OMAR JORA SISI v. DEPUTY REGISTRAR, HIGH COURT (MASTER ROY YU)

HCAL 1739/2025

[2025] HKCFI 3771

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1739 OF 2025

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D E C I S I O N

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A.  Introduction

1.  By her Form 86 dated 6 August 2025, the Applicant seeks leave to apply for judicial review so as to challenge the decision dated 28 February 2025 (“Decision”) made by the Deputy Registrar of the High Court (Master Roy Yu) (“Registrar”), dismissing her legal aid appeal from the prior decision of the Director of Legal Aid not to grant her legal aid.

2.  By way of relief, the Applicant seeks:

(1)  An order of certiorari to quash or set aside the Decision, on the basis that there were public law errors because it bypassed the principle of audo alteram partem that led to (i) the first unjust outcome that denied her and others’ rights, and (ii) the second unjust outcome that supported the violation of section 45 of Co-operative Societies Ordinance Cap 33 (“CSO”).

(2)  A declaratory order to declare that the Applicant is entitled to legal aid.

3.  In her application, the Applicant also recognised that she would need an extension of time for bringing the application.

4.  I gave directions for the requested oral hearing of the application for leave to apply for judicial review, and permitted the Director of Legal Aid (“DLA”) as the Putative Interested Party in the case to make an initial response and to attend the hearing.

5.  At the oral hearing, the Applicant appeared in person and Ms Priscilla Sung, Government Counsel, appeared for the DLA. As would be expected, the Registrar did not appear and was not represented. At the end of the hearing, I reserved my decision to be handed down later.

6.  This is my Decision.

B.  Applicable Principles

B.1  Leave for Judicial Review and Extensions of Time

7.  Before dealing with the material background, it is helpful to set out the relevant applicable principles, and the potentially relevant provisions of the CSO.

8.  As to the grant of leave to apply for judicial review, it is incumbent on an applicant for leave to identify reasonably arguable public law grounds of review with a realistic prospect of success.

9.  Applications for leave to apply for judicial review should be made promptly, and in any event within three months. As to whether or not to grant an extension of time for the application for leave to apply for judicial review, it is settled that the Court will take into account all relevant circumstances, including (1) the length of the delay, (2) the explanation offered for that delay, (3) the merits of the application, and (4) potential prejudice in the grant or refusal of the extension of time.

B.2  Judicial Review of Legal Aid Decisions

10.  It is well-settled that there are different tests to be applied between (1) when the DLA/Registrar is considering an application/appeal for legal aid, and (2) when the Court is considering an application for judicial review of a decision refusing to grant legal aid.

11.  The starting point is that, under section 10(3) of the Legal Aid Ordinance Cap 91 (“LAO”), a person shall not be granted a legal aid certificate in connection with any proceedings unless he or she shows reasonable grounds for taking, defending, opposing or continuing such proceedings.

12.  A legal aid appeal to the Registrar is in the nature of a de novo hearing. It does not take the form of a review of the decision of the DLA, and the question is not whether the DLA made a decision which was reasonably open to be made on the materials. The Registrar is deciding whether, in his own view on the materials before him, legal aid should be granted. Therefore, when hearing an appeal against the decision of the DLA refusing to grant legal aid, the Registrar should adopt the same approach.

13.  But the question to be answered by the Court when considering an application for leave to apply for judicial review of the Registrar’s decision dismissing a legal aid appeal is a different one. The Court does not sit as a further tier of appeal, and does not re-examine the Registrar’s decision afresh, or consider whether it would have granted legal aid to the applicant. The Court’s function is confined to a review of the legality, rationality and fairness of the process of the legal aid appeal, so as to determine whether the intended application for judicial review is reasonably arguable and has a realistic prospect of success.

14.  It can also be pointed out that the Court exercising its judicial review jurisdiction does not grant legal aid certificates.

B.3  The CSO

15.  The following provisions of the CSO may be material for present purposes.

16.  In the interpretations section 2, “member” is defined to include a person or registered society joining in the application for the registration of a society, and the person or registered society admitted to membership after registration in accordance with the by-laws.

17.  Section 16 provides as follows:

16. Shares or interest not liable to attachment or sale

Subject to the provisions of section 15 [not relevant for present purposes], the share or interest of a member in the capital of a registered society shall not be liable to attachment or sale under any decree or order of a court in respect of any debt or liability incurred by such member, and neither his assignee in insolvency nor a receiver duly appointed shall be entitled to, or have any claim on, such share or interest.

18.  Section 17 provides as follows:

17. Transfer of interest on death of member

(1) On the death of a member, a registered society may transfer the share of interest of the deceased member to the person nominated in accordance with the rules made in this behalf, or, if there is no person so nominated, to such persons as may appear to the committee to be the heir or legal representative of the deceased member, or may pay to such nominee, heir or legal representative, as the case may be, a sum representing the value of such member’s share or interest, as ascertained in accordance with the rules or by-laws:

Provided that –

(a) in the case of a society with unlimited liability such nominee, heir or legal representative, as the case may be, may require payment by the society of the value of the share or interest of the deceased member ascertained as aforesaid;

(b) in the case of a society with limited liability, the society may transfer the share or interest of the deceased member to such nominee, heir or legal representative, as the case may be, being qualified in accordance with the rules and by-laws for membership of the society, or on his application within six months of the death of the deceased member to any person specified in the application who is so qualified.

(2) A registered society shall pay all other moneys due to the deceased member from the society to such nominee, heir or legal representative, as the case may be.

(3) All transfers and payments made by a registered society in accordance with the provisions of this section shall be valid and effectual against any demand made upon the society by any other person.

19.  Section 21 provides as follows:

21. Qualification for membership

In order to be qualified for membership of a co-operative society a person, other than a registered society, must –

(a) have attained the age of 18 years;

(b) be resident within or in occupation of land within the society’s area of operations as described by the by-laws.

20.  Part VII ‘Dissolution’ contains sections 38 to 46, which provide as follows:

38. Dissolution

(1) If the Registrar, after holding an inquiry or making an inspection under section 37 or on receipt of an application made by three-fourths of the members of a registered society, is of opinion that the society ought to be dissolved, he may make an order for the cancellation of the registration of the society.

(2) Any member of a registered society may, within two months from the date of an order under subsection (1), appeal from such order the Chief Executive.

(3) Where no appeal is presented within two months from the making of an order cancelling the registration of a society, the order shall take effect on the expiry of that period. Where an appeal is presented within two months, the order shall not take effect until it is confirmed.

(4) Where the Registrar makes an order for the cancellation of the registration of a society under subsection (1) he may make such further order as he may think fit for the custody of the books and documents and the protection of the assets of the society until the order cancelling registration takes effect.

(5) No registered society shall be wound up save by an order of the Registrar.

39. Cancellation of registration for lack of membership

The Registrar may, by order in writing, cancel the registration of any registered society other than a society which includes among its members one or more registered societies, if at any time it is proved to his satisfaction that the number of the members has been reduced to less than ten. Every such order shall take effect from the date thereof.

