郭卓堅 對 高等法院司法常務官及另一人

HCAL 2144/2018

[2018] HKCFI 2442

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2144 OF 2018

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J U D G M E N T

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A.   INTRODUCTION

1.  This is Mr Kwok’s leave application to apply for judicial review challenging the Deputy Registrar’s decision (“the Deputy Registrar’s Decision”) made on 2 October 2018 dismissing Mr Kwok’s legal aid appeal (“the Legal Aid Appeal”).

2.  By way of the Legal Aid Appeal, Mr Kwok appealed against the Director of Legal Aid’s decision (“the DLA’s Decision”) made on 5 September 2018, revoking the legal aid certificate granted to Mr Kwok on 15 April 2016 in respect of the proceedings in HCAL 260/2015.  In HCAL 260/2015, Mr Kwok seeks to challenge the Government’s small house policy.  That judicial review has been scheduled to be heard in December 2018 before the Hon Chow J.

3.  The Director of Legal Aid (“the DLA”) revoked Mr Kwok’s legal aid certificate on the grounds that:

(1)   Mr Kwok has wilfully failed to disclose his financial resources;

(2)   Mr Kwok has wilfully failed to disclose a material fact concerning his financial resources;

(3)   Mr Kwok has wilfully failed to make a true and correct disclosure of his financial resources; and

(4)   Mr Kwok has wilfully failed to comply with regulation 10 (duty of the person concerned to report change in financial circumstances) of the Legal Aid (Assessment of Resources and Contributions) Regulations (Cap 91B).

4.  On 2 October 2018, the Deputy Registrar after hearing the Legal Aid Appeal, where Mr Kwok was represented by counsel, dismissed the appeal.

5.  On 8 October 2018, Mr Kwok, then acting in person, applied for leave to apply for judicial review to challenge the DLA’s Decision.  This court directed that there shall be a rolled-up hearing of the leave application and the substantive judicial review application and that the challenge is regarded as a challenge to the Deputy Registrar’s Decision (but not the DLA’s Decision) as it should be.  The court also therefore directed that the DLA be joined as the putative interested party in these proceedings.

6.  At this hearing, Mr Kwok is represented by Mr Hectar Pun SC, leading Mr Anson Wong and Mr Geoffrey Yeung.[1]  Opposing the application, the DLA is represented by Mr Paul Lam SC.

7.  Before I deal with the proposed grounds of challenge in proper context, it is necessary to first set out the relevant background, which is not controversial.

B.   BRIEF RELEVANT FACTS

B1.   The DLA’s power to revoke a legal aid certificate upon a legally aided person’s wilful failure to make the necessary disclosure

8.  Under section 11 of the Legal Aid Ordinance (Cap 91) (“the LAO”), the DLA may in such circumstances and manner as may be prescribed revoke or discharge any legal aid certificate.

9.  In this respect, section 8(4)(b) of the Legal Aid Regulations (Cap 91A) (“the LAR”) provides that the DLA may revoke or discharge a legal aid certificate if a legally aided person has wilfully failed to make various disclosure about his or her financial resources and information.  Relevantly, section 8(4) of the LAR provides as follows:

“(4) The Director may revoke or discharge a certificate if he is satisfied that an aided person—

(a) has knowingly made a false statement or false representation concerning any information furnished by him; or

(b) has wilfully failed—

(i) to disclose his financial resources;

(ii) to disclose any material fact concerning his financial resources;

(iii) to make a true and correct disclosure of his financial resources;

(iv) to comply with any regulation as to information to be furnished by him;

(v) to disclose any material fact concerning such information;

(vi) to comply with any regulation as to documents to be furnished by him;

(vii) to disclose any material fact concerning such documents;

(viii) to comply with regulation 10 (duty of the person concerned to report change in financial circumstances) of the Legal Aid (Assessment of Resources and Contributions) Regulations (Cap. 91 sub. leg. B); or

(ix) to attend any interview when so required by the Director:

Provided that a certificate shall not be revoked or, as the case may be, discharged under this subparagraph until the aided person has been given an opportunity to show cause why the certificate should not be revoked or discharged.”

B2.   The factual background leading to the DLA’s Decision

10.  As accepted by Mr Pun, the relevant background facts have been fairly set out by the DLA at paragraphs 6 - 34 of his written reasons (“the DLA’s Written Reasons”) for the DLA’s Decision, which was filed and provided to Mr Kwok in the Legal Aid Appeal.

11.  For convenience, I therefore would quote them in full as follows:

“Legal Aid Application

6. Mr Kwok applied for legal aid on 28 December2015. Enclosure 2 is a copy of his Legal Aid Application Form. In his application form, Mr Kwok declared that he only had one bank account maintained with Wing Lung Bank (Account number: 08-201-1207-1) (the ‘WLB Account’). He also declared that he was a recipient of the Comprehensive Social Security Assistance (‘CSSA’) provided by the Social Welfare Department.

7. Enclosure 3 is a copy of the bank book of the WLB Account provided by Mr Kwok when he applied for legal aid.

8. Having been satisfied that Mr Kwok has passed both of our means test and merits test, we issued an ‘Offer of a Legal Aid Certificate’ (the ‘LA Offer’) to Mr Kwok on 7 April 2016. On the back page of the LA Offer is the form of an ‘Acceptance of Offer of Legal Aid Certificate’ (the ‘LA Acceptance’). In the middle of the form for the LA Acceptance, it is stated clearly under the heading ‘Important Information about your Legal Aid’ as follows:

1. You must tell the Legal Aid Department if your financial circumstances change (including those of your spouse unless your spouse is separated from you or has a contrary interest in the proceedings). If you or your spouse’s means change, we will then reassess your means.

