MST v. THE DUTY LAWYER SERVICE

HCAL 6, 7 AND 63 of 2013

HCAL 6 of 2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 6 OF 2013

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J U D G M E N T

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A. INTRODUCTION

1. This is the consolidated hearing of the three applications for leave to apply for judicial review.  All the three applicants are torture claimants under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”). 

2. Each of the applicants seeks to challenge by way of the intended judicial review the decisions of the Duty Lawyer Service (“DLS”) to refuse to assign to the applicant Mr Daly as his or her choice of lawyer under the DLS CAT Scheme to represent him or her in the CAT claim[1].  I will refer these decisions collectively as “the decisions”.

3. There is no dispute that, before the assignment of lawyers by the DLS, Mr Daly had been advising and representing the applicants in other matters.  These included their refugee claims and miscellaneous immigration status matters, as well as judicial review challenges against the CAT adjudication process and policy.  It is the applicants’ case that they had since developed trust and confidence in Mr Daly.  This pre‑existing solicitor-client relationship was the principal reason behind the applicants’ expressed preference to have Mr Daly to be assigned to them as their lawyer under the DLS CAT Scheme.

4. At the same time, it is common ground that the DLS has adopted a policy (“the Policy”) of even distribution in its assignment of lawyers to CAT claimants under the DLS CAT Scheme.  The Policy has been set out in a paper (“the Bills Committee Paper”) presented by DLS to the Bills Committee of the Legislative Council in December 2011 as follows:

“11. On the question of assignments where the claimant is an existing client of a law firm, it has all along been the Duty Lawyer Service’s policy as stated above that assignments as far as practicable have to be evenly distributed amongst duty lawyers on the panel. It is however also the Duty Lawyer Service’s practice that in order to avoid any duplication of work already done, the Duty Lawyer Service is agreeable to assign the same duty lawyer (duty lawyer assignment is a personal assignment in that the assignment is not to a law firm or to a set of chambers) to continue to represent those claimants who have been offered legal advice by that duty lawyer or has also been engaged to represent them. Such request would only be allowed when that particular duty lawyer has not been saddled with too many CAT cases and is also in a position to handle the additional assignments in a timely and efficient manner.” (emphasis added)

5. It is the applicants’ case in these applications that the Administrator (“the Administrator”) of the DLS has stated the reasons in the relevant correspondence (which I would say more later) for the decisions to refuse to assign Mr Daly as their choice of lawyer. The reasons so stated were in substance that, as Mr Daly was “saddled with too many cases”, there would be no further assignment to him, even though Mr Daly’s role in other cases for the applicants might or might not be relevant (and given that other duty lawyers on panel were equally competent and able to represent the applicants).[2]  For convenience, I would refer these reasons as the “the Stated Reasons”.

6. In light of the Stated Reasons, the applicants raise three grounds of challenge in the intended judicial reviews in the respective Form 86.  They are:

(1)   Ground 1: The decisions are tainted with illegality as the Administrator had fettered her discretion by applying the Policy rigidly and inflexibly by looking only at the number of cases that had been assigned to Mr Daly.

(2)   Ground 2: The decisions are tainted with illegality or irrationality as the Administrator had failed to give sufficient weight to the pre‑existing solicitor-client relationship between the applicant and his chosen lawyer, and had given too much weight to the Policy.

(3)   Ground 3: The decisions are in breach of the rights under Articles 35 and 41 of the Basic Law.  The issue raised under this ground is whether the court in exercising its powers of supervision purely on Wednesbury irrationality terms or would a proportionality test be applied if the decisions engage fundamental constitutional rights under Articles 35 and 41 of the Basic Law, or alternatively through the requirement of fairness in light of the momentous importance of a CAT claim. 

7. However, it must be noted that in relation to these proposed grounds of challenge, Mr Dykes SC for the applicants has fairly confirmed at the hearing that:

(1)   There is no challenge of the Policy itself in these applications.

(2)   Ground 3 is not advanced as a separate or standalone ground, and the applicants would only seek to rely on it if they could have leave to apply for judicial review based on Grounds 1 and/or 2.

