DESMOND KEANE v. THE DIRECTOR OF LEGAL AID

CACV 49/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 49 OF 2000

(ON APPEAL FROM HCAL NO. 109 OF 1999)

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J U D G M E N T

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Keith JA (giving the first judgment at the invitation of Godfrey V-P):

Introduction

1. Mr Desmond Keane SC is a barrister. He practises in Hong Kong. Like many of his colleagues, he accepts instructions from the Director of Legal Aid. However, when a particular case was not assigned to him by the Director of Legal Aid, he commenced the proceedings to which this appeal relates. Those proceedings had an unusual history, and that history contributed to the eventual dismissal by Stone J of Mr Keane's application. Mr Keane now appeals against the dismissal of his application.

The background facts

2. Rai Bhim Kumari comes from Nepal. She was refused a Hong Kong permanent identity card. Her appeal against that refusal to the Registration of Persons Tribunal was dismissed. She instructed solicitors, Messrs Massie & Clement. They applied to the Legal Aid Department for legal aid to enable Mrs Kumari to apply for judicial review. They asked for Mr Keane to be assigned as Mrs Kumari's counsel if legal aid was granted. They added that Mr Keane would only charge rates appropriate for junior counsel.

3. Some weeks later, legal aid was granted to Mrs Kumari, but other counsel, not senior counsel, was assigned as Mrs Kumari's counsel. When Mr Keane learnt that he had not been assigned as Mrs Kumari's counsel, he raised the matter with the Director of Legal Aid. Mr Keane was concerned that in deciding who to assign as counsel to cases in which legal aid had been granted, the Director of Legal Aid was not giving effect to the legally aided person's choice of counsel. Mr Keane believed that to be contrary to certain provisions in the Legal Aid Ordinance (Cap. 91) ("the Ordinance"). Mr Keane did not receive what he regarded as an acceptable explanation for the assignment of other counsel, and within a couple of weeks he applied for leave to apply for judicial review.

The procedural history

4. Mr Keane's original case. The decisions which Mr Keane originally wished to challenge all related to the assignment of counsel in Mrs Kumari's case. The relief which Mr Keane sought was the quashing of those decisions and an order of mandamus requiring the Director of Legal Aid either to assign him as counsel for Mrs Kumari or to reconsider who should be assigned as her counsel. Leave to apply for judicial review of those decisions was granted by Hartmann J.

5. Mr Keane's new case. Shortly after being granted leave to apply for judicial review of the decisions relating to Mrs Kumari's case, Mr Keane decided to change the focus of his application. He realised that his application might jeopardise the progress of Mrs Kumari's case. He did not want that to happen. However, he remained concerned that in deciding who to assign as counsel to cases in which legal aid had been granted, the Director of Legal Aid was not giving effect to the legally aided person's choice of counsel. Mr Keane was worried that on future occasions he might not be assigned as counsel in a case in which the legally aided person had requested that he be assigned as counsel. Accordingly, instead of challenging the decisions which the Director of Legal Aid had made in Mrs Kumari's case, Mr Keane decided to challenge what he believed to be the Director of Legal Aid's practice of not respecting the legally aided person's choice of counsel.

6. The procedural problems. It is here that the procedural problems which have bedeviled this case arose. By then, the Notice of Motion claiming the relief sought in Mr Keane's original application had been filed. Accordingly, Mr Keane applied for, and obtained from Hartmann J, leave to amend the Notice of Motion substituting, for the relief sought in the Notice of Motion, a claim for a declaration as to the Director of Legal Aid's obligations on a proper construction of the relevant provisions of the Ordinance. However, that application created two procedural problems which remained unresolved:

(i) Although the Notice of Motion had been amended, Mr Keane's original application had not been. As a result, the amended Notice of Motion sought relief which had not been sought in the original application, and in respect of what Mr Keane believed to be the Director of Legal Aid's practice relating to the legally aided person's choice of counsel, which had not been one of the specific decisions challenged in the original application.

(ii) Although Hartmann J had granted Mr Keane leave to apply for judicial review of the specific decisions challenged in the original application, leave to apply for judicial review had not been granted in respect of what Mr Keane believed to be the Director of Legal Aid's practice to which the new relief related - unless it could be said that the grant of leave to amend the Notice of Motion was tantamount to the grant of leave to apply for judicial review of what Mr Keane believed the Director of Legal Aid's practice to be.

7. The application to Stone J. Neither of these problems had been rectified by the time that the application for judicial review was heard by Stone J. However, the first of these problems was not regarded as a problem by Stone J. He considered the issues of construction of the relevant provisions of the Ordinance on their merits, and expressed views (albeit not final views) on them. But he dismissed the application for three procedural reasons, none of which related to the fact that the original application had not been amended. He dismissed the application

(a) because leave to apply for judicial review had never been obtained in relation to Mr Keane's new case,

(b) because declaratory relief was inappropriate, and

(c) because Mr Keane lacked the standing to challenge what he believed the Director of Legal Aid's practice to be once the assignment of counsel in Mrs Kumari's case was no longer an issue.