9. Mr Kwok has acknowledged and signed for his acceptance of the same on 8 April 2016.

10. Enclosure 4 is a copy of the LA Offer and the LA Acceptance signed by Mr Kwok on 8 April 2016 upon his acceptance of legal aid.

11. The requirement to report any change of financial circumstances to us is essentially the same as a legally aided person’s duty under Regulation 10 of the Legal Aid (Assessment of Resources and Contributions) Regulations (Cap.91B - the ‘LAARC Regulations’). After a grant of legal aid, a legally aided person has the positive duly to inform the Director of Legal Aid (‘DLA’) of any change in his financial circumstances where he has reason to believe that such change may affect the term or continuation of his legal aid certificate.

12. Legal aid was granted to Mr Kwok on 15 April 2016 at nil contribution for him to proceed with the JR Application.

Review of Means

13. In a routine review of Mr Kwok’s means, we wrote to Wing Lung Bank on 2 August 2018 for the transaction records of the WLB Account for the period from 2 August 2017 to 1 August 2018.

14. We were informed by Wing Lung Bank on 9 August 2018 that the signature appearing on the Consent form provided to us by Mr Kwok when he applied for legal aid did not match with the Bank’s record. We therefore called Mr Kwok and asked him to provide a fresh Consent for us to proceed with the bank search.

15. Mr Kwok attended our office on 17 August 2018. Apart from providing us with a fresh Consent, he also provided us with the following:

(1) a Statement dated 17 August 2018 (Enclosure 5) in which Mr Kwok informed us that he had ceased receiving CSSA since November 2017 and he had started receiving the Old Age Living Allowance;

(2) a bank book (Enclosure 6) of an account maintained by Mr Kwok with the Bank of China (Hong Kong) Limited (‘BOC’) with the account number [number not quoted by this court] (the ‘BOC Savings Account’); the bank book shows that the BOC Savings Account was opened on 26 October 2017 (after the grant of legal aid) and there were frequent transactions (including many transactions above the sum of $10,000) in the account;

(3) a bank book (Enclosure 7) of an account maintained by Mr Kwok with BOC with the account number [number not quoted by this court] (the ‘BOC Multi-currency Account’); and

(4) a bank book of his WLB Account (Enclosure 8).

16. Upon discovery of the BOC Savings Account, our staff asked Mr Kwok to explain the nature of the many large transactions appearing in the bank book. We have also asked Mr Kwok to confirm whether he had any other income, Mr Kwok replied to us as follows:

(1) He had ceased receiving CSSA and started receiving the Old Age Living Allowance.

(2) The large deposits appearing in the bank book of the BOC Savings Account represented the income of his casual job as a dish washing worker; he had also borrowed money from friends sometimes.

(3) Some of the large withdrawals related to his payment of legal fees.

(4) As to his other income, he would collect waste paper sometimes.

17. We have required Mr Kwok to confirm his answers and provide further explanation in writing within 14 days. A letter dated 17 August 2018 was passed to Mr Kwok on the same day. He told our staff that he would not answer our questions as he was sure that his financial resources would not exceed the limit of our means test. He told our staff that he would ‘see us in the Court’ if necessary. Mr Kwok wrote his position in a copy of our letter (Enclosure 9).

18. Enclosure 10 is a copy of the Attendance Note made by our staff immediately after the meeting with Mr Kwok on 17 August 2018.

Notice to Show Cause

19. 14 days has lapsed and Mr Kwok has not answered our letter dated 17 August 2018. DLA was of the view that the failure of Mr Kwok to inform us of the opening of the BOC Savings account and to answer our enquiries concerning the transactions therein constituted a breach of Regulation 10 of the LAARC Regulations and the other provisions in Regulation 8(4) of the LAR, justifying a discharge/revocation of the Legal Aid Certificate. Mr Kwok was invited to attend our office on 4 September 2018 to show cause as to why the Legal Aid Certificate issued to him should not be discharged/revoked.

20. Prior to the meeting on 4 September 2018, pursuant to Regulation 8 of the LAR, a ‘Notice to Show Cause’ (‘NTSC’) was issued to Mr Kwok (Enclosure 11). Effect of the NTSC and the effect of discharge/revocation were explained to him during the NTSC meeting on 4 September 2018.

21. During the NTSC meeting, Mr Kwok gave a completely different version of his account as to the nature of the transactions appearing in the bank book of the BOC Savings Account. A written statement was obtained from Mr Kwok during the NTSC meeting (Enclosure12). In essence, Mr Kwok gave a statement as follows:

(1) The many large deposits appearing in the bank book of the BOC Savings Account represented his gain from horse gambling.

(2) His sister would pay him $4,000 per month for his living expenses.

(3) Since he had considerable gains from horse gambling and his sister had been making regular contributions to his living expenses, he had ceased receiving CSSA.

(4) As to the withdrawals from the BOC Savings Account, apart from his daily expenses, the large withdrawals were made by him so that he would have sufficient cash to place bets for horse gambling.

(5) For his horse gambling activities, he would only place bets in cash in the horse racecourse.