40. Effect of cancellation of registration

Where the registration of a society is cancelled by an order under section 38 or 39 the society shall cease to exist as a corporate body from the date on which the order takes effect, hereinafter referred to as the date of dissolution:

Provided that any privileges conferred on the society by or under sections 14, 15, 16 and 17 shall be deemed to be vested in any liquidator appointed for that society by the Registrar.

41. Liquidation after cancellation of registration of society

Where the registration of a society is cancelled under section 38 or 39 the Registrar may appoint one or more persons to be, subject to his direction and control, the liquidator or liquidators of the society.

42. Liquidator’s power

(1) A liquidator appointed under section 41 shall, subject to the guidance and control of the Registrar and to any limitations imposed by the Registrar by order under section 43, have power to –

(a) determine from time to time the contribution to be made by members and past members or by the estates of deceased members of the society to its assets;

(b) appoint a day by notice before which creditors whose claims are not already recorded in the books of the society shall state their claims for admission or to be excluded from any distribution made before they have proved them;

(c) decide any question of priority which arises between creditors;

(d) refer disputes to arbitration and institute and defend suits and other legal proceedings on behalf of the society by his name or office;

(e) decide by what persons and in what proportions the costs of liquidation are to be borne;

(f) give such directions in regard to the collection and distribution of assets as may be necessary in the course of winding up the society;

(g) compromise any claim by or against the society provided the sanction of the Registrar has first been obtained;

(h) call such general meetings of members as may be necessary for the proper conduct of the liquidation;

(i) take possession of the books, documents and assets of the society;

(j) sell the property of the society;

(k) carry on the business of the society so far as may be necessary for winding it up beneficially:

Provided that nothing herein contained shall entitle the liquidator of a credit society to issue any loan; and

(l) arrange for the distribution of the assets of the society in a convenient manner when a scheme of distribution has been approved by the Registrar.

(2) Subject to such rules as may be made in this behalf, any liquidator appointed under this Ordinance shall in so far as such powers are necessary for carrying out the purposes of this section, have power to summon and enforce the attendance of parties and witnesses and to compel the production of documents by the same means and (so far as may be) in the manner as is provided in the case of a magistrate.

43. Power of Registrar to control liquidation

A liquidator shall exercise his powers subject to the control and revision of the Registrar, who may –

(a) rescind or vary any order made by a liquidator and made whatever new order is required;

(b) remove a liquidator from office;

(c) call for all books, documents and assets of the society;

(d) by order in writing limit the powers of a liquidator under section 42;

(e) require accounts to be rendered to him by the liquidator;

(f) procure the auditing of the liquidator’s accounts and authorize the distribution of the assets of the society;

(g) make an order for the remuneration of the liquidator; or

(h) refer any subject of dispute between a liquidator and any third party to arbitration if that party shall have consented in writing to be bound by the decision of the arbitrator.

44. Enforcement of order

(1) The decision of an arbitrator on any matter referred to him under section 43 shall be binding upon the parties, and shall be enforceable in like manner as an order made by the Registrar under that section.

(2) An order made by a liquidator or by the Registrar under section 42 or 43 shall be enforced by any civil court having jurisdiction over the place where the registered office of the society is situate in like manner as a decree of that court.

45. Limitation of the jurisdiction of the civil court

Save in so far as is hereinbefore expressly provided, no civil court shall have any jurisdiction in respect of any matter concerned with the dissolution of a registered society under this Ordinance.

46. Closure of liquidation

(1) In the liquidation of a society whose registration has been cancelled, the funds, including the reserve fund, shall be applied first to the costs of liquidation, then to the discharge of the liabilities of the society, then to the payment of the share capital and then, provided the by-laws of the society permit, to the payment of a dividend at a rate not exceeding ten per cent per annum for any period for which no disposal of profits was made.

(2) When the liquidation of a society has been closed and any creditor of that society has not claimed or received what is due to him under the scheme of distribution, notice of the closing of the liquidation shall be published in the Gazette; and, all claims against the funds of the society liquidated shall be proscribed when two years have elapsed from the date of publication of the Gazette notice.

(3) Any surplus remaining after the application pf the funds to the purposes specified in subsection (1) and the payment of any claims for which an action is instituted under subsection (2) shall be available for use by the Registrar for any co-operative purpose at his discretion.

21.  Particular reliance has been placed by the Applicant on section 45. Reference can also be made to sections 42(1)(l) and 43(f), relating to the distribution of the assets of the society in a convenient manner when a scheme of distribution has been approved by the Registrar. Indeed, it can be seen from the provisions as a whole that the cancellation, dissolution and liquidation process of any society such as the Society is intended to be under the exclusive control of the Registrar, including to the exclusion of the civil courts (save for the court enforcement of orders made by a liquidator or the Registrar).

C.  Material Background

C.1  The Cast

22.  The Applicant’s late father (“Father”) was a civil servant. The Applicant and her two siblings were born out of the modern Chinese marriage in 1954 between the Father and a Madam Wong.

23.  There is another person, Ms Jora Harmidar Omar (“JHO”), who claims that the Father and a Madam Harmidar Ng Yuk Omar (“Madam Ng”) celebrated an Islamic marriage on 19 April 1944, and that she was adopted by the Father and Madam Ng in 1960.

C.2  The Society and the Flat

24.  The Father was a registered member of the United Co-Operative Building Society Ltd (“Society”). As that member, the Father had the right to exclusive possession during his lifetime of the property at 3/F, 170 Sai Wan Ho Street, Hong Kong (“Flat”).

25.  It is important that, in law, ownership of the Flat was vested not in the Father but in the Society. Insofar as the Father had the right to exclusive possession of the Flat by way of an underlease, the Society was the lessor and the Father the lessee/tenant. The Father could not rent out the property, nor sell it.

C.3  The Nominations

26.  According to the relevant registered by-laws under the CSO, nominations may be made to pass on the membership to a “beneficial successor”, being a spouse or descendant of the Father and living with him at the time of his death.

27.  In this case, there were two nominations purporting to pass membership or possession of the Flat:

(1)  The first one was made by the Father in 1960 to nominate Madam Ng, and Madam Ng was reportedly registered as a member after the death of the Father in 1977.

(2)  The second one was made by Madam Ng in 1979 to nominate JHO (“1979 Nomination”).

28.  It may be relevant to note that the original of the 1979 Nomination has not surfaced. It is also apparently in the form of an appendix to a different society’s rules or by-laws.

29.  Anyway, the 1979 Nomination as used (see below) states Madam Ng’s wish that JHO be entitled on her death “to claim membership of the society and the underlease of the dwelling-house owned by the Society”, and for that purpose she nominated JHO as the beneficial successor in respect of her interest or share in the Society. However, it is the Applicant’s case that Madam Ng was not a “spouse”, and she had been nominated and then registered by mistake, so that she held membership and underlease on constructive trust, or reverting to the Father’s estate by resulting trust.

