KHO SIN TEK HENRY v. LEGAL AID SERVICES COUNCIL

HCAL83/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO.83 OF 2006

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J U D G M E N T

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1.  In this judicial review application, the applicant seeks to challenge the decision of the Legal Aid Services Council ‘(the Council”) not to provide him with a counsel certificate on the merits of his intended appeal to the Court of Final Appeal. The decision was communicated to the applicant in two letters dated 24 March and 28 April 2006.  Under section 26A of the Legal Aid Ordinance, cap.91, a legal aid applicant is required to produce the counsel certificate when he applies for a review against the refusal of legal aid for an appeal to the Court of Final Appeal. The applicant asks that the Council’s decision be set aside and that the Council be ordered to provide the counsel certificate.

The facts

2.  The applicant is the 1^st defendant (by original action) and the 2^nd defendant (by counterclaim) in a probate action, HCAP12/2000.  The action concerns the estate of a Mr Wong Lucien, deceased.  The case was tried before Yam J and the judgment was handed down on 17 March 2004.  For the present purpose, it is not necessary to go into the details of the judgment, suffice it to say that the judgment and findings were against the applicant.

3.  Dissatisfied with the judgment, the applicant lodged an appeal against it in the Court of Appeal under case no. CACV132/2004 on 10 May 2004.  The applicant acted in person.  He had applied for, but was refused, legal aid to prosecute the appeal. 

4.  On 21 June 2004, the 2^nd defendant (by original action) in the probate action applied by summons to the Court of Appeal for security for costs against the applicant in respect of his pending appeal in the Court of Appeal.    

5.  As the applicant was at the time appealing against the refusal of legal aid for his pending appeal, the hearing of the application for security for costs was twice adjourned. 

6.  Eventually at the third hearing on 11 April 2005, Rogers VP ordered the applicant to pay into court $400,000 as security for costs for the appeal in CACV132/2004 within 28 days from the determination of his appeal against the refusal of legal aid, in the event the appeal was dismissed by the Master (or Registrar).  Rogers VP further ordered that in default of the provision of the security ordered, the appeal would stand dismissed without further order.

7.  On 17 October 2005, Master S Kwang dismissed the applicant’s appeal against the refusal of legal aid.

8.  The applicant did not pay into court the security for costs ordered by Rogers VP within the 28 days’ period or at all.  Consequently and in accordance with the order dated 11 April 2005, the applicant’s appeal in case no. CACV132/2004 was dismissed.

9.  On about 12 December 2005, the applicant applied for legal aid for the purpose of appealing to the Court of Final Appeal.  The Director of Legal Aid refused the application.  In the letter dated 25 February 2006 communicating the refusal, the Legal Aid Department gave the reason for refusal as follows:

“I am satisfied that the question involved in the appeal is not one which, by reason of its great general or public importance [sic], or otherwise, ought to be submitted to the Court of Final Appeal for its decision.”

10.   The applicant sought to have the Director of Legal Aid’s refusal reviewed by a Committee chaired by the Registrar, High Court (“Review Committee”) as provided for in section 26A of the Legal Aid Ordinance (“LAO”).  Section 26A(3) requires the applicant to submit together with his notice of application for review, a certificate by counsel practising in Hong Kong stating that there is a reasonable prospect of success in the appeal and the grounds for that opinion.

11.  According to the applicant, he does not have the financial means to obtain the requisite counsel certificate.  Hence on 14 February 2006, he applied to the Council for the provision of a certificate by counsel as required by section 26A of the Legal Aid Ordinance.

12.  By letter dated 24 February 2006, the Council declined his application.  The material part of the letter read:

“Please be informed that according to current arrangement, this Council will only provide a Certificate by Counsel to an eligible applicant regarding a civil application if the intended appeal to the Court of Final Appeal (CFA) is in respect of the substantive proceedings. I understand that your intended appeal to the CFA does not involve the substantive proceedings.  Under the circumstances, the Council is unable to provided a Certificate by Counsel to you.”

