KWOK CHEUK KIN v. LAU CA CHUN SIMON

HCAL 1059/2021

[2021] HKCFI 2335

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1059 OF 2021

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D E C I S I O N

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1.  By a Notice of Application for Leave to Apply for Judicial Review (“Form 86”) dated 27 July 2021, the applicant (“Mr Kwok”) seeks leave to apply for judicial review of decisions made on his application for legal aid, in respect of Mr Kwok’s intended appeal to the Court of Final Appeal in the ‘Ding rights and small house policy’ case, where leave to appeal was granted in FAMV 204-206/2021.

2.  In the Form 86, the putative respondent is named as Mr Lau Ca Chun Simon (“Mr Lau”), Senior Legal Aid Counsel, of the Legal Aid Department.  However, Mr Lau expressly signed the relevant decision correspondence “for the Director of Legal Aid” (“Director”), who Mr Kwok has named on the Form 86 only as an interested party.  In my view, it is the Director who would be the proper putative respondent, and I proceed on that basis.

3.  The particular decisions the subject of the intended challenge are (a) the Director’s decision to refuse Mr Kwok’s legal aid application, and (b) the subsequent decision to turn down his appeal to the Registrar of the High Court (which I take as meaning the decision not to provide legal representation for the purposes of the legal aid appeal to be heard by the Registrar).

4.  The Form 86 itself does not identify the date or dates on which either decision is said to have been made.  However, exhibited to Mr Kwok’s affirmation is the letter notifying the decision to refuse Mr Kwok’s application for legal aid dated 21 May 2021.  The Form 86 further simply asserts that both decisions are “in contravention of the Basic Law and Legal Aid Department’s regulations” (without any further particulars).

5.  The Form 86 does not ask for an oral hearing of the application.  However, by letter dated 3 August 2021, Mr Kwok asks the Court to adjourn dealing with the application made in these judicial review proceedings.  He does so by notifying the Court that, in respect of the refusal to grant legal aid in the relevant case, a Senior Counsel will be representing him at the appeal before the Registrar of the High Court at the hearing fixed at 10am on 23 August 2021.  Presumably, the adjournment is proposed so as to await the outcome of the Legal Aid appeal.

6.  However, it seems to me that the very content of that letter identifies why these judicial review proceedings should not be adjourned, and why instead leave to apply for judicial review should be refused.

7.  It is trite that judicial review is an exceptional remedy, where the grant of a remedy is in the discretion of the court.  A court may refuse leave to apply for judicial review if the decision that is the subject-matter of the application could be overturned or modified in some other way.  In other words, the existence of an alternative remedy will likely (though not invariably) make the application for leave to apply for judicial review inappropriate, or at least premature.

8.  In this case, the decision to refuse Mr Kwok’s legal aid application is the subject of an extant appeal, as specifically provided for under the relevant regulations.  As Mr Kwok has informed this Court, that appeal will be heard by the Registrar of the High Court on 23 August 2021. In other words, Mr Kwok has an alternative judicial remedy, which he is in fact pursuing.

9.  No other reason has been offered as to why this application should somehow be kept alive, notwithstanding the pursuit of the alternative remedy by way of statutory appeal from the decision the subject-matter of the intended challenge.

10.  Secondly, because he will be represented at the Legal Aid appeal – by Senior Counsel, no less – the second aspect of Mr Kwok’s intended challenge seems to me also to be rendered academic.

11.  In those circumstances, I see no basis for, or benefit in, simply adjourning dealing with the current application pending the result of the Legal Aid appeal.  Instead, it seems to me that the appropriate course is to refuse leave to apply for judicial review.  I so order.