(6) Whenever his gains from horse gambling accumulated to a certain extent, he would deposit the cash into the BOC Savings Account so that he did not need to keep a lot of cash with him at home.

(7) There was a withdrawal in the sum of $109,403.2 from the BOC Savings Account on 12 April 2018; he could not recall the reason why he made that withdrawal; he suspected that the withdrawal was made because he wanted to keep some cash with him for horse gambling and he might also want to make payment for online shopping (e.g. tao bao).

(8) He has kept cash of around $50,000 to $60,000 at home.

(9) He did not know he bad the duty to report the change of his financial circumstances to DLA; further, he was not aware that he was still involved in a legally aided case; he thought that subsequent to the Order issued by DLA pursuant to Regulation 11 of the LAR, he no longer had any relationship with the Legal Aid Department (see Enclosure 13 for copy of the Order issued by DLA pursuant to Regulation 11 of the LAR on 25 September 2017 - the ‘R11 Order’).

22. During the NTSC meeting on 4 September 2018, Mr Kwok has also produced some entry tickets for the horse racecourse in an attempt to explain his horse gambling habits (Enclosure 14). Those tickets were for 5 September 2018 (i.e. one day after the NTSC meeting).

23. Enclosure 15 is a copy of the Attendance Note made by our staff immediately after the NTSC meeting.

Revocation

24. Subsequent to the NTSC meeting, we have further considered the explanation given by Mr Kwok. We were not satisfied with his explanation for the following reasons:

(1) His explanation in relation to his habits for horse gambling was unsupported by any evidence, apart from his bare assertions; the entry tickets for the horse racecourse produced by Mr Kwok were for a day after the NTSC meeting and could not assist Mr Kwok at all.

(2) Mr Kwok has been unable to explain the sudden change of his lifestyle in the past few months, from a modest CSSA recipient to a regular horse gambler with’ substantial gains, and his gains from horse gambling were enough to support a much more luxurious lifestyle as compared to his previous lifestyle as a CSSA recipient - see the spending pattern as shown in his bank books.

(3) His explanation did not tally with the information shown in the bank book of the BOC Savings Account - see Enclosure 16 for a copy of the transaction details list that we obtained from the website of BOC; the reference for the deposits on 13 November 2017 and 17 November 2017 into the BOC Savings Account for the respective sum of $50,000 and $48,400, namely ‘NCC’, means ‘no book cheque clearing’; it shows that at least some of the deposits made into the BOC Savings Account were made by cheque, contrary to his explanation that all those deposits represented his winning from horse gambling in cash.

(4) We were unable to accept Mr Kwok’s explanation as to the nature of the transactions in the BOC Savings Account; we were unable to accept that Mr Kwok has informed us of the truth.

(5) Even if Mr Kwok’s Statement concerning his horse gambling habits were true (which was denied), he has until 17 August 2018 failed to report to us (i) the opening of the BOC Savings Account and the BOC Multi-currency Account in October 2017 after the grant of legal aid, (ii) his substantial gains from horse gambling at least since October 2017, (iii) the contributions that he received from his family members at least since October 2017, and (iv) his cash savings at home, in breach of Regulation 10 of the LAARC Regulations; such income and savings might have affected his eligibility for legal aid and/or the amount of contribution that he was required to make and he had the positive duty to report the same to us.

(6) As to his explanation why he failed to report the change to us earlier, his explanation that he was not aware of his duty under Regulation 10 of the LAARC Regulations was hardly convincing. One must not lose sight of the fact that Mr Kwok is not an ordinary legally aided person. He is a frequent applicant for legal aid and he has made a total of 66 legal aid applications in the past. He has been granted legal aid on 18 occasions over the years. To say that he was not aware of his rights and duties as a legally aided person is simply unrealistic.

(7) His explanation that he has forgotten that he was still involved in one legally aided case after the R11 Order was also completely incredible. The JR Application is a very high profile case. He was represented by the Assigned Solicitor, Senior Counsel and junior Counsel throughout the proceedings and the case was in active progress all along. Mr Kwok has been making Affirmations and giving instructions to his legal team on a frequent basis. His claim that he has forgotten that this case was legally aided was not at all convincing. His allegation that he thought he was no longer involved in any legally aided proceedings after the R11 Order was also incredible, as it is obvious from the terms of the R11 Order that it would not affect any Legal Aid Certificate issued to Mr Kwok prior to the issuance of the R11 Order.

25. In the circumstances, DLA is satisfied with the following:

(1) Mr Kwok has willfully failed to disclose his financial circumstances.

As discussed above, we do not accept that the representations made to us by Mr Kwok are true. It is clear from the bank book of the BOC Savings Account that he must have income the source of which remains unknown to us.
[Reg 8(4)(b)(i), LAR].

(2) Mr Kwok has willfully failed to disclose a material fact concerning his financial resources.

When Mr Kwok was first asked about the frequent transactions in the BOC Savings Account and his source of income on 17 August 2018, he was evasive and refused to clarify his means. He has up to today’s date still refused to disclose to us his true source of income.
[Reg 8(4)(b)(ii), LAR].

(3) Mr Kwok has willfully failed to make a true and correct disclosure of his financial resources.

As discussed above, we are of the view that Mr Kwok has still failed to make full and frank disclose of his financial resources to us. Even worse, when he attended the meeting with us on 17 August 2018 and was asked about his source of income, he lied to us when he mentioned the casual jobs as a dish washing worker, collecting waste paper and loans from friends. As such, apart from his failure to make a true and correct disclosure of his financial resources, he has even knowingly made false statements or representations to us.
[Reg 8(4)(a) and 8(4)(b)(iii), LAR].