13.  On 28 February 2006, the applicant wrote to the Council contending that his intended appeal to the Court of Final Appeal did involve substantive proceedings.  He argued that he was all along appealing against Yam J’s first instance decision, and that because his appeal at the Court of Appeal level was dismissed by Rogers VP, he had to appeal further to the Court of Final Appeal.

14.  By letter dated 24 March 2006, the Council pointed out to the applicant that his intended appeal against Yam J’s judgment was dismissed for failing to provide the security for costs as ordered.  It went on to explain that as the Court of Appeal did not deliver any substantive judgment dismissing the appeal, the applicant’s intended appeal could not be an appeal that involves substantive proceedings.

15.  The applicant responded by letter dated 1 April 2006. In it, the applicant stated that Rogers VP had at the hearing on 11 April 2005, considered his grounds of appeal.  Referring to the passage in Hong Kong Civil Procedure 2006 vol.1 para.59/10/35, he reasoned that as the party applying for security for costs had established his impecuniosity as a special circumstance for ordering security for costs of the appeal, the Court of Appeal would have proceeded to exercise its residual discretion and, in doing so, did consider all the grounds of his appeal.  He also said that the dismissal of his appeal, though not preceded by a hearing before the full court, was ordered after a substantive hearing on the merits of his appeal and is a final judgment of the Court of Appeal within the meaning of section 22 of the Court of Final Appeal Ordinance, cap.484.  He requested for a re-consideration of his application.

16.  On 28 April 2006, the Council replied to say that the intended appeal against Yam J’s judgment was dismissed without consideration of merits. The Council also reiterated that the Court of Appeal had never delivered any judgment dismissing the applicant’s intended appeal. 

The application for judicial review

17.  On 27 July 2006, the applicant filed the Form 86A.  Leave to apply for judicial review was granted on 28 July 2006.  The Notice of Motion was filed on 11 August 2006.

18.  The ground for the application stated in the Form 86A is: “The respondent has failed to or improperly or wrongly exercised its power or discretion under the Legal Aid Services Council Ordinance, cap. 489, in refusing to provide the applicant with a Counsel Certificate.”

19.  The arguments advanced by the applicant in support of his application are essentially the same as those articulated in his various letters to the Council, as summarized above.  In addition, the applicant contends that the Council should not concern itself with the merits and nature of his intended appeal to the Court of Appeal, but should proceed to obtain the counsel certificate upon the applicant passing the means test conducted by the Legal Aid Department and the refusal of his legal aid application.   

The assistance scheme for meeting the certificate requirement under section 26A of Legal Aid Ordinance

20.  Before dealing with the grounds relied upon by the applicant, it is necessary to look at the assistance scheme pursuant to which the applicant applied to the Council for the provision of a certificate of counsel.

21.  Section 26A(1) and (3) of the LAO provide as follows:

“(1)   An applicant for legal aid or an aided person who is aggrieved by any order or decision of the Director made in relation to an application for legal aid to appeal to, or to apply for leave to appeal to, the Court of Final Appeal may bring the order or decision on review before a committee composed of-
	(a)  the Registrar of the High Court, who shall be chairman;
	(b)  a barrister qualified to practise in Hong Kong who is eligible to be appointed as a judge of the High Court and who is appointed by the Chairman of the Hong Kong Bar Association; and
	(c)  a solicitor qualified to practise in Hong Kong who has practised as a solicitor for not less than 10 years in a common law jurisdiction and who is appointed by the President of The Law Society of Hong Kong.
…
(3)     A review shall be initiated by notice in writing delivered to the Director and the chairman within 28 days of the order or decision complained of or within such longer period as the chairman may allow and the notice shall be accompanied by a certificate by counsel practising in Hong Kong stating that the person aggrieved has a reasonable prospect of success in the appeal and the grounds for that opinion.”

22.  Accordingly, a legal aid applicant who wishes to review the Director of Legal Aid’s refusal of legal aid to appeal to the Court of Final Appeal must produce to the Registrar of the High Court a certificate by counsel on the prospect of success of his appeal. 

