Z v. DIRECTOR OF LEGAL AID AND ANOTHER

HCAL 5/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 5 OF 2011

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BETWEEN

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REASONS FOR JUDGMENT

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Hon Reyes J:

I. INTRODUCTION

1.  Z is a refugee.  He fled to Hong Kong in 2007. He is currently waiting to be resettled in another country.

2.  In December 2009 Z was charged with indecent assault.  It was alleged that he squeezed the buttock of a 14 year old girl while walking in Mongkok.  Following trial before the magistrate in March 2010 (Z being then represented by a duty lawyer), Z was convicted and sentenced to 4 weeks of prison.  Z has appealed against both conviction and sentence.  Z has been granted bail pending appeal.

3.  Z has been granted legal aid for his appeal against sentence.  However, in October 2010 the Director of Legal Aid refused legal aid for Z’s appeal against conviction.  In October 2010 Z applied to McMahon J to override the Director’s refusal of legal aid.  Delivering his decision extemporaneously at the end of the hearing, McMahon J upheld the Director. 

4.  Z applied for judicial review of the Director’s October 2010 refusal and McMahon J’s October 2010 decision.

5.  McMahon J was not represented in these proceedings.  In accordance with normal practice, he indicated that he will abide by this Court’s judgment. 

6.  The Director, on the other hand, contended that Z’s application disclosed no reviewable error.  The Director further argued that, in any event, McMahon J’s decision was not subject to judicial review. According to the Director, the only mode of recourse against McMahon J’s decision was by appeal to the Court of Appeal.

7.  Following the substantive hearing of the judicial review on 11 July 2011, this Court quashed the Director’s decision.  The Court refused to quash McMahon J’s decision on the basis that the same was not amenable to judicial review.  These are the reasons for the Court’s determination.

II. DISCUSSION

A. Is McMahon J’s decision susceptible to judicial review?

8.  Mr. Gerard McCoy SC (appearing for the Director) submitted that this Court has no jurisdiction to review McMahon J’s decision. 

9.  In support, Mr. McCoy cited High Court Ordinance (Cap.4) (HCO) s.12(3).  That provides:-

“The criminal jurisdiction of the Court of First Instance shall consist of:-

(a) original jurisdiction of a like nature and extent as that held and exercised in criminal matters by the High Court of Justice and the Crown Court in England respectively; and,

(b) any other jurisdiction, whether original or appellate jurisdiction, conferred on it by any law.”

10.  Mr. McCoy also referred to the Legal Aid in Criminal Cases Rules (Rules), r.12.  That provides:-

“12. Refusal to grant legal aid to appeal

(1A) This rule shall not apply to proceedings relating to an appeal to, or an application for leave to appeal to, the Court of Final Appeal.

(1) If the Director [of Legal Aid] is not satisfied that the appellant should be granted legal aid to appeal, the Director shall refuse the application and shall forward to the Registrar a notice of his refusal in such form as he may determine.

(2) Where the Director is not satisfied that the financial resources of the accused person do not exceed the relevant amount specified in rule 4, the refusal of the application shall be final and may not be disturbed.

(3) If on an appeal from any conviction, order or determination in respect of or in connection with any offence, it appears to a judge or, in the case of an appeal to the Court of Appeal, to the court or judge thereof that an appellant should be granted legal aid notwithstanding that the Director refused his application, the judge or the Court of Appeal may subject to paragraph (2), grant him an appeal aid certificate, and the Director shall thereupon assign a solicitor and 1 or 2 counsel, one of whom may be leading counsel, or solicitor or counsel only, as he may think fit, to represent the appellant.”

11.  The Rules were promulgated pursuant to Criminal Procedure Ordinance (Cap.221) (CPO) s.9A.  That section empowers the Criminal Rules Committee (comprising judges and representatives of the legal profession), with LegCo’s approval, to “make rules providing for the granting of legal aid in criminal cases to persons of limited means”.

12.  There is no dispute that Z is a person of limited means and that the Director’s decision to refuse legal aid (made under Rules r.12(1)) is an administrative determination susceptible to judicial review.