(4) Mr Kwok has willfully failed to comply with Regulation 10 of the LAARC Regulations.

We repeat paragraph 24(5) above. Even if Mr Kwok’s representations were true (which is denied), he has failed to report his change of financial circumstances to us as required under Regulation 10 of the LAARC Regulations.
[Reg 8(4)(b)(viii), LAR]

26. Instead of a discharge of legal aid, we consider that the circumstances of this case warrant a revocation of the Legal Aid Certificate issued to Mr Kwok. Apart from Mr Kwok’s wilful breach of his duty under Regulation 10 of the LAARC Regulations and his non-disclosure and false representation, he has still failed to report to us the true source of his income up to today’s date.

27. Pursuant to Regulation 8 of the LAR, the Legal Aid Certificate was revoked on 5 September 2018 accordingly.

Further Statement

28. Subsequent to the revocation of legal aid on 5 September 2018, Mr Kwok has through the Assigned Solicitor sent to us a further statement dated 7 September 2018 (the ‘Further Statement’) for our re-consideration (Enclosure 17).

29. In the Further Statement, apart from the WLB Account and the BOC Savings Account, Mr Kwok has further disclosed a betting account maintained with the Hong Kong Jockey Club (the ‘HKJC’) (Account number [not quoted by this court]) which had been unknown to us before. Mr Kwok insisted that he was entitled to legal aid as he claimed that the amount of his capital did not exceed the upper limit of our means test, namely $302,000.

30. He maintained in the Further Statement that he frequently engaged in horse gambling. He again confirmed that he would place bets in cash and all his gains from horse gambling were paid to him by HKJC in cash.

31. He explained that when he attended our office on 17 August 2018, he thought he did not have the duty to explain anything to us. He therefore refused to answer our questions concerning his means.

32. In respect of the deposit entry dated 12 April 2018 in the BOC Savings Account, he explained that the reference code for that transaction, namely ‘CBD’, represents a ‘consolidated net back item’. It was not a single transaction.

33. As far as the Further Statement is concerned, we have the following observations:

Mr Kwok’s representations	Our observations
The HKJC betting account.	This has been unknown to us before, again showing that Mr Kwok has not been full and frank in his disclosure all along.
He is eligible for legal aid because the amount of his capital did not exceed the upper limit of our means test, namely $302,000.	This is a misunderstanding on the part of Mr Kwok. Our-means test does not only require us to consider the capital of a person. Pursuant to section 5 of the Legal Aid Ordinance, legal aid may be granted to an applicant whose financial resources do not exceed $302,000. Financial resources, according to Regulation 2A of the LAARC Regulations, shall be assessed by multiplying the legal aid applicant’s monthly disposable income by 12 and adding his disposable capital to that sum. It is therefore very important for a legallyaided person not only to inform us of any change in his capital, but also his income (including any income from horse gam[b]ling and contributions received from family members).
When he attended our office on 17 August 2018, he thought he did not have the duty to explain anything to us. He therefore refused to answer our questions regarding his means.	We repeat paragraph 24(6) above. Mr Kwok has been granted legal aid on many occasions before. His allegation that he was not aware of his duty to clarify his means was hardly convincing. Further, on 17 August 2018, he did not simply refuse to answer our questions. He even lied to us when he said the deposits in the BOC Savings Account represented his income earned from his casual jobs or collecting waste paper or loans from his friends.

>34. In light of the observations set out above, we are not satisfied that the Further Statement could assist Mr Kwok at all. Our decision dated 5 September 2018 to revoke the Legal Aid Certificate is maintained.”  (emphasis added)

B3.   The Deputy Registrar’s Decision

12.  As mentioned above, the Legal Aid Appeal was heard before Deputy Registrar Ho on 2 October 2018.  Mr Kwok was represented by counsel[2] (acting again pro bono) and the DLA was represented by Mr Simon Lau, Senior Legal Aid Counsel.

13.  The Legal Aid Appeal is in substance a de novo hearing.  The DLA’s Written Reasons was put before the Deputy Registrar for the purpose of the Legal Aid Appeal.

14.  Mr Kwok’s then counsel made detailed responses in his skeleton submissions to the DLA’s Written Reasons.  He also provided new explanations including that a deposit of $50,000 on 13 November 2017 was entrusted to him by the incorporated owners and a deposit of $48,000 on 17 November 2013 was refund from a law firm upon the conclusion of a court case.  Counsel stated at paragraph 26 of his skeleton that:

“The four grounds on which the Applicant’s appeal lodged are that:

26.1 He has not wilfully failed to disclose his financial resources;

26.2 He has not wilfully failed to disclose a material fact concerning his financial resources.

26.3 He has not wilfully failed to make a true and correct disclosure of his financial resources.

26.4 He has not wilfully failed to comply with regulation 10 of the Cap 91B Regulation.”

15.  Moreover, at the hearing, Mr Kwok’s counsel submitted that, according to Mr Kwok, his financial resources at all material time did not exceed the financial eligibility limit of $302,000.  As such, he was not obliged to answer the Legal Aid Department’s question.  Counsel also submitted that in any event Mr Kwok could have no reason to believe that his financial circumstances might affect the continuation of the legal aid certificate and as such he did not wilfully fail to disclose any material facts concerning his financial resources.

