LI PUI MAN v. LEGAL AID DEPARTMENT

HCAL 1537/2019

[2019] HKCFI 1913

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1537 OF 2019

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D E C I S I O N

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INTRODUCTION

1.  In this application for judicial review, the Applicant seeks to challenge the following decisions[1]:

(1) 5 decisions made by the Director of Legal Aid (“the Director”) between 25 April 2017 and 10 April 2018 (the “1^st, 2^nd, 3^rd, 4^th and 5^th Refusal Decisions” respectively) refusing to grant legal aid to the Applicant in relation to her application for leave to appeal against a decision made by the Labour Tribunal on 19 January 2017 (“the Tribunal Decision”);

(2) an order (“the Section 11 Order”) made by the Director against the Applicant on 30 April 2018 under Section 11 of the Legal Aid Regulations, Cap 91A (“the Regulations”);

(3) a decision made by the Director on 25 May 2018 (“the 6^th Refusal Decision”) refusing to grant legal aid to the Applicant in relation to her intended application for judicial review of (i) the Section 11 Order, and (ii) the Director’s policy that any expenses incurred by him in the processing of an application for legal aid would form part of his first charge over any property recovered or preserved for the aided person (“the Policy”); and

(4) a decision made by Deputy Registrar J Wong on 28 February 2019 (“the Appeal Decision”) dismissing the Applicant’s legal aid appeals against the 5^th and 6^th Refusal Decisions and the Section 11 Order.

BACKGROUND FACTS

2.  The Applicant was formerly employed by the Government to work as an Accounting Executive in the Land Registry on Non-Civil Service Contract Staff terms for a period of 2 years from 9 January 2008 to 8 January 2010.

3.  Arising out of the judgment of the Court of Final Appeal in Leung Ka Lau v Hospital Authority (2009) 12 HKCFAR 924, on 25 August 2010, the Civil Service Bureau informed Bureaus and Departments of the compensation arrangements for non-civil service contract staff assigned duties on rest days, statutory holidays and public holidays.  On 15 September 2010, the Land Registry offered to pay compensation to the Applicant in the total amount of HK$883.12.  The Applicant was not satisfied with the offer of compensation, and commenced proceedings against the Government for the total sum of HK$89,732 in the Labour Tribunal (LBTC 3427/2015).

4.  The hearing of the Applicant’s claim in the Labour Tribunal took 5 days in November and December 2016.  On 19 January 2017, the Labour Tribunal made an award of HK$1,759.62 in favour of the Applicant, but also ordered her to pay costs in the amount of HK$18,108.60 (being 60% of the Government’s costs) (the Tribunal Decision).  The Applicant was not satisfied with the Tribunal Decision, and sought leave to appeal against it to the Court of First Instance in HCLA 4/2017 on 27 January 2017.  On 26 June 2018, B Chu J made an order adjourning the Applicant’s application for leave to appeal sine die with liberty to restore.

5.  Between 8 February 2017 and 30 January 2018, the Applicant made 5 applications for legal aid in relation to her application for leave to appeal against the Tribunal Decision, but the 5 legal aid applications were all rejected by the Director:

Date of Application	Date of Refusal
08/02/2017	25/04/2017 (the 1st Refusal Decision)
10/05/2017	18/07/2017 (the 2nd Refusal Decision)
04/08/2017	06/09/2017 (the 3rd Refusal Decision)
20/09/2017	15/01/2018 (the 4th Refusal Decision)
30/01/2018	10/04/2018 (the 5th Refusal Decision)

6.  As can be seen from the Director’s reasons for refusal to grant legal aid dated 3 July 2018, the Director refused the Applicant’s legal aid applications because he considered that the Applicant’s proposed grounds of appeal against the Tribunal Decision only went to findings of fact by the Labour Tribunal but did not raise any arguable point of law, and the Labour Tribunal was entitled to make the aforesaid costs order against the Applicant in the exercise of its discretion.

7.  Further, in view of the repeated applications for legal aid in respect of the same subject matter which the Director considered amounted to an abuse of the facilities provided by the Legal Aid Ordinance, Cap 91 (“the Ordinance”), the Director informed the Applicant, by a letter dated 10 April 2018, that he intended to make an order under Section 11 of the Regulations that no consideration would be given to any future legal aid application by the Applicant in relation to the same subject matter for a period of 3 years, and asked the Applicant to show cause (if she wished to do so) against the making of the proposed Section 11 Order.

8.  On 25 April 2018, the Applicant applied for legal aid for an intended application for judicial review of (i) the Director’s intention to make the Section 11 Order, and (ii) the Policy.  This application was refused by the Director on 25 May 2018 (the 6^th Refusal Decision).

