LEUNG CHEUK LIM v. 莊因東先生, JP 法律援助署署長

HCAL 302/2024

[2024] HKCFI 954

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 302 OF 2024

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D E C I S I O N

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A. Introduction

1.  By Form 86 dated 8 February 2024, the Applicant asked the Court to rule that the Director of Legal Aid’s decision (“DLA Decision”) to refuse to grant him legal aid was unlawful and unreasonable.  The Applicant also asked that this Court should make a ruling that the Director has to review the decision on granting a legal aid certificate.

2.  The Applicant describes himself as a 77-year-old Hong Kong resident of only primary six education, unable to seek justice due to lack of financial means.  He claims to be a victim of an unauthorised collective investment scheme (“CIS”) having subscribed to an investment in “Asia Square”, which was put on the alert list of unauthorised CIS by the Securities and Futures Commission (“SFC”) on 12 December 2022.  As a result, the Applicant says, he has sufficient grounds to have brought a civil claim against a Mr Cheung Kam-shing (“Mr Cheung”), director of Zhuhai City (Hong Kong) Midland Investment Consultant Company Ltd (“Midland Zhuhai”) for misrepresentations, which induced him to subscribe to the “Asia Square” CIS.

3.  The Applicant also refers to the provisions of section 108 of the Securities and Futures Ordinance Cap 571 (“SFO”), which provides that where a company or other body corporate has made any fraudulent misrepresentation, reckless misrepresentation or negligent misrepresentation by which another person is induced to do particular relevant acts, any person who was a director of the company at the time the misrepresentation was made shall be presumed also to have made the misrepresentation.

4.  The Applicant says that the DLA Decision was based upon the assertion that the court which should hear his intended claim against Mr Cheung (and/or Midland Zhuhai) should be a court in the Mainland.  But, he submits, there is no way for the Mainland Court to apply section 108 of the SFO when deciding the case there.  Further, he submits, Mr Cheung is a Hong Kong citizen, living in Hong Kong for a long time.  Therefore, the Applicant says, his intended claim should be heard in Hong Kong.

5.  In those circumstances, the Applicant has named the Director as the putative respondent, and the CEO of the SFC and Mr Cheung as putative interested parties.

6.  I also note that, though the application on its face seeks to challenge the DLA Decision, one of the documents attached to the application was the Notification dated 13 November 2023 (“Master’s Decision”) notifying dismissal of a legal aid appeal, in LAA 223/2023, whereby the Deputy Registrar/Master dismissed the Applicant’s appeal from the DLA Decision.

7.  Having considered the materials, I think that this application can appropriately be dealt with on paper.  This is my Decision.

B. The DLA Decision

8.  I can deal shortly with the intended challenge to the DLA Decision.

9.  The Applicant had a right of appeal from the DLA Decision, pursuant to section 26 of the Legal Aid Ordinance Cap 91. He exercised that right.  As it was an alternative remedy available to him, and pursued by him, that precludes any judicial review claim against the DLA Decision.  It is not amenable to judicial review.  The reason why that is so is explained as follows.

10.  There are different tests to be applied (1) when the DLA/Master is considering an application/appeal for legal aid and (2) when the Court is considering an application for judicial review of a decision refusing to grant legal aid.  If authority is needed for such a proposition, reference can be made to Xu Fangwen v Deputy Registrar of the High Court [2019] HKCFI 2332 at §§17-20.

11.  The starting point is that, under section 10(3) of the LAO, a person shall not be granted a legal aid certificate in connection with any proceedings unless he or she shows reasonable grounds for taking, defending, opposing or continuing such proceedings.

12.  A legal aid appeal to the Deputy Registrar/Master is in the nature of a de novo hearing.  It does not take the form of a review of the decision of the DLA, and the question is not whether the DLA made a decision which was reasonably open to be made on the materials.  The Master is deciding whether, in his or her view on the materials before him or her, legal aid should be granted.  Therefore, when hearing an appeal against the decision of the DLA refusing to grant legal aid, the Master should adopt the same approach.

13.  But the question to be answered by the Court when considering an application for leave to apply for judicial review of the Master’s decision dismissing a legal aid appeal is a different one.  The Court does not sit as a further tier of appeal, and does not re-examine the Master’s decision afresh, or consider whether it would have granted legal aid to the applicant.  The Court’s function is confined to a review of the legality, rationality and fairness of the process, so as to determine whether the intended application for judicial review is reasonably arguable and has a realistic prospect of success.

14.  Further, as the appeal to the Master under section 26 of the LAO is a full appeal, as described above, where the applicant for legal aid has exercised the statutory right of appeal against the DLA’s decision, it follows that the underlying DLA’s decision is in principle not amenable to judicial review: see the Xu Fangwen case at §§21-22, adopting by analogy the reasoning of the Court of Appeal in Re Moshsin Ali [2018] HKCA 549.

15.  Therefore, insofar as the present application concerns any intended challenge to the DLA Decision, it must fall at the first hurdle.