16.  After hearing all the submissions and a short adjournment, the learned Deputy Registrar gave an extemporary reasoned decision to dismiss the Legal Aid Appeal.  In substance, he was satisfied with the evidence laid before him that Mr Kwok had wilfully failed to disclose to the DLA his financial resources, failed to make a true and correct disclosure of his financial resources, and failed to comply with section 10 of the Cap 91B Regulations.

17.  The learned Deputy Registrar explained the decision as follows:[3]

“Yes, this is my oral decision on the matter. This is an appeal by Mr Kwok, the appellant, against the decision of the Director of Legal Aid to revoke the Legal Aid certificate granted to him on 15 April year 2016.

As set out in the reasons for revocation by the Director dated 26 September, the Legal Aid Certificate is revoked because Mr Kwok, the appellant, has wilfully failed to disclose his financial circumstances. He has willfully failed to disclose a material fact concerning his financial resources, he has wilfully failed to make a true and correct disclosure of his financial resources and wilfully failed to comply with Regulation 10 which require Mr Kwok to report change in his financial circumstances.

Mr A Lau, counsel for the appellant, disagrees with the reasons for revocation and argues that the Director of Legal Aid has failed to establish these grounds to support the revocation of the appellant’s certificate.

I have considered the reasons for revocation as well as both the written and oral submissions by Mr Andrew Lau for the appellant. With respect to Mr Lau, I do not agree with his submissions made on behalf of the appellant. I agree and accept the reasons for revocation made on behalf of the Director and will dismiss the appellant’s appeal.

The main argument of Mr Andrew Lau for the appellant is that, according to the appellant, his financial resources at all material times did not exceed the financial eligibility limit of $302,000. As such, he was not obliged to answer the Legal Aid Department’s question. Mr Lau also submitted that the appellant could have no reason to believe that his financial circumstances might affect the continuation of the Legal Aid certificate and as such he did not wilfully fail to disclose any material facts concerning his financial resources.

Mr Lau also relies on the English case, the McCormick case, to support his contention. However, as pointed out by Mr S Lau for the Director, the test as set out in the McCormick case is an objective one, that is, if objectively viewed that there is reason to believe that the information might make a difference, then it must be disclosed even though the appellant — the applicant may not appreciate the fact.

In the present case, when the matter is viewed objectively, I am of the view that the appellant should have disclosed the change of his financial circumstances and resources to the Director of Legal Aid but he has wilfully failed to do so and, in my view, he has failed to make a full and frank disclosure of his change of financial circumstances or financial resources.

In the first place, and as pointed out by Mr S Lau for the Director, the appellant has failed to disclose that he has a horse betting account with the Jockey Club. This was only disclosed after the revocation of his certificate as Mr Lau submitted. The appellant has also failed to disclose he had opened two BOC accounts back in October year 2017 which revealed frequent transactions in the account. I note that Mr A Lau for the appellant has submitted to the court that the appellant has on his own volition disclosed this account to the Director of Legal Aid, but this is only upon request by the Director when the Director asked the appellant to bring along all information pertaining to his financial resources to update his financial status, and this was also prompted by the fact that the bank signatories provided by the appellant to the Director did not match the signature of his bank account kept with the Wing Lung Bank.

But most importantly, when the appellant was asked about the various transactions as disclosed in the Bank of China account, the first explanation or explanations given by the appellant were in stark contrast to the subsequent explanation that he gave to the Director.

As pointed out at paragraph 16 of the reasons for revocation, when the appellant was asked to explain the nature of the many large transactions appearing in the bankbook, he inter alia replied that the large deposits appearing in the BOC saving account passbook represented the income of his casual job as a dishwashing worker. He had also borrowed money from friends sometimes, and some of the large withdrawals related to his payment of legal fees. As to his other incomes, they were from waste paper collection sometimes, but when he was asked to confirm his answer and provide further explanation in writing within 14 days, he refused to do so. He wrote on the letter from the Director of Legal Aid dated 17 August year 2018 that, I quote,

‘無法答覆，法律解決，我未過限額302,000鈫法律規定。’

Then, in a subsequent statement made by the appellant, he changed his explanations regarding these large sum transactions. He said that most of these sums were from horse winnings and monthly payment from his sister, but nowhere did he explain why, when he was first asked about those transactions, he never mentioned about horse winning nor the monthly assistance from his sister. He justified those incomes were from working as a dishwashing worker, borrowings from friends and from collection of waste papers.

In my view, the appellant has wilfully failed to disclose his financial circumstances and financial resources. He has failed to make a true and correct disclosure of his financial resources and report the change of his financial circumstances.

In respect of the two sums of money paid into his bank account, namely the $50,000 and the $48,400, initially the appellant also told the Director that they are winnings from horse racing but then subsequently revealed that they were in fact reimbursements from the incorporated owners and repayment of client money from solicitors’ firm.

Mr A Lau pointed out that because of the appellant’s old age, he would not be able to remember all those details, but one must not forget that the cheque for the reimbursement of the money by the incorporated owners was signed by the appellant as one of the signatories, as Mr S Lau pointed out to the court.

And as further pointed out by Mr S Lau, even as at today, the appellant has not rendered any explanation to the Director as to the details of these two sums paid into his account. For example, on the $50,000 repayment by the solicitors’ firm, the appellant has failed to explain what this was about, when and how much did he pay the money to the solicitors’ firm and the sources of these money.