8. The subsequent amendment of the original application. Following the dismissal of his application, and the filing of his Notice of Appeal, Mr Keane applied to the Court of Appeal for the original application to be amended. That application was made in order to put right the first of the two problems which I have identified. It was an application to amend the original application

(a) to delete the decisions which had originally been challenged, namely the specific decisions relating to Mrs Kumari's case, and to substitute for them what Mr Keane believed the Director of Legal Aid's practice relating to the legally aided person's choice of counsel to be, and

(b) to delete the original relief which had been sought, and to substitute for it a claim for a declaration as to the Director of Legal Aid's obligations on a proper construction of the relevant provisions of the Ordinance.

That application was granted so as to provide the correct procedural framework in which the issues decided by Stone J in favour of the Director of Legal Aid could be canvassed on the appeal.

The construction argument

9. Both Mr Keane's original case and his new case raised the same legal issue - namely whether the failure of the Director of Legal Aid to give effect to the legally aided person's choice of counsel is contrary to section 13 of the Ordinance. Section 13 provides:

"(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)[...], 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." (Emphasis supplied.)

The panel referred to in section 13(3) are the separate panels of those counsel and solicitors who are prepared to act for legally aided persons, which the Director of Legal Aid is required by section 4(1) of the Ordinance to prepare and maintain. Mr Keane's name was included in the panel of counsel at all material times.

10. Mr Keane contends that the effect of section 13 is as follows. If a legal aid certificate is granted, the Director of Legal Aid first has to decide the level of representation which the legally aided person should enjoy. If he wishes, the Director of Legal Aid can act for the legally aided person himself. The effect of that would be that the legally aided person would be advised and represented "in-house" by legal aid officers working in the Legal Aid Department. Alternatively, the Director of Legal Aid can assign a solicitor, or counsel, or both a solicitor and counsel, to act for the legally aided person. And if he assigns counsel to act for the legally aided person, he can assign either junior counsel, or two junior counsel, or leading counsel, or leading counsel and junior counsel, to act for the legally aided person. In making that decision as to the level of representation, the Director of Legal Aid has a completely free hand in the matter.

11. However, once the Director of Legal Aid has decided to assign counsel to act for the legally aided person, the choice of counsel to be assigned to act for the legally aided person in the proceedings depends on whether the legally aided person has himself made a choice of which counsel he wishes to be assigned to act for him in the proceedings. Indeed, Mr Keane went so far as to say that the Director of Legal Aid cannot even try to steer the legally aided person away from his choice of counsel. However, even if the court does not go along with that extreme stance, Mr Keane contends that if the legally aided person has made such a choice, and maintains that choice despite advice to the contrary from the Director of Legal Aid, the Director of Legal Aid is bound to give effect to that choice, and to assign that counsel to act for the legally aided person in those proceedings. If the legally aided person has not made such a choice, the Director of Legal Aid is free to assign such counsel as he chooses. If this argument is correct, it applies with equal force to solicitors as well as to counsel.

The factual premise on which the construction argument proceeds

12. This argument proceeds on the assumption that there are occasions on which the Director of Legal Aid fails to give effect to the legally aided person's choice of counsel. Mr Keane recognised, of course, the possibility that the legally aided person's choice of counsel may be an unwise one. Counsel chosen by the legally aided person may lack either the experience or the specialised expertise required for the legally aided person's case. I do not suppose that that is likely to happen very often. After all, the choice of counsel is likely to have been made after consultation with the legally aided person's solicitors, and with the benefit of that advice the legally aided person is unlikely to have chosen unsuitable counsel.

13. Moreover, if the Director of Legal Aid regards the legally aided person's choice of counsel as unsuitable, the Director of Legal Aid is likely to advise the legally aided person that other counsel should be assigned. In that connection, I reject Mr Keane's assertion that the Director of Legal Aid is not entitled to do that. The most that Mr Keane can assert is that the Director of Legal Aid has to give effect to the legally aided person's final choice of counsel. After all, since the Director of Legal Aid is partly funding the litigation, he has an obvious interest in ensuring that counsel assigned to the legally aided person's case is suitable. If compelling reasons are given for that advice, it is almost inconceivable that the legally aided person would not withdraw his choice. In that event, what would almost certainly then happen is that the legally aided person would either choose other counsel who the Director of Legal Aid thought was appropriate or he would leave the selection of counsel to the Director of Legal Aid. That is borne out by the evidence filed on behalf of the Director of Legal Aid. Para. 8 of the affidavit sworn by Lolly Chiu, the Policy and Administration Co-ordinator in the Legal Aid Department, reads as follows:

"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."

14. For these reasons, it is difficult to imagine circumstances in which the Director of Legal Aid would, at the end of this process of consultation and advice, be faced with a legally aided person who insisted that counsel regarded as inappropriate by the Director of Legal Aid should nevertheless be assigned to his case. That is borne out by what Mr Nicholas Cooney for the Director of Legal Aid told us from the Bar Table. He said that his instructions were that that is not a problem with which the Director of Legal Aid has ever been confronted. There never has been a case in which the Director of Legal Aid has had to decide what he ought to do when a legally aided person obstinately refuses to choose other counsel despite the Director of Legal Aid's view that the original choice of counsel would not be appropriate. There has therefore never been an occasion on which the Director of Legal Aid has in fact failed to give effect to the legally aided person's choice of counsel.

