DESMOND KEANE SC v. THE DIRECTOR OF LEGAL AID

HCAL 109/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW

PROCEEDINGS NO.109 OF 1999

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J U D G M E N T

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INTRODUCTION

1. Mr Desmond Keane SC is in practice at the Hong Kong Bar. Like many of his colleagues, he accepts instructions from the Director of Legal Aid. These proceedings have their origin in one such legal aid case. Mr Keane's complaint was that this particular legal aid case was not assigned to him. And because this occurred, he issued proceedings for judicial review by Notice of Application dated 7 September 1999.

2. The application for leave came before Hartmann J. On 13 September 1999 the learned judge granted the leave necessary to pursue the action. He did so after hearing Mr Keane, who at that stage was representing himself, and Mr Cooney, counsel for the Director of Legal Aid.

3. On 23 September 1999, Hartmann J called a directions hearing. He did so because, in his words, "matters since 13 September appear to have fallen into a state of some disarray". His reasons, together with the background of the case to date, are set out in a written Directions ruling handed down on 24 September 1999. A particular focus of the directions hearing was that, on 18 September 1999, Mr Keane had issued a notice to the effect that at this hearing leave would be sought to amend his claim for relief. In the event, absent objection from Mr Cooney, leave so to amend was granted. I refer to this amendment later in this judgment. For the present, suffice to say that it has had a singular effect upon the manner in which this case has been approached and argued.

4. Pursuant to the procedural directions laid down, evidence was filed on each side. A date was appointed for the substantive hearing, in which Mr Keane was represented by Mr Alan Rawley QC whilst the Director has continued to be represented by Mr Nicholas Cooney.

5. This, then, is the judgment of the court upon this judicial review. I should now refer in some detail to the events which led Mr Keane to commence these proceedings against the Director of Legal Aid.

THE FACTUAL BACKGROUND

(a) Mrs Kumari's case

6. Mrs Rai Bhim Kumari is a Nepalese lady. She had a dispute with the Government. Her efforts to obtain an HKSAR permanent identity card had been rebuffed by the Registration of Persons Tribunal. Mrs Kumari was dissatisfied with this result. In June 1999 she applied to the Legal Aid Department for legal aid to apply for judicial review of this decision. On 25 June 1999 the Legal Aid Department received a letter from her solicitors, Messrs Massie and Clement. This letter formed an integral element in the development of the present action. It explained the background to the case, and why it was thought that the decision of the Tribunal was susceptible to attack. In particular, the penultimate paragraph of this letter reads :-

".... If Legal Aid is granted our client asks that either Mr Richard Clement or Mr John Massie is assigned as solicitor. As to Counsel Mr Desmond Keane Q.C. who will appear for Juniors rates."

7. On 30 June 1999 Mrs Kumari attended at the offices of the Legal Aid Department for the purpose of the determining whether legal aid should be offered. She had an interview with a Ms Mo Yuk Wah, a senior legal aid counsel. Ms Mo has given affidavit evidence as to what transpired. She states as follows :-

"I interviewed Mrs Kumari through an interpreter and enquired whether she had legal representation. If she was represented, I could write to her solicitors to obtain papers. She advised me that she did not have legal representation ... As far as I recall, she advised me that she had not seen any legal advisor even though she nominated Mr Richard Clement of Massie & Clement in her legal aid application form."

8. It happens that the same date, 30 June 1999, Mr Keane had provided, "on a no-fee basis", a written advice to Messrs Massie and Clement as to the merits of Mrs Kumari's case. Ms Mo says that she received this advice on 2 July 1999.

9. After considering the case for judicial review and Mrs Kumari's application, Ms Mo decided to offer Mrs Kumari legal aid to take the matter further. In this regard, she notes :-

"In compliance with Mrs Kumari's request in her legal aid application form, I assigned Mr Richard M Clement, of Messrs Massie & Clement to act for her on 19 August 1999.

According to my recollection, during the interview Mrs Kumari did not ask for Mr Desmond Keane, SC to be assigned as her Counsel. I had read the letter from Messrs Massie & Clement dated 25 June 1999, but at the time of assignment of Counsel I overlooked it. Accordingly, I proceeded on the basis that Mrs Kumari had made no selection as to Counsel. I assigned Mr Paul Harris as Junior Counsel for Mrs Kumari on 27 August 1999."

