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Following is a question by the Hon Ng Leung-sing and a written reply by the Secretary for Home Affairs, Mr Lau Kong-wah, in the Legislative Council today (January 20):
Question:
It was reported that in a speech delivered early last month, a former permanent judge of the Court of Final Appeal strongly criticised the abuse of the judicial review (JR) system by some people in recent years and stressed that JR should not be employed as a means to challenge government policies. He also pointed out that some JR cases in recent years were apparently groundless and an abuse of procedure, while some others had brought significant economic losses to society. For instance, a JR case resulted in substantial cost increases and delay in work commencement of the Hong Kong-Zhuhai-Macao Bridge project. Moreover, some commentaries pointed out that some people had lodged JRs for the purpose of paralysing the implementation of government policies and had been easily granted legal aid by the Legal Aid Department (LAD). As a result, a large amount of public money was wasted and economic development was impeded. In this connection, will the Government inform this Council:
(1) of the respective numbers of applications for leave for JR received and granted by the Court, as well as the number of cases of applicants lodging appeal against the judgment that no leave was to be granted, in the past five years;
(2) of the public expenditure incurred for JR cases in each of the past five years, whether it has assessed the economic losses brought to society by such cases; if it has assessed, of the details; if not, the reasons for that;
(3) of the number of legal aid applications involving JR approved by LAD, and the total amount of litigation costs and other expenses incurred by LAD in such cases, in the past five years; and
(4) whether it has plans to review the legal aid system to formulate measures to prevent the abuse of the system; if it does, of the details; if not, the reasons for that?
Reply:
President,
The question straddles across different bureaux/departments and organisations, and the Government's consolidated reply is as follows:
(1) The Judiciary advised that for judicial review (JR) applications, an applicant is required to file an application for leave to apply for JR to the Court of First Instance of the High Court (CFI) in accordance with Order 53, rule 3 of the Rules of the High Court (Cap. 4A) for leave, i.e. permission, to proceed with the JR application.
Where leave to apply for JR is refused, the applicant may appeal against the judge's order to the Court of Appeal of the High Court (CA) within 14 days after such order as stipulated under Order 53, rule 3(4). Exceptionally, an applicant may appeal directly to the Court of Final Appeal, provided a certificate to that effect is granted by the judge in the CFI pursuant to section 27C(1) of the Court of Final Appeal Ordinance (Cap. 484).
Statistics on applications for leave to apply for JR filed from 2011 to 2015 are set out in Annex A; statistics on appeals filed in the same period against refusal of leave to apply for JR are set out in Annex B.
(2) The Department of Justice (DoJ) is responsible for providing legal advice to government bureaux and departments, and represents the Government in courts for judicial proceedings. Where necessary, DoJ also engages solicitors or barristers in private practice to provide assistance in handling cases. In respect of the handling of JR cases, the relevant briefing out expenses and court costs incurred by DoJ in the past five years are as follows –
Year Briefing out Net court costs incurred
Expenses (received)
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2011 $40,888,844 $275,951.3
2012 $36,986,566 ($4,428,247.3)
2013 $28,624,329 ($12,224,897.6)
2014 $37,084,182 ($8,332,797.9)
2015 $28,947,195 $6,145,639.0
As regards other expenditure involved in the handling of the JR cases during the period concerned (including the remuneration of government counsels and other supporting staff involved in handling the relevant cases, administrative expenses and other sundry expenses, etc.), as they are part of the general departmental expenses of DoJ, we have not kept a separate breakdown for these expenses.
As for other public expenditure incurred in relation to JR cases, including the cost increase of public works projects, the Government does not have the total amount concerned. However, individual policy bureaux or departments have estimated the public expenditure incurred in some JR cases. For example, the Transport and Housing Bureau informed the Legislative Council that the Government's expenditure in the JR regarding the Environmental Impact Assessment reports of the Hong Kong-Zhuhai-Macao Bridge (HZMB) (including the Government's legal costs as well as the legal aid costs incurred) was about $10.49 million. Besides, as affected by the JR, the commencement of the HZMB related local projects was deferred by about one year when compared with the original plan, resulting in a works cost increase of about $6.5 billion.
The commencement of a number of Government policies or works projects have been delayed due to JR cases. Although it is difficult to quantify the full impact of the delays on the overall Hong Kong economy, the delays inevitably diminish the intended benefits of these policies and work projects, hinder the development and opportunities of relevant sectors, and result in losses for the society as a whole.
(3) From 2011 to 2015, the number of legal aid applications for JR received and the number of legal aid certificates granted by the Legal Aid Department (LAD) each year are set out below –
JR cases
Year No. of legal aid No. of legal aid
applications certificates
received granted
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2011 229 58
2012 506 92
2013 432 119
2014 266 74
2015 500 107
Legal aid costs related to JR cases are subsumed under the costs of Miscellaneous Cases in LAD. LAD does not maintain separate statistics on the total amount of legal aid costs incurred in JR cases.
(4) The policy objective of legal aid is to ensure that no one with reasonable grounds for pursuing or defending a legal action in the Hong Kong courts is denied access to justice due to a lack of means. To qualify for legal aid, a person has to satisfy both the means test and the merits test as stipulated in the Legal Aid Ordinance (LAO) (Cap. 91). To ensure that only those cases with reasonable grounds are granted legal aid, all legal aid applications are processed by Legal Aid Counsel appointed to serve in LAD. In conducting the merits test, LAD will consider the background of the case, the evidence available and the legal principles applicable to the case so as to determine whether there are reasonable grounds for legal aid to be granted. In assessing the merits, LAD must be satisfied that there are reasonable grounds or points of law involved for which it is desirable to grant legal aid to enable the matter to be submitted to the court for decision or judgement. For individual applications, if the available documents already demonstrate strong ground(s) for taking proceedings or that the issues raised are already covered by previous judgments or advice, legal aid may be granted to applicants who have passed the means test. If complicated legal issues are involved in the application, LAD may seek independent legal opinion from counsel in private practice on the merits of the application under section 9(d) of LAO.
LAD has put in place a monitoring mechanism to ensure that the processing of legal aid applications is reasonable and to safeguard against abuse of legal aid. If an application is refused, the applicant may appeal against the decision of the Director of Legal Aid to the Registrar of the High Court in accordance with section 26 of LAO, for which the decision of the Registrar is final. Besides, according to the Legal Aid Regulations, if anyone has repeatedly applied for legal aid after being refused, the Director may order that no consideration shall be given to any future application by that person for three years if it appears to the Director that his/her conduct has amounted to an abuse of the facilities provided by LAO. If anyone believes that an applicant or aided person has given LAD false information on merits or means, he/she can provide details to LAD. If the case is substantiated after investigation, LAD will discontinue legal aid and refer the case to the Police for follow up action. The Government has been paying attention to the discussion in the community on the ways to improve the legal aid system, and will review the need to further enhance the system as and when necessary.
Ends/Wednesday, January 20, 2016
Issued at HKT 13:30
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