CHAN CHUNG SING v. THE REGISTRAR OF THE HIGH COURT

HCAL 562/2025

[2025] HKCFI 1006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 562 OF 2025

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D E C I S I O N

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A.  Introduction

1.  The Applicant is trying to have a second bite at the cherry. 

2.  The Applicant previously sought leave to apply for judicial review in HCAL 279/2025.  In that application, the Applicant named the Registrar of the High Court as putative respondent, and the Director of Legal Aid (“DLA”) as putative interested party.  However, the application was in reality a complaint arising from the Applicant’s deep dissatisfaction from the way in which his application for legal aid was dealt with by the Legal Aid Department (“LAD”).  No criticism at all was made of, nor were any public law errors alleged against, the Registrar.  The naming of the Registrar as putative respondent was to reflect the fact that the Applicant had appealed the DLA’s refusal to the Registrar. 

3.  By my Decision dated 7 February 2025, [2025] HKCFI 570 (“Previous Decision”), I dismissed that application for leave to apply for judicial review.  I did so on the primary basis that the decision of the DLA was no longer amenable to a challenge by way of judicial review, because the Applicant had exercised his statutory right to appeal to the Registrar – and I expressly noted that there had been no criticism at all of the Registrar’s decision on the legal aid appeal.  I also dismissed the application on the basis that the Applicant had in any event failed to state any grounds of intended review on which his relief was sought. 

4.  Now, by Form 86 dated 5 March 2025 in these proceedings, the Applicant seeks leave to apply for judicial review of the decision of the Registrar in LAA 781/2024, dismissing his appeal from the decision of the DLA refusing the grant of a legal aid certificate. 

5.  Save for the action number, the title to these proceedings is exactly the same as in the previous proceedings.  The Applicant has again named the Registrar as putative respondent and the DLA as putative interested party.  As I have already indicated, the Applicant is clearly seeking to have a second bite at the cherry. 

6.  Having considered the materials filed by the Applicant, I see no reason why this application cannot be dealt with on paper.  This is my decision. 

B.  No Second Bite

7.  Though, as I put it in my Previous Decision, the Applicant had simply focused on the wrong target, that was not intended to suggest that the Applicant could have another go at a different target. 

8.  Indeed, in my previous Decision I noted that the Applicant had suggested in his previous Form 86 that:

In comparison to judges in judicial review, the Registrar’s role in the appeal is more limited.  The Registrar primarily focuses on procedural aspects and the correctness of the Legal Aid Director’s decision based on the provided information.  Judges in judicial review, on the other hand, have broader authority to examine the legality, reasonableness, and fairness of administrative decisions, including those made by the Legal Aid Director. 

9.  That seemed to me to read as though the Applicant was saying that, whilst the Registrar focused on procedural aspects (about which no complaint was made), a judicial review Judge could conduct a broader exercise.  In other words, the Registrar’s hands were tied by reference to the information provided to him.  (That is not to say the Applicant’s assertions as to the role of Registrar and Judge were correct.)

10.  The Applicant had the opportunity to have sought to identify any alleged public law errors made by the Registrar on the appeal. But the Applicant chose not to do so.  To put it as a matter of principle, the Applicant could and therefore should have raised any public law complaints about the Registrar’s decision on the appeal, when he already knew the result of that appeal when he launched his previous application.  But, because he did not do so, it would not ordinarily be open to the Applicant to seek to raise those matters now in subsequent proceedings. 

11.  In essence, seeking to raise those matters now in subsequent proceedings amounts to an abuse of the process. 

12.  That is a good reason of itself, in the circumstances, to dismiss this application for leave to apply for judicial review. 

C.  Failure to Make Application Promptly

13.  It is trite that an application for leave to apply for judicial review must be made promptly and in any event within three months from the date when grounds for the application first arose (unless the Court considers that there is a good reason for extending the period within which the application shall be made).  This is the mandatory requirement set out in RHC Order 53 rule 4.  It is also trite that provision does not mean that every applicant has as long as three months within which to bring the application, as that three-month period is only a ‘long stop’ period.  An application even brought within that three-month period might not in the circumstances have been made promptly. 