23.  Understandably, this requirement will in some instances cause hardship to impecunious legal aid applicants since without the counsel certificate, the section 26A review procedure cannot be invoked.  In 1997, the Council considered it was necessary to put in place some form of financial assistance in order that impecunious applicants would not be denied access to the Review Committee.  This was agreed to by the government. 

24.  Since 3 April 2002, an assistance scheme funded by the government has been introduced to provide financial assistance to legal aid applicants who passed the means test with funds to obtain the counsel certificates for meeting the requirement under section 26A of LAO.  Applications for provision of certificates and assignment of lawyers to provide the certificates were handled by the Council. The involvement of the Council in the arrangement was explained on the basis that “[a]s the need for the arrangement arose from an appeal against the [Director of Legal Aid’s] refusal to grant legal aid and given the supervisory role of the Council on the provision of legal aid services, both the Administration and the Council considered it appropriate to involve the Council in the arrangement”: 2002-2003 Annual Report of the Council.

25.  According to the evidence filed on behalf of the Council, in dealing with applications for provision of counsel certificates under the assistance scheme, the Council’s policy in relation to civil cases is that each legal aid applicant can only apply for a certificate once in respect of the same case and the certificate will only be provided in respect of the substantive proceedings and not for interlocutory proceedings.

26.  In the ground of application stated in the Form 86A, it was said that the Council had failed to exercise or improperly or wrongly exercised its power under the Legal Aid Services Council Ordinance.  In so contending, the applicant seems to suggest that the assistance scheme is a scheme established under the Ordinance and that the Council is exercising statutory power when it handles applications for counsel certificates under the assistance scheme.  As the preceding part of this Judgment shows, this is incorrect.  The assistance scheme is not a statutory scheme. There is no specific provision in the Legal Aid Services Council Ordinance that regulates and governs the operation and implementation of the assistance scheme.   Notwithstanding the wide and general words of the ground stated in the Form 86A, the crux of the applicant’s complaint falls to be considered under the head of Wednesbury unreasonableness.    

The applicant’s intended appeal to the Court of Final Appeal

27.  As can be seen from the Council’s letters dated 24 February, 24 March and 28 April 2006, the Council’s refusal to provide assistance to the applicant for obtaining the counsel certificate is on the basis that the applicant’s intended appeal was not in respect of substantive proceedings.  The applicant takes issue with this view of the Council and further contends that his intended appeal is an appeal against a final judgment made after a substantive hearing. 

28.  Clearly, when the Council indicated that the applicant’s intended appeal was not in respect of substantive proceedings, it was drawing a distinction between an interlocutory decision or order and a decision or order on the substantive merits of the case.  The emphasis of the Council was not on substantive hearing as opposed to direction or procedural hearing.  Accordingly, the applicant’s argument that the Order of 11 April 2005 was made after a substantive hearing is irrelevant and misses the point.

29.  What is important for the purpose of deciding this judicial review is whether the applicant’s intended appeal to the Court of Final Appeal is against an interlocutory decision or order, as the Council views it, so that it falls outside the policy of the Council on provision of counsel certificates for civil appeals to the Court of Final Appeal.

30.  It is the applicant’s case that his intended appeal is to be brought under section 22 of the Court of Final Appeal Ordinance, which deals with appeals to the Court of Final Appeal from judgments of the Court of Appeal in civil matters.  Accordingly, the subject matter of the intended appeal to the Court of Final Appeal must be a judgment or decision or order of the Court of Appeal. 

31.  In the present context, there is only one decision and order of the Court of Appeal, namely, that of 11 April 2005.  There can be no argument that the applicant’s intended appeal to the Court of Final Appeal can only be against the order of 11 April 2005.  While CACV132/2004 is an appeal from HCAP12/2000, any appeal that the applicant wishes to pursue in the Court of Final Appeal will have to be an appeal from CACV132/2004.  The applicant could not have brought an appeal in the Court of Final Appeal against the judgment of Yam J, which is a judgment of the Court of First Instance.   It is therefore incorrect for the applicant to say that his intended appeal to the Court of Appeal is an appeal against Yam J’s judgment.