13.  But Mr. McCoy asserted that McMahon J’s decision was “plainly a judicial decision within the original or appellate criminal jurisdiction” conferred by HCO s.12(3)(b).  Mr. McCoy supported his contention by reference to HKSAR v. Wu Wai Fung [2003] 3 HKLRD 900 (CA).

14.  In Wu Wai Fung the Appellant argued that he had not received a fair trial because he could not afford representation by counsel in Court.  The Director had determined that the Appellant should be granted legal aid, but subject to the Appellant making a financial contribution.  The Appellant claimed that he was not in a position to make the financial contribution required by the Director.

15.  The trial judge refused to interfere with the Director’s decision.  The Appellant submitted that this had been wrong and the judge should instead have exercised his discretion under Rules r.13 to override the Director insofar as the requirement of a financial contribution was concerned.

16.  Rules r.13 is similar to r.12.  It provides:-

“13. Legal aid in capital cases

(1) Notwithstanding anything contained in this Part [that is, Part II of the Rules on ‘Grant of Legal Aid’], where a person:-

(a) is committed for trial upon a charge of murder, treason or piracy with violence;

(b) is convicted of a charge of murder, treason or piracy with violence and proposes to appeal therefrom; or

(c) wishes to oppose an appeal to, or an application for leave to appeal to, the Court of Final Appeal in proceedings involving a charge of murder, treason or piracy with violence,

the Director may, having considered the financial resources of the accused person or appellant, grant him a legal aid certificate or an appeal aid certificate, as the case may require, and shall do so if his financial resources do not exceed the relevant amounts specified in rule 4.

(2) The powers of the Director under sub-paragraphs (a) and (b) of paragraph (1) may be exercised by a judge or, in the case of an appeal to the Court of Appeal, by the court or a judge thereof, and the court or judge, if it or he thinks fit, may by order exempt the accused person or appellant from the requirements of Part III [relating to ‘Assessment of Contribution’].

(3) Upon granting a legal aid certificate or an appeal aid certificate under this rule, the Court of Appeal, the judge or the Director shall assign a solicitor and 1 or 2 counsel, one of whom may be leading counsel, as it or he may think fit, to represent the accused person or appellant.”

17.  In Wu Wai Fung (at para.74) the Court of Appeal stated as follows in relation to a judge’s power under Rules r.13 to override the Director’s decision in relation to legal aid:-

“Whether or not the Director of Legal Aid was justified, bearing in mind the interests of justice, in deciding as he did on this basis is beside the point. The judge was not sitting on an appeal from the Director's decision (cf. s.26 of the Legal Aid Ordinance (Cap.91)). He had to exercise a quite separate jurisdiction as required under r.13(2) of the Legal Aid in Criminal Cases Rules. While, no doubt, the decision of the Director of Legal Aid was a factor to be considered, there were other cogent factors that the Judge had to take into account in the exercise of his discretion under r.13(2), not least a critical assessment of the accused’s right to a fair trial, particularly given the seriousness of the crime, the penalty for it and, from the layman’s perspective, the procedural complexities of the case. The importance of persons accused of serious crime having the advantage of counsel to assist them cannot be doubted (see: the judgment of Viscount Maugham in Galos Hired v. The King [1944] AC 149 at 155).”

18.  The Court of Appeal went on to hold on the facts that the judge had not properly exercised his discretion in refusing to override the Director.  Thus, the Court of Appeal quashed the Appellant’s conviction.

19.  According to Mr. McCoy, Wu Wai Fung means that the jurisdiction of a judge or the Court of Appeal to grant legal aid under r.13(2), must be regarded as a component of the trial or appeal process.  The power to override the Director is an important facet of the criminal trial or appeal process.  It is a tool by which the criminal court exerts control over its procedures.  It is a means by which the judge or the Court of Appeal can ensure that a defendant has a fair hearing before them.

20.  The wrong exercise by a judge of the discretion under r.13(2) could (Mr. McCoy said) constitute a substantive ground of appeal against a person’s conviction (as opposed merely to an occasion for judicial review of the judge’s or Court of Appeal’s exercise of the power under r.13(2)).  The wrong exercise of the power would be analogous to a criminal judge allowing inadmissible evidence to be adduced or ruling out evidence which ought to be adduced.  The power under r.13(2) (Mr. McCoy reasoned) is integral to the Court’s exercise of its criminal jurisdiction conferred by HCO s.12(3)(b).