8. In light of the above, the court in these leave applications is concerned mainly with Grounds 1 and 2, as to whether they are reasonably arguable: Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, paragraph 15 per Li CJ.

B.    THE LEAVE APPLICATIONS

9. Given that the arguments advanced at the hearing are focused on what were the true reasons behind the decisions (as elaborated below), and whether those reasons would support both Grounds 1 and 2, these grounds can be conveniently considered together.

B1.     The contentions

10. As mentioned above, it is the applicants’ fundamental contention that the decisions were premised only or principally on the Stated Reasons that Mr Daly had been saddled with too many cases:

(1)   Without considering the highly relevant factor of the pre‑existing solicitor‑client relationship between Mr Daly and the applicants; or

(2)   If having so considered this factor, without putting sufficient weight to this fact.

11. Mr Dykes emphasises that these contentions must be looked at in the context of the fundamental importance of such a client-solicitor relationship to a CAT claimant.  It is so because the said relationship (1) saves the time of the lawyer and the client (given the tight time table set for a claimant to file the necessary documents and questionnaire with the Director of Immigration), (2) saves public funds, and (3) ensures that the client would be able to put his best case forward, which is of utmost importance given the momentous importance of a CAT application to the applicant (as observed by the Court of Final Appeal in Prabaka[3]) and when the burden of proof rests on the client.

12. Thus, as Mr Dykes further submits, the Stated Reasons show that the Administrator had either applied the Policy overly rigidly (without or without properly considering the relationship factors), or failed to give sufficient weight to this highly relevant factor.

13. On the other hand, the DLS says that in coming to the decisions, the Administrator had taken into account and considered (a) the Policy, (b) the pre-existing solicitor-client relationship between Mr Daly and the applicants, and also (c)the fact that Mr Daly was handling too many cases and he would have difficulties in handling additional cases. In particular, the said difficulties are demonstrated by the following matters:

(1)   Between January 2011 and May 2012, he had not been able to accommodate on no less than 22 occasions dates suggested by the immigration case officers for attending screening interviews;

(2)   He departed early from the screening interview of one case on 12 September 2011, leaving the claimant legally unrepresented at the later part of the screening interview (albeit another person from Mr Daly’s firm, who was not legally qualified in Hong Kong, was there with the claimant).  The DLS had referred the matter to the Law Society; and

(3)   He had been absent at a number of conferences with claimants and delegated his works to another person, which was against DLS’s policy of personal assignment.

14. It is thus DLS’s case that the factor that Mr Daly would have difficulties in handling additional cases formed part of the reasons the Administrator had in coming to the decisions.  There is thus no question of applying the Policy over rigidly or failing to give sufficient weight to the consideration of pre‑existing solicitor-client relationship in relation to the applicants’ cases.  The Administrator has filed two affidavits for the purposes of these leave applications to support the above.

15. For convenience, I would refer to the part of the reason said to be based on Mr Daly’s likely difficulties to handle additional cases as “the Performance Reason”.

16. As I understand it, in light of DLS’s contention of the Performance Reason, Mr Dykes is not (I think rightly and fairly so) saying that, if the Administrator had in fact taken this reason into account in the exercise of her discretion, she had still applied the Policy over rigidly or failed to give sufficient weight to the relationship factor. 

17. What however leading counsel submits is that, for the purpose of these leave applications, he should still succeed since it is at least reasonably arguable at this stage that:

(1)   The reasons originally given by DLS against the assignment of Mr Daly were only the Stated Reasons.  These are the only reason (Mr Dykes contends) contained in DLS’s letter to the Director of Legal Aid (“DLA”) in March 2012.

(2)   It is only after the applicants’ leave applications that DLS now supplied a new reason (ie, the Performance Reason) by way of the Administrators’ affidavits filed herein to support the decisions.  The Performance Reason was not set out in the above mentioned DLS’s letter to the DLA or other letters.

(3)   However, the function of affidavit evidence in judicial review proceedings concerning reasons is only to elucidate but not fundamentally alter or contradict the reasons originally given: Popular Signs Ltd v Radiation Board[4], at paragraph 78 per A Cheung J (as the learned CJHC then was).

