A Cheung Chau resident has been barred from applying for legal aid over the next three years, after the authorities considered his conduct amounted to an abuse of the legal aid system.
Kwok Cheuk-kin, 78, received a letter from the Legal Aid Department (LAD) on Tuesday informing him of the decision. Kwok earned the nickname of “king of judicial review” for his judicial activism, having filed at least 20 judicial review challenges against the government in the past decade.
The LAD said Kwok had made 21 legal aid applications over the last three years, 11 of which were rejected. Of the 11 rejected cases, six were again rejected or withdrawn upon appeal.
Under Regulation 11 of the Legal Aid Regulations, the director of legal aid may put a blanket ban – for a maximum of three years – on anyone who has been rejected on four or more occasions and regarded as abusing the legal aid system.
But Kwok said the ban infringed upon his constitutional rights. Article 35 of the Basic law entitles Hong Kong residents to bring legal proceedings against the acts of the government and its personnel.
“The government uses the law to monitor people. The constitution allows people to monitor the government,” Kwok told HKFP. “This is my right.”
Calling the LAD’s decision “ridiculous,” Kwok said: “How can they say I filed too many judicial reviews? The need for judicial review arises when the government breaches the constitution. How can there be a quota for this?”
Though some of Kwok’s judicial review and legal aid applications have been rejected in the past, some other cases have made it to an actual hearing. The Court of Final Appeal will be hearing his case this month over the constitutional right to stand in by-elections.
The elderly man said the decision was politically motivated to stop him suing the government. Last month, he lost a judicial review challenge over the validity of an oath taken by Chief Executive Leung Chun-ying. He expects to be asked for around HK$3 million in legal costs, a sum he cannot afford.
“The government hires the best and most expensive barristers in my cases. Of course I will lose and they make me pay a lot of money. They think I will be afraid, but I am not. So now they resort to this tactic,” Kwok said.
He added that he paid the filing fee of every judicial review application – totalling HK$1,045 – out of his own pocket. He saved money by scavenging for food. He said his winter clothes were donations from university students who interviewed him in the past.
“I don’t mind. I do what I think is right. Even if the government succeeds in silencing me, there will be another Kwok Cheuk-kin,” the 78-year-old said.
For now, Kwok plans to continue with his judicial activism despite the ban. “I will keep seeking justice for others. I will follow the rules,” he said.
Lawyer Michael Vidler told HKFP that the “draconian provision” the LAD relies on should be balanced against Kwok’s constitutional right of access to the courts, given that he is a man without means.
“It should also be noted that over the last three years he has won at least one judicial review, been granted leave by the court in two others and has a pending appeal before the Court of Final Appeal where leave has been granted,” Vidler said.
“It could therefore possibly be argued that the imposition of a ban, especially a ban for the maximum period permitted by statute, is unreasonable and challengeable.”
Barrister Chris Ng of the Progressive Lawyers Group told HKFP that the power to impose a blanket ban is discretionary and “the key question is whether the person’s conduct has amounted to an abuse of the facilities provided by the [Legal Aid] Ordinance.”
He said it is debatable whether Kwok had abused the legal aid system. “The Director’s order is amenable to judicial review so Kwok may elect to challenge it,” he said.
Critics have argued that Kwok abused the judicial review system and wasted public money.
Article was originally published in Hong Kong Free Press on 9 June 2017