21.  It will be noted that Wu Wai Fung concerns r.13, not r.12.  But Mr. McCoy argued that the 2 rules are not materially different from each other.  Similar principles should govern the construction of the jurisdiction under r.12.

22.  Thus, if the power to grant legal aid under r.13 is fundamental to ensuring the fair conduct of a criminal trial or appeal in capital cases, the jurisdiction under r.12 (Mr. McCoy says) must be as important in ensuring that an appeal against conviction or other determination in connection with an offence is fairly conducted.  The power conferred by r.12 on the judge or Court of Appeal must also then be part and parcel of the criminal jurisdiction under HCO s.12(3)(b).

23.  In response to Mr. McCoy, Mr. Philip Dykes SC (appearing for Z) submitted that the decision of a superior court judge may be amenable to judicial review where that judge exercises an administrative power.  Mr. Dykes suggested that, if McMahon J’s decision was the exercise of a power within the High Court’s criminal jurisdiction, McMahon J’s refusal of legal aid would theoretically be appealable up to the Court of Final Appeal.  That (Mr. Dykes contended) would be surprising.  Mr. McCoy’s argument (Mr. Dykes further cautioned) would have the consequence that the Director’s exercise of the discretion to grant or refuse legal aid would be a “usurpation of judicial power”.

24.  I was not persuaded by Mr. Dykes’ objections. 

25.  It is correct that the decision of a superior court judge made in the exercise of an administrative power is susceptible to judicial review.  The proposition begs the question whether a judge was or was not acting in an administrative capacity when making the relevant decision in the first place.  The issue before the Court was precisely whether or not McMahon J was acting in a judicial or administrative capacity when he refused Z legal aid pursuant to Rules r.12(3).

26.  I see nothing surprising in the consequence that McMahon J’s decision, if it was the exercise of a judicial power, could theoretically go all the way to the Court of Final Appeal.  In practice, the Court of Final Appeal is unlikely to entertain an appeal against a refusal of criminal legal aid, save in the most egregious circumstances.  In any event, even if McMahon J’s decision was an administrative one amenable to judicial review, there would still be the theoretical possibility of appealing this Court’s decision on the matter to the Court of Appeal or even the Court of Final Appeal.

27.  I therefore do not think that anything can be deduced from the possibility of multi-layers of appeal. 

28.  For the reasons stated by Wright J in his Judgment (which I have read in draft), I doubt that much can be deduced from Wu Wai Fung on whether the jurisdictions conferred by Rules rr.12 and 13 on a judge are administrative or judicial powers.  In my view, a better pointer to the nature of the power under rr.12 and 13 is the fact that those rules also confer the jurisdiction to override the Director on the whole Court of Appeal.  That militates strongly against treating the power as merely administrative.  This is because it is unlikely that the Legislature intended that the decisions of a whole bench of Court of Appeal judges to be amenable to judicial review by a Court of First Instance (as opposed to appeal to the Court of Final Appeal).

29.  Finally, there is nothing unusual in a jurisdiction being administrative or non-judicial in character when first exercised by (say) a Government officer or tribunal and then becoming judicial in nature when exercised by a judge or Court at a later stage.  The correct characterisation of a power depends on the proper construction of the statute or regulation bestowing the jurisdiction.  The fact that, pursuant to the Rules, the Director first decides whether to grant legal aid cannot by any stretch of the imagination be described as some sort of “usurpation of judicial power”.  

30.  It follows from the foregoing that McMahon J was exercising a judicial and not an administrative power.  The consequence would be that this Court had no jurisdiction to review McMahon J.

B. Is there any basis for judicial review of the Director?

31.  That McMahon J’s decision is not amenable to judicial review does not mean Z’s application fails.  That is because Z also sought judicial review of the Director’s October 2010 refusal of legal aid. There is no dispute that this Court can review the Director’s decision.

32.  International Covenant on Civil and Political Rights art.14(3) (in force in Hong Kong by reason of Basic Law art.39) provides that:-

“In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality:-

…

(d) ... to have legal assistance assigned to him, in any case where the interests of justice so require ...”