(4)   In the premises, at this stage, it is at least reasonably arguable that the Performance Reason was only an ex post facto reason for the decisions, and should be discounted for the judicial review. 

(5)   If the reasons for the decisions are only the Stated Reasons, Grounds 1 and 2 are at least also reasonably arguable. Alternatively, at the least, leave should be given, and the applicants are then entitled to seek further related discovery from DLS and to cross-examine the Administrator at the substantive hearing before the court could safely be satisfied that the Performance Reason was part of the true or original reasons for the decisions.

18. In support of the above submissions, Mr Dykes further relies on Nash v Chelsea College of Art and Design[5], where (after considering various relevant authorities) Burton J set out the court’s approach in dealing with a question as to whether a later reason provided by way of evidence in a judicial review should be regarded as or as part of the original reason for a challenged decision.  The learned judge’s propositions are set at 34 to 36 of judgment as follows:

“34. In my judgment, the following prepositions appear from the above authorities:

(i) Where there is a statutory duty to give reasons as part of the notification of the decision, so that (as Law J put it in Northamptonshire County Council ex p D) ‘the adequacy of the reasons is itself made a condition of the legality of the decision’, only in exceptional circumstances if at all will the Court accept subsequent evidence of the reasons.

(ii) In other cases, the Court will be cautious about accepting late reasons. The relevant considerations include the following, which to a significant degree overlap:

(a) Whether the new reasons are consistent with the original reasons.

(b) Whether it is clear that the new reasons are indeed the original reasons of the whole committee.

(c) Whether there is a real risk that the later reasons have been composed subsequently in order to support the tribunal’s decision, or are a retrospective justification of the original decision. This consideration is really an aspect of (b).

(d) The delay before the later reasons were put forward.

(e) The circumstances in which the later reasons were put forward. In particular, reasons put forward after the commencement of proceedings must be treated especially carefully. Conversely, reasons put forward during correspondence in which the parties are seeking to elucidate the decision should be approached more tolerantly.

35. To these I add two further considerations. The first is based on general principles of administrative law. The degree of scrutiny and caution to be applied by the Court to subsequent reasons should depend on the subject matter of the administrative decision in question. Where important human rights are concerned, as in asylum cases, anxious scrutiny is required; where the subject matter is less important, the Court may be less demanding, and readier to accept subsequent reasons.

36.   Secondly, the Court should bear in mind the qualifications and experience of the persons involved.  It is one thing to require comprehensiveness and clarity from lawyers and those who regularly sit on administrative tribunals; it is another to require those qualities of occasional non-lawyer tribunal chairmen and members.”

19. Mr Duncan SC for DLS does not dispute the applicability of such an approach. 

20. Bearing the said approach in mind, I would now proceed to deal with the contentions raised.

B2.  The court’s view

21. It is first convenient to set out the relevant parts of DLS’s letter to the DLA dated 13 March 2012 (in relation to the applicant under HCAL 7/2013).  This is relied on principally by the applicants to show the Stated Reasons.  The relevant parts state as follows:

“7. In response to Mr Daly’s letter (under his firm’s letter) dated 16 February 2012, our CAT Office issued a letter to his firm on 23 February 2012 explaining that our decision to refuse [SR’s] applications for assigning Mr Daly as his duty lawyer was due to the fact that the lawyer being nominated (ie Mr Mark Daly) had already been assigned 38 cases by our CAT office in comparison with an average of only 8 cases assigned to other duty lawyers on our panel. The Duty Lawyer Service would only be agreeable in assigning cases to the same lawyer representing CAT claimants as duty lawyer provided that this same lawyer was not saddled with too many cases. We informed Mr Daly that in view of our policy and the need to maintain a fair distribution of assignments amongst duty lawyers on our CAT Panel, there would be no further assignment to Mr Daly for the time being and that another duty lawyer with the same degree of competence who had been representing the family member of [SR] would be taking up his case. Unlike the Legal Aid civil legal aid, apart from the once off fixed handling fee of $436 there is no contribution from the claimant at all. All legal expenses have to come out from the public fund.

