ELIJAH SAATORI v. MASTER K LO, DEPUTY REGISTRAR OF HIGH COURT

HCAL 243/2017

[2018] HKCFI 2515

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 243 OF 2017

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only;     or
	consideration of the documents and oral submissions by senior government counsel for the Putative Interested Party and the Applicant appearing in person in open court;

1. The application for leave to apply for judicial review is refused.

2. Costs of this application be to the DLA, to be taxed if not agreed.

Observations for the Applicant:

The reasons are as follows:

1.   The applicant seeks leave to judicially review Master K Lo’s decision dated 24 March 2017 (“the Master’s Decision”), dismissing the applicant’s appeal against the Director of Legal Aid’s decision dated 8 December 2016 (“the DLA’s Decision”) to discharge the applicant’s legal aid certificate (“the Restored Legal Aid Certificate”) granted to him in relation to his personal injuries action under HCPI 1114/2006.

2.   In making the Master’s Decision, the learned Master stated that she agreed with the reasons of the DLA in discharging the Restored Legal Aid Certificate.   She also stated that she had followed the directions in Nguyen Trong Son v Director of Legal Aid (HCAA 20/1999, 15 December 2000) in considering the appeal.

3.   The DLA’s reason in discharging the Restored Legal Aid Certificate is a simple one:  HCPI 1114/2006 was already dismissed by Hon Chow J on 7 November 2016.  Given that the underlying action has already been disposed of, it must be correct to discharge the Restored Legal Aid Certificate.

4.   HCPI 1114/2006 was dismissed upon the failure of the applicant in complying with a condition (“the Adjournment Condition”) made by the learned judge.  Under the Adjournment Condition, the applicant was required to make certain payments by 7 November 2016 (as one of the conditions to adjourn the trial to a date to be fixed on the applicant’s application), failing which, the action would stand dismissed.  The applicant failed to comply with the payment requirements, and hence the action was dismissed.

5.   The applicant’s Form 86 is voluminous and repetitive.  Effectively, the applicant seeks to challenge the Master’s Decision on the following grounds:

(1) It is wrong for the Master to apply Nguyen Trong Son.

(2) The Master was wrong in all the circumstances to consider (in agreeing with the DLA) that HCPI 1114/2006 has been disposed of.

6.   The court in a judicial review against the Registrar’s decision in a legal aid appeal does not sit as a further tier of appeal.  The court’s function is confined to review the legality, rationality and fairness of the process.  In this respect, grounds not canvassed before the Registrar could not be relied upon in a judicial review.  Further, the court in a judicial review of this type should not delve in depth into the merits of the underlying claim.  See: Chan Chiu Kwan v Registrar of the High Court [2015] 1 HKC 533 (CA) at paragraphs 8 -10 per Lam VP.

7.   Bearing these principles in mind, the applicant’s proposed grounds of judicial review are clearly without merits. I will explain why.

8.   First, in Nguyen Trong Son, Keith JA (sitting as an additional Court of First Instance judge) stated at paragraph 3 what he regarded should be the correct approach in a legal aid appeal:

“This appeal is a hearing de novo. My function is to determine whether the Appellant has shown that he has reasonable grounds for taking the proceedings, bearing in mind that the issue in the case is one of fact. I do not believe that I have to be satisfied that it is more probable than not that the issue of fact will be decided in the Appellant’s favour. But I do have to be satisfied, I think, that the Appellant has shown that there is a reasonable, as opposed to a fanciful, chance of the court at trial deciding that issue of fact in his favour. That question has to be decided without a prolonged investigation on the part of the court. Otherwise, the hearing of the appeal would degenerate into a mini-trial of the action itself.”

9.   This approach is clearly correct, as has been confirmed in Chung Yuk Ying v Registrar of the High Court [2013] 5 HKLRD 78 at paragraphs 9-10 and Wong Chun Tak v Registrar of High Court [2015] 3 HKLRD 449 at paragraph 17.

10.   The learned Master was therefore obviously correct in reminding herself and adopting those directions in Nguyen Trong Son in determining the applicant’s legal aid appeal.

11.   This ground of challenge is therefore wholly without merits. 

12.   In relation to the applicant’s contentions that the Master was wrong to find (and thus agreeing with the DLA) that the HCPI 1114/2006 had been disposed of boils down to two points (as recognised under public law):

(a)   She failed to properly appreciate and recognise the history leading to the re-grant of the Restored Legal Aid Certificate, and thus failed to take into account a relevant and very important factor in the determination;

(b)  She failed also to take into account the fact that, even as dismissed (albeit wrongly in the applicant’s submission), the action HCPI 1114/2006 is not fully disposed of as there are outstanding costs issues under the action, which require the applicant’s participation.  Hence, the legal aid certificate should not be discharged before the disposal of all these outstanding issues.

13.   Under (a) above, the relevant history that the applicant refers to can be briefly summarized as follows:

(1)   The applicant was first granted legal aid certificate (“the Original Legal Aid Certificate”) in January 2011 in HCPI 1114/2006.