33.  As a matter of practice, in deciding whether to grant legal aid in “the interests of justice”, the Director applies “the Widgery Criteria”.  This is a list of non-exhaustive factors which the Director weighs in coming to a decision on the provision of criminal legal aid.  The criteria were initially proposed in the Report (Cmnd 2934) of the Departmental Committee on Legal Aid in Criminal Proceedings prepared in 1966 during the chairmanship of Widgery J.  See Legal Aid in Hong Kong (Legal Aid Services Council, 2006), p.155. 

34.  The factors to be taken into account under the Widgery Criteria are as follows (as summarised in Legal Aid in Hong Kong, p.155):-

(1) “the offence is such that if proved it is likely that the Court would impose a sentence which would deprive the accused of his liberty or lead to loss of his livelihood or serious damage to his reputation”;

(2) “the determination of the case may involve consideration of a substantial question of law”;

(3) “the accused may be unable to understand the proceedings or to state his own case because of his inadequate knowledge of the official languages, mental illness or mental or physical disability”;

(4) “the nature of the defence is such that it involves the tracing or interviewing of witnesses or expert cross-examination of a witness for the prosecution”; and,

(5) “it is in the interests of someone other than the accused that the accused be represented”.

35.  The applicability of the Widgery Criteria to the Director’s deliberations is not contested.

36.  On behalf of the Director, Mr. David Bryan (Senior Legal Aid Counsel) considered Z’s application for legal aid.  Z first applied for legal aid in March 2010.  That was rejected in June 2010.  Z re-applied in September 2010.  That application was rejected in October 2010.  Mr. Bryan handled both of Z’s applications.

37.  Mr. Bryan’s evidence of how he approached Z’s applications is as follows:-

“26. I had duly considered the appeal bundle [in relation to the magistrate’s conviction of Z] and the case report dated 24 March 2010 where Mr. Cleves [the duty lawyer who had defended Z before the magistrate] suggested there are arguable grounds from the fact that the magistrate in question disbelieved Z but there was inconsistency in relation to the location where the indecent assault took place. However, I failed to see any arguable merit in the magistrate’s finding in regard to the location where the indecent assault took place. Having considered all the circumstances of the case including the merits in the appeal, I was of the view that there was sufficient evidence to support the conviction of Z and there was no misdirection or error of law on the part of the magistrate such as to raise a realistic prospect of the appeal succeeding. I was not satisfied that it was desirable in the interests of justice to grant legal aid to Z and recommended to the Assistant Principal Legal Aid Counsel (Crime) that the application for legal aid be refused. My recommendation was approved by the Assistant Principal Legal Aid Counsel (Crime). By Notice of Refusal of Legal Aid dated 10 June 2010 ..., the Applicant was informed of the Director’s decision refusing to grant legal aid...

27. The Applicant sought to reapply for legal aid through his solicitors on or about 29 September 2010. A copy of the advice of counsel on the merits of the Applicant’s appeal was also provided to the Director for consideration. The 2 main grounds set out in the advice from counsel in which it was suggested that (1) there was misuse of pre-recorded and cross-examination by video link and (2) that the conviction is unsafe and unsatisfactory because there were number of inconsistencies in the prosecution evidence. As far as I can see, it was clear from the [magistrate’s] Statement of Findings that the magistrate in question found that there was touching of the buttock (as the complainant said in evidence) and not the upper arm, and that the touching was intentional which was the crux of the criminal case, whatever be the minutiae of inconsistencies that were extracted from the evidence which I considered insufficient to demonstrate to the degree necessary that the magistrate’s findings may be so flawed as to upset the conviction. Hence, I recommended to refuse legal aid which was approved by the Assistant Principal Legal Aid Counsel (Crime). By Notice of Refusal of Legal Aid dated 7 October 2010 ..., the Applicant was informed of the Director’s decision to refuse his application for legal aid...”

38.  In support of his affidavit evidence, Mr. Bryan exhibited his memos to the Assistant Principal Legal Aid Counsel (Crime). Those memos show that (as deposed) Mr. Bryan believed that Z’s appeal has little or no prospect of success on merits.