30.  The Father passed away in 1977. Madam Ng passed away in 1998. JHO emigrated to Vancouver, Canada in 1973, and was therefore apparently not living either with the Father or with Madam Ng at the time of their respective demise. The Applicant has remained in occupation of the Flat at all material times.

31.  It appears that the 1979 Nomination was effectively revoked on 21 January 1996. The revocation was as a result of a lease modification, to which Madam Ng had consented on 24 January 1996, and the Modification of Lease Approach (“MLA”) and Modification Letter, as to which see below. In giving her consent, Madam Ng confirmed that she would not attend the special general meeting of the Society to be held to discuss the proposal to seek dissolution and transfer of title to flats and land from the Society to the individual members, and that she had studied and understood the Important Notes to Members, Proposed Scheme of Distribution, the Letter of Modification, Conditions and Guidelines covering the proposed transfer of title.

32.  The MLA was jointly compiled by the Civil Service Bureau and the Lands Department. It provides guidelines for lease modification, essentially to move from the 75-year underlease to replacement assignments. The MLA provides, amongst other things, that consenting ex-members form an owners corporation within 12 months of dissolution. Then the owners corporation (and each of the non-consenting ex-members) enter into a variation agreement to vary the terms of the underlease/licence to the effect that, among other things, it shall not be determined more upon death, and the right of appointment of assignee (who must be an eligible civil servant) is restricted and that the duration of the underlease/licence be extended.

33.  As the Applicant argues, the 1979 Nomination cannot logically be used to claim a membership and underlease which had ceased to exist. But it relates in any event to a share, not to an address or a particular flat.

34.  The 1979 Nomination was also rejected by the Registrar of Co-operative Societies on 20 November 1998. In a letter of that date, the Registrar made, amongst others, the following points:

(1)  Under the terms of the Modification Letter, the Liquidator should assign the flat to a “Former Member” of the “Former Society”.

(2)  The definition of these terms are clear and unambiguous.

(3)  There is, however, no mention of assignment of the flat by the Liquidator to the beneficial successor.

(4)  A beneficial successor is a person appointed under the terms of the underlease with reference to the bylaws of the society to succeed to the underlease upon the occurrence of certain events. As the beneficial successor is not a “Former Member” of the “Former Society”, it appears that the Liquidator may not assign the flat to the beneficial successor.

(5)  Under normal circumstances, the successors of the deceased member may apply for Probate or Letters of Administration in respect of the estate of the deceased member.

(6)  The Liquidator may then consider assigning the flat to the executor or administrator of the estate accordingly.

(7)  In agreement with the Applicant, save for enforcement of an order made by a Liquidator or the Registrar of Co-operative Societies, no civil court shall have any jurisdiction in respect of any matter concerned with the dissolution of the registered society.

(8)  Since sections 42(1)(d) and 43(h) of the CSO provide for arbitration, any matter in dispute may be resolved by arbitration on condition that the dissenting party consents in writing to be bound by the decision of the arbitrator.

35.  In other words, if the named beneficial successor had not become a member of the Society – perhaps on the basis of ineligibility – then it is the successor of the deceased Former Member of the now Former Society who may apply to the Liquidator for assignment of the relevant flat, so long as that successor has a grant of probate or letters of administration, and subsequently pays the necessary premium to the Financial Secretary Inc. If a dispute arises between that person and the Liquidator, it may be referred to arbitration.

36.  There is also a letter dated 22 July 1998 from the Liquidator of the Society to the solicitors for JHO, who had apparently written in an attempt to use the 1979 Nomination. The Liquidator wrote:

I refer to your letter dated the 21 July 1998.

With respect, I would like to draw your attention to s. 21 of the Co-operative Societies Ordinance (Cap. 33) and also to Clauses 2 and 4(3) of the By-Laws of the above Society. Copies of the extracts of the By-Laws of the said Society is enclosed herewith for your reference, the contents of which are self-explanatory.

In the circumstances, I reiterate my request for proof of residentship of your client in the captioned property.

37.  The provisions of section 21 of the CSO are set out by me below. It seems to me that such proof of ‘residentship’ (i.e. residence) could not have been provided, and so was not provided.

38.  The 1979 Nomination was, nevertheless, later used by JHO as the basis of her counterclaim in the Probate Action (see below).

C.4  Dissolution of the Society

39.  That correspondence in July 1998 appears to have been triggered by the then recently announced cancellation and dissolution of the Society.

40.  By Gazette Notice GM 1284 gazetted on 12 March 1998, the Registrar of Co-operative Societies notified that, in the exercise of the power conferred on the Registrar by section 38(1) of the CSO, the Registrar had ordered the cancellation of the registration of the Society.

41.  The Modification Letter was registered in the Land Registry on 24 September 1998.

42.  It would seem obvious that from that date of cancellation, no person could claim to be a member of the Society, though former members might have certain rights under the MLA or the Modification Letter.

43.  However, as the legal provisions which I have set out above identify, the dissolution and liquidations is intended to be under the control of the Registrar of Co-operative Societies (and not the Court). Any person seeking an assignment must seek it from the Liquidator, and any distribution must be approved and authorised by the Registrar. Any dispute between the Liquidator and another person can be referred by the Registrar for binding determination in arbitration (if that other person agrees to be bound by the result).

44.  On the particular circumstances of this case, the modified lease or any assignment of the Flat is not yet distributed. The ownership of the Flat remains as it has been throughout in the Society (now in liquidation).

45.  Notice of closing of the dissolution of the Society has not yet been published in the Gazette.

C.5  The Probate Proceedings

46.  The Applicant has sought the grant of letters of administration of the Father’s estate. The grant is needed to claim his right and interest (not an ownership interest). In 2010, the Applicant commenced probate proceedings HCAG 5447/2010, to ascertain the locus of persons related to the Father. The locus of the Applicant and her siblings (lineal descendants) is not the issue, as they are “descendants” under clause 2 of the Society’s bylaws. The relevant issue is/was as regards JHO, where the Applicant asserts that the adoption in 1960 was void ab initio.

47.  Following the Court’s direction on 15 March 2011, the Applicant started probate proceedings HCAP 19/2011 (“Probate Action”), for the purpose of giving JHO the opportunity to defend her adopted capacity, and resulting in HCAG 5447/2010 being put on hold.

48.  JHO denied the Applicant’s claim in the Probate Action. She disputed, amongst other things, the Applicant’s status to challenge the Islamic marriage and the adoption, and she asserted that she (JHO) was the sole successor and heir to Madam Ng’s estate, and also alleged that the Applicant and her siblings were born out of an extramarital affair between the Father and Madam Wong. JHO counterclaimed for revocation of the licence to the Applicant to occupy the Flat, delivery of vacant possession and mesne profits. JHO relied upon the 1979 Nomination, which was pleaded as being a valid will.

49.  In the Probate Action, a Joint Islamic Expert Report was filed on 16 July 2018, the contents of which apparently would defeat JHO’s only defence of a modern marriage.