(b) Mr Keane's reaction

10. The assignment of other counsel to Mrs Kumari's case did not please Mr Keane. Commencing on 30 August, a correspondence ensued between himself and the Director of Legal Aid, which canvassed, inter alia, whether he was on the relevant Legal Aid panel, the criteria for the selection of counsel and, in his letter of 1 September, his assertion that the Legal Aid "Guidelines for Assigning Counsel" "do not appear to be lawful having regard, in particular, to Cap.91, section 4 and to the right of 'choice of lawyers' enshrined in Basic Law, Article 35". Mr Keane's further letter of 3 September affirmed his view as to his suitability and experience to handle judicial review cases.

11. On the same day, 3 September 1999, Messrs Massie and Clement wrote to the Legal Aid Department in these terms :-

"Dear Sir,

Re: Madam Rai Bhim Kumari

Thank you for sending us the Notice that Mr Paul Harris has been assigned as Counsel. In our letter of 25th June 1999 (copy enclosed). We intimated that our client requested that Mr Desmond Keane Q.C. be assigned as Counsel. Mr Keane is familiar with this matter, having previously advised. That advice was supplied to you when you were considering whether a certificate should be granted. Mr Keane will appear at Junior's rates.

Whilst Mr Harris has considerable experience of Judicial Review applications and is clearly an excellent Counsel generally in this particular matter the fact remains that the client has chosen Mr Keane and the right to Legal representation of one's choice is enshrined in the Basic Law.

We consider Mr Keane's experience in Judicial Review is beyond question.

Kindly reconsider your position. Why has Mr Keane not been assigned in this case? Unless you are able to identify any lawful reason to the contrary, kindly substitute Mr Keane for Mr Harris as clients Counsel in this matter.

Can you also please bear in mind the urgency of the situation. The application must be lodged by 16th September 1999."

12. By a letter of the same date the Director of Legal Aid observed that "there exists some misunderstanding of the operation of our assignment system [as] endorsed by the Legal Aid Services Council in 1997". A meeting with Mr Keane was proposed for Thursday 9 September to explain the position.

13. This letter crossed with a further letter from Mr Keane, dated 3 September, which referred specifically to the assignment of Mr Paul Harris as Mrs Kumari's counsel, and also to the earlier letters from Messrs Massie and Clement, his solicitors. In that letter, Mr Keane stated :-

"2. For completeness, it should be noted that I have already been instructed by Massie and Clement on behalf of Mrs Kumari to advise (without fee and in the legitimate expectation of being assigned as her Counsel if Legal Aid Certificate were granted) (Copy Advice herewith - Encl.5). DLA has received and acted upon that Advice in granting Legal Aid herein.

3. Your refusal to assign the writer as Counsel for Mrs Kumari in this matter appears to be unlawful, by, inter alia

(i) wrongfully depriving her of Counsel of her choice; and/or

(ii) wrongfully depriving the writer of exercising his profession and earning his living in representing Mrs Kumari in this matter; and/or

(iii) constituting unlawful discrimination against the writer contrary to Cap 387 (see previous fax to you today paras 3 and 4)."

14. In this letter Mr Keane went on to request that he be assigned as counsel for Mrs Kumari, that the assignment to Mr Harris be revoked, and that if the matter was not rectified by Thursday 9 September, an application for leave to apply for judicial review in relation to the assignment of counsel for Mrs Kumari would be filed without further notice. A postscript thereto refers to the Director's offer of a meeting, the purpose of which Mr Keane stated "is to examine with you whether any steps might be agreed so as to avoid HCR Order 53 proceedings".

15. This invitation was not further pursued. Whilst this letter of Mr Keane was acknowledged by the Legal Aid Department, no meeting was held. It is a matter of record that Mr Keane issued his application for judicial review on 7 September, and I am told by Mr Cooney that in the Department's view the formal onset of litigation precluded further contact.

THE FORM OF THE ACTION

(a) The case as originally framed

16. When Hartmann J granted leave to apply for judicial review on 30 September, that which was before him was Mr Keane's formal Notice of Application for Leave pursuant to Order 53 rule 3. As required by the rules, this Notice set out the particular decisions of the Director of Legal Aid in respect of which relief by way of judicial review was sought. In this regard it states :-

"1. On or about 27 August 1999, not to assign the Applicant as her Counsel when at all material times, and to the knowledge of the Director of Legal Aid, the Applicant has been and remains Counsel of her choice.

2. On or about 27 August 1999, to assign Counsel, not of Mrs Kumari's choice, to her.

3. On and since 3 September 1999, to decline to substitute the Applicant as Counsel assigned to Mrs Kumari in place of the said other Counsel.