(2)   However, the Original Legal Aid Certificate was revoked on 26 August 2016, just before the commencement of the trial on 2 September 2016.  It was then revoked on the ground that he had wilfully failed to disclose facts pertaining to his financial resources in that he had substantial means which had not been disclosed.  He appealed the revocation by way of a legal aid appeal

(3)   At the same time, he then applied to the trial judge, Chow J, to adjourn the trial pending his legal aid appeal against the revocation or his seeking to instruct new counsel to represent him.  The judge refused the adjournment application.

(4)   The applicant then was absent from the trial on the first, and subsequent adjourned dates (which were a few days apart) on the basis that he was sick.  He had produced various medical certificates to support that.

(5)   Finally, on 7 September 2016, the judge ordered the trial to be adjourned to a new date to be fixed but on terms (i.e., the Adjournment Condition), which required the applicant to pay to the defendant as well as into court various sums, totally some $1.6m, within 21 days.   The judge further ordered that unless the applicant complied with the Adjournment Condition, the action shall stand dismissed without further order, with costs.

(6)   The applicant applied to the Judge to, among others, stay the Adjournment Condition, in particular given his pending legal aid appeal against the revocation of the Original Legal Aid Certificate.  The judge dismissed the stay application but the Adjournment Condition compliance date was eventually extended to 7 November 2016.

(7)   The applicant did not comply with the Adjournment Condition, and hence the action HCPI 1114/2006 was dismissed with costs on 7 November 2016.

(8)   On the other hand, on 9 November 2016 (i.e., 2 days after the dismissal of the action), the applicant’s legal aid against the revocation was allowed by Master J Wong.   Hence the Restored Legal Aid Certificate was issued on 2 December 2016.

(9)   By a letter dated 12 December 2016, the learned Maser J Wong stated in a letter to the applicant to the effect that, in allowing the legal aid appeal, “the [applicant] should continue to have legal aid as if there were no such decision to revoke his legal aid”.

(10)  In the meantime, he had appealed, among others, Chow J’s Adjournment Condition (under HCMP 3224/2016) and Chow J’s dismissal of HCPI 1114/2006 (under CACV 230/2016) to the Court of Appeal.

14.   Relying on this history, the applicant says its shows that HCPI 1114/2006 was only wrongly dismissed because of the subsequently held wrong decision of the DLA to revoke his Original Legal Aid Certificate.   If the revocation had not happened (as it should not have), Chow J would not have made the Adjournment Condition.  The Adjournment Condition was therefore caused by the DLA’s own wrongful decision in the first place.  In the premises, the learned Master was wrong to have treated the HCPI 1114/2006 having been disposed of, had the learned Master taken into account properly the above history.  This is particularly so in light of his pending appeals in the Court of Appeal.

15.   There is also no merit in this contention:

(1)   As demonstrated by the transcripts of the hearing before Master Lo, the applicant had made lengthy submissions as to the history of the matter.  The learned Master was clearly aware of it.  

(2)   In any event, it must be correct as a matter of law that as at the time before Master Lo, HCPI 1114/2006 had been dismissed, and hence disposed of.  The history would not render the action, legally not dismissed, unless and until the dismissal is in fact reversed by the Court of Appeal on appeal.

16.   In relation to (b) above, the learned Master was clearly also aware of the issues of outstanding costs, as demonstrated at the transcript, at pp 1M-2P; 14L-14S, and 23R-24D. See also Supplemental Affirmation of Lee Kwok Ming, paragraphs 3-5.  Further, as submitted by Ms Kang for the DLA, under regulations 9(3) of the Legal Aid Regulations (Cap 91A) and regulation 14 of Legal Aid (Scale of Fees) Regulations (Cap 91C), upon determination of proceedings, the Director shall remain liable for the payment of any costs so taxed or assessed even after the discharge of the legal aid certificate.

17.   In the premises, there is no question that HCPI 1114/2006 shall still be regarded as not disposed of upon its dismissal for the purpose of legal aid simply because there are outstanding taxation of costs issues.

18.   The learned Master was therefore clearly correct in concluding (in agreeing with the DLA) that HCPI 1114/2006 had already been disposed of by reason of its dismissal and thus the Restored Legal Aid Certificate should be discharged.

19.   For all these reasons, the applicant’s said proposed ground of challenge is also entirely without merit.

20.   In the premises, the applicant’s proposed judicial review has no merits at all. Leave to apply for judicial review should be dismissed.

21.   This is particularly so, given that his leave to appeal under HCMP 3224/2016 was dismissed by the Court of Appeal on 13 September 2017 and CACV 230/2016 was also dismissed by the Court of Appeal on 22 October 2018 (see [2018] HKCA 732). 

22.   I would further order that costs of this leave application be to the DLA, to be taxed if not agreed on the basis that (a) the application is clearly devoid of merits, and (b) the applicant effectively already has a substantive hearing of his judicial review application.  See: Leung Kwok Hung v President of the Legislative Council (No 2) (2014) 17 HKCFAR 841, 852 at paragraphs 17(1) -(6) per Ribeiro PJ.

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1