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Li Pui Man v Legal Aid Department

Judgment Cited authorities 1 Cited in Precedent Map Related
Vincent
Judgment Date02 August 2019
Neutral Citation[2019] HKCFI 1913
Year2019
Judgement NumberHCAL1537/2019
Subject MatterConstitutional and Administrative Law Proceedings
CourtCourt of First Instance (Hong Kong)
HCAL1537/2019 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

________________________

BETWEEN
LI PUI MAN Applicant

and
Legal Aid Department Putative
Respondent

________________________

Before: Hon Chow J in Chambers

Date of Decision: 2 August 2019

________________________

D E C I S I O N

________________________

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 “1st, 2nd, 3rd, 4th and 5th 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 6th 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 5th and 6th 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 6th 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 5th 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 6th 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 1st to 5th Refusal Decisions, the Section 11 Order and the 6th Refusal Decision, the Applicant was entitled to appeal against them to...

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