MK v. REGISTRAR OF HIGH COURT

CACV 355/2021

[2023] HKCA 495

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 355 OF 2021

(ON APPEAL FROM HCAL NO 2433 OF 2019)

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JUDGMENT

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The Court:

1.  On an application for judicial review, the Master’s decision dismissing the applicant’s appeal against the revocation of legal aid was quashed[1] by Yeung J.  By a judgment handed down on 9 January 2023 (“the Judgment”),[2] we allowed the appeal by the Director of Legal Aid and dismissed the application for judicial review.  By a Notice of Motion dated 2 February 2023, the applicant now applies for leave to appeal to the Court of Final Appeal (“the CFA”).  Having considered the parties’ written submissions, we take the view that the matter can be disposed of on paper without an oral hearing.  We now hand down our judgment.

2.  Under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance,[3] an appeal shall lie to the CFA at the discretion of this Court or the CFA if the question involved in the appeal is one which, by reason of its great general or public importance (“GPI”), or otherwise, ought to be submitted to the CFA for decision. 

3.  The Notice of Motion sets out the following question concerning regulation 21(1)(b) of the Legal Aid Regulations (“Regulation 21”),[4] and its abrogating effect on legal professional privilege (“LPP”):

“Upon proper interpretation of [Regulation 21], what is the extent, if any, of abrogating effect by necessary implication against LPP at common law which is a right guaranteed constitutionally under Article 35 of the Basic Law of Hong Kong? In particular, whether the abrogation by necessary implication extends to communications protected by LPP prior to the application for and/or granting of legal aid to the client?”

4.  We held in the Judgment that Regulation 21’s abrogating effect on LPP between an aided person and the assigned lawyers, in respect of communications concerning financial eligibility, extends to occasions prior to the grant of legal aid.  Mr Shum, for the applicant,[5] contended that construing Regulation 21 in this way would lead to a sweeping LPP abrogation, overlooking its importance as a fundamental, absolute and constitutionally guaranteed right, not to be balanced against competing rights, and which can only be limited by legislation expressly or by necessary implication.  He therefore submitted that the above question is of GPI.

5.  In elaboration, Mr Shum argued that this retrospective abrogation of previously existing LPP was disproportionate and irrational, having dire consequences for lawyers, as it would be cumbersome and impracticable for them to check all communications prior to the acceptance of assignment.  He also submitted that, since LPP could be taken away in all kinds of cases, even before legal aid assignment, legal aid applicants would be seriously prejudiced, particularly as they do not have control over the choice of assigned lawyers.  Mr Shum contended that these consequences could not have been intended by Regulation 21.  Had it been the intention to extend the abrogating effect to a time before grant of legal aid, express wording would have been used.  Regulation 21 instead refers to an aided person, and since a person would only become an aided person after the grant of legal aid, the abrogating effect should not apply to a time before grant of legal aid, nor was this a necessary implication.

6.  Mr Shum further submitted that the question on the one hand involved the long-established human right to receive legal advice in confidence, and on the other hand the duty of assigned lawyers to report legal aid abuse under the regulation.  In addition to aided persons who were assigned with lawyers previously retained on a private basis; it would also affect the legal profession at large, as lawyers would have to keep, maintain or otherwise memorize all communications with clients touching upon their financial means, as their clients might at some time be granted legal aid.  Mr Shum concluded by saying that the question should be clarified by the CFA, as it has not been authoritatively considered.

7.  However, as rightly submitted by Mr Abraham Chan SC, for the Director,[6] Mr Shum only repeated the arguments in the appeal which had already been rejected by this Court, which does not assist the applicant.  As we pointed out, the main and indeed only issue concerns the proper construction of Regulation 21.  Its clear purpose is to prevent abuse of legal aid.  As we held in the Judgment at [35], any suggestion of temporal limits on its abrogating effect (such as that it does not apply before the grant of legal aid) would defeat the very purpose of Regulation 21.  We arrived at this conclusion by applying well-settled principles on statutory construction, fully recognizing that LPP is a fundamental and absolute right which can only be limited expressly or by necessary implication, precluding any balancing of competing interests.  Mr Shum did not dispute such settled principles, he simply disagreed with our conclusion.  Mr Shum accepted that Regulation 21(1)(b) does have an abrogating effect.  He only took issue with whether such effect extended to communications prior to the application for and the grant of legal aid.  As we held in the Judgment at [36], such abrogating effect was highly targeted, focusing on communications within a limited scope, namely, those related to prevention of abuse.  The so-called disproportional and dire consequences envisaged by Mr Shum would not arise.

8.  For the above reasons, even if we are prepared to accept that the question raised in the Notice of Motion is of GPI, the applicant’s contentions are simply not reasonably arguable.  We therefore refuse to give her leave.

9.  Apart from GPI, Mr Shum did not argue in his written submissions that leave should be given under the “otherwise” limb of section 22(1)(b).  In any event, the usual practice is for the CFA to consider if leave should be given under this limb.  We see no reason to depart from this.

10.  In conclusion, we dismiss the applicant’s application for leave, and order her to pay the Director’s costs with certificate for two counsel, to be taxed if not agreed.