Denial of legal aid justified for ‘King of Judicial Review’
For three years, the “King of Judicial Review” Kwok Cheuk-kin’s application for legal aid for his judicial review cases will not be considered by the director of legal aid because almost all of his applications since 2014 were groundless. The director issued this order based on a legal aid regulation that permits sanctions against those who abuse the legal aid service. Kwok challenged the order but failed at trial and on appeal. Now he is looking to the Court of Final Appeal for relief. Will he win?
Bill of Rights Article 10 constitutionally guarantees Hong Kong residents the right to a fair trial. But going to court is costly, and cases are difficult to win without specialist lawyers to represent litigants. But what about poor people? For them, the law is black and white: Legal aid must be provided in criminal matters so that they can defend themselves; but there is no such direct requirement in civil cases, including judicial review.
In order to facilitate this right of fair trial in court, many countries do provide legal aid in civil cases. Hong Kong has followed suit and legal aid is also available in civil cases to those who lack sufficient means. Now, Kwok is likely to put his key argument as follows: The banning order contravened the right of fair trial because he would be denied of legal aid even if he has a meritorious case, as the director for legal aid would not consider his legal aid application at all.
In Del Sol v France (2002) 35 EHRR 38, a French wife in divorce proceedings claimed an exorbitant amount of maintenance from her husband and failed at trial and on appeal; she sought relief from the French supreme court. The Legal Aid Office refused her application for assistance, ruling that her case lacked merit and had no reasonable prospect of success. She appealed to the French supreme court against the decision to refuse legal aid but failed again. She then complained to the European Court of Human Rights, alleging France’s violation of her right of fair trial.
The European Court of Human Rights focused on and closely examined the quality of France’s legal aid scheme. It found that the scheme set up by the French legislature offered individuals substantial guarantees to protect them from arbitrariness.
The Legal Aid Office, attached to the French supreme court, was presided over by a judge of that court and also included its senior registrar, two members chosen by the supreme court, two civil servants, two members of the French State Council and the French supreme court bar and a lay member appointed by users. Appeal against refusal of legal aid would be handed to the president of the French supreme court. Thus, the European Court of Human Rights held that the French Legal Aid Office’s refusal to grant the wife legal aid to appeal to the French supreme court did not infringe her right of fair trial.
Readers, the cardinal point in Kwok’s case is whether our legal aid scheme is devoid of arbitrariness. Assuming now Kwok has a meritorious case and the director of legal aid, under the banning order, refuses to examine his application, he, under the Legal Aid Ordinance, can appeal to the registrar of the High Court. Although the registrar of the High Court is exercising an administrative function, the registrar would have a preliminary view about whether Kwok’s case has legal merit and if so, might grant him legal aid.
If Kwok’s case is so legally complicated that the registrar could not decide whether it is meritorious, the registrar may, also under the Legal Aid Ordinance, refer it to a High Court judge, who is better versed in law to decide whether Kwok’s case has any legal merit. If the registrar of the High Court ruled against him, Kwok could still seek judicial review of the registrar’s decision, which might eventually reach the Court of Appeal and the CFA. That means the law and the entire legal aid appeal system provides various avenues of relief to an applicant under a banning order so that his meritorious legal aid application (if any), will not be arbitrarily refused.
In my view, Kwok’s appeal against the banning order will be dismissed.