王寬裕 v. MATTEW LEUNG, DEPUTY REGISTRAR, HIGH COURT

HCAL 305/2024

[2024] HKCFI 765

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 305 OF 2024

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D E C I S I O N

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A. Introduction

1.  By his Form 86 dated 9 February 2024, the Applicant seeks leave to apply for judicial review so as to challenge the Notification of dismissal of his legal aid appeal LAA 792/2023, by the decision of Deputy Registrar Matthew Leung (“Master Leung”).

2.  Having considered the materials provided by the Applicant with his application, I am satisfied that it is appropriate to deal with this application on the papers.  This is my Decision.

B.   The Application

3.  In the section of the Form 86 headed Relief Sought, the Applicant stated (in English translation):

1.  The reliefs sought by me in my role as an auditor are as set out on pages 2-19.

2.  I request that Master Leung disclose the authorities and guidelines upon which his decision was based and that I be given a copy of a detailed account of his decision and a copy of (the reason why)  Master Leung agreed with the decision of the Director of Legal Aid before the oral hearing.

3.  I seek relief in the form of legal aid in order to bring a judicial review to challenge the government’s policies and decisions which are completely Wednesbury unreasonable under the circumstances that there is a fiscal deficit, namely the Health Bureau’s and the Housing Department’s newborn baby policies, the Transport Department’s new policy on search of vehicle registration records and the decision to redevelop the Lai Chi Kok Reception Centre.  Officials and legislators are insensitive to figures and (for a legible characters).  They have lost their instinct for self-auditing and contravened the provisions of the Basic Law governing (public)  finance and legislators, rendering various provisions in our constitutional system as well is the Code for officials under the political appointment system challengeable!

4.  The pages 2-19 mentioned – which are attached to the Applicant’s affirmation, also dated 9 February 2024 – comprise (1) the Applicant’s written submissions for his legal aid appeal LAA 792/2023 on 14 December 2023, and (2) a document said to relate to extra relief sought and its legal basis.  With respect, both documents are somewhat rambling and confused.  But it is clear enough that both documents set out the Applicant’s underlying concerns and complaints, rather than identifying any particular public law error alleged to have occurred in the making of the decision the intended subject matter of these proceedings.

C.   Are There Merits in the Application?

5.  In order to obtain the grant of leave to apply for judicial review, an applicant needs to identify public law grounds of review of the impugned decision, which are reasonably arguable with a reasonable prospect of success.

6.  In that context, it is necessary to focus on the particular subject matter of intended challenge by the Applicant in these proceedings.

7.  Pursuant to section 26 of the Legal Aid Ordinance Cap 91, the Applicant had a right of appeal from the decision of the Director of Legal Aid (“DLA”)  refusing him the grant of legal aid.  He obviously exercised that right, and the appeal was heard by Master Leung.  The Applicant is dissatisfied with Master Leung’s decision, which is the subject matter of the intended challenge.

8.  However, 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.

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

10.  A legal aid appeal to the 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 view on the materials before him, 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.

11.  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.

12.  Necessarily, that means that the third paragraph of the relief sought by the Applicant – which seeks the grant of legal aid in order to bring judicial review proceedings – must be dismissed as unarguable. The Court exercising its judicial review jurisdiction does not grant (or refuse to grant)  legal aid.

13.  Further, there are no other identified public law grounds upon which the Applicant seeks, or should be granted, leave to apply for judicial review so as to challenge Master Leung’s dismissal of his legal aid appeal.

14.  Obviously, as the written submissions filed for the legal aid appeal predate the decision on the appeal, they cannot identify any alleged public law error on the part of the Deputy Registrar in making the decision on the appeal.  There is no basis to think, for example, that the Master ignored them.

15.  Further, the document said to relate to extra relief sought and its legal basis is in reality a repetition of or further explanation of the underlying complaints made by the Applicant for which he was seeking the grant of legal aid to commence proceedings.  The extra relief sought is in the context of the underlying complaints, and the suggested legal basis relates to those matters, not the legal aid appeal.  The document refers to Master Leung only once, suggesting that before the oral hearing he should disclose the guideline given to him by the judgment of an old case (presumably the guiding precedent)  and his reasons for agreeing to the DLA’s refusal of legal aid. That is not identifying a public law complaint.

16.  For the avoidance of doubt, there is no public law error in the Master expressing that he dismisses the legal aid appeal because he agrees with the decision of and the reasoning of the DLA previously provided to the Applicant.  Further, because those reasons were known to the Applicant – who had indeed sought to address them in his submissions to the Master – the Applicant knows why the Master thought that legal aid should be refused.

D.   Result

17.  The Applicant has failed to identify any public law grounds of the intended review, with any reasonable arguability or any realistic prospect of success.

18.  In the circumstances, the application for leave to apply for judicial review is dismissed, with no order as to costs.