39.  Assume Mr. Bryan is correct that Z’s intended appeal has little substantive prospect of success.  My difficulty with Mr. Bryan’s approach was that, contrary to the Director’s established practice, Mr. Bryan did not appear to have applied the Widgery Criteria in coming to a decision.  For example, nowhere in his affidavit or memos does Mr. Bryan assess the weight to be given to the fact that indecent assault is likely to give rise to a sentence of imprisonment.

40.  It is even more of a concern that nowhere does Mr. Bryan consider the potentially devastating ramifications of a conviction on Z’s life. 

41.  Mr. Bryan would (or ought to) have known at the material time that Z was a refugee awaiting resettlement.  In such circumstance, a conviction for the indecent assault of a 14 year old minor is likely to have a serious impact on Z’s being accepted for resettlement anywhere in the world after serving his sentence of imprisonment.  Conviction for indecent assault would make it difficult, if not impossible, for Z to get on with his life in another country.  But Mr. Bryan apparently did not evaluate whether these grave consequences peculiar to Z’s circumstances merit the grant of legal aid, irrespective of how slim Z’s prospects of success may be. 

42.  Mr. Bryan did state that he considered “all the circumstances of the case”.  But what does that mean?  Just how did Mr. Bryan consider “all the circumstances”, especially the crucial circumstance of Z being a refugee awaiting resettlement elsewhere?  Such vague and unparticularised statement in Mr. Bryan’s affidavit is not enough to assure the Court that Mr. Bryan actually took into account the very serious consequences that conviction would likely have on Z’s status as refugee.  

43.  On this basis alone, in my judgment the Director’s refusal of legal aid should be quashed as unreasonable.  The refusal resulted from the apparent failure to take into account factors which ought to have been taken into account.

44.  Mr. McCoy submitted that McMahon J’s decision also rejecting legal aid “must validate the decision of the Director” however flawed that approach may have been.  I am unable to agree.

45.  McMahon J proceeded on the basis that Z’s appeal had merits.  McMahon J stated in the course of hearing submissions:-

“Well, it seems to me that it would be wrong for me to decide whether or not the merits warrant legal aid. That would be pre-judging the case, and I am not going to do that. It seems to me that in these circumstances, much the same as in a murder case, the question is whether the case is so complex that it is beyond the ability of the appellant to represent himself. That seems to be the issue to me: whether there is something in the nature of the case that means that he should, in all fairness, be given legal aid.”

46.  In McMahon J’s view, given that it was being argued on appeal that the magistrate had convicted Z despite a lack of cogent evidence, Z must have had some prospect of success.  McMahon J said:-

“Well, there are always prima facie grounds in the sense that ... this is a rehearing. There is probably a lot of merit in the comment ‘I wish it was not,’ but it is. That’s the law. So the fundamental ground -- the evidence was insufficient -- is always, I suppose, something that is able to be presented as an argument of potential substance.”

47.  Having identified what he believed to be the real issue (namely, the complexity of the case), McMahon J went on to assess the complexity of Z’s appeal.  McMahon J continued:-

“But what I’m saying is the fact that a magistrate may have made an error of fact in his findings, or an error based on the misinterpretation of or misunderstanding of the evidence, or an error in his approach to the evidence by allowing inadmissible evidence in, or something of that nature, does that really help? In the old days, that would have required either a quashing of the conviction or a retrial. But these days ... the procedure is that this is a rehearing.

...

So it brings us back to a rehearing, and I just wonder if legal aid is necessary for a rehearing which appears to me to be a quite straightforward and simple matter of proceeding the case, particularly if all of the transcript is there.”

48.  McMahon J concluded that the appeal would not be of any degree of complexity.  He held:-

“All right. So that’s your case. Look, I’m not going to make an order for legal aid. This is a straightforward magistracy case. There is nothing complex about it. I certainly don’t want to pre-judge anything by saying there is any particular point of law or other matter of complexity, but it doesn’t seem to me, at this stage, that there is, and for that reason I think this matter can proceed and the appellant, if necessary, can represent himself ...

So I decline to make the order sought ...”

49.  It will be seen that McMahon J did not himself run through the Widgery Criteria.  He focused exclusively on one factor and one factor only: the complexity of the proposed appeal.  That is of course a factor.  But it cannot be treated as the only factor to take into account when considering the grant of legal aid. 