15. I should add that Mr Keane was unhappy about Mr Cooney relaying to us his instructions from the Bar Table. If that was the position, so Mr Keane said, it should have been included in the evidence filed on behalf of the Director of Legal Aid. But I read the evidence filed on behalf of the Director of Legal Aid as impliedly saying just that. I have already referred to para. 8 of Ms Chiu's affidavit. It is to be noted that she did not state whether the Director of Legal Aid ultimately overrides or accedes to the legally aided person's choice of counsel, and I can infer from that, I think, that the issue has never been put to the test.

16. So on what basis is it said by Mr Keane that, as a matter of fact, there are circumstances in which the Director of Legal Aid declines to give effect to the legally aided person's choice of counsel? In the light of the affidavit sworn by the legal aid officer who considered Mrs Kumari's application for legal aid and who made the decision as to which counsel should be assigned, Mr Keane accepts that Mrs Kumari's case is not an example of the Director of Legal Aid deliberately declining to give effect to the legally aided person's choice of counsel. That is because the legal aid officer had simply overlooked the solicitors' request for Mr Keane to be assigned as Mrs Kumari's counsel. She had proceeded on the basis that Mrs Kumari had not made any choice as to counsel. (In fact Stone J found that it had not been proved that Mr Keane had been chosen by Mrs Kumari as her counsel. Mr Keane challenges that finding, but it is not necessary to address that issue for the purpose of disposing of this appeal).

17. If Mrs Kumari's case was not an example of the Director of Legal Aid declining to give effect to a legally aided person's choice of counsel, what other evidence is there to support Mr Keane's contention that there are nevertheless occasions on which the Director of Legal Aid declines to give effect to that choice? Two documents were relied upon by Mr Keane. First, in the course of his correspondence with the Director of Legal Aid which preceded the filing of his application, Mr Keane was provided with a document issued by the Legal Aid Department in April 1997 headed "Guidelines on assigning counsel and solicitors for legal aid work". Those guidelines made no reference whatever to the legally aided person's choice of counsel. Mr Keane argued that that showed that the legally aided person's choice of counsel was not a factor taken into account. I reject that argument. In para. 7 of her affidavit, Ms Chiu stated:

"If the applicant does not select Counsel or a solicitor, the Legal Aid Officer will make a selection and assignment with reference to the Guidelines."

Since the guidelines only apply in the absence of any choice of counsel being expressed by the legally aided person, any reference to such a choice in the guidelines would have been inappropriate. To be fair, when that point was put to Mr Keane in the course of argument, he saw the force of it and did not pursue his reliance on the guidelines.

18. Secondly, applications for legal aid in civil cases are made on forms issued by the Legal Aid Department. The form includes a section in which the person applying for legal aid may nominate a private solicitor to act on his behalf. That section includes the following statement which, by signing the application form, the applicant is treated as accepting:

"I understand that I may choose my own solicitor from the Legal Aid Panel only when the Director decides not to act for me and that my nomination may be refused if the Director considers that it is not in my interest to accept my nomination." (Emphasis supplied.)

The inclusion of this statement in the application form suggests that the Director of Legal Aid regards himself as having the power to decline to give effect to the applicant's choice of solicitor. Since Mr Keane's argument on the proper construction of section 13(1) applies with equal force to counsel as well as to solicitors, the inclusion of this statement in the application form suggests that the Director of Legal Aid regards himself as having the power to decline to give effect to the applicant's choice of counsel.

19. I see the force of that argument, but I do not think that it provides a sufficient evidential foundation for saying that the Director of Legal Aid does in fact override the legally aided person's choice of counsel. Since the situation has never arisen, we do not know what stance the Director of Legal Aid would take. Nor indeed does he. Faced with the seemingly unequivocal language of section 13(1), the Director of Legal Aid may feel that he has no alternative but to give effect to the legally aided person's choice of counsel, but the fact is that no-one knows, not even he, what he would in fact do. In the circumstances, the most that can be said about this statement in the application form is that it represents what the person who drafted it thought the Director of Legal Aid's powers were or how he thought the Director of Legal Aid would exercise them. In any event, the Director of Legal Aid has not had an opportunity to file evidence to deal with the reliance which Mr Keane placed on the form. Although it was exhibited to Mr Keane's affidavit in support of his original application, no reference was made to it in the grounds of the original application, nor was any reference made to the reliance which Mr Keane was going to place on it.

The appropriateness of determining the construction argument

20. Against that background, the question arises whether it is appropriate for the court to determine whether section 13(1) permits the Director of Legal Aid to decline to give effect to a legally aided person's choice of counsel. Stone J thought that it was not appropriate. I agree with him. There is no sufficient evidential foundation for the assertion that that is what the Director of Legal Aid either has been doing or believes he has the power to do. In my view, the court's supervisory powers were never engaged, because on the evidence there was no sufficient foundation for the assertion that the Director of Legal Aid has been doing or threatens to do that which is contended to be unlawful. Rather than pronouncing on the proper construction of section 13(1) - an issue which Stone J, rightly in my view, described as "far from clear-cut" - I would much prefer to leave the proper construction of section 13(1) to be determined in an actual case in which it is established that, for one reason or another, the Director of Legal Aid declined to give effect to the legally aided person's choice of counsel.

21. In this context, I echo entirely the sentiments expressed in the following passage of Stone J's judgment:

"I can .... 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."