9.  In the meantime, in view of the Applicant’s failure to show cause against the Director’s intention to make an order under Section 11 of the Regulations against her, the Director made the Section 11 Order on 30 April 2018.

10.  On 30 April 2018, the Applicant filed notices of appeal against the 5^th Refusal Decision and the Section 11 Order in LAA 606/2018 and LAA 607/2018 respectively.  The Director gave written reasons for his decisions on 3 July 2018 and 18 February 2019.

11.  On 28 June 2018, the Applicant filed a notice of appeal against the 6^th Refusal Decision in LAA 895/2018.  The Director gave written reasons for his decision on 28 August 2018.

12.  The legal aid appeals were heard on 28 February 2019 by Deputy Registrar J Wong, who agreed with the Director’s reasons for the relevant decisions and dismissed the appeals (the Appeal Decision).  The Appeal Decision was sent to the Applicant by post on 5 March 2019.

DISCUSSION

(i) Alternative avenue of challenge

13.  In relation to the 1^st to 5^th Refusal Decisions, the Section 11 Order and the 6^th Refusal Decision, the Applicant was entitled to appeal against them to the Registrar of the High Court under Section 26 of the Ordinance.  It is well established that judicial review is a remedy of last resort.  In the absence of any exceptional circumstances, the court would not grant leave to apply for judicial review where an applicant can challenge the relevant decision by way of an appeal (see 郭卓堅 對 法援署副署長莊因東及另一人 [2018] HKCA 512, at paragraph 10).  Each of the letters conveying the relevant decision from the Director to the Applicant expressly informed the Applicant that if she wished to appeal against the decision, she must file a notice of appeal in writing to the High Court Registry within 14 days from the date of the letter.  There are no exceptional circumstances in the present case to justify the court entertaining a judicial review of the 1^st to 5^th Refusal Decisions, the Section 11 Order or the 6^th Refusal Decision when there was an alternative avenue for the Applicant to challenge those decisions.

14.  The above consideration is sufficient to dispose of the application for leave to apply for judicial review in so far as it relates to the 1^st to 5^th Refusal Decisions, the Section 11 Order and the 6^th Refusal Decision.  For the sake of completeness, I shall briefly deal with the merits of the intended application for judicial review of those decisions in paragraphs 15 to 23 below.

(ii)     The 1^st to 5^th Refusal Decisions

15.  The 1^st to 5^th Refusal Decisions relate to the Applicant’s application for leave to appeal against the Tribunal Decision.  Under Section 10(3) of the Ordinance, a person shall not be granted a legal aid certificate in connection with any proceedings unless he shows that he has reasonable grounds for taking, defending, opposing or continuing such proceedings.  In relation to a decision made by the Labour Tribunal, a party who is dissatisfied with the decision may seek leave to appeal against it only on the ground that it is (a) erroneous in point of law, or (b) outside the jurisdiction of the tribunal (see Section 32(1) of the Labour Tribunal Ordinance, Cap 25).

16.  The Director considered that the Applicant’s intended appeal did not raise any arguable point of law.  This is a view which was open to the Director to reach on the materials before him.  There is also no question of the Tribunal Decision being outside the jurisdiction of the tribunal.

17.  It is not the function of the court, in an application for judicial review, to re-examine the merits of a decision made by the Director afresh.  The court can only intervene where the Director’s decision is unlawful, Wednesbury unreasonable, or made in a procedurally unfair manner.  There is nothing in the materials before the court to show that the 1^st to 5^th Refusal Decisions are unlawful, Wednesbury unreasonable, or made in a procedurally unfair manner.

(iii)    The Section 11 Order

18.  Under Section 11(1)(a) of the Regulations, where a person has applied for and been refused a legal aid certificate on 2 or more occasions where the applications relate to substantially the same cause or matter, and it appears to the Director that his conduct has amounted to an abuse of the facilities provided by the Ordinance, the Director may order that no consideration shall be given to any future application by that person. Under Section 11(2)(b) of the Regulations, no such order shall remain in force for a period longer than 3 years.

19.  In the present case, the Applicant made 5 legal aid applications relating to the same subject matter in less than one year, and all 5 applications were rejected by the Director.  Her intended appeal against the Tribunal Decision did not appear to have merits.  Also, the Applicant could have appealed against the 1^st to 5^th Refusal Decisions, but did not lodge any appeal prior to 30 April 2018.  Her appeal against the 5^th Refusal Decision was only lodged on 30 April 2018, which was outside the statutory 14-day period for appeal under Section 26(2) of the Ordinance.  In my view, it was open to the Director to come to the view that the Applicant’s conduct amounted to an abuse of the facilities provided by the Ordinance, thus justifying the making of the Section 11 Order.  There is nothing in the materials before the court to show that the Section 11 Order is unlawful, Wednesbury unreasonable, or made in a procedurally unfair manner.