50.  Again it seems to me that, in light of Z’s precarious circumstances as a refugee, McMahon J had to take account of the serious impact a conviction for indecent assault would have on Z’s chances of resettlement and starting a new life.  That factor (I think) should have weighed heavily on McMahon J’s mind.  It should therefore have received at least some (but did not receive any) mention in the course of his determination.

51.  Consequently, in my view, McMahon J’s exercise of the discretion under Rules r.12(3) was likewise flawed.  His criterion of complexity was too narrow a basis on which to reach any valid conclusion.  His refusal of legal aid cannot be treated as validating the Director’s own problematic decision.

52.  I have so far assumed that Z’s appeal has little (if any) substance.  I am, however, far from convinced of the correctness of that as a working assumption.  Purely, as a matter of first impression and without in any way meaning to pre-judge Z’s appeal, I confess to having some difficulty with the magistrate’s reasoning.  However, this is not the occasion to consider the merits of the appeal to any great extent and I refrain from saying anything more on the matter.

53.  In summary, it seems to me that, the Director erred in coming to his decision in the manner that he did.  On the other hand, in refusing legal aid, McMahon J focused too narrowly on the complexity of the case, without considering other factors.  Such restricted approach cannot be treated as vindicating the Director in his decision.

54.  Before concluding this section, I wish to add an observation for avoidance of doubt in the future. 

55.  McMahon J assumed that Z’s appeal had merits. This was because he thought that any examination of the merits (however cursory) would be tantamount to “pre-judging” Z’s appeal. 

56.  But judges are routinely called upon to take preliminary views of the merits of criminal proceedings (for example, for the purpose of granting bail).  The merits of a case are obviously a factor (but by no means the only factor) that the Court must be entitled to take into account when considering whether or not to refuse legal aid.

57.  The mere fact that judges take preliminary views of the merits cannot amount to pre-judging the outcome of a case.  A preliminary view is nothing more than that.  The view is subject to change, especially after the hearing of fuller argument in the actual course of a trial or appeal.   

III. CONCLUSION

58.  For those reasons, the judicial review succeeded in relation to the Director’s (but not McMahon J’s) decision.  The Director’s refusal of legal aid was accordingly quashed. 

Hon Wright J:

59.  On 1 February 2011 I granted the Applicant’s application for leave to institute proceedings by way of judicial review against two decisions: one being a decision of 7 October 2010 of the Director of Legal Aid and the other being a decision of 21 October 2010 of McMahon J, both refusing the Applicant legal aid in respect of an appeal against his conviction by a magistrate of an offence of indecent assault.

60.  On 11 July 2011 we allowed the Applicant’s application in respect of the decision of the Director, refused that in respect of the decision of McMahon J and made consequential orders.  We indicated that we would deliver our reasons for our decisions, which we now both do.

61.  I have had the advantage of reading the reasons of Reyes J in draft.  I wish to add briefly to them.

THE DECISION OF MCMAHON J

62.  Mr. Dykes SC, who represented the Applicant, took the stance that the decision of McMahon J refusing to exercise the discretion conferred by r.12(3) of the Legal Aid in Criminal Cases Rules (set out at §10 above) was amenable to judicial review as it was an administrative, rather than a judicial, decision.

63.  Mr. McCoy SC, who appeared on behalf of the Director, submitted to the contrary.  It was necessary as a preliminary issue to determine the nature of the decision.

64.  Mr. McCoy placed reliance on the decision in HKSAR v. Wu Wai Fung [2003] 3 HKLRD 900 (CA), placing particular emphasis on §74 of the judgment.  That judgment dealt with the provisions of r.13 of the Legal Aid in Criminal Cases Rules (set out at §16 above) which relates to the provision of legal aid in offences of murder, treason or piracy with violence either for trial or, after conviction, on appeal.

65.  It was, however, pertinent to note that there are differences in the approach to be adopted by the Director when considering an application under the respective Rules and, consequently, the circumstances in which a court may come to supplant its discretion for the decision of the Director.

66.  Insofar as the granting of legal aid, pursuant to r.10, for appellants other than those in the categories of cases referred to in r.13, is concerned, the Director is required to consider “... all the circumstances of the case” as well as the financial resources of the appellant and “... shall not grant the application unless he is satisfied that legal aid is desirable in the interests of justice.”  If he refuses legal aid on the basis that the financial resources of the appellant person do not exceed a specified amount, his decision is final and may not be “disturbed” by the court under r.12(2).