Hartmann J was equally alive to this problem. On the occasion when he granted Mr Keane leave to amend the Notice of Motion, he added:

"However, I wish to record my .... misgivings ... that in the absence of any request for orders specifically related to the respondent's failure to appoint the applicant as counsel to Mrs Kumari, or at least to reconsider that appointment, there may, in my opinion, be a real danger that the court at the substantive hearing will be asked to do no more than give an advisory judgment; in short, to state an interpretation of the statute in a vacuum, so that the applicant and/or others may use it for other separate and distinct cases."

If there had been a sufficient evidential foundation for concluding that the Director of Legal Aid's practice is not to respect the legally aided person's choice of counsel, declaratory relief along the lines sought by Mr Keane might have been appropriate - on the assumption, of course, that Mr Keane's argument on the proper construction of section 13(1) was correct. It is the absence of any evidential foundation for that conclusion, and the absence therefore of any evidence as to the circumstances in which effect is not given to legally aided persons' choice of counsel, which rendered declaratory relief inappropriate in the present case.

The procedural problems

22. This conclusion makes it unnecessary for me to consider the two other procedural grounds on which Stone J concluded that the application had to be dismissed. However, in deference to Mr Keane's careful arguments, which were deployed, as one would expect, with courtesy and moderation, I propose to comment briefly on them.

(i) Leave. When leave to apply for judicial review is granted, what is actually being granted is leave to apply for judicial review of a particular decision, order or practice which is susceptible to judicial review. That is apparent from the prominent place given to the box in Form 86A in which the applicant for leave has to identify "the judgment, order, decision or other proceedings in respect of which relief is sought". An applicant also has to specify (a) the nature of the relief which he seeks and (b) the grounds on which he seeks that relief, but the fact remains that when leave to apply for judicial review is granted, what is being granted is leave to apply for judicial review of the particular judgment, order or decision referred to in the application. Thus, when Hartmann J gave Mr Keane leave to apply for judicial review, he was giving Mr Keane leave to apply for judicial review of the decisions referred to in the application - which were the specific decisions made by the Director of Legal Aid relating to the assignment of counsel in Mrs Kumari's case. Hartmann J must be assumed to have concluded that

(a) as a matter of fact, there was an arguable case for asserting, on the evidence then before the court, that Mrs Kumari had made a choice of counsel and that that choice had been ignored, and

(b) as a matter of law, there was an arguable case for asserting that the Director of Legal Aid had no power to decline to give effect to Mrs Kumari's choice of counsel.

23. However, the change in the focus of Mr Keane's application meant that he was no longer challenging the decisions made by the Director of Legal Aid relating to the assignment of counsel in Mrs Kumari's case. He was challenging the legality of what Mr Keane believed to be the Director of Legal Aid's practice of not respecting a legally aided person's choice of counsel. That required a new application for leave to apply for judicial review. No such application was ever made.

24. It is said that the grant of leave to amend the Notice of Motion was tantamount to the grant of leave to apply for judicial review of what Mr Keane believed the Director of Legal Aid's practice to be. I cannot accept that argument for two reasons. First, the Notice of Motion is the document by which, leave to apply for judicial review having been granted, the applicant notifies the respondent of the relief for which he asks. Thus, the amended Notice of Motion substituted, for the relief sought in the original Notice of Motion, a claim for a declaration as to the Director of Legal Aid's obligations on a proper construction of the relevant provisions of the Ordinance. The fact that an applicant is given leave to change the relief which he seeks does not necessarily mean that the court has given him leave to apply for judicial review to enable him to challenge different decisions from those set out in his original application.

25. Secondly, for the grant of leave to amend the Notice of Motion to be treated as tantamount to the grant of leave to apply for judicial review of what Mr Keane believed to be the Director of Legal Aid's practice relating to a legally aided person's choice of counsel, Hartmann J would have had to consider the merits of such a challenge. Otherwise, the rationale for the requirement of leave will not have been met. That rationale is for leave to act as a filtering process

".... to prevent the time of the court being wasted by busybodies with misguided or trivial complaints of administrative error, and to remove the uncertainty in which public officers and authorities might be left as to whether they could safely proceed with administrative action while proceedings for judicial review of it were actually pending even though misconceived"

(per Lord Diplock in Inland Revenue Commissioners v. National Federation of Self-Employed and Small Businesses Ltd. [1982] AC 617 at p. 643A ("the Fleet St. Casuals case"). Thus, Hartmann J would have had to consider whether, as a matter of fact, there was an arguable case for asserting, on the evidence then before the court, that the practice of the Director of Legal Aid in certain circumstances was indeed to decline to give effect to a legally aided person's choice of counsel. A reading of the transcript of Hartmann J's careful judgment when he gave directions for the further progress of this application - including granting leave to amend the Notice of Motion - shows that Hartmann J never addressed that question at all. That was entirely understandable, because (a) he was considering an application for leave to amend the Notice of Motion rather than an application for leave to apply for judicial review, and (b) the Director of Legal Aid was not opposing the application for leave to amend. But it is because Hartmann J never considered the issue on its merits that it cannot be said that the leave which he granted to amend the Notice of Motion amounted to the grant of leave to apply for judicial review of what Mr Keane believed the Director of Legal Aid's practice to be.