50.  The Applicant was granted legal aid in 2014 for the purposes of the Probate Action. It seems that legal aid was granted in part because of Counsel’s advice dated 24 December 2013, given to the DLA. However, the legal aid certificate was discharged on 11 December 2019. The reasons for refusal dated 21 February 2020 (“Reasons for Refusal”) were based on Counsel’s advice dated 4 July 2019. The Applicant’s legal aid appeal against that refusal was dismissed on 14 August 2020 (“LAA Dismissal”).

51.  On 26 August 2022, upon the application of JHO with leave of the Court, Master J Wong granted an order striking out the Applicant’s pleadings in the Probate Action, and entered judgment on JHO’s counterclaim (“Master J Wong’s Decision”).

C.6  The Bankruptcy Proceedings

52.  Master J Wong’s Decision came about in the following circumstances.

53.  A bankruptcy order was made against the Applicant on 9 September 2019. The bankruptcy order was made on a creditor’s petition presented by JHO, and the petitioning debt was founded on an order for costs made long before against the Applicant in the Probate Action.

54.  Upon the order of Registrar Kwang dated 20 January 2020, the Official Receiver (“OR”) was appointed Trustee in Bankruptcy of the property of the Applicant. As the Probate Action involved a claim relating to the Applicant’s property, the cause of action became vested in the OR on the making of the bankruptcy order, by operation of section 58 of the Bankruptcy Ordinance Cap 6 (“BO”).

55.  The OR made two decisions about which the Applicant is aggrieved: (1) the OR refused to give consent or to assign the right of action for the Applicant to continue the Probate Action; and (2) the OR gave consent on 20 July 2021, under section 12(1) of the BO, for leave to be granted to JHO to apply to strike out the Applicant’s pleadings in the Probate Action and to proceed with the counterclaim. It can be noted that the second decision to give consent was made retrospectively, four weeks after JHO’s prior summons dated 21 June 2021.

56.  Once the Applicant’s pleadings in the Probate Action, including both the claim and the defence to counterclaim, had been struck out, it was almost inevitable that the counterclaim brought by JHO would in effect succeed by default. Hence, Master J Wong’s Decision, which ordered delivery up of vacant possession of the Flat and damages, i.e. mesne profits to be assessed.

57.  In passing, it can be pointed out that the underlying premise and effect of Master J Wong’s decision must be that JHO had the rights of an owner of the Flat or the person in exclusive possession, and could therefore grant a licence to the Applicant, and then revoke it, and to claim rent or mesne profits.

C.7  Au-Yeung J’s Decision

58.  The Applicant subsequently applied in the bankruptcy proceedings for reversal or modification of the decision of the OR refusing to consent to the Applicant’s continuation of the Probate Action. The application was heard and determined by Au-Yeung J.

59.  By her Decision dated 23 June 2023, Au-Yeung J dismissed the application (“Au-Yeung J’s Decision”). She did so on two bases:

(1)  The Applicant failed to establish locus standi to seek relief under section 83 of the BO. This is because a bankrupt cannot be regarded as a person aggrieved by an act or decision of the trustee in bankruptcy, unless she can show that she would be entitled to a surplus but for the trustee’s act or decision. The Applicant’s state is insolvent, and on the basis of the pleadings in the Probate Action, Reasons for Refusal and LAA Dismissal, the OR considered that the Applicant had failed to show that she would be entitled to succeed in the Probate Action and hence be entitled to a surplus but for the OR’s impugned decisions.

(2)  The impugned decisions were not perverse, wrong, unreasonable or absurd. This is because the OR’s view of the merits of the Probate Action was a reasonable conclusion in view of the materials then placed before the OR.

C.8  Further Legal Aid Applications

60.  The Applicant subsequently made applications for legal aid so as to be represented to challenge Master J Wong’s Decision and Au-Yeung J’s Decision. Both applications were refused.

61.  As to seeking legal aid to appeal against the Master J Wong Decision, the DLA’s reasons for refusal were:

(1)  An appeal against a Master’s order or judgment is dealt with by an actual rehearing before a judge.

(2)  Leaving aside the issue of expiry of time for lodging an appeal, the existence of the decisions made by the OR fundamentally militate against any prospect of success of an appeal.

(3)  The Master’s reasoning that the Applicant had no further locus in the Probate Action after adjudication of bankruptcy and statutory vesting of property is sound.

(4)  No element of fraud is seen either.

(5)  The Applicant’s intended grounds for an appeal do not have any substance and the appeal is unmeritorious.

62.  As to seeking legal aid to appeal against Au-Yeung J’s Decision, the DLA’s reasons for refusal were:

(1)  The Applicant’s discharge from bankruptcy as from 9 September 2023 had no effect on the functions of the trustee and the operation of the provisions of the BO. Nor was there reinvesting of property upon discharge.

(2)  The Judge’s approach to deciding the application was eminently consistent with the approach advocated by the Court of Appeal.

(3)  Au-Yeung J’s Decision, including its reasoning, cannot be faulted.

(4)  Besides, the Judge gave due regard to the Applicant’s argument – including as to the criticism against the assigned Counsel’s opinion.

(5)  While the decisions made by the OR are pivotal to the viability of appeal against Master J Wong’s Decision, it is clear that appeal against Au-Yeung J’s Decision is not, by this reason alone, rendered meritorious.

(6)  Not only has the time within which to appeal expired, the intended appeal has no reasonable prospect of success.

63.  The Applicant appealed both refusals, which were dealt with in legal aid appeals LAA 93 & 94/2024. Both appeals were dismissed by the Deputy Registrar (Master Thomas Kwong) on the basis that he agreed with the decision of and the reasons given by the DLA.

64.  The Applicant then repeated her applications. The application related to Master J Wong’s Decision also included an application for legal aid to challenge Master R So’s Ruling in the bankruptcy proceedings, granting leave to JHO to enforce the order made by Master J Wong’s Decision. Both applications were again refused.

65.  As to seeking legal aid to appeal against Master J Wong’s Decision and Master R So’s Ruling, the DLA’s reasons for refusal were:

(1)  The analysis of the DLA in his reasons for refusal advanced in LAA 93/2024 continue to apply to the case with equal force.

(2)  The Applicant’s bare allegations of fraud, lack of jurisdiction, abuse of process, etc, are far-fetched and unmeritorious.

(3)  There is nothing to indicate that the Applicant had lodged any appeal from Master R So’s Ruling, the time for which had long expired.

(4)  Nor were there any major mistakes in the reasoning.

(5)  Because there is no merit in the intended appeal against Master J Wong’s Decision, the suggestion that Master R So’s Ruling would be set aside following that appeal does not have any mileage.

(6)  The argument that the former OR cannot indefinitely be the trustee of the former bankrupt’s property was considered and correctly ruled against on this trite proposition that there is no reinvesting upon discharge of bankruptcy, so the right of action would not reinvest to the Applicant.