C. The Master’s Decision

16.  As noted, the Form 86 itself identifies only the DLA Decision as the subject matter of the intended application for leave to apply for judicial review.

17.  Nevertheless, because the Master’s Decision was attached to the application papers, I have as a matter of fairness looked at the relevant materials in that context.

18.  Because the Master’s Decision is not the named subject matter or ‘target’ of this application, it is perhaps not surprising that there are no identified public law grounds asserted as to why the Court might interfere with the Master’s Decision in the Court’s exercise of its judicial review jurisdiction.  It is trite that it is incumbent on an applicant for leave to apply for judicial review to identify the ‘target’ decision, as well as the relief sought and the grounds on which it is sought.  The failure to identify any public law grounds for the intended review is fatal to the application.  It is not for the Court to seek to divine what might be raised as public law grounds for potential review.

19.  Nevertheless, I have taken the trouble to look at some of the materials in the legal aid appeal leading to the Master’s Decision.  Looking at the materials, the following is apparent:

(1)  The DLA Decision was indeed based upon the view of the Director that the Applicant’s intended claim has the closest and most realistic connection with the Mainland, so that it should be a Mainland court which had jurisdiction, because (a) there is no specific jurisdiction clause and dispute resolution clause in the subscription form signed by the Applicant; (b) the claim involves property in the Mainland; and (c) the parties involved included the developer, a PRC company Midland Zhuhai and an agent Ms Leung Kwok Yan Jessica (“Ms Leung”), a PRC person.

(2)  The Applicant exercised his right to a legal aid appeal against the DLA Decision, in LAA 223/2023.

(3)  The Applicant had in fact already commenced District Court civil proceedings, in DCCJ 4641/2022, but that claim was apparently struck out by the District Court Master, and the Applicant was seeking legal aid to appeal from the striking out and to continue the action.  The Applicant had also apparently sought leave to appeal from the striking out.

(4)  The first hearing of the legal aid appeal occurred on 9 June 2023, but was adjourned on that date when the Master gave directions to the Director to further consider three questions, being:

(a)  As Midland Zhuhai placed advertisements in Hong Kong and arranged for a shuttle bus to sell Mainland properties, was there any breach of the laws of Hong Kong;

(b)  as regards the “guaranteed return” advertised, was there any legal issue in Hong Kong; and

(c)  as regards what the Applicant has stated, was there any misrepresentation made in Hong Kong.

(5)  The Director provided supplemental submissions addressing those three questions, and identifying that the Director nevertheless maintained the decision to refuse the Applicant’s legal aid application.

(6)  Amongst the supplemental submissions (and explanations for decision), the Director placed reliance upon:

(a)  The Applicant had so far been unable to provide the actual advertisement involved, or the content of it (having only identified “similar advertisements”, which do not contain the name of real estate for sale nor the information or name of the person/company putting up the advertisements).

(b)  The Applicant had not provided evidence showing the actual representation supposed to have been made to him by Ms Leung, and the social media posts relied upon do not provide evidence of the actual representation now alleged.

(c)  Without the contents of the specific advertisement or any sales document, the Applicant cannot show that Mr Cheung/Midland Zhuhai was in breach of the potentially relevant Hong Kong statutory provisions for promotion and sale of Mainland property.

(7)  The supplemental submissions (and explanations for maintaining the decision) were placed before the Master on the renewed hearing of the legal aid appeal.

(8)  The Applicant attended the hearing, and indicated that he had received, read and understood the Director’s supplemental submissions/reasons for refusal.

(9)  The Applicant was also permitted to, and did, make submissions at the hearing.

(10)  The Master’s Decision was given on the standard form basis that he had considered the legal aid appellant’s case, but dismissed the appeal because he agreed with the reasons for refusal given by the Director.

20.  As already indicated above, in this application the Court does not sit as a further tier of appeal as regards the grant or refusal of legal aid.  Rather, it is concerned with the integrity of the legal aid appeal process.  From the above brief summary, there do not seem to me to be any reasonably arguable public law grounds to interfere with the Master’s Decision.  The Master was careful to raise further matters which he thought worthy of consideration in his de novo approach, and adjourned the legal aid appeal hearing for that purpose.  There is no reason to suppose that the Master then failed to take into consideration as he saw fit the questions raised and the supplemental submissions placed in response to them.  Nor is there any other apparent unfairness in the procedure adopted on the legal aid appeal.

D.  Result

21.  The Applicant has targeted in his Form 86 a decision – the DLA Decision – which is not amenable to judicial review, and against which there was an available alternative remedy which he exercised (albeit without success).

22.  However, looking at the result of that available alternative remedy – the Master’s Decision – the Applicant has failed to identify any grounds of judicial review, and in any event there do not seem to be any reasonably arguable grounds of review with any realistic prospects of success.

23.  In the circumstances, the Applicant’s application for leave to apply for judicial review is dismissed.  I make no order as to costs.