Pang Chui Ping v Registrar of the High Court [2025] HKCA 372 (on appeal from [2024] HKCFI 2054)
Background
This case arose from a protracted legal aid dispute. The applicant sought legal aid to fund proceedings against her ex-husband over an alleged oral agreement concerning their former matrimonial home. The Director of Legal Aid (“Director”) refused her application, relying on different grounds across two decisions. The applicant’s appeal against the refusal of legal aid was dismissed by a Master on three new grounds not raised by the Director.
The applicant then sought leave for judicial review over the Master’s decision on the ground that the Master fell into legal error on each of the three new grounds and on the ground of procedural impropriety. The Director fairly accepted that the three new grounds were erroneous as a matter of law and proposed an order of certiorari to bring up and quash the decision and an order remitting the matter to a different Master for fresh consideration. The only issue at the substantive hearing therefore concerned the appropriate relief to be made in the circumstances.
Contrary to the Director’s suggestion, the Court of First Instance (“CFI”) decided to quash the Master’s decision and grant an order of mandamus to compel the Registrar of the High Court to direct the issue of a legal aid certificate to the Applicant. The Director appealed against the order of mandamus on inter alios the ground that the Judge erred in law and/or in fact in holding that the Master had in this case implicitly rejected the reasons advanced by the Director for refusing the grant of legal aid and/or the Master had already excluded any other reasons for dismissing the appeal except for the reasons she gave.
Court of Appeal Decision
The Court of Appeal (Chu VP, G Lam and Chow JJA) allowed the Director’s appeal, set aside the order of mandamus, and remitted the case to a new Master for fresh consideration but limiting the scope of the remittal such that the Director is only permitted to rely on the unreasonableness ground in resisting the legal aid appeal (i.e. it is unreasonable for legal aid to be granted in the particular circumstances of the case under s.10(3)(c) of the Legal Aid Ordinance (Cap.91) (“LAO”)).
The judgment provides important guidance on judicial review remedies, particularly (1) the use of mandamus as a last resort and (2) the Court’s power to limit the scope of a remittal:
- Mandamus as an exceptional remedy
The Court of Appeal emphasized that mandamus is an exceptional remedy, reserved for situations where only one legally permissible outcome exists for the decision-maker. The Court reiterated that judicial review courts should exercise caution in substituting their judgment for that of the primary decision-maker, as doing so risks undermining the supervisory nature of judicial review (§45).
In this case, the Court found that the CFI erred in granting mandamus because the question of whether it was reasonable to grant legal aid involved unresolved factual and discretionary issues. These issues required careful assessment by the proper administrative body—the Master—not the judicial review court. As such, the Court held that the appropriate remedy was to remit the matter for reconsideration, allowing the decision-maker to exercise its discretion within the proper legal framework (§§46-47).
- Scope of Remittal
Given the protracted procedural history of the case, the Court of Appeal found that the circumstances of the case to be sufficiently “unusual” such that the scope of the remittal should be limited, directly that the Director should only be permitted to rely on the unreasonableness ground at the remitted hearing. The Court highlighted that permitting the Director to introduce new arguments at this stage would lead to further delays and procedural unfairness (§§55-57).
However, the Court was careful to reiterate the fundamental principles of judicial restraint in judicial review cases. As G Lam JA observed, the supervisory role of judicial review courts requires them to avoid any semblance of assuming the function assigned by the Legislature to the decision-maker. As such, upon a remitter, the decision maker should generally be left free to deal with the case in accordance with his powers and duties based on the materials then available to him, subject to any constraints or fetters arising as a matter of law as found by the court (§6).
In legal aid appeal cases, the Master exercises administratively the statutory power vested in the Registrar under the LAO. This is an exercise entrusted by statute to the Registrar (in an administrative function), not to the courts, and the courts must therefore be cautious before acting in effect to curtail that exercise. As such, the court should refrain from setting limits to the scope of the remitter to the Registrar unless it is satisfied that it would be wrong in law, including public law, for the Registrar to go beyond those limits (§8).
Conclusion
The Court of Appeal’s decision underscores critical principles in judicial review: mandamus should only be granted in rare and exceptional circumstances where only one legally permissible outcome exists for the decision-maker, and remittals should generally allow decision-makers to exercise their statutory discretion freely within the confines of the law.
By clarifying the boundaries of judicial intervention and the scope of remittals, this ruling serves as an important precedent for practitioners navigating administrative law disputes in Hong Kong, particularly in the context of legal aid appeals.
Read the full judgment here.
Mr Johnny Ma SC and Ms Cherry Xu, instructed by Department of Justice, for the Interested Party.