67.  Conversely, r.13 provides that if the accused person’s or appellant’s financial resources do not exceed that specified amount the Director shall grant legal aid or an appeal aid certificate but that he may do so even if that person’s financial resources do exceed that specified amount.  There is no requirement that he be satisfied that it is desirable in the interests of justice that legal aid be granted.  The Director is required, by virtue of r.16, to levy a contribution by the person seeking legal aid in appropriate, prescribed circumstances.  Rule 13(2) empowers the courts to exempt a person from payment of such contribution.  It was this issue that was considered by the Court of Appeal in Wu Wai Fung.

68.  In Wu Wai Fung a contribution had been levied by the Director.  Immediately following that fact being notified to the Appellant, a substantial sum of money had been transferred out of the Appellant’s bank account.  He then expressed himself unable to meet the contribution.  The trial judge declined to exercise his discretion to waive the contribution.  Stuart Moore, V.P., giving the judgment of the Court said, at §70:

“Once these funds were removed by him from his account, and D1 was effectively left with no funds at all, the Director of Legal Aid would, in all probability, have considered that to remove the contribution order might be seen by others in similar circumstances as an encouragement to do the same. However, the discretionary power given to the judge to override that decision had to be looked at in a wholly different context.”

and at §74:

“Whether or not the Director of Legal Aid was justified, bearing in mind the interests of justice, in deciding as he did on this basis is beside the point. The Judge was not sitting on an appeal from the Director’s decision ... He had to exercise a quite separate jurisdiction as required under r. 13(2) of the legal aid in criminal cases rules. While, no doubt, the decision of the Director of Legal Aid was a factor to be considered, there were other cogent factors which the judge had to take into account in the exercise of his discretion under r. 13(2), not least a critical assessment of the accused’s right to a fair trial, particularly given the seriousness of the crime, the penalty for it and, from the layman’s perspective the procedural complexities of the case.” [Emphasis supplied]

69.  For my part I could not accept the interpretation placed upon this decision by Mr. McCoy that “... it underlines very clearly that the decision ... is a judicial decision as it impinges on whether there will be a fair trial or a fair appeal.”  This was particularly so in the light of the recognition by the Court that there exist a multiplicity of factors which the judge needs to take into account which appeared, also, at §66 where the Court said that:

“There are other factors, not least perhaps the public perception of the unfairness likely to result from a denial ... of unqualified legal aid ... which might be added to the list of considerations for the purposes of deciding whether a discretion should have been exercised in favour of D1.” [Emphasis supplied]

70.  There was nothing in this judgment which seemed to me to assist the Respondents.  That said, I shared the view that McMahon J’s decision was a judicial decision.  In my judgment it was a significant feature of r.12(3) and, insofar as it may be relevant, of r.13(2), that the discretion on whether to grant an accused or appellant legal aid without considering the Director’s refusal by way of appeal, has been afforded, in both instances, to “... a judge or, in the case of an appeal to the Court of Appeal, to the court or a judge thereof ...”.

71.  If a decision under either of these rules were susceptible to judicial review it would be possible, at least notionally, for a decision by a division of the Court of Appeal comprised of three judges to be subject to being reviewed judicially by judges of the Court of First Instance.

72.  The matter does not end there.  If a party were aggrieved by the decision given in those judicial review proceedings it then, at least notionally, would be open for that party to appeal the decision back to the Court of Appeal.  It seemed highly improbable that it could have been the intention of the legislature to create such a situation.

73.  It is not unknown for the decision of a judge sitting on appeal, but in an administrative capacity pursuant to specific powers in a given statute, to be amenable to judicial review: see R v. Master of the Rolls ex parte McKinnell [1993] 1 WLR 88 referred to by Mr. Dykes.

74.  Recognising that be so, I was unpersuaded that there was anything in the Legal Aid in Criminal Cases Rules which indicated that the legislature intended that the exercise of the discretion to award legal aid subsequent to the Director’s refusal to do so would be anything other than the exercise of a judicial discretion.