19. Turning back to [SR’s] applications for Mr Daly to be his duty lawyer, our decision for turning him down was based on the fact that Mr Daly had been assigned way beyond the average number of assignments our panel lawyer would normally be entitled. Although we did consider Mr Daly’s role in dealing with the Claimant’s other claims which might or might not be directly relevant, we are of the opinion that other equally competent duty lawyers on our Panel should also be able to represent [SR] equally well. Public funds and resources could be saved by engaging the same duty lawyer whom we had already assigned for representing all the family members of [SR].” (emphasis added)

22. Thus, Mr Dykes says under this letter, the only reasons (ie, the Stated Reasons) are that (a) there was the Policy, and (b) as Mr Daly was saddled with too many cases, and he had already been assigned with cases more than the average lawyer on the same panel, there would thus be no more assignment to him in breach of the Policy.

23. On the other hand, Mr Duncan has drawn my attention to the contents and effect of various documents and correspondences, which he says would support that the Administrator had also considered the Performance Reason and the relationship factor in making the decisions. 

24. I would first look at these documents and correspondences in turn.

25. The Bills Committee Paper:  At paragraph 11 of this paper (as quoted above), after referring to the Policy, it has been clearly stated that:

(1)   Assignment of duty lawyer under the scheme is a personal assignment;

(2)   Despite the Policy, the DLS would take into account of pre‑existing solicitor-client relationship in considering whether or not to assign a particular lawyer to a client as requested[6]; and

(3)   In considering whether such a request would be allowed, the DLS will take into account of whether that lawyer is saddled with too many cases and also that he could handle the additional cases properly[7].

26. The Operational Guidelines on the Centralized Assignment Case System of the DLS:  Part IV of this guidelines deals with Assignment of CAT cases, and paragraphs 6.7 and 6.8 thereof provide as follows:

“6.7 As part of our usual practice, the DLS would assign duty lawyers from the CAT Panel on a rotational basis unless claimants have indicated their preference of lawyer to be considered by the Administration Office. The assignment system for DLS is different from s 13(1) of the Legal Aid Ordinance which has no application to all the DLS’s Schemes which are funded by the public without contribution on the part of the represented persons. So far as claimant’s preference of lawyers is concerned, they would be required to submit their applications in writing to our CAT Office stating their reasons for nominating particular lawyers. If necessary, they would also be required to produce documentary proof in support of their reasons. Their requests for preferred lawyers will be subject to the discretion of the Administrator on a case by case basis.

6.8 In accordance with the agreement between the Administration and DLS, duty lawyers were arranged by DLS to provide assistance to the claimants.  DLS may also take into consideration request of claimants’ for specific duty lawyers who had experience in handling their other previous or outstanding matters.  Yet, it was confirmed that the claimants had no right to choose the duty lawyer (Note 10).”

27. Thus, it is part of the DLS’s assignment system that (a) a client could request for the assignment of nominated lawyer but does not have a right to choose one, (b) the Administrator has a discretion to decide whether to approve such a request on a case by case basis, and (c) in considering whether to approve such a request, DLS may take into account of the pre-existing solicitor-client relationship.

28. DLS’s letter dated 9 December 2011 to Mr Daly:  By this letter, DLS wrote to Mr Daly pointing out (a) his absence at various identified scheduled conferences with the assigned clients under three cases, (b) the fact that his assistant (who was not legally qualified in Hong Kong) attended those conferences or part of them in place of him.  It further stated that DLS had on numerous occasions reminded him that his assignment was a personal one and he should discharge his duty personally.  It drew to Mr Daly’s attention that DLS had last communicated with him on 26 September 2011 regarding his early departure from the screening interview on 12 September 2011, where his said assistant was again asked to remain with the client for the remainder of the interview in place of him.  DLS asked for his explanations for his failure to discharge his duty individually and personally. 

29. DLS’s letter dated 15 May 2012 to Barnes & Daly (“B&D”):  By this letter, DLS replied to B&D’s letter dated 10 May 2012 enquiring as to why DLS had refused to assign Mr Daly to the applicant under HCAL 6/2013.  DLS’s said reply letter stated as follows:

“ We refer to your letter dated 10 May 2012.

With regard to the point mentioned in paragraph 3 of your letter as to why Mr Mark DALY should be assigned as duty lawyer in the present case, they will certainly be taken into account. Yet they are no means the only factors to be considered by us in assigning a particular lawyer for a particular case.

