陳紹鈞 對 高等法院司法常務官

CACV 209/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 209 OF 2014

(ON APPEAL FROM HCAL NO. 160 OF 2013)

________________________

________________________

________________

JUDGMENT

________________

Hon Lam VP (giving the Judgment of the Court):

1.  In this appeal, the appellant sought to challenge Au J’s decision on 15 October 2014. By that decision, the judge granted leave to the appellant to apply for judicial review but restricted him to grounds (1) to (3) set out in the Amended Form 86. The judicial review is sought in respect of the decision of a master in a legal aid appeal. The judge did not allow the appellant to rely on grounds (4) to (8). As set out in a letter dated 21 October, the judge rejected grounds (4) to (6) because they were not raised before the master. He rejected grounds (7) and (8) because they were not reasonably arguable under public law.

2.  Though the appellant appears in person and his application was made in Chinese, we handed down this judgment in English because it touches on a point of some general application. The clerk of Lam VP shall arrange an appointment with the appellant to have the judgment orally translated to him in Chinese.

3.  The first issue raised in this appeal is whether it is interlocutory or final in nature.  If it is interlocutory, leave is required under section 14AA of the High Court Ordinance.

4.  The appellant had not obtained leave to appeal.  He contended that the appeal is final in nature.  He relied on Order 59 Rule 21(1) (g) and Champion Concord Ltd v Lau Koon Foo (2011) 14 HKCFAR 837 in support of this contention.  According to Champion Concord Ltd v Lau Koon Foo, supra, matters coming within Order 59 Rule 21(1) are to be regarded as final in nature for the purpose of section 14AA.

5.  Rule 21(1)(g) refers to “an order under Order 53 rule 3 refusing to grant leave to apply for judicial review”.  Order 53 Rule 3 provides as follows:

“3. Grant of leave to apply for judicial review (O. 53, r. 3)

(1) No application for judicial review shall be made unless the leave of the Court has been obtained in accordance with this rule.

(2) An application for leave must be made ex parte by filing in the Registry-

(a) a notice in Form No. 86 in Appendix A containing a statement of-

(i) the name and description of the applicant;

(ii) the name and description of the respondent;

(iii) the relief sought and the grounds on which it is sought;

(iv) the name and description of all interested parties (if any) known to the applicant;

(v) the name and address of the applicant's solicitors (if any); and

(vi) if no solicitor acts for the applicant, the applicant’s address for service; and

(b) an affidavit verifying the facts relied on.

(3) The judge may determine the application for leave without a hearing, unless a hearing is requested in the notice of application, and need not sit in open court; and in any case the Registrar shall serve a copy of the judge's order on the applicant.

(4) Where an application for leave is refused by a judge or is granted on terms, the applicant may appeal against the judge's order to the Court of Appeal within 14 days after such order.

(6) Without prejudice to its powers conferred by Order 20, rule 8, the Court hearing an application for leave may allow the applicant's statement to be amended, whether by specifying different or additional grounds or relief or otherwise, on such terms, if any, as the Court thinks fit.

(7) The Court shall not grant leave unless it considers that the applicant has a sufficient interest in the matter to which the application relates.

(8) Where leave is sought to apply for an order of certiorari to remove for the purpose of its being quashed any judgment, order, conviction or other proceeding which is subject to appeal and a time is limited for the bringing of the appeal, the Court may adjourn the application for leave until the appeal is determined or the time for appealing has expired.

(9) If the Court grants leave it may impose such terms as to costs and as to giving security as it thinks fit.

(10) Where leave to apply for judicial review is granted, then-

(a) if the relief sought is an order of prohibition or certiorari and the Court so directs, the grant shall operate as a stay of the proceedings to which the application relates until the determination of the application or until the Court otherwise orders;

(b)     if any other relief is sought, the Court may at any time grant in the proceedings such interim relief as could be granted in an action begun by writ.”

6.  There is no doubt that a refusal of leave comes within Rule 21(1)(g).  How about the grant of leave on some grounds and the rejection of other grounds? In Clarence Chan v Commissioner of Police (2010) 13 HKCFAR 462 at [2], Bokhary PJ said:

“…An applicant who has been granted leave to apply for judicial review on one or more but not all of the grounds that he puts forward may appeal by treating such grant as a refusal.”

7.  In light of that authority, we accept that the present appeal is final in nature and leave is not required.

8.  Turning to the substantive merit of this appeal, it has to be firmly stated under the Legal Aid Ordinance, the legal aid scheme is administered by the Director of Legal Aid.  Though there is an avenue of appeal to a master, that appeal is administrative in nature.  In a judicial review of the decision of a master in a legal aid appeal, as in the case of a judicial review of other administrative decision, the court is not sitting as a further tier of appeal.  The court’s function is confined to review the legality, rationality and fairness of the process.

9.  It is therefore quite futile for the appellant to canvass in his written materials at great length the merit of his claims against the putative defendant in the intended legal proceedings for which legal aid is sought by him.  In our view, Au J was undoubtedly correct in holding that grounds not canvassed before the master could not be relied upon in this judicial review.  In the context of a case like the present one where an appellant had submitted a large pile of documents without any focused and concise written summary of grounds he relied upon at the hearing of the legal aid appeal, we agree with the approach of the judge that one must refer back to the arguments advanced at the oral hearing.  It is simply a question of common sense in case management and it has nothing to do with whether the hearing before the master was a hearing de novo.