26. If Hartmann J cannot be said to have granted leave to apply for judicial review of what Mr Keane believed the Director of Legal Aid's practice to be, Mr Keane applied for such leave from the Court of Appeal. I do not think that the Court of Appeal has power to grant such leave. Section 21K(3) of the High Court Ordinance (Cap. 4) provides:

"No application for judicial review shall be made unless the leave of the Court of First Instance has been obtained in accordance with rules of court ..." (Emphasis supplied.)

Thus, the role of the Court of Appeal in relation to leave is limited to determining (a) an appeal under Ord. 53 r. 3(4) from the refusal of leave by the Court of First Instance or (b) an appeal from an order either setting aside or refusing to set aside the grant of leave when that leave had been granted ex parte. The only provisions which might have supported Mr Keane's case are section 13(4) of the High Court Ordinance and Ord. 59 r. 10(1), but they only relate to appeals, rather than an application for leave which is made to the Court of Appeal for the first time. In any event, I doubt very much whether leave can be given by any court to validate the substantive hearing of an application when that application could only have been substantively considered after leave had been granted. But ignoring all these difficulties, I would in any event have refused leave - on the basis that on the view which I have taken of the merits of the substantive application, the substantive application would have had to be dismissed.

(ii) Standing. Mr Cooney's argument on standing was summarised by Stone J as follows:

".... such rights as have been bestowed by the legislature upon the legally aided person are those of the aided person alone, and .... any counsel disaffected by any particular assignment should have little to say about it ...."

Stone J rightly rejected this argument. I accept without reservation that the legally aided person is the beneficiary of any right which he may have to be represented by counsel of his choice. But that does not mean that if the Director of Legal Aid declines to give effect to the legally aided person's choice of counsel, counsel is unaffected by that decision. That he is affected by it is obvious. He is denied the chance to act for the legally aided person in the proceedings to which the legal aid certificate relates, thereby losing the opportunity to earn fees and to practise his skills. Now that the courts have "adopted a more generous concept of locus standi" in applications for judicial review (per Lord Roskill in the Fleet St. Casuals case at p. 658B), it cannot be said that Mr Keane did not have sufficient standing to pursue his case as originally formulated.

27. The key question is whether Mr Keane continued to have sufficient standing when the case moved away from the Director of Legal Aid's refusal to assign him as counsel in Mrs Kumari's case. Stone J thought that Mr Keane did not. With great respect to Stone J, this is the only part of his judgment (which I have read and re-read with increasing admiration) which I find unconvincing. In my opinion, counsel on the Director of Legal Aid's panel has as much of an interest in a legally aided person's choice of counsel being respected in the future as he has in relation to a particular case in the past. For my part, therefore, I would have held that Mr Keane had sufficient standing to apply for judicial review of what he believed the Director of Legal Aid's practice to be.

28. I have not overlooked the argument that section 26 of the Ordinance provides a comprehensive statutory regime for challenging decisions of the Director of Legal Aid relating to legal aid. However, save for one exception, that regime benefits only persons who have applied for, or been granted, legal aid. It does not benefit counsel. The exception is the provision in section 26(4) which assumes that counsel or a solicitor whose name has been excluded from the relevant panel under section 4(3) of the Ordinance can appeal against that exclusion under section 26. Since that is the only situation in which counsel can benefit from the rights of appeal afforded by section 26, it follows that counsel's only remedy for the Director of Legal Aid's refusal to give effect to a legally aided person's choice of counsel is by way of an application for judicial review.

The position of leading counsel

29. The position of leading counsel is governed by sections 13(2) and 13(3) of the Ordinance. An issue of construction arises on them. The Director of Legal Aid contends that once he has decided that the legally aided person's case is not, and will not become, one "of exceptional difficulty or importance", so that the operation of section 13(2) has not been triggered, the legally aided person is not entitled to select leading counsel. Mr Keane contends otherwise. He argues that even if the legally aided person's case is not one to which section 13(2) applies, the legally aided person is still permitted to choose leading counsel to act for him, and the Director of Legal Aid may either give effect to that selection or decline to give effect to it. Mr Keane accepts, of course, that the Director of Legal Aid is unlikely to give effect to that selection if leading counsel is not prepared to charge rates appropriate for junior counsel. Indeed, he also accepts that even when leading counsel is prepared to charge rates appropriate for junior counsel, the Director of Legal Aid may still decline to give effect to the fact that the legally aided person has chosen leading counsel to act for him.

30. For my part, I accept that there is a difference of opinion here, but that does not mean that that difference of opinion needs to be resolved. It only needs to be resolved if, as a matter of fact, in cases in which the legally aided person chooses leading counsel, the Director of Legal Aid's practice is not to assign leading counsel for the reason only that he considers that the case is not one to which section 13(2) applies. There was no evidence that that is the Director of Legal Aid's practice.

31. I note that the legal aid officer who considered Mrs Kumari's application for legal aid deposed that the fact that Mrs Kumari's solicitors had stated that Mr Keane was prepared to charge rates applicable to junior counsel was not a matter which she was entitled to take into account. I cannot assume that that was simply because Mrs Kumari's case was not one to which section 13(2) applied. It may be that the legal aid officer thought that she could not take into account Mr Keane's concession as to fees for another reason entirely. As Rogers JA has noted in his judgment (which I have had the benefit of reading in draft), the consequences of instructing leading counsel may well extend beyond the question of the fees payable to leading counsel. If leading counsel is instructed, the other party to the litigation may decide to instruct leading counsel, and the potential liability for the other party's costs will be greater.