4. On and since 3 September 1999, to decline to reconsider the above decisions."

17. The final relief pursued at that stage correlated with the decisions complained of, viz. :-

"1. An Order of Certiorari to quash Decision 1 above.

2. An Order of Certiorari to quash Decision 2 above.

3. An Order of Mandamus for substitution of the Applicant as Counsel assigned to Mrs Kumari for her proposed Judicial Review proceedings.

Alternatively

4. An Order of Mandamus for reconsideration by the Director of Legal Aid of Assignment of the Applicant as Counsel for Mrs Kumari."

18. This document went on to describe the Grounds on which relief was sought, which had as their focus Mr Keane's perception of what had occurred in Mrs Kumari's case to deprive him of the assignment, and further expanded upon the basis of his application for certiorari to quash the decision not to assign him as counsel in that case.

(b) The case changes : the amendment to the relief

19. At the directions hearing before Hartmann J on 23 September, Mr Keane made an application to amend the relief he sought in this case. It is not, even now, clear to me precisely how the matter was put, and I understand that no affidavit backed this application. In the event, the application was not opposed, the result being that an Amended Notice of Motion dated 24 September was filed. The result of this is that, at the hearing of this judicial review, the sole relief presently sought is expressed in the following terms :-

"For a Declaration that, on the true construction of Cap.91, and in particular sections 4 and 13 hereof, if an Aided Person has selected Counsel for civil proceedings and the Director of Legal Aid assigns Counsel, the Counsel assigned by the Director must be the Counsel selected by the Aided Person subject only to the conditions and limitations provided in Cap.91.

For an Order that the Respondent pay the Applicant costs of and incidental to the proceedings herein."

20. The amended Notice of Motion further stated that the grounds upon which this relief was pursued were as contained in Mr Keane's original application for leave dated 7 September 1999. There is no question, however, but that the original orders sought have not been pursued subsequent to this amendment. As Mr Rawley made clear in argument, the only relief now prayed for was the declaratory relief in terms of the amended Motion.

THE SCOPE OF ARGUMENT

21. In moving for the declaration as now specified, Mr Rawley submitted that at issue was a fundamental question regarding the aided person's right to counsel of choice, and that within that rubric this case primarily involved an issue of statutory construction. His principal argument devolved upon the proper interpretation to be attributed to section 13 of the Legal Aid Ordinance, Cap.91, and in particular to section 13(1), the provisions of which are in the following terms :-

"13. Endorsement of legal aid certificate

(1) Where a legal aid certificate is granted, the Director may act for the aided person in any proceedings, or part of any proceedings, and the Director may assign counsel or solicitor, to be selected by the aided person, if he so desires, or otherwise selected by the Director, and the Director shall endorse on the legal aid certificate the name of any counsel or solicitor assigned.

(2) The Director may, if he is of the opinion that any proceedings are, or may become, of exceptional difficulty or importance, state in the certificate that the aided person should be represented by 2 counsel, one of whom may be leading counsel, in such proceedings.

(3) Counsel or a solicitor selected under subsection (1)(b), whether by the aided person or by the Director, shall be selected from the panel and no leading counsel may be selected by an aided person, except where subsection (2) applies, unless the Director consents thereto."

22. The effect of section 13, asserted Mr Rawley, was that the legally aided person's wish was paramount, and that the Director of Legal Aid had no discretion - "none whatsoever" - in the face of the applicant's choice of counsel, always assuming that it had been decided to assign and counsel was on the relevant Legal Aid panel. Justice must be done and be seen to be done, said Mr Rawley, and aided persons must be given their counsel of choice to avoid any suspicion of "selling them down the river". Absent selection by the aided person, the Director could select the counsel, but not otherwise; the aided person's selection represented an "absolute right". However, it was clear from the evidence in this case on behalf of the Director, that the Director did not adhere to this principle. It followed, submitted Mr Rawley, that it had "become plain" that the Director was construing the Ordinance wrongly, that he was labouring under a misconception of his powers under section 13, and that the construction of the statute as apparently adopted was unreasonable and ultra vires. Accordingly, what Mr Keane was endeavouring to do in these proceedings was to cause the Director "to drop these unlawful practices". The present application was founded on "a simple good faith error [which] had laid bare to the public gaze what had been going on", and although Mr Keane was not now attempting to reverse the particular decision that had given rise to these proceedings, he was entitled to maintain this application both qua practising lawyer and citizen.

23. In addition, Mr Rawley submitted, the merit of this construction was expressly reinforced by Article 35 of the Basic Law, the terms of which states :-

"Article 35

Hong Kong residents shall have the right to confidential legal advice, access to the courts, choice of lawyers for timely protection of their lawful rights and interests or for representation in the courts, and to judicial remedies.

