DESMOND KEANE v. THE DIRECTOR OF LEGAL AID

CACV 49/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 49 OF 2000

(ON APPEAL FROM HCAL NO. 109 OF 1999)

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J U D G M E N T

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1. Last September Mr Desmond Keane SC applied for leave to apply for judicial review of various decisions of the Director of Legal Aid. Those decisions related to the assignment of counsel in the case of Rai Bhim Kumari who had been refused a Hong Kong permanent identity card. The relief which Mr Keane sought was the quashing of those decisions and an order of mandamus requiring the Director of Legal Aid either to assign him as counsel for Mrs Kumari or to reconsider who should be assigned as her counsel. Leave to apply for judicial review of those decisions was granted by Hartmann J.

2. However, shortly after being granted leave to apply for judicial review of those decisions, Mr Keane decided to change the focus of his application. He realised that his application might jeopardise the progress of Mrs Kumari's case. He did not want that to happen. By then, the Notice of Motion claiming the relief sought in the Notice of Application for Leave to Apply for Judicial Review had been filed. Accordingly, Mr Keane applied for, and obtained from Hartmann J, leave to amend the Notice of Motion substituting for the relief sought in the Notice of Motion a claim for a declaration as to the proper construction of certain provisions in the Legal Aid Ordinance (Cap. 91). The reasons for that was that, instead of challenging the decisions which the Director of Legal Aid had made in Mrs Kumari's case, Mr Keane had then wanted to challenge a particular feature of the policy adopted by the Director of Legal Aid in assigning counsel to cases. That feature of the policy was said by Mr Keane to be unlawful as being contrary to the statutory provisions in respect of which the declaration was sought.

3. Two problems had therefore arisen at that stage. First, although the Notice of Motion had been amended, the original Notice of Application had not been. As a result, the amended Notice of Motion sought relief which had not been sought in the original unamended Notice of Application, and in respect of a decision which had not been one of the target decisions in the original unamended Notice of Application. Secondly, although Hartmann J had granted Mr Keane leave to apply for judicial review of the decisions targetted in the original unamended Notice of Application, leave to apply for judicial review had not been granted in respect of the decision to which the new relief related - unless it could be said that the grant of leave to amend the Notice of Motion was tantamount to the grant of leave to apply for judicial review of the particular feature of the Director of Legal Aid's policy which Mr Keane wished to challenge.

4. Neither of these problems had been rectified by the time that the application for judicial review was heard by Stone J. As it was, Stone J dismissed the application, and Mr Keane is now appealing against the dismissal of the application to the Court of Appeal. The application before me today is to put right the first of the two problems which I have identified. It is an application for leave to amend the original Notice of Application

(i) to delete the decisions which had originally been targetted, namely, the decisions relating to Mrs Kumari, and to substitute for them the feature of the Director of Legal Aid's policy which Mr Keane alleges is unlawful, and

(ii) to delete the original relief which had been sought, and to substitute for it a claim for a declaration as to the proper construction of the relevant provisions of the Legal Aid Ordinance.

5. It should be noted that the first of the two problems which I have identified, and which Mr Keane seeks to put right by this application, was not regarded as a problem by Stone J. He considered the issues of construction of the Legal Aid Ordinance on their merits and expressed views on them. But he dismissed the application for three procedural reasons, none of which related to the fact that the Notice of Application had not been amended. He dismissed the application

(a) because leave to challenge the Director of Legal Aid's policy had never been obtained,

(b) because declaratory relief was inappropriate, and

(c) because Mr Keane lacked the standing to challenge the Director of Legal Aid's policy once the assignment of counsel in Mrs Kumari's case was no longer an issue.

Accordingly, the present application for leave to amend the original Notice of Application does not undermine any of the arguments on which the Director of Legal Aid successfully resisted the application for judicial review. For example, amending the Notice of Application to identify the real decision challenged and the real relief sought does not get over the problem identified by Stone J that leave to apply for judicial review of that decision has never been granted. What Mr Keane will be arguing on the appeal is that the grant of leave to amend the Notice of Motion was indeed tantamount to the grant of leave to apply for judicial review of the particular feature of the Director of Legal Aid's policy which Mr Keane wanted to challenge. On that argument I express no view, of course, since that is one of the issues to be decided on the appeal.

6. In these circumstances, the course which I believe I ought to take today becomes clear. The Director of Legal Aid's position will not be worsened by the amendment, and the amendment will provide the correct procedural framework in which the issues decided by Stone J in favour of the Director of Legal Aid can be canvassed on appeal. If I had thought that the Director of Legal Aid's position would have been prejudiced on the appeal by the amendments sought, my attitude to this application would have been very different. But Mr Nicholas Cooney for the Director of Legal Aid has not persuaded me that the amendment sought would undermine the Director of Legal Aid's position in any way.

7. Mr Cooney reminded me of what Litton PJ said in Lau Kong Yung v. The Director of Immigration (1999) 2 HKCFAR 300 about the need for a disciplined approach to judicial review cases. I entirely agree. I have been an advocate of a disciplined approach to public law cases for some time. The fact that Stone J was being asked to review a decision and to grant relief which had not been included in the original Notice of Application was something which might have justified him in dismissing the application on that ground. But Stone J did not do that. He considered the issues of construction on their merits and dismissed the application on other procedural grounds. It is to provide a procedural framework for the Court of Appeal to consider the grounds on which Stone J dismissed the application that the current application for leave to amend the Notice of Application seems to me to be justified.

8. For these reasons, I grant the application, and I give Mr Keane leave to amend the Notice of Application for leave to apply for judicial review in the terms of the draft attached to Mr Keane's summons filed on 6 March. However, there are two other matters I want to mention. First, Mr Keane represented himself on this application. That was despite there being solicitors on the record representing him. However, since, as presently advised, I know of no rule preventing a non-corporate litigant from representing himself at a hearing despite there being solicitors on the record representing him, I permitted Mr Keane to appear on this application. Secondly, appeals against the refusal of leave to amend a pleading occasionally come before the Court of Appeal, but it must be very rare for an application to amend the equivalent of a pleading to be made to the Court of Appeal in a pending appeal. That issue would invariably have been considered and disposed of at first instance. So I was initially sceptical as to whether the Court of Appeal had the power to make the order sought. However, the jurisdiction to do so is expressly provided for by Ord. 59 r. 10(1), which provides:

"In relation to an appeal the Court of Appeal shall have all the powers and duties as to amendment and otherwise of the Court of First Instance."