Abuses of judicial reviews and legal aid a huge loss to society

Tony Kwok suggests HK conduct a major audit of the legal aid system to find out whether the public funds being spent on judicial reviews are justified

In December 2015 a distinguished lawyer and former permanent judge of the Court of Final Appeal, Queen's Counsel Henry Litton, forcefully criticized the widespread abuse of the judicial review (JR) system in recent years. He noted that many cases were groundless and clearly an abuse of procedure, while some others had brought significant economic losses to society.

One typical example quoted is the Hong Kong-Zhuhai-Macao Bridge project in the JR regarding the environmental impact assessment reports. It resulted in the waste of more than HK$10 million, or $1.28 million, to cover legal costs of the government and related legal aid. Worse still, as a result of the JR, the start of the bridge project was deferred about one year, incurring a works' cost increase of about HK$6.5 billion!

In view of such serious criticism from a highly regarded senior legal practitioner, one would have expected the judiciary and Legal Aid Department to respond with an in-depth review. Unfortunately, no word on this has come forth from either department. In the meantime, the abuse of JRs and legal aid continue.

A particularly well-publicized individual has earned the nickname "King of JR". A web search showed that over the past 10 years, he had apparently lodged JRs for more than 30 cases. Most of these cases are related to social and political issues that do not have a direct effect on his personal livelihood. This person's latest JR application is over the CE failing to build sufficient public housing! I would have no qualms if he had used his own money for the JR and was prepared to accept any consequences. But no, he applied for legal aid for all these cases; nearly all his applications for legal aid were granted.

In view of such a dismal history, it is astonishing the authority did not see it fit to conduct an urgent review of such blatant abuse. They need only take a look at the United Kingdom's review on JRs and legal aid in 2014, which stated: "The review is motivated by a number of factors, including a belief that too many unmeritorious cases are brought, that judicial review is being used as a device to stymie planning developments and that the financial risks of judicial review should be rebalanced in favor of defendants."

In releasing the review report, the British justice minister said: "I believe in protecting judicial review as a check on unlawful executive action, but I am equally clear that it should not be abused, to act as a brake on growth. In my view judicial review has extended far beyond its original concept, and too often cases are pursued as a campaigning tool, or simply to delay legitimate proposals. That is bad for the economy and the taxpayer and also bad for public confidence in the justice system."

This is practically a mirror reflection of the same problem in Hong Kong except that our government is happy to do nothing! It thus behooves us to study some of the report's recommendations:

Firstly a specialist planning court within the High Court should be set up to deal with judicial reviews and statutory appeals relating to nationally significant infrastructure projects and other planning matters. This would speed up the process and avoid mistakes with serious consequences made by non-specialist judges.

Secondly legal aid is not generally available in respect of infrastructure and planning cases other than where an individual is at immediate risk of losing their home as a result of the proceedings in question. If we apply this criterion in Hong Kong, the elderly female litigant in the bridge project case should not have been granted legal aid in the first instance.

Thirdly in other cases, legal aid would not be granted if the judicial review does not have the potential to produce a real benefit for the individual. This will plug the loophole of political parties using a front to apply for legal aid.

Fourthly allow appeals in JR cases to "leapfrog" directly to the supreme court in order to speed up the process and avoid undue delays to government infrastructure projects.

Fifthly to reduce the number of unmeritorious cases legal aid will not cover professional legal services if the court subsequently refuses to grant permission for the JR. Hence the legal professional must ensure there is sufficient merit in their handling of the legal-aided JR application, otherwise they would not be paid.

The UK's efforts to deal with the problem are commendable. Abuse of JR appears to be a universal problem. Recently Scotland also announced it would set up an advisory committee to conduct a full review of the JR and legal aid system.

Finally, under the present legal aid system, I find it hard to understand why the applicants have the right to choose preferred counsels, who are often those that charge the highest fee. In the case of the "King of JR", his legal aid counsels include big guns such as Martin Lee Chu-ming. At the end, however, it is the public that foots the bill! Honestly, if a rich person goes to a private hospital, he can of course afford the most prestigious doctor. But can an ordinary citizen do the same in a public hospital? Surely not, he will only be entitled to standard service. So why should it be different for legal aid for the ordinary citizens? Wouldn't it be a more judicious use of public money if a standard legal professional fee is set for all legal aid cases?

In recent years, the public has been very impressed with the Audit Commission's Value for Money Audit Report. It is high time it conducts a comprehensive audit on the legal aid system to find out whether the enormous public funds spent on it are justified.

(HK Edition 05/15/2017 page15)