In my view, all these inconsistent explanation[s] from the appellants have cast serious doubt as to whether the large sums of money deposited into his bank account were in fact money from horse winning as the appellant has asserted, this is not to mention that the cash that he kept at home in the sum of 50,000 to 60,000 dollars, he had also failed to disclose to the Director of Legal Aid.

Indeed, as illustrated by way of example by Mr S Lau at the hearing, if all these relevant incomes were taken into account, the disposable income and capital of the appellant might affect the appellant’s legal aid eligibility and the contribution he should make to the Director of Legal Aid.

And having considered all these submissions by the parties, I have to say that I agree with the reasons for revocation by the Director of Legal Aid and will dismiss the appeal.” (emphasis added)

C.   THIS JUDICIAL REVIEW

18.  As rightly accepted by Mr Pun, the court in a judicial review against the Registrar’s decision in a legal aid appeal does not sit as a further tier of appeal.  The court’s function is confined to review the legality, rationality and fairness of the process.  In this respect, grounds not canvassed before the Registrar could not be relied upon in a judicial review.  Further, the court in a judicial review of this type should not delve in depth into the merits of the underlying claim. See: Chan Chiu Kwan v Registrar of the High Court [2015] 1 HKC 533 (CA) at paragraphs 8 - 10 per Lam VP.

19.  As I understand it, the proposed grounds now raised by Mr Pun in his skeleton to challenge the Deputy Registrar’s Decision can be summarized as these:

(1)   The learned Deputy Registrar committed an error of law as he failed to properly direct himself as to (a) the proper construction of the meaning of the word “wilfully” under regulation 8(4)(b) of the LAR, and/or (b) the requisite standard of proof.

(2)   Had he so properly directed himself, he would not have come to the conclusion that Mr Kwok had “wilfully” failed to disclose his financial resources.

20.  In elaboration, Mr Pun submitted that:

(1)   Under the relevant regulations, a legally aided person’s wilful failure to disclose his financial resources or to make a true and correct disclosure of his financial resources could result in the serious consequences of (a) a discharge or revocation of his legal aid (which would further entail to the person serious adverse financial consequences);[4] and (b) potential criminal liability under section 23(1) of the LAO.

(2)   In the premise, and given these serious consequences:

(a)   the meaning of “wilfully” under regulation 8(4)(b) of the LAR must be construed narrowly to exclude a conduct where the legally aided person has failed to make the necessary disclosure because of a mistaken belief;

(b)   the DLA or Registrar must adopt a high standard of proof of “higher degree of probabilities” to establish the requisite “wilfulness” in the failure to disclose before discharging or revoking a legal aid certificate.[5]

21.  Mr Pun then further points out that it is Mr Kwok’s case and evidence that he had “mistakenly” believed that he did not need to disclose to the DLA any change of financial resources or position if (in his own view) the change would not result in exceeding the financial limit entitling him to legal aid.  Mr Pun submits the Mr Kwok’s mistaken belief is supported by the following:

(1)   When Mr Kwok was first interviewed (on his own) by the staff of the Legal Aid Department on 17 August 2018, Mr Kwok already stated, inter alia, that “因財務資源上限是302,000，他一定不會過上限，不明白為什麼法援署要問這些”.

(2)   As Mr Kwok reiterated in his statement dated 7 September 2018 (“the Further Statement”) at paragraph 15:

“當時我知道我並沒有責任向法援署解釋我的財政出入開支，而且我知道我的總資產並沒有超過港幣302,000元。我明白，就算如果我超過了上限，我只需要交予某一合符比例的分擔費，因此我當時認為法援署職員及劉小姐的質問不當，便拒絕回答，然後離開辦公室。”

(3)   In his hand-written submission dated 8 October 2018 exhibited to his affirmation filed in person in support of the present leave application, Mr Kwok further reiterated that:

“我沒有故意隱瞞我財務資源，我在2015年我申260/2015時我是領取綜援，一直領取至2017年11月開始，我妹妹因為收入好了，加了人工，她願資助我每月4,000元，我覺得我有家人資助，我馬上向綜援告知，停止5,500元綜援，改為領生果金每月2千多元。從這點我根本沒有必要隱瞞法援我的財務資源，我只不過不知領少了政府資助要報法援。而且我只知道法援援助人不能多於每年叁拾萬貮千元，老人家可加至60拾萬4仟元，我交與法援每年總收入及兩銀行戶口不超每年叁拾萬元，所以我沒有向法援匯報。法援一向沒有要求我報財務來源（除第一次申請時填報）所以我改了收入沒有向法援申報，但我不是故意隱瞞，我只是無知。” (emphasis added)

22.  Hence, if the Deputy Registrar had properly adopted the narrower meaning of the word “wilfully” and the requisite standard of proof, he should have come to the conclusion that Mr Kwok did not wilfully fail to make all the relevant disclosure or to make a true and correct disclosure of his financial resources.

23.  Mr Pun therefore asks the court to quash the Deputy Registrar’s Decision and remit the Legal Aid Appeal to the Registrar for reconsideration.

24.  With respect to Mr Pun, I find the proposed grounds of challenge not reasonably arguable with a realistic prospect of success.[6] I will explain why.