As we have pointed out in our many previous letters to your firm, it has all along been the Duty Lawyer Service’s policy that assignment as far as practicable have to be evenly distributed amongst duty lawyers on the same panel. Although it is also our practice that in order to avoid any duplication of work already done, we would assign the same lawyer to continue representing those claimant who has been offered legal advice or service by that lawyer. However, such request would only be allowed when that particular lawyer has not been assigned with too many cases.

Base on the above reason, after careful consideration, we regret that the above case will not be assigned to Mr Mark DALY.” (emphasis added)

30. In relation to the relevant nomination request of the applicant under HCAL 7/2013:

(1)   DLS’s letter dated 23 February 2012 to Mr Daly:  This letter explained why DLS had refused to assign him to the applicant at paragraph 4 as follows:

“ You may also wish to know that the Duty Lawyer Service has on 5 December 2011 provided a paper to the Bills Committee in which the question of assignments where the claimant is an existing client of a law firm has been touched upon. As stated in our earlier letter dated 7 April 2010, it has all along been the Duty Lawyer Service’s policy that assignments as far as practicable have to be evenly distributed amongst duty lawyers on the panel. It is however also the Duty Lawyer Service is agreeable to assign the same duty lawyer to continue to represent those claimants who have been offered legal advice by that duty lawyer or has also been engaged to represent them. Such request would only be allowed when that particular duty lawyer has not been saddled with too many CAT cases.” (emphasis added)

(2)   DLS’s letter to DLA dated 13 March 2012 as quoted above at paragraph 21.

(3)   DLS’s letter dated 21 March 2012 to B&D:  By this letter, DLS replied to B&D’s letters dated 20 and 21 March 2012 dealing on B&D’s questions raised generally on assignment matters.  In this letter, DLS emphasised that an assignment was on a personal basis, and a client had no automatic right to a chosen lawyer, but he could request for that, and which request would be considered on a “case by case basis”.

31. DLS by its letter dated 16 March 2012 to B&D:  By this letter, DLS replied to B&D’s letter dated 14 March 2012 enquiring on the requests by the applicant under HCAL 63/2013 and some others for the assignment of Mr Daly as their nominated lawyer.  In informing and explaining that there would be no assignment of Mr Daly to the applicant (and the others), DLS cited the Policy by referring to the Bills Committee Paper, and emphasising that in considering such requests, (a) they would take into account of the pre-existing solicitor-client relationship, and (b) such request would only be allowed when the nominated lawyer had not been “saddled” with too many cases.  DLS however then further stated that after considering that as it was B&D which had been acting for the subject claimants for other matters, and taking their best interest in mind, DLS had decided to assign Mr Barnes (the senior partner of B&D) to act for the claimants, including the applicant under HCAL 63/2013.  The relevant parts of that letter read as follows:

“ You may also wish to know that the Duty Lawyer Service has on 5 December 2011 provided a paper to the Bills Committee of the Legislative Council in which the question of assignments where the claimant is an existing client of a law firm has been touched upon. As stated in our earlier Letter dated 7 April 2010 to your firm, it has all along been the Duty Lawyer Service’s policy that assignments as far as practicable have to be evenly distributed amongst duty lawyers on the same panel. It is however also the Duty Lawyer Service’s practice that in order to avoid any duplication of work already done, the Duty Lawyer Service is agreeable to assign the same duty lawyer or other duty lawyers in the same firm to continue to represent those claimants who have been offered legal advice by that duty lawyer or has also been engaged by that firm to represent them. Such request would only be allowed when that particular duty lawyer has not been saddled with too many CAT cases.

…

We however take the best interest of the claimants in mind and have noted that it is your firm which is in fact acting for the above claimants.  In the circumstances, we are prepared to assign the following cases [which included the applicant under HCAL63/2013] to Mr Peter Barnes, the senior partner of the same firm.”