Hong Kong residents shall have the right to institute legal proceedings in the courts against the acts of the executive authorities and their personnel."

24. Descriptive compression invariably does less than justice to argument, but that at least was the thrust of the primary submission. A subsidiary point was developed to the effect that the decision-making process envisaged by section 13(3) had not in fact been undertaken by the Director's staff, albeit this point paled into insignificance in the face of the main argument advanced.

25. In response, Mr Cooney for the Director, took issue with the interpretation of section 13, Cap.91 advanced by Mr Rawley; in particular, he maintained the term 'selected' must import a selection reasonable in the circumstances of each case. In addition, however, he took procedural objection to the effect that it was not open to Mr Keane to advance this particular argument, given that this was not the case on the basis of which leave had been given, and that, in any event, Mr Keane had no locus to make the application. Mr Cooney also disputed the factual premise on which this case was founded, and attacked the utility and framing of the declaration sought, maintaining that in terms it was both hypothetical and vague.

THE ISSUES

26. Looked at in the round, the case as put forward involves consideration of issues of fact, procedure and substantive law, albeit there is an element of overlapping between them. I take each in turn.

(i) Factually

27. Mr Keane's case, as instituted, was unequivocally based upon the following premise (at paragraph 7 of his Grounds) :-

"On or about 27 August 1999 the Director of Legal Aid made the following decisions in relation to Mrs Kumari's case

(i) Not to assign the Applicant as her Counsel

(ii) To assign other Counsel not of her choice to her."

28. This case was and is nowhere made out. To the contrary. On the evidence there was no question of any decision on the part of the Director of Legal Aid to override the aided person's alleged choice of counsel. There can be no dispute about this. The Legal Aid officer who dealt with the case stated frankly that at the date she assigned Mr Paul Harris to the case, almost one month after first interviewing Mrs Kumari, she had simply overlooked the Messrs Massie and Clement letter of 25 June 1999. She says, in the plainest terms,

"... I proceeded on the basis that Mrs Kumari had made no selection as to counsel".

29. This was an oversight, no more nor less. Mr Rawley recognised this, of course, hence the change in the direction of the argument. The fact remains, however, that the case was founded upon a misconception as to what in fact had occurred, as demonstrated by the 'decisions' initially specified by Mr Keane in his Form 86A Notice.

30. A further factual aspect which is the subject of dispute is the issue of the selection of counsel by the aided person, and whether Mr Keane in fact had been selected by Mrs Kumari in this case. On behalf of the Director, Mr Cooney declined to accept this central premise. He pointed out that there was no evidence from Mrs Kumari, nor for that matter from Mr Clement of Messrs Massie and Clement, the author of the letters of 25 June and 3 September which had represented Mr Keane SC as having been so chosen. Save for these letters, he said, there was no evidence that Mr Keane had met Mrs Kumari, nor that Mrs Kumari was aware of Mr Keane's involvement. In fact, the affidavit evidence was that at her interview Mrs Kumari advised Ms Mo "that she did not have legal representation" and "that she had not seen any legal advisor", even though apparently she had nominated Mr Clement in her legal aid application form.

31. Given this evidential backdrop, Mr Rawley advanced the argument that clients act upon solicitors' advice and that solicitors act only on the instructions of their clients, so that, in effect, the court could safely infer from the Massie and Clement correspondence that the choice of Mr Keane as counsel had been made by Mrs Kumari upon the advice of her solicitors. In this context, he cautioned, that the court should refrain from "a stately minuet" as to what does or does not constitute a choice. In so far as this latter observation implies that the court should not be overly concerned about this aspect of the matter, I disagree, not least in the context of a case which is advanced on the basis that the aided person's choice of counsel is sacrosanct, and that section 13 demands such a construction as a constitutional necessity.

32. I have not found this aspect easy to resolve. Mr Keane had undoubtedly been nominated as counsel in the Massie & Clement correspondence. It is also established that he had done the original advice without fee, and he expected a quid pro quo in terms of assignment as counsel; his own words to the Director refer to his "legitimate expectation" in this regard. Nevertheless, if a basic factual premise upon which this case was built is that of a particular choice of counsel by the aided person, in my view the court reasonably can expect this foundation to be clearly and cogently established absent reliance upon inference from third party correspondence. This has not occurred. In my view Mr Cooney was entitled to take the position that he did in the particular circumstances presented by this case.