25.  First, it should be noted that the contentions on the narrow construction of the meaning of “wilfully” and the requisite standard of proof were never made before the learned Deputy Registrar.  It must be remembered that Mr Kwok was represented by counsel in the Legal Aid Appeal.  In other words, there were no issues raised in the Legal Aid Appeal on these points.  In the premises, as submitted by Mr Lam, there is simply no basis at all for Mr Kwok to now say the learned Deputy Registrar had somehow misdirected himself on these issues.  Mr Kwok therefore fails to demonstrate that the learned Deputy Registrar had misdirected himself on these issues.  The challenge is not reasonably arguable on this basis alone.

26.  Second and in any event, I am of the view that these proposed grounds of challenge are also unarguable on merits for the following reasons.

27.  Insofar as the meaning of the word “wilfully” is concerned, as pointed out by Mr Lam, other than saying that the court should attribute a narrow construction, Mr Pun has not set out in his skeleton what he says its meaning should indeed be.  On pressing, Mr Pun submits in court that it should mean “having an intention to cheat” and exclude someone who fails to do the prescribed act “negligently based on a misunderstanding of the relevant law or facts”.

28.  In response, Mr Lam accepts that the word “wilfully” should not include a negligent conduct.  Leading counsel however submits it should include a “reckless” act, as what that word has been construed to mean even in a criminal context.[7] Further, Mr Lam submits that the word cannot be construed objectively to, as submitted by Mr Pun, incorporate the meaning of “an intention to cheat”, as the prescribed context of the word “wilfully” in section 8(4)(b) of the LAR is the failure to make the relevant disclosure.  So all it means is that someone who has intentionally or recklessly failed to disclose.

29.  Mr Lam’s submissions are persuasive.  In particular, I do not think the word “wilfully” in this context must entail objectively a meaning of an intention to “cheat”.  Its ordinary meaning is to do an act “on purpose, deliberately or intentionally”.[8]  Further, as rightly submitted by Mr Lam, that word is to be informed by the following words in the statute “failed to disclose”.  Hence, in my view, properly construed, all it means is an intention to fail to make the necessary disclosure, and that intention excludes a negligent failure.  This is particularly so as section 8(4)(a) of the LAR as already separately provided for the circumstances of intentional falsity, where the legal aided person has “knowingly made a false statement or false representation concerning any information furnished by him”.

30.  For the present purpose, I do not have to come to a concluded view as to whether the word also incorporates recklessness, as the case advanced by Mr Kwok is that he failed to make the necessary disclosure because of his negligence based on his misunderstanding of his disclosure obligation.

31.  In relation to the issue of standard of proof, it must be noted (as again rightly submitted by Mr Lam) that the common law recognizes two standards of proof only: beyond any reasonable doubt, and on a balance of probabilities; and in civil proceedings (including disciplinary proceedings), the standard of proof is on a balance of probabilities, though the more serious the allegation, the more compelling and cogent will the evidence be needed to prove it on a balance of probabilities.  The suggestion that there exists a standard of proof known as a “higher degree of probabilities” (whatever that means) was expressly rejected: Solicitor (24/07) v Law Society, supra, at paragraphs 61, 63, 72 and 116; In re D, paragraph 23.

32.  There is therefore no question that the learned Deputy Registrar applied the wrong standard of proof in the Legal Aid Appeal.

33.  At this hearing, Mr Pun indeed accepts that there is only the standard of proof of balance of probabilities in civil proceedings, including in legal aid appeals, and he cannot support what he has apparently set out in the skeleton.  Leading counsel then confirms all he is saying under this limb is that the learned Deputy Registrar should not find that Mr Kwok had wilfully failed to make the necessary disclosures unless there was cogent and compelling evidence to prove that.  Mr Pun then submits that there was no such quality of evidence in the present case to enable the learned Deputy Registrar to so conclude.

34.  Once understood these proposed grounds in the above way, the real basis of Mr Pun’s challenge essentially boils down to the contention that it is Wednesbury unreasonable for the Deputy Registrar to find that Mr Kwok had intentionally (hence wilfully) failed to make the necessary disclosure based on all the evidence before him.

35.  Fundamental to Mr Pun’s grounds of challenge is the assertion that Mr Kwok did not make the necessary disclosure because of his asserted mistaken belief that he was not required to do, as long as he believed the related financial position or change would not result in exceeding the eligibility financial limit of $302,000.  As pointed out by Mr Pun on instructions, that was the position repeatedly stated by Mr Kwok in his Further Statement dated 7 September 2018 provided to the DLA, his submissions made in the Legal Aid Appeal, and in his affirmed “submissions” filed in support of this judicial review.  Mr Pun also reiterates the evidence as summarized at paragraph 21 above.  So, Mr Kwok’s case has been that he only negligently failed to make all the necessary disclosure because of his misunderstanding of his disclosure obligation.

36.  In the premises, in substance, the merits and success of these proposed grounds of challenge are premised on the underlying contention that it would be irrational for any reasonable person in the position of the Deputy Registrar (adopting the standard of proof of balance of probabilities based on cogent evidence) to have rejected Mr Kwok’s case that he was negligent in failing to make the necessary disclosure.

37.  With respect to Mr Pun, I am unable to agree.

38.  It is clear from the learned Deputy Registrar’s reasons that:

(1)   He had adopted an objective test (which test is as laid down in the authority R v Legal Aid Appeal Committee ex p McCormick [2000] 1 WLR 1804 relied on by Mr Kwok’s counsel at the hearing) to assess the materials before him to decide whether Mr Kwok had wilfully failed to make the necessary disclosure.  Mr Pun at this hearing has also not submitted that this is the wrong test to apply.