32. Mr Duncan submits that, looking at the above documents together as whole, it is clear that at the relevant time of the decisions, the Administrator had in her mind that Mr Daly had been handling too many CAT cases and that he would be unable to handle extra cases in a timely and efficient manner.  She had also considered the fact of the pre-existing solicitor-client relationship between Mr Daly and the applicants.  She had therefore taken the Performance Factor into account, together with the consideration of the Policy and the pre-existing solicitor-client relationship in making the decisions.

33. I agree with Mr Duncan.  In my view, objectively reading these documents together, the following matters are obvious.

34. First, as stated in the Bills Committee Paper, even under the Policy, it allows for discretion to be exercised by the Administrator in deciding on a case-by-case basis whether or not to approve a request by a client for the assignment of a nominated lawyer.  It is then DLS’s further stated position that in considering such a request, factors such as (a) the pre-existing solicitor-client relationship (“the Relationship Factor”), and (b) whether the nominated lawyer is “saddled” with “too many” cases, and is also in a position to handle additional assignment in a timely and efficient manner would be taken into account (“the Saddled Factor”).

35. The Saddled Factor is set out as a separate sentence in the paper as follows: “Such request would only be allowed when that particular duty lawyer has not been saddled with too many CAT cases and is also in a position to handle the additional assignments in a timely and efficient manner.” (emphasis added) In this sentence, there are two considerations mentioned, one being whether the nominated has been saddled with too many cases, and the other being whether he is in a position to handle additional assignments in a timely and efficient manner.  When properly read, in particular with the use of the conjunctive words “and is also” as highlighted above between the references to these two considerations, I am of the view that these considerations are intended to be looked at together as a whole under this factor.  This meaning is, in my view, also consistent with the ordinary and natural meaning (and therefore the use) of the words “saddled with” and “too many” cases, which denote or point to the meaning burdened with too much workload.

36. Second, at the relevant time close to the decisions, the Administrator had written to Mr Daly to enquire about his failure to discharge his duty personally as the assigned lawyer under the DLS CAT Scheme, and ask for his explanations (see paragraph 28 above).  This matter must be fresh and alive in her mind at the relevant time.

37. Third, the Administrator’s reasons for refusing the nominations requests had been set out not only in the letter to the DLA, but also in a number of letters to B&D and Mr Daly as quoted above.  In these letters, in explaining why Mr Daly was not assigned to the applicants, after referring to the Policy, it was set out that Mr Daly had been “saddled with too many cases”.  In my view, this reason should be properly understood in the context that (a) the Administrator was referring to the Policy as a background, (b) she must be taken to be familiar with and fully aware of the Policy and the Relationship Factor and the Saddled Factor regarding the exercise of discretion as set out in the Bills Committee Paper in explaining the Policy, and (c) the matters that she herself had been communicating with Mr Daly regarding her concern about his failure to properly discharge his duty as an assigned lawyer in some of the other CAT cases.

38. Once understood in this context objectively, in stating that Mr Daly had been “saddled with too many cases” as a reason to refuse the nomination request, the Administrator must have intended to use it in the same meaning of the Saddled Factor as explained at paragraph 35 above. Thus, objectively looked at, she should be taken to mean that, in her view, Mr Daly had been assigned with too many cases and also that he would not be able to handle further cases in a timely and efficient manner.

39. Finally, as quoted above, in these letters, the DLS had also clearly referred to the pre-existing solicitor-client relationship (ie, the Relationship Factor) as part of the consideration.

40. When these documents are read and understood objectively in the above way, it is also obvious to me that:

(1)   It is part of, or at the least implied in, the Stated Reasons that Mr Daly also would not able to handle additional cases in a timely and efficient manner (ie, the Performance Reason).

(2)   The Administrator had also considered the pre-existing solicitor-client relationship as a factor.

41. In light of the above, when applying the approach in Nash, and even with an anxious scrutiny (because of the important nature of CAT claims to the applicants and the fact that the Administrator is an experienced and qualified barrister), I am still satisfied that the Administrator’s explanations in the affidavits that she had also considered the Performance Factor are only elucidation of the Stated Reasons:

(1)   As explained, I am of the clear view that the Performance Reason is consistent (and in fact part of) the Stated Reasons.

(2)   It is thus also clear that the Performance Reason is part of the Stated Reasons.