32. Finally, two other points should be made. First, the fact that the Director of Legal Aid contends that he is entitled to ignore altogether the fact that a legally aided person has chosen leading counsel if the case is not one to which section 13(2) applies does not mean that as a matter of fact he does ignore the legally aided person's choice of counsel in those circumstances. Secondly, even if there was a sufficient evidential foundation for this alleged practice, the fact remains that leave to apply for judicial review of this practice has never been sought or obtained.

Conclusion

33. For these reasons, I would dismiss this appeal. At present, I see no reason why the costs of the appeal should not follow the event, and the order nisi which I would make as to costs is that Mr Keane must pay to the Director of Legal Aid his costs of the appeal to be taxed if not agreed.

Rogers JA:

Introduction

34. This is an appeal from a judgment and order of Stone J given on 8 February 2000 whereby he dismissed the applicant's application for judicial review.

35. In view of the way in which this matter has progressed, it is unfortunately necessary to set out in some detail the history of the matter.

36. Mr Keane SC, appeared in person before us. He is both appellant in the matter and was the original applicant. For convenience, I shall refer to him by his name. Mr Keane issued proceedings for judicial review by notice of application under Order 53 rule 3 on 7 September 1999. The notice of application identified under the heading "Judgment(s), Order(s), Decision(s) or other Proceedings in respect of which Relief is sought" :-

"The following decisions of the Director of Legal Aid, Hong Kong, as to Assignment of Counsel to Mrs. Rai Bhim Kumari, a legally aided person, for her proposed Judicial Review Proceedings :-

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."

37. The relief which was sought can be divided into two parts. There was, first of all, interim relief. Under that heading was sought the supply of all documents, including hard copies, of electronic records relevant to Mr Keane's written requests to the Director of Legal Aid for information in correspondence which took place between 30 August 1999 and 7 September 1999. Mr Keane also sought the facility to inspect and take copies of the documents.

38. The final relief which was sought was, in the first place, orders of certiorari to quash the first and second decisions, an order of mandamus to substitute Mr Keane as Counsel assigned to Mrs Kumari for her proposed judicial review proceedings and alternatively, an order of mandamus to compel the Director of Legal Aid to reconsider the assignment of Mr Keane as Counsel for Mrs Kumari. Further or alternatively, damages were claimed.

39. In respect of damages, it can only be presumed that the damages sought were damages to be payable to Mr Keane himself since there was no suggestion in any of the documentation that the damages which were sought at that stage were in respect of any loss suffered by Mrs Kumari still less to be payable to her.

40. I do not propose to recite the contents of the correspondence between Mr Keane and the Director of Legal Aid in the period mentioned. It turned almost exclusively upon whether Mr Keane's name was included in the Legal Aid Panel and if so, subject to what, if any, conditions or limitations. There were suggestions that there was discrimination against Mr Keane.

41. The grounds on which relief was sought were that Mr Keane was a Senior Counsel of some considerable standing; that he had provided advice to solicitors who were acting on behalf of Mrs Kumari on a no-fee basis; that those solicitors when applying for legal aid had indicated that Mr Keane was the counsel of Mrs Kumari's choice and that he would not seek remuneration greater than that payable to a junior counsel; that the Director of Legal Aid had, when issuing the legal aid certificate, assigned other counsel and "declined and/or refused to respond to the Applicant's (Mr Keane's) requests for reconsideration of the matter"; that the Director had failed to respond to Mr Keane's correspondence and inform him why he had not been assigned as counsel and as to whether he, the Director, was now willing to reconsider the matter and substitute Mr Keane as counsel; and finally :-

"If and insofar as the Director of Legal Aid regards the criteria promulgated in the above 'Guidelines on Assigning Counsel And Solicitors for Legal Aid Work' document as requiring or even permitting decisions not to assign the Applicant (Mr Keane) as Counsel in Legal Aid Judicial Review cases such as Mrs Kumari's (the Applicant also being similarly concerned in approximately 5 similar cases), the Applicant's practice at the Hong Kong Bar is in serious jeopardy without Judicial Review of the decisions herein."

42. That is how the matter started. On the face of the papers, it would appear that the application for judicial review was directed to seeking to reverse alleged decisions of the Director not to assign Mr Keane as counsel for Mrs Kumari and declining to substitute Mr Keane as counsel for Mrs Kumari when requested and in failing to reconsider those decisions and seeking damages for Mr Keane. The matter was therefore, in short, entirely directed to Mrs Kumari's case and the supposed decisions of the Director of Legal Aid in respect of the assignment of counsel for Mrs Kumari's judicial review proceedings. The grounds upon which the application were made related entirely to the failure to assign Mr Keane as counsel in Mrs Kumari's case and to possible prejudice which the Director of Legal Aid held against Mr Keane personally. Finally, there is an allegation that the matters complained of are putting Mr Keane's practice at the Hong Kong Bar in jeopardy. Those grounds have remained unaltered.

43. Very shortly after granting leave to apply for judicial review, the matter came back before Hartmann J and there is a decision headed "Directions" dated 24 September 1999 in which Hartmann J set out some of the history, which even by then had become checkered. The result of that hearing on 24 September was that, amongst other things, Hartmann J permitted amendment to the notice of motion which had been filed. That amendment was such as to include the following relief :-

"1. A Declaration that, on the true construction of Cap. 91, and in particular sections 4 and 13 thereof, 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."