THE DECISION OF THE DIRECTOR

75.  It was not in contention that, as a matter of practice, the Director applies the “Widgery Criteria” (set out at §34 above) in considering whether to grant legal aid.  Mr. David Bryan, a senior and experienced Senior Legal Aid Counsel, considered the Applicant’s applications for legal aid.  The Applicant first applied for legal aid in March 2010 which was refused in June 2010.  He reapplied in September 2010 and the refusal of that application in October 2010 was the decision in contention.

76.  Mr. Bryan, in his affirmation, set out the Director’s approach to considering the granting of the legal aid in respect of appeals in these terms:

“8. ... the situation is different for appeals, particularly magistracy appeals, where section 113 Magistrates Ordinance, Cap 227 confers the right to appeal, and leave to appeal is not required. In such cases an assessment is made of the merits of the appeal, and any other matter that may be considered necessary to determine whether it is ‘desirable that the interests of justice’ to grant legal aid.

9. The main consideration in determining the merits of appeal is whether there is considered to be any arguable grounds of appeal that raises a realistic prospect of success (but this is not the sole determining factor) …

10. ... it is generally considered not in the interests of justice to grant legal aid to pursue an unmeritorious appeal, not least because of the effect on the proper administration of justice that unmeritorious appeals have on the appellate system in general, in terms of cost and delay, including hearing the appeals that may be meritorious.”

77.  In support of his assertion that prospects of success of appeal was not the sole consideration Mr. Bryan pointed out that:

“14. Legal aid is often granted we there is not considered to be any real prospect of success on established principles, for example, to persons suffering under an infirmity or disability, or to facilitate establishing precedent in the Higher Courts, or to enable the court to consider and establish sentencing guidelines.”

78.  In his first application the Applicant asserted that he was a “refugee” but did not disclose that he had been recognised as such by the UNHCR Hong Kong.  This only came to light in the application the refusal of which is now challenged.  In that application form the Applicant described himself as “a recognised refugee”.  Similarly, there was reference to the Applicant’s status as a “UNHCR-mandated refugee” in a letter dated 29 September 2010 delivered by the Applicant’s solicitors to the Director requesting a reconsideration of the refusal of legal aid: that letter also enclosed an opinion from counsel as to the Applicant’s prospects of success on appeal.  Neither the application form nor his solicitor’s letter invited attention to or highlighted the fact that the conviction against him would likely have a seriously adverse effect on his prospects of resettlement as now has been asserted.

79.  Both of the memoranda exhibited by Mr. Bryan, which set out his observations and recommendations on the applications made by the Applicant, focussed on the prospects of success of the appeal.  It was relevant in the present matter to consider both applications, even though the earlier decision has not been challenged, as the two decisions were inextricably interwoven.  There was no indication in either memorandum that consideration had been given to the Applicant’s status, the result of which would exacerbate the consequences which the conviction and sentence may have upon his future.

80.  This was a factor which fell foursquare within the first of the Widgery Criteria.  It was a material factor which ought to have been considered and which, in view of the Director’s policy of exceptionally granting legal aid even where there were not considered to be any real prospects of success on appeal, may well have resulted in the granting of legal aid.

81.  The fact that the Director used a standard form letter when notifying the applicant of the refusal of each of these applications which read, in part:

“... having considered all the circumstances of the case including the merits in the appeal, I am not satisfied that it is desirable in the interests of justice to grant you legal aid.”

was, in my view, insufficient to enable me to be satisfied that this important feature had been considered. For this reason, the decision of the Director fell to be quashed.

82.  I agree with the reasoning of Reyes J in which he rejects the submission by Mr. McCoy that the subsequent decision of McMahon J in some way validates the earlier decision of the Director.

83.  Further, I would disagree with any suggestion that the Director or a judge who is considering exercising his discretion as to whether to grant legal aid should disregard the merits of the appeal.  It seems to me, with respect, that this is a particularly important consideration: I would disagree respectfully with the obiter observation of McMahon J that, because a magistracy appeal is a rehearing on the material before the magistrate, “... there are always prima facie grounds ...” on appeal.

84.  A judge sitting alone on a magistracy appeal is entirely capable of taking a view for the purposes of deciding whether or not to exercise his discretion to order that legal aid be provided and then to hear the appeal itself: different standards and considerations apply.