(7)  The argument that the Flat is not the Applicant’s property is a regurgitation of an argument raised before Master R So and considered at paragraph 15(c) of her ruling.

66.  As to seeking legal aid to appeal against Au-Yeung J’s Decision, the DLA’s reasons for refusal were:

(1)  Au-Yeung J’s Decision was made on 23 June 2023, 15 months before the present legal aid application, but there was no indication of service of any notice of appeal, or any explanation for the extended delay.

(2)  In any event, the grounds relied upon by the Applicant are devoid of merits.

(3)  There is no detection of any fraud leading to the Applicant’s right of action being vested with the OR.

(4)  Whether the Judge had knowledge of the cooperative building scheme has no bearing on the judge’s analysis, which cannot be faulted.

(5)  The argument that the decision was unlawful for violating the infringement of lineal descendants’ rights and section 45 of the CSO is irrelevant, as the crux of the decision related to the Applicant’s locus and whether the OR’s decisions were perverse, wrong, unreasonable or absurd.

(6)  The Applicant has not shown why the judge’s consideration of Counsel’s advice, or otherwise why the OR’s dim view on the merits of the Probate Action was not reasonable.

(7)  Nor can there be detected any element of fraud, cheating, abuse of process, conspiracy to defraud, or the Court being a victim of falsehood.

67.  The Applicant again appealed both refusals, which were dealt with in legal aid appeals LAA 923 & 924/2024.

68.  Both appeals were dismissed by the Registrar (Master Roy Yu), i.e. the Decision now impugned in these proceedings. I will return below to the reasoning behind the Decision.

C.9  Land Search Information

69.  A recent land search identifies that the named owner of the Flat remains the Society – and, therefore, the Flat is not owned by or the property of either the Applicant or JHO.

70.  The land search also identifies incumbrances of (1) an instrument dated 15 May 1998 appointing a Liquidator, and (2) an instrument dated 16 September 1998 being the Modification Letter.

D.  The Impugned Decision

71.  Because of the nature of the intended challenge, it is perhaps appropriate to give rather more detail about the Decision than would be necessary in some other cases.

72.  The Decision was explained by the Registrar in the following terms:

LAA923 & 924/2024

1. There are two Legal Aid Appeals before me and some issues are related. By LAA 924/2024, the Appellant (“A”) applies for Legal Aid to appeal against the decision of Master J Wong given in HCAP 19/2011 on 26 August 2022, and the decision of Master R So given in HCB 8127/2019 on 31 May 2024. LAA 923/2024 is another application for Legal Aid to appeal against the decision of Hon Au-Yeung J’s decision given in HCB 8127/2019 on 23 June 2023.

2. Following the directions set out in Nguyen Trong Son v DLA LAA 20/1999 and having thoroughly considered A’s case, her submission including the supplemental skeleton and documents she submitted after the hearing, I agree with the decisions and reasons given by the Director of Legal Aid (“DLA”) in refusing her application. Both Appeals are dismissed and I would add a few points.

3. This is the second application by A for Legal Aid to appeal against the decisions of Master J Wong and Hon Au-Yeung J. The background has been set out in the Reasons for Refusal in the earlier appeals being LAA 93/2024 & LAA 94/2024 and I do not repeat.

4. In gist, A is the applicant in HCAP 19/2011. In her Re-Amended Statement of Claim filed in the action and submitted after the hearing, she claims that she is the lawful and natural daughter of OMAR Abdool Kadar, deceased (:the Deceased”). She claim for the legal entitlement to the rights of exclusive possession and occupation of the property known as 3/F, 170 Sai Wan Ho Street, Hong Kong (“the Property”). The Deceased was a civil servant and a registered member of the United Co-Operative Building Society Ltd having the right to exclusive possession of the Property. According to the by-law of the Society, nominations may be made by the Deceased to pass the membership to a successor.

5. The Deceased has nominated in writing his wife, one Madam Harmidar Ng Yuk Omar (“Madam Ng”) to take up his membership. (Madam Ng is not the natural mother of A.) The membership has been passed to Madam Ng. And Madam Ng has nominated the defendant, who has been adopted by the Deceased and Madam Ng as their daughter, to be her successor to the membership. Madam Ng has also passed away.

6. It is A’s case that the first nomination by the Deceased is defective because the marriage is void and Madam Ng is not the wife or beneficial successor of the Deceased. She further seeks in the Re-Amended Statement of Claim a declaration that the marriage is invalid. And if his father and Madam Ng were not husband and wife, she claims in the Re-Amended Statement of Claim that the adoption of the defendant is invalid. She also pray for a declaration to that effect in her Re-Amended Statement of Claim.

7. A also claims that the Deceased has married Madam Wong Miu Mee Omar (“Madam Wong”) by Chinese modern marriage in 1954 and she is the natural daughter of the Deceased and Madam Wong. She also seeks a declaration in the Re-Amended Statement of Claim that she and her two siblings are legitimate and have entitlement to the estate of the Deceased.

8. That is disputed by the defendant in her defence, who also counterclaim against A for possession of the Property. The case has been ongoing for some time and there were costs order against A in favour of the defendant after certain interlocutory application which I do not go into details.

9. A was declared bankrupt in HCB 9127/2019 on 9 September 2019, upon the petition of the defendant. The right to suit in relation to the Property then vest with the Official Receiver and Trustee Office (“ORT”) by operation of law, as I would discuss further later. ORT has refused to assign the right of litigation in the said Action to A.

10. The defendant applies to strike out her Re-Amended Statement of Claim and her Re-Amended Reply and Defence to Counterclaim, and sought judgment on the Counterclaim of the defendant. It is correct that the application is initially taken out without leave of the Court, which is a procedure error. The hearing has been stayed until the defendant sought agreement from ORT to continue with the application. The agreement in the form of a consent summons has been approved by Court and the procedure error purged.

11. The application has been heard by Master J. Wong. I do not repeat the whole body of his written decision and sufficient for me to say that Master J Wong ruled against A on the grounds that, by operation of law, all her property passed to ORT after her bankruptcy. ORT confirmed that she had the intention to adopt the proceedings but she would not consent or assign the right of action to A. Master J Wong concludes that A has no locus to prosecute the action or to defend the counterclaim. Her Re-Amended Statement of Claim and Re-Amended Reply and Defence to Counterclaim are struck out, and judgment is granted to the defendant on the Counterclaim that A has to return possession of the Property to the defendant. A wish to appeal against this decision.

12. It cannot be disputed that A is a bankruptcy under HCB 8127/2016. It has been mentioned in the supplemental submission of A that the Bankruptcy Order was unlawful. It is sufficient to say that this appeal is not to deal with any application to appeal against the Bankruptcy Order and the allegation does not affect my ruling one way or the other. A has also referred to some previous Legal Aid Appeals in related issues and complains that the learned Masters were wrong or being misled in their decision. As these appeals has been dismissed and completed, I make no comment.