(3)   Similarly, there is therefore no risk that the Performance Reason has been composed subsequently to support or justify the decisions.

(4)   Given my view that the Stated Reasons have incorporated the Performance Reason, there is no question of delay in putting forward the Performance Reason.

(5)   For the same token, even the evidence concerning the Performance Reason is provided in the Administrator’s affidavits which are filed after the commencement of these leave applications, there are no particular circumstances in the present case that would cause me to question that the Performance Reason is only provided as a post-justification of the decisions.

42. Given my conclusion at paragraphs 40 and 41 above, it is clear to me that the Administrator had taken into consideration the Performance Reason and the pre-existing solicitor-client relationship between Mr Daly and the applicants in the exercise of her discretion in coming to the decisions.  There is thus no question that:

(1)   She had applied the Policy too rigidly; or

(2)   She had failed to give sufficient weight of the pre-existing solicitor-client relationship.  In particular, it cannot be (and I do not think Mr Dykes is going so far to suggest) that whenever there is a pre-existing solicitor-client relationship in relation to a CAT claimant, DLS must assign to him or her the nominated lawyer.  In my view, notwithstanding this factor, the DLS must be entitled to take into account of other relevant consideration or factors (such as the lawyer’s ability to discharge his duty efficiently) to decide whether or not to approve the nomination request.

43. Mr Dykes however submits that the Administrator has set out in the letter to the DLA that the DLS “would only be agreeable in assigning cases to the same lawyer representing CAT claimants as duty lawyer provided that this same lawyer was not saddled with too many cases” (emphasis added).  Counsel therefore says the use of the word “only” shows that the Administrator applied the Policy too rigidly by denying a nomination request simply and only by reference to the number of cases that had been assigned to Mr Daly.  

44. I do not accept the submissions.  Given my conclusion that when the Administrator referred to this reason, she must be taken to have also meant and included the consideration as to whether the lawyer had been able to handle further cases on a timely and efficient manner, there is nothing in this contention.

45. Mr Dykes also says it would be unfair and unsafe for this court to accept the Performance Reason when Mr Daly has not had a chance to explain the alleged complaints or concerns about his alleged failure to properly discharge his duties personally as an assigned lawyer. 

46. With respect, there is also nothing in these arguments: 

(1)   First, the fundamental challenge raised in the intended judicial reviews is whether the Administrator had refused the nomination requests solely by reference to the fact that Mr Daly had been given cases more than the quota under the Policy (and thus the complaints of applying the Policy over rigidly or failing to give sufficient weight to the pre-existing solicitor-client relationship).  The relevant debate is thus only on whether the Administrator had in fact at the time of the decisions also taken into account of the Performance Factor.  Whether Mr Daly has or has not provided any explanations to the complaints is irrelevant to this question. 

(2)   Secondly and in any event, as mentioned at paragraph 28 above, DLS did write to Mr Daly in December 2011 about the concern, and asked him to provide explanations.  I assume he must have done so if he was concerned about having an opportunity to explain.  So, this is not a case where he had not been given an opportunity to explain.  If however he had not even provided the explanations to DLS despite the request, there is then no basis for him to complain that he has not been provided an opportunity to explain.

47. Finally, as mentioned earlier, Mr Dykes also contends that leave should be granted to the applicants to enable them to seek discovery from DLS and cross-examine the Administrator before the court could safely accept what were the true reasons she had considered at the time of the decisions.  However, my conclusion that the Stated Reasons included the Performance Reason is premised on an objective reading of the relevant contemporaneous documents and letters.  There is therefore no question of requiring any cross-examination of the Administrator.  Mr Dykes has also not pointed out what are the documents that he would be intending to seek discovery that would be relevant to this question, and which have not been provided.  I therefore also reject this contention.

48. In the premises, I find Grounds 1 and 2 not reasonably arguable.  I therefore refuse to grant leave based on these grounds.  It must also follow that leave to apply for judicial review based on Ground 3 must similarly be dismissed.

49. Mr Duncan has also alternatively raised two further arguments as to why leave should not be given.

50. First, he submits that the leave applications should be dismissed as the intended judicial reviews no longer serve any useful purpose since the applicants’ respective CAT claims have all been disposed of at the level of the Director of Immigration and adjudicators.  All that is left are their judicial review applications challenging those dismissals, of which they have been assigned with Mr Daly by the DLA in representing them.