14.  In this instance, the Applicant had pursued his statutory right to a legal aid appeal.  He already had the result of that appeal over a month before he commenced the earlier proceedings complaining about the failure to have been granted a legal aid certificate.  In my view, if the Applicant was to make complaints that the Registrar had fallen into public law errors in reaching that appeal decision, that was the time to have included any such complaints within the earlier proceedings.  No reason has been identified as to why he might not have done so. 

15.  Therefore, I do not accept that the present application was made promptly. 

16.  That is another reason why this application for leave to apply for judicial review stands to be dismissed. 

D.  No Merits

17.  In the Form 86, the Applicant sets out the grounds for his application as follows (bold in original):

Procedural Impropriety: The registrar did not allow the LAD representative to speak, violating the principle of natural justice and the right to a fair hearing. 

Error of Law and Fact: The registrar failed to recognise that the terms of the oral agreement with certain and complete, based on the evidence suggesting a clear shareholding structure.  The registrar’s decision was based on an incorrect assumption that the terms were uncertain, leading to an erroneous decision. 

18.  Neither of these matters raises any reasonably arguable public law ground of review, with any realistic prospect of success. Nor does anything in the Applicant’s affidavit significantly improve those prospects.  Indeed, the affidavit is mainly a recitation of the points raised in relation to his previous application, where he has accused the LAD of various ill motives (see §2 of my Previous Decision), and where he seeks to argue on the merits that he should have been granted legal aid. 

19.  As to the allegation of procedural impropriety, this is only slightly enlarged in the Applicant’s affidavit, where he suggests that the procedural impropriety was that:

… the registrar did not give the LAD corrupted representative, Pauline Lo an opportunity to speak and present their case, thus I cannot respond to LAD’s adverse and ridiculous point of view.  A fair hearing requires that both parties have the chance to present their arguments and evidence. 

20.  This suggestion ignores (1) that it was the Applicant’s appeal, and it fell to him to seek to explain to the Registrar why he said he ought to be granted a legal aid certificate, and (2) that the Registrar would have had the benefit of the reasons previously given by the LAD for its refusal of legal aid.  Obviously, the Applicant also knew the basis of the prior refusal and was able to advance any arguments that he thought appropriate to seek to persuade the Registrar to grant legal aid.  There is no basis to suggest he did not have a fair opportunity to present his case. Equally obviously, if the Registrar was not persuaded by the Applicant’s submissions, or he saw no need for there to be any further explanation of the LAD’s reasons for refusal, the Registrar had no obligation to call on the representative for the LAD acting on the appeal. 

21.  There was no reasonably arguable procedural impropriety. 

22.  As to the allegation of error of law and fact, that simply seeks to rehearse the merits of the underlying decision not to grant the Applicant legal aid.  Most of the Applicant’s affidavit and its exhibits deal expressly – and again in trenchant and tendentious language – with the reasons why the Applicant says he should have been granted legal aid on the merits of the test for the grant of legal aid. 

23.  As I explained in my Previous Decision, there are different tests to be applied between (1) when the DLA or Registrar is considering an application or appeal for legal aid, and (2) when the Court is considering an application for judicial review of a Registrar’s decision refusing to grant legal aid. 

24.  A legal aid appeal to the Registrar is in the nature of a de novo hearing.  The Registrar is deciding whether, in his own view on the materials before him, legal aid should be granted. But the question to be answered by the Court when considering an application for leave to apply for judicial review of the Registrar’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 Registrar’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 of the legal aid appeal, so as to determine whether the intended application for judicial review is reasonably arguable and has a realistic prospect of success. 

25.  In the circumstances, the proposed ground relating to error of law and fact is not reasonably arguable with any realistic prospect of success. 

E.  Result

26.  The Applicant has (1) impermissibly sought to have a second bite at the cherry, (2) failed to bring this application promptly, and (3) failed to identify any reasonably arguable public law grounds of review with any realistic prospect of success. 

27.  As a result, the Applicant’s application for leave to apply for judicial review is dismissed.  I make no order as to costs.