CHANDRU THANWARDAS MIRCHANDANI v. ATTORNEY GENERAL

IN THE COURT OF APPEAL

1992, No. 140
(Civil)

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J U D G M E N T

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Fuad, V.-P.:

1. This is the adjourned hearing of an appeal which first came before this court on 9th December 1992. Mr. Chandru Thanwardas Mirchandani appeals against the order of Rhind J. dated August 1992 whereby he rejected his application for leave to apply for judicial review of a decision made by the Director of Legal Aid on 16th July 1992 refusing to grant him an appeal aid certificate in connection with an application for leave to appeal which is pending before this court. As he was entitled to do under RSC O.53, r.3(3), Rhind J. determined the application for leave without a hearing. Mr. Mirchandani has an appeal to this court as of right under O.53, r.3(4).

2. The background to, and the history of, his attempts to obtain an appeal aid certificate are fully set out on pp. 1-9 of my judgment in R. v. Chandru Thanwardas Mirchandani, Criminal Appeal No. 350 of 1990, handed down on 28th July 1992 (unreported).

3. As we have understood the nature of Mr. Mirchandani's application before Rhind J., it was to challenge the exercise of the discretion given to the Director of Legal Aid by rule 15(2) of the Legal Aid in Criminal Cases Rules, amended as from 1st July 1992, by the Legal Aid in Criminal Cases (Amendment) Rules 1992. Rule 15, in its present form, is as follows:

"15(1) Subject to paragraph (2) the Director shall assess the financial resources of each applicant for legal aid in accordance with the Legal Aid (Assessment of Resources and Contributions) Regulations as if the applicant were a person applying for legal aid under the Legal Aid Ordinance, and those regulations shall apply accordingly.

(2) The Director may, if he is satisfied that it is desirable in the interests of justice, grant a legal aid certificate or an appeal aid certificate to an applicant notwithstanding that on an assessment under paragraph (1) he determines that the applicant's financial resources, in the case of legal aid to which section 5 of the Legal Aid Ordinance (Cap. 91) applies, exceed the amount specified in that section."

4. The refusal by the Director of Legal Aid to grant Mr. Mirchandani's latest application for legal aid was communicated to him by a notice dated 16th July 1992 in these terms:

"1. Chandra Thanwardas Mirchandani of Lai Chi Kok Reception Centre, the appellant in the above proceedings re-applied for legal aid.

2. Having considered the merits of the case and the financial resources of the said applicant I have refused him legal aid on the means test.

3. I am not satisfied that the financial resources of the applicant do not exceed the relevant amounts set out in section 5 of the Legal Aid Ordinance as applied by rule

4."

5. About this notice, I said this in my judgment dated 28th July 1992, at p.9:

"It is clear from the wording employed that the Director took into account the new basis for the determination of eligibility for assistance ("financial resources" are mentioned instead of "disposable resources"). There is however, no indication as to whether or not the Director exercised the new discretion given by rule 15(2) in the latest refusal."

6. I then added:

"Mr. Philip Dykes, who appears before us instructed by the Crown Solicitor, has submitted that this discretion cannot be exercised in favour of an applicant unless the Director has been given sufficient information so that he can be satisfied as to the actual extent of the applicant's financial resources. I do not wish to be taken as necessarily accepting that construction of paragraph (2) of Rule 15 in reaching my conclusions on the matter before us. A concluded opinion on the true meaning and effect of that paragraph is not in my view necessary since we are not sitting on appeal from the Director's decision, nor are we examining that decision in properly constituted judicial review proceedings."

7. Sears J., who was a member of the court on 28th July 1992 began his short concurring judgment with the following observation:

"I agree with the conclusion which the Vice-President has reached. I also share his opinion that a true construction of the new rule 15(2) is not necessarily that as submitted by Mr. Dykes."

8. We adjourned the hearing of this appeal on 9th December 1992 for the following reasons:

"Since Mr. Mirchandani is unrepresented and it is not possible on the material before us to tell whether or not there was an arguable case, we consider that justice requires that we exercise the discretion of the judge of the High Court (see para. 53/1 - 14/29, p.857 of the Supreme Court Practice, 1992) in such circumstances. We make the following order: that the appeal be adjourned to a date to be fixed and in the meantime, notice be given to the putative respondent in this case with an invitation from this court to attend the adjourned hearing of the appeal and make representations on the question whether or not leave should have been granted."

9. Our invitation has been accepted and Mr. S.H. Kwok, Senior Crown Counsel, has appeared before us to make representations on behalf of the putative respondent. An affirmation, made on 27th January 1993 by the Assistant Director of the Legal Aid Department who made the decision Mr. Mirchandani seeks to challenge, is before us. She gives a full account of the matter. For the purposes of the present appeal it is, I think, only necessary to refer to two paragraphs of the affirmation:

"5. At the time the application was considered by me, I was fully aware of the legislative changes to the statutory criminal legal aid scheme which came into operation on 1 July 1992. Aside from the new financial basis for the determination of eligibility for assistance, I was also aware of the provision of the new rule 15(2) of the Legal Aid in Criminal cases (Amendment) Rules 1992 which gives the Director of Legal Aid a discretion to grant legal aid if he is satisfied that it is desirable to do so in the interests of justice even though an applicant may have failed on the test of his financial capacity."

"8. When the Appellant's application came before me for consideration, I noticed that he still had not made any disclosure or given any explanation of the various assets which he once had had. As I was unable to make a determination of his means or financial resources, I had no option but to refuse his application on 16 July 1992. I was, and still am, of the view that the question of the exercise of the Director's discretion under rule 15(2) does not arise until an assessment of financial resources has been made. Without making such an assessment, it would be impossible to determine the maximum contribution of the aided person under the new rule 16(3)."

10. In my judgment, without going into the matter in the depth which would be inappropriate at this stage of the proceedings, notwithstanding the helpful submissions urged upon us by Mr. Kwok, this is a case which, on the material now before us, raises an arguable case for the review of the Director's decision of 16th July 1992. The true construction of rule 15(2) in not free from difficulty. In my view it is necessary and desirable for a court to determine whether or not the interpretation of the rule put forward in paragraph 8 of the affirmation is correct, for if it is not, then the Director would have circumscribed the discretion given by that rule in a manner not provided for by the rule-making authority.

11. I would therefore allow the appeal and grant leave to Mr. Mirchandani to apply for judicial review.

Nazareth, J.A.:

12. I agree.

Mortimer, J.:

13. I also agree.