13. A is discharged from bankruptcy in 2023 pursuant to section 30A of the Bankruptcy Ordinance. But according to law, her property vested with ORT is still vested in ORT. That does not affect my consideration herein.

14. As A is a bankruptcy at the material time, it is important to consider section 12 of the Bankruptcy Ordinance. By Section 12, 58 and 62(b) of the Bankruptcy Ordinance, ORT takes charge of a bankrupt’s property. As far as rights of suit are concerned, it is ORT who determines whether a right of action vested in the bankrupt. I refer to a judgment of the Court of Appeal, Chung Kau v The Hong Kong Housing Authority and others CACV 122/2003, paragraph 6-8:-

“6. Initially, the position taken by the Defendants (as reflected in that part of the Notice of Motion seeking an order for the appeal to be dismissed) was that as the Plaintiff is now bankrupt (he was declared bankrupt on 5 May 2003) and as the Official Receiver has refused to support both his claim in the present action and the appeal, the appeal should be dismissed. This, it was originally contended, was by reason of sections 12, 58 and 61(b) of the Bankruptcy Ordinance, Cap. 6.

“7. The practical effect of these sections is that upon an adjudication of bankruptcy, the Official Receiver takes charge of a bankrupt’s property and as far as rights of suit are concerned, subject to one exception to which I shall return, it is the Official Receiver who determines whether or not a right of action vested in the bankrupt, should proceed. Rights of suit or action are choses in action thus coming within the definition of “property” in section 2 of the Bankruptcy Ordinance.

“8. The one exception is this. A bankrupt retains the right, without any interference from the Official Receiver as trustee in bankruptcy, to bring or continue any proceedings (including appeals) relating to claims which are personal to him: see Health v Tang [1993] I WLR 1421, at 1423. By “personal” are meant claims which relate to the bankrupt’s body, mind or character without immediate reference to his rights of property:- see Beckham v Drake (1849) 2 HL Cases 579, at 604; Wilson v United Counties Bank Limited [1920] AC 102, at 130; Health v Tang at 1423A-B. Thus, personal claims include claims for damages for personal injuries and defamation. The rationale here is that compensation awarded for personal injuries or defamation will represent, in monetary terms, that part of a person (for example, his limbs or the use of them) or his reputation that has been lost or harmed. These types of claim do not involve his property. And where a bankrupt seeks, for example, to appeal against an injunction against him to curtail a nuisance said to have been committed by him, he can do so: this would be a claim against him personally in contradiction to one that involved his property (such as, for example, an injunction to prevent a breach of contract).”

15. In the present case, the subject matter in dispute is the proprietary right to the Property, be that a licence, or assignment or share in the estate. It is a claim that involve her property, which, if she is correct that she has an interest in the Property, would vest with the ORT according to the law as explained by the Court of Appeal in the above judgment. The claim to the Property would not fall within the exception mentioned by the Court of Appeal.

16. The ORT has refused to vest the right to pursuit the case with A and she has no locus to pursuit the case. That is also the reason stated by Master J. Wong in his written reason when he strikes out the appellant’s Statement of Claim and her Reply and Defence to Counterclaim.

17. And I also adopt the reason given by DLA that the grounds of appeal suggested by A has no merit. Taking all these into consideration, there is no reasonable prospect of success in an appeal against Master J Wong and DLA is correct in refusing to grant Legal Aid.

18. I believe A is aware of her difficulty and she is not satisfied with the decision of ORT in refusing to assign her the right to suit, and consenting to the defendant to continue within the striking application. That leads to her application under section 83 of the Bankruptcy Ordinance, for an order that the discretion of the Official Receiver be revised. The application was refused by Hon Au Yeung J and A takes out the other application for Legal Aid to appeal against the decision, which is refused. That leads to the second Legal Aid Appeal, LAA 923/2024.

19. I have read the decision of Hon Au-Yeung J, and the written submission of A. However, I agree with the Reasons for Refusal of DLA and conclude that there is no reasonably arguable case against the decision of Hon Au-Yeung J’s decision which upheld the discretion exercised by ORT.

20. The legal principle relating to section 83 of the Bankruptcy Ordinance has been summarized by Hon Au-Yeung J in her decision, which cannot be faulted. The consideration of the Court whether to exercise the jurisdiction is that, A has to show that she would be entitled to a surplus in ORT’s hand but for ORT’s act or decision. And further, according to clear law, the jurisdiction under section 83 has to be cautiously exercised. The Court only interfere if it is shown that ORT’s act or discretion were perverse or clearly wrong.

21. This goes back to the merit of her claim. I am aware that A has been granted Legal Aid initially to pursuit her claim set out in the Statement of Claim. This has been withdrawn by DLA on 11 December 2019. And DLA has given a Reason for Refusal on 21 February 2020 when A appeals against the decision. A counsel opinion has been obtained. All these have been analysed and considered by Hon Au-Yeung J in assessing whether the decision of ORT should be revised.

22. The grounds suggested by A that Hon Au-Yeung J is wrong has been summarized by DLA in the Reason for Refusal given to me dated 13 January 2025. The reason for refusal of DLA is noted and I agree. I only add to paragraph 6(a) that the right of action vest with ORT by operation of law as above analysed.

23. Having considered the submissions of A, I am not persuaded that Hon Au-Yeung J is wrong is coming to her decision that it cannot be shown that the ORT’s decision is perverse or clearly wrong. Her Ladyship refuse to disturb the decision of ORT. I reminded myself of the principle of LAA 20/1999, as discussed above and I also adopted the reason of DLA, there is no reasonable prospect of success in the intended appeal and dismiss LAA 923/2024.

24. In LAA 924/2024, there is a second application for Legal Aid to appeal against a later decision by Master R. So given in HCB 8127/2016 granting leave to the defendant to enforce the judgment granted by Master J. Wong.

25. As I agree with DLA that there is no reasonable prospect of success in the intended appeal against Master J Wong’s decision, there is no reason why the Order of Master J Wong given in his decision cannot or should not be enforced.

26. The reason for objecting to the application for leave has been set out in paragraph 15 of the written decision of Master R. So. In fact, similar argument has been raised before me in this appeal. Master R. So has analysed her argument. I echo her analysis that the crux of the argument is that A is a bankrupt and her property vested with ORT. As ORT refuse to assign her the right to suit, that lead to the ruling of Master J Wong. Her other allegation cannot change this legal position. Master R. So’s decision cannot be faulted.

27. Further and in the alternative, these decisions have been made long ago. Except for the decision of Master R. So which A has taken out an appeal, which has been dismissed by the Court of First Instance on the ground and the decision should go to the Court of Appeal, no appeal has been taken out by A against the decision of Master J Wong and Hon Au-Yeung J. There is little prospect to bring a successful appeal out of time.

28. Hence as above mentioned, I dismiss LAA 924/2024.

73.  I can return to this below.

E.  Intended Grounds of Review

74.  The Form 86 refers to the Applicant’s affirmations for the identification of the grounds on which relief is sought. In my summary of the grounds there set out, the Applicant asserts:

(1)  The Registrar breached the principle of audi alteram partem, because the Applicant’s well-prepared submissions and 13 exhibits were wholly bypassed.

