Generally speaking, the effect of an order of certiorari is that there should be a hearing de novo or reconsideration by the original decision-maker of the subject matter: Wong Chun Tak v The Registrar of High Court (Unrep., HCAL 4/2016, 25 April 2016) at §9 (Hon. Queeny Au-Yeung J). Section 21K(5) of the High Court Ordinance (Cap. 4) provides that if the Court of First Instance quashes the decision to which the application for judicial review relates, the Court may remit the matter to the court, tribunal or authority concerned, with a direction to reconsider it and reach a decision in accordance with the findings of the Court.
In Pang Chui Ping v Registrar of the High Court [2024] HKCFI 2054, the Applicant applied for judicial review of the Master’s decision to dismiss the Applicant’s legal aid appeal (the “Decision”). The Honourable Mr. Justice Coleman (the “Judge”) granted an order of certiori quashing the Decision. Yet, instead of remitting the case back to the Master for reconsideration, the Judge also granted an order of mandamus directing the Master to direct the issue of a legal aid certificate to the Applicant in respect of the proceedings in relation to which she made the application for legal aid.
In doing so, the learned Judge took the view that this was a rare case where a public authority (here, the Master), if it had properly directed itself on the facts according to the applicable law, had only one choice legally open to it, in which case the Court was entitled to make an order of mandamus to require that result to be arrived at.
Factual background
The Applicant married on 10 December 1981. The Applicant and her now ex-husband (the “Husband”) were divorced by decree absolute made on 26 November 2009. The Applicant and the Husband had only one child, a son (the “Son”).
Prior to the divorce, the Applicant and the Husband made an oral agreement (the “Agreement”) which was subsequently, to a large extent, reduced into writing (the “Memorandum”) and signed by both parties on 2 October 2009.
The essence of the Agreement was that, in consideration of the Husband’s promise as to certain dealings with the former matrimonial home (the “Matrimonial Home”), she would consent to the divorce and not make any claim for ancillary relief in the divorce proceedings.
The key terms of the Agreement were that:
- notwithstanding the divorce, each of the Husband, the Applicant and the Son would have the right to reside in the Matrimonial Home for life;
- theHusband would continue to make mortgage repayments until he had fully paid off the mortgage;
- uponfull payment of the mortgage loan, the Husband would transfer the Matrimonial Home to the Son.
The Applicant also argued that there were additional considerations/conditions – including that the Husband could not bring any other woman to live there (the “No Other Woman Condition”) – though they were not all recorded in the Memorandum. The Applicant contended that the Husband had acted in breach of the Agreement, including by bringing his new wife to live there, and by trying to evict the Son.
The Applicant wished to commence legal proceedings to establish and confirm her rights under the Agreement, and incidentally the Son’s rights under the trust created by the Agreement. For that purpose, the Applicant applied for legal aid on 15 April 2021.
The Interested Party, the Director of Legal Aid (the “Director”), rejected that application on 28 July 2021.
The Applicant appealed, and the legal aid appeal was heard by the Assistant Registrar/Master D To (the “Master”) on 27 June 2022 and 28 July 2022.
The Master dismissed the Applicant’s legal aid appeal on 28 July 2022 (i.e. the Decision). This was done on only three grounds (the “Three Grounds”) – referred to as the “Ancillary Relief Ground”, the “Proper Plaintiff Ground” and the “No Cause of Action Ground” in the Judge’s decision.
The Applicant applied for judicial review of the Master’s Decision.
The contest between the Applicant and the Director
It would appear that the Three Grounds in the Master’s Decision were palpably problematic – so much so that, before the Judge, the Director outright accepted that the Master fell into error in a number of respects, and hence the Decision stood to be quashed by an order of certiorari. The Applicant also asked the Judge to grant such an order.
However, the Applicant also wanted, and argued that she needed, an order of mandamus, directing the Master or the Director to grant her legal aid. By contrast, the Director argued that – whether the Applicant wanted it or not – such an order of mandamus was neither needed, nor was it appropriate to the circumstances, which should lead to the matter being remitted to a Master for reconsideration de novo.
The learned Judge’s decision on the Applicant’s judicial review application
The learned Judge acceded to the Applicant’s judicial review application. In the event, the Court granted not only an order of certiori, but also an order of mandamus directing the Master to direct the issue of a legal aid certificate to the Applicant.
The essentials of the Judge’s reasoning are as follows:-
- The Court exercising its judicial review jurisdiction does not itself grant (or refuse to grant) legal aid. The grant or refusal is a decision for the Director, or for the Master if there is a legal aid appeal.
- But that fact does not prevent an order of mandamuswhere it is the appropriate remedy because, in the particular circumstances of the case and on the law applicable, there is only one course open to the administrative body. In other words, there are cases where the Court exercising its judicial review jurisdiction can come to the conclusion that there could only be one result that is legally open to the administrative decision-making body. The Court can make an order of mandamus to require that result to be arrived at.
- In doing so, the Court is not undertaking the role of primary fact-finder or substituting its own judgment on the merits for that of the body whose decision is under review. The Court is merely recognising the existence of the situation in which a public authority, properly directing itself on the facts according to the applicable law, has only one choice legally open to it.
- The Judge held that in deciding the case by reference only to the Three Grounds, the Master implicitly rejected the reason or reasons advanced by the Director for refusing the grant of legal aid. Whilst the Judge saw some force in the Director’s submission that correcting the legal errors of the Master does not automatically mean that legal aid should be granted, the Judge was of the view that:-
“… it is possible to say with some confidence in this particular and unusual case that, had the Master not fallen into those legal errors, and where she had implicitly rejected the Director’s submissions, she would have granted legal aid”.
Commentary and observations
With respect, it is submitted that the Judge’s decision is not without difficulty:-
- The learned Judge found that the Master had “implicitly rejected” the Director’s submissions. But it is questionable whether the Judge had adequate basis to arrive at this conclusion. If the Master did not substantively address the Director’s submissions, this could equally indicate that the Master took a neutral stance on those submissions, or simply had no opinion on them. Alternatively, the Master could have had a positive view on those submissions but chose not to rely on them for the purposes of her Decision.
- The matters which were critical to the Judge’s decision were that: (i)the Master’s Decision rested on only Three Grounds; (ii) all Three Grounds were found to be erroneous in the Judge’s decision; and (iii) the Master’s Decision did not deal with the Director’s submissions. Yet, these matters do not necessarily mean that the Master, approaching the legal aid appeal again, must come to the conclusion that legal aid should be granted. There might be other reasons why the Master might conclude that legal aid is inappropriate. Insofar as this remains a real and reasonable possibility, it is arguable that the Judge had encroached upon the role of primary decision-maker, or substituted its own judgment on the merits for that of the body whose decision is under review.
DVC member Ms Cherry Xu, instructed by the Department of Justice, for the interested party.
The full judgment is available here.