32.  It is trite that by the order of 11 April 2005, Rogers VP did not dismiss the applicant’s appeal in CACV132/2004, which was at the time still pending in the Court of Appeal. The order only directed the applicant to furnish security for the costs of the appeal and further provided for the consequences of failure to furnish security.  Rogers VP did not decide or determine the merits of the applicant’s then pending appeal.  He had not given a judgment or order on the correctness or otherwise of the applicant’s ground of appeal and, in turn, the appeal.

33.  It is common ground that Rogers VP had not given a written decision for his order.  Hence, the exact deliberations and rationale for the Vice-President’s order are therefore unknown.  The applicant had not obtained and produced the transcript of the hearing on 11 April 2005.  But even assuming that Rogers VP did have regard to the potential merits of the applicant’s pending appeal in considering the exercise of his discretion on the application for security for costs, his ultimate decision and order, by their nature and effect, remained a decision and order on the summons for security for costs, which was an interlocutory application. It was not a decision and order on the merits of the applicant’s pending appeal, which was not the subject matter heard by Roger VP.           

34.  It is true that the applicant’s appeal to the Court of Appeal was eventually dismissed on 10 May 2005.  The dismissal was brought about by the applicant’s failure to provide the security for costs as ordered.  The dismissal was not consequential upon a determination by the Court of Appeal on the merits of the appeal.  

35.  Thus analysed, the Council must be correct in taking the view that the applicant’s intended appeal to the Court of Appeal is an appeal from an interlocutory decision or order, and not a decision or order on substantive merits.

36.  The applicant argues that the decision and order of Roger VP amounts to a final judgment of the Court of Appeal involving $1 million or more so that his appeal to the Court of Final Appeal lies as of right. As noted above, the decision and order of Rogers VP is an interlocutory decision and order.  For the purpose of section 22(1)(a) of the Court of Final Appeal Ordinance, the test of whether an order of the Court of Appeal is a final judgment involves an examination of the nature of the application to see whether the order in question would, whether it failed or succeeded, determine the whole action.  Orders dismissing actions, either because they were frivolous or vexatious, or on the ground that they disclosed no reasonable cause of action had been held to be interlocutory and not final judgments within the meaning of section 22(1)(a): Hong Kong Civil Procedure 2006 vol.2 para. F2/22/1.   Applying the relevant legal principles, the applicant’s intended appeal to the Court of Final Appeal against the decision of the Court of Appeal does not come within section 22(1)(a) of the Court of Final Appeal Ordinance.  

37.  The applicant also makes the point that the Council should proceed to obtain a counsel certificate once it is demonstrated that the applicant desires to appeal to the Court of Final Appeal, that he has passed the means test conducted by the Legal Aid Department and his legal aid application has been refused.  He argues that the merits of the intended appeal to the Court of Final Appeal should be left to the counsel assigned to give the certificate.  

38.  In reply, Mr Kwok points out that as public funds are involved, the Council must act prudently and should as a first requirement satisfy itself that it is a case of appeal to the Court of Final Appeal.  In the present context, the applicant did not even have a proper Court of Appeal judgment to be appealed to the Court of Final Appeal.

39.  I do not consider the Council to have acted unreasonably or wrongly in ascertaining the nature and substance of the applicant’s intended appeal.  Such information will have to be established in order that the Council can properly process the application for provision of counsel certificate and if counsel is to be assigned, give instruction to counsel.  Further, as the assistance scheme draws on public funds, the Council should be entitled to refuse an application for certificate where it is plain that the intended appeal does not fall within its policy for operating the assistance scheme. 

Conclusion

40.  For the above reasons, the application for judicial review is dismissed.  Applying the normal rule of costs follow event, I make an order nisi that the applicant pays the respondent the costs of this application, to be taxed if not agreed.