(2)  As a result, the Registrar appears to have proceeded on the basis that the factual and contextual matters explained by the Applicant were unknown to him.

(3)  Previous mistakes and falsehoods were simply copied, without proper analysis of where the case had previously gone wrong.

(4)  Proceeding on the basis that “the subject matter in dispute is the proprietary right to the property”, is incorrect and arises from adopting an incorrect submission. Indeed, the subject matters of both HCAG 5447/2010 and HCAP 19/2011 were locus or standing, not property.

(5)  The Flat is government owned property and unconnected to the bankruptcy order.

(6)  There was a failure to recognise the repeated violation of section 45 of the CSO.

(7)  If anyone really wants to obtain possession of the Flat, they should use letters of administration granted under the Father’s estate to claim the replacement assignment from the Liquidator under sections 42, 43 and 45 of the CSO.

(8)  Time bar is irrelevant in circumstances of a fraud.

75.  Described by the Applicant by reference to various allegations of “fraud”, the essence of her Grounds and submissions might be described as follows:

(1)  At all material times, the Flat has been under the ownership of the Society (now in liquidation).

(2)  That is still the case, even up to today.

(3)  Members of the Society had no direct property ownership, though they might be granted exclusive possession of a particular flat as underlessee/tenant.

(4)  Such rights of exclusive possession as were granted did not extend to the sale or renting out of the premises.

(5)  The Father’s nomination of Madam Ng to be his beneficial successor in the Society was ineffective as she was not in fact/law his spouse (as the Islamic marriage was invalid).

(6)  Similarly, Madam Ng’s alleged 1979 Nomination of JHO to be her beneficial successor in the Society was ineffective as JHO was not a lineal descendant of the Father, being only an “adopted” child of a couple who were not married, and JHO was in any event not resident as required.

(7)  The 1979 Nomination was anyway revoked in its effect, with the consent of Madam Ng, in 1996.

(8)  Thereafter, alternatively from 1998, there was no Society of which any person could claim to be or become a member, and no relevant underlease of flat premises of which to become underlessee.

(9)  The registration of the Society was cancelled in 1998, and the Society began to be dissolved.

(10)  In its dissolution, the Society (in liquidation) fell to be administered by the Liquidator, but subject to the overarching control of the liquidation by the Registrar of Cooperative Societies.

(11)  The process of liquidation has not yet ended

(12)  Under the MLA and Modification Letter, there might have been an assignment of the Flat, but no such assignment has as yet ever been effected to any person.

(13)  As a result, the pleaded basis of JHO’s counterclaim in the Probate Action was legally inappropriate.

(14)  Indeed, the use of the revoked 1979 Nomination had already been rejected by the Liquidator and Registrar as long ago as 1998, and JHO has never been recognized as a member of the Society.

(15)  The deployment of the 1979 Nomination in JHO’s counterclaim was in breach of the provisions of the CSO, which mandates the liquidation of the Society to be controlled by the Registrar – and in particular in breach of section 45, which limits the jurisdiction of the civil court only to matters of enforcing orders made by the liquidator or Registrar.

(16)  The OR acting as the Applicant’s trustee in bankruptcy failed to identify these facts, and so permitted the Applicant’s pleadings to be struck out and judgment to be entered on the JHO.

(17)  As the matter was dealt with without effective opposition, Master J Wong’s Decision made various orders and/or allowed judgment to be entered, when there was simply no legal basis for it – and in breach of the statutory limitation of the civil courts’ jurisdiction.

(18)  In the application made under section 83 of the BO, Au-Yeung J’s Decision also overlooked the underlying jurisdictional and merits problems.

(19)  Those fundamental errors and difficulties have simply been perpetuated through subsequent legal aid applications and legal aid appeals, culminating in the now impugned Decision of the Registrar.

(20)  At no stage in the various analyses have those required to conduct the analysis grappled with the fundamental underlying issue, notwithstanding the Applicant’s repeated explanations and submissions along the lines above.

76.  I take these points into account below.

F.  View of this Case

77.  On the surface, and adopting a conventional judicial review supervisory approach, it may be thought that the Applicant’s application has little merit:

(1)  From the Registrar’s decision and reasoning – which I have set out in full above – the Applicant was allowed the opportunity to make submissions, it is clear the Registrar did engage at least to some extent with those submissions made to him by the Applicant on the legal aid appeal.

(2)  There is no requirement that every submission need be expressly addressed in the reasons, so long as the main aspects are shown to have been addressed.

(3)  Merely because the Decision was adverse to the Applicant does not of itself identify any public law error.

(4)  The Registrar’s view that Au-Yeung J’s Decision was the result of a well-settled analytical route to consideration of an application under that particular section 83 of the BO is difficult to fault.

(5)  His view that Master J Wong’s Decision was the inevitable result of the effect of the bankruptcy order vesting the Probate Action claim in the OR, and of an application made to him by consent of the parties to the contest, is also difficult to fault.

(6)  His view that Master R So’s Ruling simply follows on from Master J Wong’s Decision is logically sound.

(7)  Taking into account the delay in any actual appeals is also not procedurally unfair.

78.  Hence, if looking only at the surface of the decisions the Applicant wishes to challenge with the benefit of legal aid, that does not show any obvious arguable public law error on the part of the Registrar.

79.  However, that first blush view leaves at least much more than just a nagging doubt that justice has not been served and that something important has been overlooked. I think it is important in this case to look well below the surface and to dig somewhat deeper.

80.  I have already pointed out that the underlying premise and effect of Master J Wong’s decision is that JHO had the rights of an owner of the Flat or to its exclusive possession, and could therefore have granted a licence to the Applicant, and then revoke it, and to claim rent or mesne profits.

81.  But it is patently clear that JHO was not, and still is not, the owner of the Flat, nor does it seem that any other rights have been established. Further, as a matter of fact, and not least because she was not in a position to have done so, JHO did not grant any licence to the Applicant to occupy the Flat. It is difficult, therefore, to see how JHO could have revoked that licence. In any event, even if JHO were properly to be regarded as the member of the Society with right of exclusive possession of the Flat, it is plain that those rights did not and do not include the right to rent out the Flat.

82.  I acknowledge that mesne profits can be seen as the damages for unlawful occupation or trespass, which does not necessarily depend upon ownership, and might arise upon a trespass over someone else’s exclusive possessory rights. But insofar as JHO relied upon the 1979 Nomination to establish any such rights, that was highly unlikely to have been effective absent the proceedings being dealt with by default, as in effect they were following the stance adopted by the OR.

83.  The judgment on the counterclaim is apparently based upon the pleaded 1979 Nomination, but it was not a valid will and it was effectively revoked decades ago. It relates to a membership and an underlease, which also ceased decades ago. It can also be pointed out that even if the 1979 Nomination had remained valid, the beneficial successor was supposed to have been both (a) a descendant of the member and (b) living with that member in the premises at the time of the member’s death. There is proper room for dispute on (a). At least as to (b), that is factually inapposite to this case, as was pointed out to JHO’s solicitors in 1998.