(ii) Procedurally

(a) No leave granted for the case as now advanced

33. Since its commencement, this case has undergone a sea change in terms both of approach and of the relief sought.

34. The original relief, certiorari and mandamus, which focused on what was perceived to have been a specific decision of the Director not to instruct Mr Keane, has now been abandoned. This has happened, asserted Mr Rawley, because Mr Keane had acted entirely honourably in realising that if he persisted in his application as originally framed, the progress of Mrs Kumari's case would be jeopardised; as to which, I am told that her case was due to come on for hearing on 21 January. Accordingly, Mr Keane had opted to do "the gentlemanly thing" and to pursue a declaration in terms of the Amended Notice of Motion. As such, he should not be penalized, Mr Rawley submitted.

35. I have no difficulty in accepting Mr Keane's honourable instincts. I do, however, have difficulty in understanding how this case, which had its origin in what was thought to be an overriding assignment of other counsel to Mrs Kumari, can properly now be argued on a basis for which leave was not given. The focus now is not upon the original "decision" complained of, but upon certain discursive parts of the affidavits of Ms Mo and Ms Chiu, the Legal Aid officers concerned, which were sworn in response to Mr Keane's case as originally framed. So that, although the Amended Notice of Motion bespeaks reliance upon the grounds as contained in the original Notice of Application for Leave, the goal posts clearly now have moved. In terms of the evidence now in point, Ms Mo, the assigning officer, says as follows (at paragraph 12 of her affidavit) :-

"I was and still am of the view that Mrs Kumari's judicial review proceedings, while of considerable importance to her, are neither of exceptional difficulty nor importance for the purposes of s.13(2) of the Ordinance. The Legal Aid Department receives many applications for judicial review of decisions involving the refusal to grant a Hong Kong Permanent Identity Card. This was a standard case, a matter of looking at the documents before the Immigration Department and Registration of Persons Tribunal and deciding whether the decision was reviewable. Assignment of leading counsel to represent Mrs Kumari was not justified in this case. In the circumstances, even had I not overlooked the letter from Messrs Massie & Clement of 25th June 1999, in compliance with the Ordinance I would not have assigned Mr Desmond Keane SC as Counsel. The fact that Messrs Massie & Clement alleged that Mr Keane SC would appear for junior's rates was not a matter I am entitled to take into account in assigning Counsel and in any event was an indication from a third party and not from Mr Keane SC himself. There are no fixed 'junior's rates' in civil Legal Aid cases in any event."

36. For her part Ms Chiu, the Legal Aid Policy and Administration Co-ordinator, deposes to the general position thus (at paragraphs 8 and 9) :-

"If the applicant has selected Counsel or a solicitor who is not a member of the Legal Aid Panel, does not hold a current practising certificate, or is not suitable for the particular case, then the Legal Aid Officer would discuss the applicant's requirements with the applicant, with a view to reaching an agreement on the assignment of Counsel. For example, the Counsel concerned could be under investigation by the Bar Council, accused of misconduct by his previous clients, newly qualified, or out of Hong Kong at the time and so on. If the client's choice is not suitable, the Legal Aid Officer would usually explain the reasons to the applicant who would be shown a list of Counsel specialising in that area from which he could choose another Counsel.

A Legal Aid Officer will not assign a Leading Counsel selected by an aided person unless the Director is of the opinion that the proceedings are or may become of exceptional difficulty or importance, in accordance with Section 13(2) and (3) of the Legal Aid Ordinance (Cap 91)."

37. It is perhaps this particular extract from the evidence which is responsible for the manner in which the argument is now put. And for his part Mr Rawley makes no bones as to this change of emphasis : his position is that "the amended relief is based on facts issuing from the mouth of the Director". This is correct in one sense : the argument as now advanced indeed is framed on the basis of what appears in the affidavits, but nevertheless it should be borne in mind that the declaratory relief was put forward by amendment fully six weeks before the evidence now relied upon was filed.

38. Which brings me back to Mr Cooney's procedural complaint. In my view he is wholly justified in his submission that leave was granted on the basis of Mr Keane's original application, and that no leave has been granted to apply for judicial review in terms of the case now presented. Reliance upon the terms of the Application for Legal Aid Form (which recites, inter alia, the understanding of the applicant "that my nomination may be refused if the Director considers that it is not in my interest to accept the nomination") together with extracts from the Legal Aid Annual Report fail for the same reason, Mr Cooney asserted. The Director could not have imagined that the content of subsequent documents would now become the new grounds of what was a different case, and no leave had been granted by Hartmann J to bring an application for judicial review upon the basis of that which, as Mr Rawley expressed it in argument, "had now been laid bare to the public gaze".