51. Mr Dykes however argues that the intended judicial reviews would still serve a useful purpose.  Counsel says, after the Court of Final Appeal’s decisions in Ubamaka[8] and C v Director of Immigration[9], a new screening system is to be implemented by the Director of Immigration to screen persons such as the applicants for claims for protection.  It is envisaged however that the DLS would be operating in a similar capacity in a similar role to assign duty lawyers to the applicants.  It is therefore submitted that the same issues would arise again, and thus the intended judicial reviews herein would not be academic.  See: Chit Fai Motors Co Ltd v Commissioner for Transport[10], at paragraph 20.

52. I am not persuaded by Mr Dykes’ submissions.  As mentioned above, Mr Dykes confirms that these intended judicial reviews do not raise any challenge to the Policy itself.  They are premised entirely on the individual circumstances and the reasons given by the Administrator in these cases in refusing the requests in question.  They are therefore facts sensitive. The merits of any potential future challenges of any refusal by the DLS to assign nominated lawyers would therefore be dependent on the individual circumstances and DLS’s reasons for those refusals. 

53. I therefore would have refused leave also on the basis that the intended judicial reviews in these cases are academic and would not serve any useful purposes.

54. Second, Mr Duncan also says the evidence shows that Mr Daly had at the material time been assigned with CAT cases more than the usual quota limit of 25 active cases[11] under the Policy:

(1)   He had 28 active cases before the applicant’s request in HCAL 6/2013 was refused on 15 May 2012;

(2)   He had 26 active cases before the applicant’s request in HCAL 7/2013 was refused on 24 February 2012; and

(3)   He had 27 active cases before the applicant’s requests in HCAL 63/2013 were refused on 16 March 2012.

55. In the circumstances, Mr Duncan submits that there is no question that the Policy had been applied too rigidly as contended.

56. In my view, given my above conclusion, I do not find it necessary or appropriate to deal with this argument. 

C.    CONCLUSION

57. For the above reasons, I would refuse the leave applications.

58. I further make an order nisi that there would be no order as to costs, and that the applicants’ own costs be taxed in accordance with legal aid regulations with certificate for two counsel.  The order nisi shall be made absolute 14 days from today unless any of the parties applies to vary it by summons.

Mr Philip Dykes SC leading Mr Earl Deng, instructed by Daly & Associates, for the applicants

Mr Peter Duncan SC leading Ms Toh Tanie, instructed by Lo, Wong & Tsui, for the putative respondents

[1]   In the respective Form 86, the applicant under HCAL 6/2013 says the decisions include the decisions dated 15 May and 4 June 2012; the applicant under HCAL 7/2013 says they include the decisions dated 24 February, 21 March and 2 May 2012; the applicant under HCAL 63/2012 says they include the decisions dated 16 March, 10 August and 8 October 2012.

[2]   See summary of the reasons at paragraph 4(4) of the applicants’ skeleton submissions.

[3]   (2004) 7 HKCFAR 187.

[4]   Unreported, HCAL 53/2008, 12 January 2010.

[5]   [2001] EWHC Admin 538.

[6]   “The DLS is agreeable to assign the same duty lawyer to continue to represent those claimants who have been offered legal advice by that lawyer or who has been engaged to represent them.”

[7]   “Such request would only be allowed when the particular lawyer has not been saddled with too many CAT cases and is also in a position to handle the additional assignments in a timely and efficient manner.”

[8]   [2013] 2 HKC 75 (CFA).

[9]   Unreported, FACV 18, 19 & 20/2011, 25 March 2013, Chan, Ribeiro, Tang PJJ, Bokhary and Sir Anthony Mason NPJJ.

[10]   [2004] 1 HKC 465 (CA).

[11]   The evidence filed shows that given the increasing significant numbers of CAT applicants requesting for nominated lawyers to be assigned to them, and the rotation system under the DLS CAT Scheme and the Policy, since January 2012, DLS has introduced a quota system of 25 active cases.  See: Grace Wong first affirmation, paragraph 20.