(iv)    The 6^th Refusal Decision

20.  The 6^th Refusal Decision concerns the Applicant’s application for legal aid to challenge (i) the Section 11 Order, and (ii) the Policy, by way of judicial review.

21.  I have already explained why the Director was entitled to make the Section 11 Order against the Applicant.  In so far as the Policy is concerned, it is based on Sections 9, 18 and 18A of the Ordinance which, so far as relevant, state as follows:

“9 Where an application for legal aid is made under the provisions of section 8, the Director may –

(a) make such inquiries as he thinks fit as to the means of the applicant and as to the merits of the case …

(f) defray expenses incidental to any of the foregoing matters out of any funds in his control which are available for the purpose.

18 (1) An aided person shall pay to the Director a contribution –

(a) where legal aid has been granted to him under the Supplementary Legal Aid Scheme, in accordance with section 32; and

(b) in any other case, if so required by the Director, towards the sums that may be or become payable on his account by the Director.

18A (1) Subject to this section –

(a) the amount of a contribution to the extent that it is unpaid; and

(b) except where legal aid has been granted under the Supplementary Legal Aid Scheme, if the total contribution is less than the net liability of the Director on the aided person’s account, a sum equal to the deficiency,

shall be a first charge for the benefit of the Director on any property, whether situated in Hong Kong or otherwise, which is recovered or preserved for the aided person in the proceedings or in any other proceedings in respect of which the person was aided and which, in the opinion of the Director, were substantially related to or connected with the proceedings in which property was recovered or preserved.

(2) The references in section 18 and in subsection (1) to the net liability of the Director on any person’s account in relation to any proceedings refer to the aggregate amount of the following –

(c)  the amount of any expenses defrayed by the Director under section 9(f) in respect of the grant of legal aid to that person.”

22.  There is no challenge against the aforesaid provisions of the Ordinance.  The Policy is neither unlawful nor Wednesbury unreasonable.  No issue of procedural unfairness arises in relation to the making of the Policy.

23.  In short, the Director was entitled to make the 6^th Refusal Decision on the basis that it was clear that the proposed application for judicial review of the Section 11 Order and the Policy was not reasonably arguable, and had no realistic prospect of success.

(v)     The Appeal Decision

24.  In relation to an application for legal aid for commencement or continuation of proceedings, the question for the Director, when considering the issue of merits, is whether the applicant has shown “reasonable grounds” for taking or continuing such proceedings.  For this purpose, “reasonable grounds” requires the applicant to show that there is a reasonable, as opposed to a fanciful, chance of success in the proceedings (see Nguyen Trong Son v Director of Legal Aid, LAA 20/1999, 15 December 2000, per Keith JA). In relation to the making of an order under Section 11(1)(a) of the Regulations, the relevant consideration for the Director is whether (i) an applicant has applied for and been refused a certificate on 2 or more occasions where the applications relate to substantially the same cause or matter, and (ii) it appears that the applicant’s conduct has amounted to an abuse of the facilities provided by the Ordinance.

25.  Since a legal aid appeal is in the nature of a de novo hearing, the Registrar or Master, when hearing such appeal, should adopt the same approaches.

26.  The Appeal Decision relates to the 5^th Refusal Decision, the Section 11 Order and the 6^th Refusal Decision.  I have already explained the lack of merits of the challenges against the 5^th Refusal Decision, the Section 11 Order and the 6^th Refusal Decision.  Deputy Registrar J Wong was entitled to agree with the Director’s reasons for his decisions and dismiss the legal aid appeals in LAA 606, 607 and 895/2018.

(vi)    Time limit for judicial review

27.  Finally, the Application’s application, in so far as it relates to the 1^st to 5^th Refusal Decisions, the Section 11 Order and the 6^th Refusal Decision, was made outside the 3-month period for making an application for leave to apply for judicial review under Order 53, rule 4(1) of the Rules of the High Court, Cap 4A.  No good reason for extending the period within which the application shall be made has been shown.  Taking into account the lack of merits of the intended challenges, the court sees no reason to exercise its discretion to grant an extension of time to the Applicant to make an application for leave to apply for judicial review in relation to those decisions.

DISPOSITION

28.  The application for leave to apply for judicial review is dismissed, with no order as to costs.