39. I agree with Mr Cooney. For practical purposes, the case has moved some considerable distance from its original base. The initial complaint regarding the assignment of other counsel has now gone. The case is now based solely upon statements which emerged (perhaps unnecessarily) in the evidence filed on behalf of the Director. The importance of a disciplined approach to judicial review cases has recently been the subject of critical observation by the Court of Final Appeal : see the judgment of Litton PJ in Lau Kong Yung (an infant) and 16 others v. The Director of Immigration, FACV Nos.10 and 11 of 1999, who criticised the tendency to permit Order 53 rule 3 to be "simply the portals to a playground of infinite possibilities". A similar point was also recently made by Stock J in Hong Kong Aircrew Officers Association v. Director of Civil Aviation, HCAL 51 of 1999, whose comments might be thought apposite to the circumstances of the present case :-

" There is an increasing tendency for judicial review to become a 'free for all', with boundaries ever widening whenever new evidence is filed. Judicial review is not a vehicle for an infinite process of contestation. It is not an occasion where once the foot is in the door by reason of leave given on grounds originally filed, the court is then available, not merely for the purpose for which leave was extended but becomes an open house for whatever points counsel, upon closer examination or further thought, can extract from the evidence as it emerges. There must be good reason shown why a new case was not raised before, and why it should now be allowed to be raised, especially where the raising of the new point or a new case is likely to cause an adjournment. ..."

40. In this connection, I do not accept Mr Rawley's riposte that this procedural objection is one which should have been taken at the outset, and that, having failed to make what was in effect a preliminary point, Mr Cooney had "reserved too long". This cannot be right. In my view, Mr Cooney was in no sense precluded from taking the procedural objection that he did when he did it. At the time of the amendment to the relief, and in the circumstances in which it was made, both Hartmann J and Mr Cooney can only have been under the impression that the declaration was proposed on the basis of the grounds then in existence. Accordingly, the Director's stance adopted at the time of the earlier directions hearing is nothing to the point. Nor do I accept, the point having been taken during the submissions made on behalf of the Director and not at the outset of this present hearing, that Mr Keane now is prejudiced unjustifiably in terms, for example, of losing the possibility of amendment. No amendment application was made, not least, I suspect, for the reason that the plain abandonment of the original case would in all probability have resulted in the refusal of leave to run the case on the basis that it is now argued.

41. Absent all other considerations, I should have refused this application for judicial review on this basis alone.

(b) The Nature of the Relief

42. The declaratory relief sought bears no relation to the facts of Mrs Kumari's case. Nor does it bear any longer upon Mr Keane's own position. No specific dispute is relied upon wherein it is asserted that the Director has acted unlawfully in the exercise of his statutory powers. General observations on the part of the Director's officers now serve as the vehicle driving this application, and the circumstances of Mrs Kumari's case have been left far behind. The actual incident in relation to which the court's assistance initially was invoked having been abandoned, the court is, in effect, being asked to give a ruling in vacuo. I am strongly disinclined to do so. The applicant is not entitled, as he clearly now seeks, to move the case from the concrete to the conjectural.

43. Declaratory relief is viewed by the court through a fairly narrow prism, not least because of its importance in public law. Whilst the purpose of a declaration is to establish the rights of the parties and to resolve uncertainties, as de Smith, Woolf and Jowell, Judicial Review of Administrative Action (5th Ed.) point out (at page 749) :-

"The precise choice of language in which the declaration is couched can be of significance. This is a matter of particular importance in public law proceedings because the declaration, if granted, may not affect only the immediate parties to the proceedings but a large number of other individuals who are also subject to the administrative action."

44. In so far as the relief now proposed asserts that in the assignment of counsel, the Director of Legal Aid must act in accordance with the terms of the Ordinance, that is a given; and in so far as this relief asserts, in broad terms, a particular construction of that Ordinance, in my judgment (as will shortly become apparent) this application in its present form is not an appropriate case within which to determine this issue.

(c) Locus

45. At first blush it is difficult to see why a barrister, disappointed as to the non-assignment of a case by the Director of Legal Aid, should be in a position to launch judicial review proceedings questioning that decision. It is not unreasonable to assume that such rights as have been bestowed by the legislature upon the legally aided person are those of the aided person alone, and that any counsel disaffected by any particular assignment should have little to say about it in terms of the standing to issue proceedings of this type, wherein the court is asked to undertake a review of the administrative decision in question.

