtain leave to bring judicial review, the applicant has to demonstrate that his case enjoys realistic prospects of success: Po Fun Chan v. Winnie Cheung (2007) 10 HKCFAR 676.  For the reasons stated above, none of the grounds contained in the Form 86 is arguable.  Additionally, given that the Leave Application has already been dismissed, the applicant’s intended review of the Director’s refusal of legal aid for the Leave Application is academic. Judicial review is a discretionary remedy.  In the circumstances, there is no prospect that the court will grant the mandatory order sought by the applicant.  For this reason alone, leave to apply for judicial review would have to be refused. 

Conclusion

26.For the above reasons, the applicant’s appeal has no merit and ought to be dismissed.

Hon McWalters J: 

27.I agree with the judgment of Chu JA.

The applicant, unrepresented, appeared in person.

[1] In the papers filed by the applicant in these proceedings, there is no information of the progress and outcome of the Leave Application.  At the hearing before this Court, the applicant said he believed it might have been dismissed. He consented to this court ascertaining the progress and outcome of the Leave Application from the case file of CACV126/2010.