(2)   He had specifically looked at all the contentions and the materials to support the assertion that Mr Kwok did not wilfully fail to make the disclosure as he had misbelieved the position that he only needed to make disclosure if the change or financial sources would result in exceeding the financial limit of $302,000 to entitle him for legal aid.  The learned Deputy Registrar, applying an objective test to look at all the evidence (including his position made at the meeting on 17 August 2018, the fact that he disclosed the BOC accounts on his own volition on 17 August 2018, and the Further Statement, and all the matters relied on by Mr Pun now), rejected this assertion.

(3)   Having assessed all the evidence objectively and all the submissions made at the hearing, it is the Registrar’s conclusion that:

(a)   Objectively, the relevant financial information (ie, the various more substantial fund deposits identified in the then disclosed BOC passport and the Jockey Club account, as well as the cash kept by Mr Kwok at home) might have an impact on whether the financial limit would be exceeded, and thus should be disclosed.

(b)   Objectively, the explanations Mr Kwok had given for those funds were not credible as they were contradicted by the different versions given by Mr Kwok himself, and were not supported by some of the objective background.  Further, even up to the date of the hearing on 2 October 2018, Mr Kwok had still failed to give credible explanations as to the details of the three significant funds revealed, namely, the $50,000 and $48,400 identified in the BOC passbook and the $50,000 ‑ $60,000 cash kept by him at home.

(c)   In addition to these inconsistent and not credible explanations and the absence of any credible explanations for the nature and source of the various significant funds identified, the learned Deputy Registrar also agreed with the DLA’s Written Reasons[9] not to accept Mr Kwok’s assertion that he had failed to make the disclosure because of his mistaken belief of when he needed to do so.  The DLA set out those reasons at paragraphs 24(6) and (7) of the DLA’s Written Reasons to say why he found Mr Kwok’s allegation of misunderstanding not credible.

(4)   In the premises, based on the evidence before him, the Deputy Registrar effectively did not accept Mr Kwok’s assertion of his mistaken belief as the reason why he did not make the disclosure.

39.  In my view, even if one was to look for cogent and compelling evidence, this must be a conclusion reasonably open to the learned Deputy Registrar to make, in light of the objective facts laid before him, the clearly inconsistent explanations sought to be offered by Mr Kwok to explain the various sources of funds, and the continued failure on the part of Mr Kwok to explain the source and nature of some of the more substantive funds now identified.

40.  For these reasons, there are no merits in the contention that the Deputy Registrar’s Decision is irrational.  Mr Pun’s proposed challenge against the Deputy Registrar’s Decision must fail.

41.  Mr Pun at the end of the hearing has, on instruction, made the following further points to support this application:

(1)   He says it is Mr Kwok’s case that his decision not to continue to receive CSSA and only to receive the Old Age Living Allowance, as well as monthly financial assistance from his sister should not be regarded by the DLA as something against him to revoke his legal aid certificate.

(2)   He says Mr Kwok has stated in the submissions exhibited to his affirmation dated 8 October 2018 filed in support of the leave application that when he said at the 17 August 2018 meeting that he collected waste paper to make a living, it was only uttered out of anger and did not really mean it (“我當時十分憤怒說 [了一些不由衷的話] 我也可以學別老人家，拾紙皮賣，拾超市掉垃圾筒過期食物來食，我不一定依靠政府救濟才能生存”).  Mr Kwok wants to emphasize to this court that he never needed to collect waste paper to support his living.

(3)   Finally, Mr Kwok also wants to reiterate that he did not forget things because of his age.  He has mistaken his obligation to make the disclosure but he is not confused or forgetful because of his age.

42.  These points do not assist Mr Kwok at all:

(1)   Insofar as paragraph 41(1) is concerned, it is clear from the DLA’s Written Reasons and the Deputy Registrar’s reasons the fact that Mr Kwok started to receive Old Age Living Allowance and his sister’s monthly financial contribution to him is not part of the reasons to find that Mr Kwok has wilfully failed to make the necessary disclosure of information. This point is therefore irrelevant.

(2)   In relation to paragraph 41(2), insofar as Mr Kwok is trying to say now that he did not give any inconsistent explanations to the source of funds, as he did not really mean what he said at the meeting on 17 August 2018, this was never put before the Deputy Registrar in the Legal Aid Appeal.  In the premises, it is simply not open to him to rely on this now in this proposed judicial review to challenge the Deputy Registrar’s Decision.

(3)   In relation to paragraph 41(3), this would not assist his case.  Leaving aside the fact that it was his own counsel in the Legal Aid Appeal, in seeking to explain some of the inconsistencies in Mr Kwok’s explanations as to the source and nature of funds, who submitted to the learned Deputy Registrar that “because of the appellant’s old age, [Mr Kwok] would not be able to remember all those details”, this “reiteration” would only render the various inconsistent explanations provided by him as to the source and nature of funds even more incredible and suspicious.

D.   CONCLUSION

43.  For all the above reasons, I do not find the proposed grounds of judicial review reasonably arguable with a realistic prospect of success.  I would refuse to grant leave.  Alternatively, even if leave to apply for judicial review was granted, I would dismiss the judicial review on merits for the same reasons.

44.  There are no reasons why costs should not follow the event, in particular given that Mr Kwok effectively has had a substantive hearing of his application. I will order costs of this application be to the DLA, to be taxed if not agreed.