46. This is Mr Cooney's argument. He maintains that Mr Keane does not have a sufficient interest in the assignment of counsel to the aided person such as to bring judicial review proceedings for this, or, indeed, the original relief, which was aimed at the specific decision not to assign him as counsel in Mrs Kumari's case.

47. There is a good deal to commend that approach. However, as Mr Rawley has demonstrated, the law which has developed in this area has stretched the parameters of what is regarded as a "sufficient interest" such as is required of the applicant by the provisions of Order 53 : see, for example, the speeches of their Lordships in Inland Revenue Commissioners v. National Federation of Self-Employed and Small Businesses Ltd., [1982] AC 617 (HL).

48. There can be no doubt that the old procedural rigidities have gone, and that the courts have adopted "a more generous concept of locus standi in these cases" (per Lord Roskill, op.cit., at 658B), whilst Lord Wilberforce (op.cit. at 630D-E) observed :-

"... There may be simple cases in which it can be seen at the earliest stage that the person applying for judicial review has no interest at all, or no sufficient interest to support the application : then it would be quite correct at the threshold to refuse him leave to apply. The right to do so is an important safeguard against the courts being flooded and public bodies harassed by irresponsible applications. But in other cases this will not be so. In these it will be necessary to consider the powers or the duties in law of those against whom the relief is asked, the position of the applicant in relation to those powers or duties, and to the breach of those said to have been committed. In other words, the question of sufficient interest can not, in such cases, be considered in the abstract, or as an isolated point : it must be taken together with the legal and factual context. The rule requires sufficient interest in the matter to which the application relates. This, in the present case, necessarily involves the whole question of the duties of the Inland Revenue and the breaches or failure of those duties of which the respondents complain."

49. In Hong Kong, the Court of Appeal has also sounded to this issue. In Association of Expatriate Civil Servants of Hong Kong v. Secretary for the Civil Service & another (1996) 6 HKPLR 333 (at 368G-H), Bokhary JA (as he then was) accepted the standing of the appellant in that case and expressly approved as an accurate statement of law the statement in de Smith, Woolf and Jowell, op.cit. (at page 122) that :-

"In summary, it can be said that today the court ought not to decline jurisdiction to hear an application for judicial review on the ground of lack of standing to any responsible person or group seeking, on reasonable grounds, to challenge the validity of governmental action."

50. No question has arisen in the circumstances of this case of declining to hear Mr Keane on the basis of a perceived absence of locus; the application for judicial review has been entertained by the court and, by this judgment, determined. I do not, however, necessarily accept Mr Rawley's broad proposition that "if Mr Keane is right on his construction argument, there is no problem with his interest, and that if he is wrong, he has no locus". At the end of the day, this is not a case which was susceptible to being ruled out at the leave stage on the locus point alone. In light of the authorities, and on the case as originally framed, Mr Keane may be thought to have had concerns with the matter, the subject of the application, to permit him to ventilate these concerns before the court. However, that was then, and this is now. I am unconvinced, given the departure from the facts of Mrs Kumari's case, and in purporting to put the case upon its present basis, that Mr Keane continues to be possessed of that element of "sufficient interest" which is required by the rules. So on the case as now propounded, I rule against him on locus also.

(iii) Substantively

(a) The construction issue : section 13(1), Cap.91

51. Given my views on the factual and procedural issues, which are sufficient to decide this case, the necessity finally to determine the construction issue does not arise, and I do not seek to do so. However, since this issue formed the cornerstone of the argument, I should nevertheless consider it, albeit perhaps not in the detail it might otherwise merit. In this regard, Mr Rawley did not shrink from putting his case as high as was possible, asserting the "absolute right" of the aided person to counsel of choice, absent any discretion or say in the matter on the part of the Director : "stark compulsion" was Mr Rawley's parting shot on the point. That this situation should obtain was a "constitutional luxury", he submitted, and was on a par with the fundamental common law principle that eleven guilty men should go free rather than that one innocent man be convicted.

52. This argument was advanced with reference not only to the specific words of section 13 of the Ordinance, but was buttressed also to the speech of the then Attorney General in moving the Legal Aid Bill of 1966 in the Legislative Council, wherein he is recorded as stating :-

" Clause 4 obliges the Director to prepare and maintain panels of counsel and solicitors willing to take part in the scheme and under clause 13, the Director will, if a person is granted legal aid, assign to him the solicitor and counsel chosen by the aided person from the panel, or by the Director if the aided person makes no selection himself. In cases of exceptional difficulty or importance, the Director may authorize the briefing of two counsel, one of whom may be leading counsel. Regulations will make it clear that, where a solicitor is assigned, any other solicitor in the same firm may act on behalf of the assigned solicitor."

