CHANDRU THANWARDAS MIRCHANDANI v. ATTORNEY GENERAL

H E A D N O T E

Legal Aid in Criminal Cases Rules, Cap.221, rule 15(2) empowers Director of Legal Aid to grant legal aid notwithstanding determination that applicant's financial resources exceed amount specified in relevant legislation. But sub-rule does not provide that Director may grant legal aid when, by reason of insufficient disclosure by applicant of his financial resources, Director is unable to determine whether or not, and if so to what extent, such resources exceed amount so specified.

IN THE COURT OF APPEAL

1993, No. 72
(Civil)

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J U D G M E N T

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Bokhary, J.A.:

1. This is an appeal from a judgment of Mayo J given on April 23 this year dismissing the appellant's application for judicial review of the Director of Legal Aid's refusal to grant him legal aid for his appeal against his conviction in the High Court on 35 counts involving the uttering of forged documents and false accounting.

2. Rule 15 of the Legal Aid in Criminal Cases Rules, Cap. 221, reads as follows:-

"(1) Subject to paragraph (2) the Director shall assess the financial resources of each applicant for legal aid in accordance with the Legal Aid (Assessment of Resources and Contributions) Regulations (Cap.91 sub.leg.) as if the applicant were a person applying for legal aid under the Legal Aid Ordinance (Cap.91), and those regulations shall apply accordingly.

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

3. In the present case, the Director of Legal Aid acted through Mrs Dorothy Pritchard, an Assistant Director of Legal Aid.

4. Mrs Pritchard's approach appears by her affidavit dated January 27, 1993. She says in effect that she has not been able to assess the applicant's financial resources because he has failed to make sufficient disclosure of the same. That, she says, left her with "no option but to refuse his application" for legal aid. The view which she took - and continues to take - is, as she puts it, that:-

"... the question of the exercise of the Director's discretion under rule 15(2) does not arise until an assessment of financial resources has been made. Without making such an assessment, it would be impossible to determine the maximum contribution of the aided person under the new rule 16(3)."

5. Sub-rule (2) of rule 15 empowers the Director of Legal Aid to grant legal aid notwithstanding a determination that the applicant's financial resources exceed the amount specified in the relevant legislation. But the sub-rule does not provide that the Director may grant legal aid when, by reason of insufficient disclosure by the applicant of his financial resources, the Director is unable to determine whether or not, and if so by what extent, such resources exceed the amount so specified.

6. Unless the Director's view that the applicant has failed to make sufficient disclosure is irrational, the refusal of legal aid in the present case is not to be disturbed. It is necessary in all the circumstances, including the fact that the appellant has an outstanding appeal against conviction, to guard against saying too much. All things considered, I must content myself with saying that it does not seem to me possible to condemn the Director's view as irrational.

7. In my judgment, this appeal must be dismissed. Mortimer JA:

8. I agree, for the reasons given by my Lord, that this appeal must be dismissed.

Bewley, J.:

9. I also agree and have nothing to add.

[Argument on costs]

Bokhary, J.A.:

10. The respondent is entitled to his costs of the appeal; and we so order.