44. The only other relief sought in the amended notice of motion was an order for costs.

45. In giving leave to amend the notice of motion, Hartmann J said :-

"The declaration sought is couched in general terms, but the applicant still, in terms of his notice, sought to rely on the grounds detailed in his original notice of motion in support of his prayer for that declaration."

46. It seems to me clear that in so saying, Hartmann J was under the illusion that the declaration which was thereafter sought by Mr Keane still related to the same grounds upon which he had founded his original application. In other words, Hartmann J was apparently under the impression that the points to be argued all rose from the supposed decisions of the Director which formed the subject of the grounds originally filed.

47. When the matter came before Stone J on the hearing of the judicial review proceedings in January of this year, it was at once apparent that as Stone J said :-

"The case had undergone a sea change in terms both of approach and of the relief sought."

48. Mr Keane, by then represented by counsel, was not seeking to challenge the decisions in relation to Mrs Kumari's case but the focus was now upon what Stone J identified as "certain discursive parts of the affidavits of Ms. Mo and Ms Chiu, the Legal Aid officers concerned ..." The point, as argued, was that the Director of Legal Aid was adopting a general policy which was in breach of section 13(1) of the Legal Aid Ordinance in that when a person to whom a legal aid certificate was granted had indicated a choice of counsel the Director or his officers:-

(a) might seek to influence the legally aided person as to the choice of another counsel whom they considered was more appropriate for the case; and

(b) reserved the right to assign a counsel who was not the selected counsel of choice of the legally aided person.

49. The point I have identified in (a) above emanates in particular from the affidavit of Lolly Chiu. The point I have identified in paragraph (b) above finds its strongest foundation in a note which is to be found in the application form for legal aid which is signed by an applicant when making an application for legal aid. A sample application form was exhibited to Mr Keane's founding affidavit but does not feature anywhere in the notice of application for leave to apply for judicial review. Still less, of course, does Miss Lolly Chiu's affidavit feature in that document.

50. In my view, Stone J was quite correct in saying that despite the fact that Hartmann J had permitted an amendment to the notice of motion, no leave had been granted to challenge the decision which was by then sought to be challenged, in other words, the alleged policy of the Director of Legal Aid. In my view, that matter is plain.

51. That is not the end of this aspect of the case since by order dated 21 March 2000, Keith JA gave leave to Mr Keane to amend the notice of application for leave to apply for judicial review to reflect the relief identified in the amended notice of motion. In doing so, Keith JA left open entirely the question of whether leave to apply for judicial review in respect of the decision or policy which had been argued before Stone J had ever been granted.

52. In those circumstances, in my view, this case should have proceeded no further. Indeed, I would go so far as to say that leave to apply for judicial review should never have been granted in the first place. It was based upon the alleged refusal of the Director of Legal Aid to assign Mr Keane as counsel to a legally aided person. Mr Keane is a Senior Counsel. It is convenient at this point to set out the whole of section 13 of the Legal Aid Ordinance :-

"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."

53. I read section 13(3) as if it did not contain "(b)". That is clearly an error made in editing. The effect of the section is clear. The Director may allocate a leading counsel if the case is of exceptional difficulty or importance. By section 13(3), the legally aided person must choose a counsel from the panel and may not choose a leading counsel unless the Director consents. In my view, it makes no difference whether the leading counsel is prepared to accept fees assessed on a basis suitable for a junior counsel. Indeed, Mr Keane, at the hearing before us, specifically put his case forward on the basis that this matter was entirely in the Director's discretion. The reason is quite simple. The consequences of engaging leading counsel are likely to extend beyond the question of the fees payable to leading counsel. If leading counsel is engaged for one party, the other party will undoubtedly contemplate the desirability of themselves employing leading counsel. Hence, the potential liability as to costs can be quite different if a leading counsel is engaged. In my view, the challenge to the supposed decisions of the Director as originally framed was doomed to failure from the start.

The basis of the present appeal

54. The basis of the present appeal is that it is alleged that the Director is operating in a manner contrary to section 13(1). Turning to that section, it would appear that when a legal aid certificate is granted, the Director has the option as to whether to arrange for the aided person to be represented by a lawyer in his office or whether to assign an outside solicitor. In addition, he may assign counsel to act on the aided person's behalf. The question then arises as to what must happen in a situation where a person to whom a legal aid certificate has been granted, has expressed a preference for a particular solicitor or counsel. In paragraph 8 of the affidavit of Lolly Chiu Yuen Chu, it is said :-

"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."

55. Mr Keane's first point is that it is illegal and unacceptable for the Legal Aid officer even to seek to persuade a legally aided person as to the choice of counsel. It is said that it is no business of the Director of Legal Aid to seek to advise a legally aided person as to the appropriate person to act on his behalf. In my view, that argument is wrong. It would be unexceptionable for the Director of Legal Aid, a Legal Aid officer assigned to a case or indeed an assigned solicitor to tender advice as to an appropriate counsel. Indeed, in my view, it would be a dereliction of duty if they did not do so in circumstances where they considered, for valid reasons, that the person initially selected by the legally aided person was inappropriate.