10.  Further, as observed by Chu J (as she then was) in Ng Ai Kheng v Master M Yuen HCAL 46 of 2003, 8 March 2004 at [49] it is inappropriate for the court in the judicial review to delve in depth into the merits of the underlying claim.  Thus, without going much into the details, it suffices for us to say, bearing in mind that at this stage the relevant test is reasonable (as opposed to fanciful) chance of success, most of matters relied upon by the appellant can be canvassed under those grounds which the judge had permitted him to advance.  We do not think the reference to the Hong Kong Bill of Rights or the Guidelines in handling child abuse cases issued by the Social Welfare Department add anything of substance to the challenge to the refusal to grant legal aid.  

11.  Ground (7) referred to the observations of the master at the hearing on the lack of co-operation on the part of the appellant in the conduct of the matter by the Social Welfare officer.  We have read the relevant part of the transcript cited by the appellant.  We agree with the judge that the appellant could not raise any reasonably arguable ground for challenging the master’s decision in that respect.  The remarks of the master did not indicate that he had misunderstood the appellant’s case.  Nor did he take irrelevant consideration into account.   

12.  Under ground (8), the appellant relied on P, C and S v the United Kingdom [2002] ECHR 604.  It is not necessary for us to discuss that case in this judgment.  We see no reason why the appellant cannot refer to that authority in support of his grounds (1) to (3).  However, it cannot give rise to an independent ground for challenge.

13.  As for the substance of ground (8), we have considered the comments of the master at the hearing by reference to the part of the transcript cited by the appellant.  We do not think it adds anything to the case.  There is nothing there to suggest that the master had construed s10(3) of the Legal Aid Ordinance incorrectly.   

14.  For these reasons, we do not have any reason to interfere with Au J’s decision.  The appeal is dismissed accordingly.

15.  On 8 December, Ms Wu on behalf of the Director of Legal Aid lodged supplemental submissions arguing that we should revoke the leave granted by Au J. She contended that we should follow the approach of the Appeal Committee of the Court of Final Appeal in two decisions to treat the question of leave at large and it is open to this court to refuse leave altogether: Cathay Pacific Airways Ltd v Wong Sau Lai (2006) 9 HKCFAR 45 at para 5; Wing Ming Garment Factory v The Incorporated Owners of Wing Ming Industrial Centre FAMV 40/2009, 16 Sept 2009. She advanced these submissions notwithstanding that the Director had not filed any respondent’s notice in this appeal seeking the revocation of the leave granted by Au J.

16.  Though the applicant managed to respond to the supplemental submissions of Ms Wu within the time available, we are not prepared to decide on the jurisdictional question as to whether we should adopt the same approach as the Appeal Committee. The decisions of the Appeal Committee was made in the context of the lack of avenue of appeal against the Court of Appeal’s imposition of conditions for leave to appeal and the applications to the Appeal Committee for leave had to be treated as a renewed application for leave under s24(3) of the Hong Kong Court of Final Appeal Ordinance. Thus, it is readily understandable that the Appeal Committee may either grant leave or refuse leave altogether on the renewed application.

17.  On the other hand, in respect of a decision of the Court of First Instance in granting of leave on terms for judicial review, Order 53 Rule  3 (4) provides for appeal to this court. There is procedure for the filing of respondent notice and, as we said, no respondent notice has been filed by the Director. The analysis of the Appeal Committee may not be apposite in such circumstances. Since the applicant is acting in person and for the reasons given below it is not necessary for us to determine this point, we prefer to leave it open.

18.  Having considered the submissions of the parties on grounds (1) to (3), we are in any event not minded to revoke the leave granted by Au J. Though we have canvassed with the applicant some difficulties in his intended claims against the Social Welfare Department, we have to bear in mind that it is not the function of this court (or indeed the court below) in an application for judicial review to take the place of the Director (and the master) in deciding whether legal aid should be granted. The fact remains that the Director’s reasons for refusal to grant legal aid (adopted by the master) apparently did not quite address the concerns raised by the applicant against the Department of Social Welfare in handling his case.

19.  Having said so, we would not pre-empt the possibility of the judge hearing the substantive judicial review application to come to the conclusion that the ultimate outcome on legal aid would be inevitable and decline relief on that basis. That is a matter for the judge and the Director has to face a high threshold if he is minded to so argue.

20.  For these reasons, we dismiss the appeal. As for costs, in view of the unsuccessful attempt by Ms Wu to persuade us to revoke the leave granted by Au J, though the applicant is unsuccessful in the appeal, we would make a costs order nisi that the costs of the appeal be in the cause of the substantive judicial review application.

21.  Before we leave this matter, we wish to invite the applicant and the Director to explore whether it is possible to resolve the case in a more efficient and cost-effective manner. We note there is power on the part of the Director to reconsider a decision on legal aid (as in the case of a person applying for legal aid for a second time). Bearing in mind what we said above on the reasons given by the Director, the underlying objectives in Order 1A rule 1 and the duties of parties under rule 3, we see no reason why the Director cannot take the initiative (perhaps with co-operation from the applicant) to restart the reconsideration process. This may be a more satisfactory way to deal with the matter than spending costs and time on the substantive judicial review application.