84.  Indeed, there is real force in the Applicant’s submission that JHO and those advising her must have known that the attempt to use the 1979 Nomination had simply failed in direct dealing with the Registrar and the Liquidator (the statutorily mandated approach). Essentially, JHO was not able to use the 1979 Nomination to take any interest in or any assignment of the Flat. Notwithstanding that, the document has been re-used as the basis of seeking a Court order and subsequent enforcement steps.

85.  Further still – and this is connected to the immediately preceding point – (1) the dissolution and liquidation process provided for under the CSO and the MLA and Modification Letter have been sidestepped, and (2) section 45 of the CSO is also clear in that it would prohibit the establishment of property rights over the Flat (or any modified lease or assignment) through the Court. The Registrar’s description of the subject matter in dispute in the case as being “the proprietary right to the Property [i.e. the Flat], be that a licence, or assignment or share in the estate” ought to have triggered the recognition that precisely those questions arising in the dissolution and liquidation of the Society strongly arguably fell to be decided by the Liquidator or Registrar, to the exclusion of the civil courts.

86.  It also seems to me that it is incorrect to assert that the Applicant had no prospect of success in the Probate Action (at least prior to the OR caving in). The Defendant to the action, i.e. JHO, had apparently failed to take any active steps in defence of the action for over 10 years, and the joint expert’s report identified that the only pleaded defence was, at the very least, unlikely to succeed. Similarly, as I have indicated, the counterclaim was based upon a document which had in effect been revoked as long ago as 1996, and recognised as of likely no effect as long ago as 1998.

87.  There is also the tension between (1) the recognition that the Applicant is not the owner of the Flat, because it is owned by the Society in liquidation, which is why the Flat could not fall into her estate in bankruptcy, and (2 any step in an action or enforcement proceedings based upon an underlying presumption that the JHO is the owner of the Flat or somehow entitled to its exclusive possession.

88.  I also think, with respect, that it is at least well arguable that the OR’s impugned decision was perverse, wrong, unreasonable or absurd.

89.  There is also a difference between acknowledging an argument and actually grappling with it or addressing it. For example, the Registrar noted that the Applicant’s reasons for objecting to leave to enforce Master J Wong’s Decision were set out in paragraph 15 of the written decision of Master R So, and that similar arguments had been raised before him in the legal aid appeal. The Registrar suggested that Master R So had analysed the argument, and he echoed the analysis that the crux of the argument is that the Applicant is a bankrupt and her property had vested with the OR, and as the OR refused to assign the right to suit back to the Applicant, that led to the Master J Wong’s Decision. The Registrar stated that the Applicant’s other allegation could not change this legal position.

90.  That may, as it stands, be right so far as it goes. But, with respect, that seems to me to overlook the real point being made by the Applicant. I do not think that real point, even if recorded as a submission made, was actually addressed by Master R So or later by the Registrar in the impugned Decision.

91.  The real point advanced by the Applicant was that circumstances had permitted JHO to obtain orders in the Probate Action, which were legally impossible and/or by use of a document which, even if it previously had had any legal effect, had long ago been revoked (and so had been deployed “fraudulently”). Added to this was the further point that for the Court to have proceeded on matters of dispute relating to the Flat was to have exercised a jurisdiction which was statutorily removed from it. The Applicant was submitting that irrespective of the procedural approach adopted by Master J Wong and by Au-Yeung J, in light of the OR’s stance, neither of them had grasped these fundamental underlying errors. Neither had the OR.

92.  With respect, I think that is firmly arguably correct. I have not been able to find any clear grappling with the Applicant’s underlying fundamental points, and certainly it has not been explained why those points are not correct, or at least insufficiently arguably so. Focus has been on the upper floors of the edifice, but the Applicant has been pointing to the faulty foundations.

93.  As can be seen from the above, I think those points are at least strongly arguably correct. There are at least strong grounds for thinking that the OR as trustee in bankruptcy and the Courts have been used to obtain something for which there was no proper legal basis, in proceedings for which there was no jurisdiction.

94.  I do not think that necessarily amounts to a claimed breach of the audi alterem partem principle. It is, of course, correct that finding against a party does not mean that that party’s arguments have not had the opportunity of being advanced and heard. But it does seem to me to identify that there was some procedural unfairness in failing to address the underlying errors which the Applicant sought to raise and/or that it was irrational to have concluded, without taking those matters properly into account, that legal aid should be refused.

95.  I acknowledge the point about the delay in the proposed appeals, for which the Applicant seeks legal aid assistance. The delay is by now significant, albeit perhaps less so against the chronology of the Probate Action and the liquidation of the Society. But, in any event, if there is real merit in the underlying fundamental points, those matters of delay may be of less relevance or weight. It seems to me that an appellate body would almost certainly be concerned to think that the Court’s process may have been used to achieve something for which the Court had no jurisdiction and/or for which there was no proper legal basis and/or as a result of the use of a document which had no legal effect. Even with a desire for finality, that is the kind of thing which most Courts would wish to unravel if at all possible.

96.  In the circumstances, I conclude that the Applicant has demonstrated reasonably arguable grounds of review with reasonable prospects of success.

G.  Extension of Time

97.  The delay in this case is approximately nine weeks from the end of the three-month period. This is not an insignificant delay, but the offered explanation is that the Applicant hoped to obtain support from the Legal Aid Department for bringing this application. Once it was clear to her that there would be further considerable delay before the legal aid application might be determined, the Applicant tried her best to prepare for these proceedings and to file it as soon as possible thereafter.

98.  I have, of course, taken into account the merits of the application, which I have traversed above. Further, if there is merit in the application then the Applicant will be prejudiced by not granting the extension of time. On the other hand, there is no substantial prejudice to the Registrar or to the DLA in the grant of the relevant extension.

99.  In those circumstances, and in the exercise of my discretion, I grant the extension of time sought by the Applicant for the commencement of these proceedings.

H.  Result

100.  I grant the application for leave to apply for judicial review.

101.  Though the matter was listed and argued on an oral application for leave only, I have addressed the matter at somewhat greater length in light of the volume of materials and the timing. It is also likely that the DLA would simply rely on the earlier reasons for refusal of legal aid and the Registrar’s overall approach, which I have canvassed anyway. Therefore, it seems to me that the parties can give consideration as to whether or not any substantive hearing is still required. It may be that it will be thought appropriate simply for the matter to be remitted to the Registrar for further consideration, with the benefit of the points made above. If so, I can be asked to make such an order by consent.

102.  Remitting the matter to the Registrar would be the appropriate remedy because, as already pointed out above, the Court exercising its supervisory judicial review jurisdiction does not grant legal aid certificates.

103.  If no agreement can be reached, I will fix the substantive hearing.

104.  I make no order as to costs.