56. The next question is whether the Director of Legal Aid has power to override the selection of counsel (or solicitor) once the legally aided person has made a final selection. Mr Cooney, on behalf of the Director of Legal Aid, after taking instructions, said that his client had not made up his mind on such a question. He said that it was, in any event, a hypothetical question. That latter point appears to me to be correct. There was no evidence that the Director had ever disregarded the selection of an available and willing counsel.

57. Mr Keane, however, pointed to the form entitled "Application for Legal Aid (Civil Cases)". This is a form which has to be completed by an applicant for legal aid. It concludes with a declaration which is immaterial for present purposes and a space for the applicant's signature.

58. Insofar as the document deals with the selection of lawyer, it is as to solicitors. The first option given in that document is that the person seeking legal aid can opt for representation by a Legal Aid officer. The document then goes on :-

"If it becomes necessary to appoint a private solicitor to act for me, I wish the private solicitor to be :

selected by the Director of Legal Aid

nominated by me as follows :

Firm ___________________

(i) I understand that my request for a Legal Aid Department lawyer to represent me is subject to the Director's absolute discretion.

(ii) I understand that I may choose my own solicitor from the Legal Aid Panel only when the Director decides not to act for me and that my nomination may be refused if the Director considers that it is not in my interest to accept my nomination."

59. The point made is that note (ii) clearly indicates that the Director feels he is able to override a selection of a solicitor made by a person who was otherwise successful in his application for legal aid. Given a broad meaning to the word "interest" in note (ii) that is obviously arguable. However, in the absence of any evidence that the Director has in fact overridden a settled selection on the part of a legally aided person, it seems to me to be, at worst, the expression of a wrong understanding of section 13(1).

60. It was acknowledged by Mr Keane that there was no decision, in the narrow sense of the word, in respect of which this application is made. What is attacked is what is said to be the "illegality" of the Director's own policy.

No relief by way of judicial review should be granted

61. In the absence of any known instance of breach of section 13(1) of the Ordinance, I consider that no relief by way of declaration should be granted.

62. Importantly, by section 26 of the Ordinance, applicants for legal aid and legally aided persons are given a right of appeal should they be aggrieved by any decision of the Director under any of the provisions of the Ordinance. Hence, if the Director did ever act in breach of the provisions of section 13(1) in the assignment of solicitor or counsel, there is an adequate remedy which is available to them. In the circumstances, I consider that the interests of the applicants and the legally aided persons are fully protected by remedies which are otherwise available.

63. Insofar as the suggestion has been made that section 13 together with section 4 gives counsel and solicitors concurrent and concomitant rights to be assigned if selected, I would only say that, in my view, the assignment of counsel and solicitors under the provisions of the Ordinance is for the benefit of the legally aided persons and the applicants for legal aid.

64. Section 4 of the Legal Aid Ordinance deals with the maintenance by the Director of Panels, in reality lists, of lawyers who are prepared to act for legally aided persons. Subsections (1) and (2) reflect, in my view, the fact that it is a public service which the lawyer gives in acting for a legally aided client. The words "... who are willing to investigate, report and give an opinion ..." in subsection (1) and "... prepared to act for aided persons ..." in subsection (2) amply reflect that. The only basis on which it could be said that the Ordinance provided rights to a lawyer to act on a legally aided person's behalf is subsection (3) which talks of the lawyer being "... entitled to have his name included on the panel ...". That, on its own, however, does not seem to me to give the lawyer any further rights than to be able to have his name included on a panel and to be assigned if selected by a client, other provisions of the Ordinance being satisfied. Those I would identify as the lawyer's rights. The Ordinance gives lawyers no further rights than any other member of the public would possess to question the propriety of the conduct of the Director of Legal Aid, in circumstances where the lawyer's personal rights which I have identified are not breached.

65. As was pointed out by Stone J in the passages from the authorities which he cited, the court now takes a more broad and liberal attitude to what would give an applicant for relief by judicial review a locus. If convinced that the application were made on the basis of a settled and proven practice by the Director which flouted the law the position might be different. It is not the case here that there is any settled or proven practice. Furthermore, the original application was founded purely upon Mr Keane's self-interest in securing assignment as Mrs Kumari's counsel. The object was for him to earn fees, albeit at junior counsel's rate.

66. As has been pointed out, the application for judicial review was not made by Mrs Kumari and not overtly, at any rate, supported by Mrs Kumari. There is no supporting affidavit or letter from the solicitors who were appointed to act for Mrs Kumari. Indeed, there was no evidence that Mrs Kumari had ever met Mr Keane. Ms. Mok is a Senior Legal Aid Counsel, who interviewed Mrs Kumari when she applied for legal aid. Her uncontroverted evidence is that when she asked Mrs Kumari whether she had legal representation, Mrs Kumari said she had none. Ms. Mok says that to the best of her recollection, Mrs Kumari told her she had not seen any legal adviser even though she nominated a solicitor in her legal aid application form. For completeness, I would add that that solicitor was assigned to Mrs Kumari's case.

67. In my view, the present focus of the application was a belated attempt to try to base the case upon something which was faintly arguable. In doing so, Mr Keane has clutched at straws and done no more than point to a probable inaccuracy in one of the pieces of documentation produced by the Legal Aid Department.

Godfrey VP:

68. I agree that, for the reasons given in the preceding judgments, this appeal must be dismissed, with the order as to costs proposed by Keith JA.