53. The extreme proposition put forward by Mr Rawley possesses no immediate attraction in the circumstances of the provision of legal aid, since on this basis the Director of Legal Aid is compelled by the provisions of section 13(1) to assign counsel of the aided person's choice, whatever the circumstances prevailing in the particular case, providing always that the decision has been made so to assign counsel and that the conditions of section 4 are met (namely, that counsel holds a practising certificate, is on the relevant Legal Aid panel, and is willing to do the relevant type of work). Given that the Director is charged with the task and duty "to see that the scheme is competently managed so that public funds are not wasted" (per McMullin VP in Ngao To-ki v. Attorney General, [1981] HKLR 259 (CA)), the construction pressed upon the court by Mr Rawley may be not only potentially at odds with that aim, but in addition may hinder the flexibility of the Legal Aid Department to act in the best interests of the aided person and also, possibly, may inhibit the chances of success in the particular litigation it has agreed to fund, thereby minimising the potential recovery of costs.

54. Set against this background, the submission by Mr Cooney that the term "selected" in the context of section 13(1) means no more than selection reasonable in the particular circumstances might be thought to constitute an approach which makes eminent good sense. For my part, I firmly favour a purposive construction, given the aims and operation of the present legal aid system, and the importance of ensuring that the assignment of counsel is made with reference to the requirements of each client's specific case. I am troubled by the notion, on the basis of the absolute construction now pressed upon the court, that the Director in effect is propelled towards the assignment of counsel for the aided person, absent input by his officers as to that person's interests and case, merely as a function of a purported selection by the client which in reality may represent little more than the product of a prior understanding between solicitor and counsel : a result which in my view is unlikely to have been intended by the legislature when enacting the Legal Aid Ordinance. Nevertheless the construction issue is far from clear-cut. I can, for example, see some merit in an argument that holds that circumstances conceivably could develop in Hong Kong in which it was important that the aided person's choice of counsel be regarded as inviolate, notwithstanding a difference of view on the part of the Director. Accordingly, should such situation arise, I do not discount the possibility that the language of section 13(1) may permit of such interpretation, although there is little to be gained by speculating as to the myriad circumstances which may transpire requiring the court further to wrestle with what is a less than easy piece of legislation. Indeed, the way this case has developed might be thought an object lesson in why it is important to construe legislation in the context of a particular case, and inappropriate to render an interpretation absent the existence of such specific factual foundation. In light of the view I have taken, there is no necessity further to consider the specific terms of Article 35 of the Basic Law which Article, in any event, is more widely-drawn and does not address the very specific aspect of the assignment of counsel within the provision of legal aid in Hong Kong.

(b) The section 13(3) argument

55. I turn, lastly, to the subsidiary argument put forward by Mr Rawley under this head. The particular position of leading counsel in the scheme of things is specifically canvassed in section 13(2) and section 13(3) of the Ordinance (it is agreed by the parties that '(b)' in the first sentence of section 13(3) is a legacy of amendment and a legislative oversight).

56. As I have understood it, Mr Rawley's submission is that section 13(3) requires separate and informed consideration of the assignment of leading counsel, even in situations in which the 'exceptional difficulty or importance' rubric within subsection 13(2) has not been satisfied, and that the assertion on behalf of the Director that a decision under section 13(2) governs the operation of section 13(3) is incorrect. In principle, it is difficult to see why, having done the evaluation once, the Director or his officers should be statutorily required to do it again, so that a primary classification made under section 13(2) is then susceptible to reversal in terms of separate consideration under section 13(3). In any event, and for present purposes more to the point, I fail to see the relevance of this argument on this application, nor how it can be said to arise in the circumstances of this case and on the basis of the general declaratory relief now pursued, given the abandonment of the original 'decision' as a basis for argument and the corresponding abandonment of the remedies of certiorari and mandamus. In so far as may be necessary, therefore, I reject the argument on this basis also.

DECISION

57. In my judgment, this case never recovered from a false start. The perceived wrong which was its genesis had no foundation in fact. There was oversight, not animus. The allegation of abuse of power is without merit, and the attempt to recast the case as one of constitutional moment cannot stand. Significant arguments of statutory construction have been raised, but in my view their resolution must wait for another day. This application for judicial review is dismissed. Should it be necessary to canvass the issue of costs, I will hear counsel in due course.