LAM HING CHUNG MARTIN v. DIRECTOR OF SOCIAL WELFARE

HCAL 110/2012 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 110 OF 2012 ____________ BETWEEN LAM HING CHUNG MARTIN Applicant and DIRECTOR OF SOCIAL WELFARE Putative Respondent ____________ Before: Hon Lam JA in Court (Sitting as an additional Judge of the Court of First instance) Date of Hearing: 28 September 2012 Date of Ruling: 28 September 2012 ___________ R U L I N G ___________ I have considered the submissions of Mr Lo and also what he has set out in writing. I have also considered the application in light of the materials placed before me including the initial response from the Putative Respondent. I understand Mr Lo relied substantially on George Yao case, but as I have said in Lam Wo Lun, there are material differences between different schemes. In relation to the scheme which is the subject matter of the present application, namely the Disability Allowance Scheme, the relevant features are similar to those considered in Lam Wo Lun in the context of Old Age Allowances, and in the more recent case of Lau Siu Hung. Notwithstanding the effort of Mr Lo, I am not persuaded that the features that he has identified in respect of the Disability Allowance Scheme drive me to any arguable consideration for a different analysis with regard to disability allowance as compared with Old Age Allowance. Mr Lo at today’s hearing focused very much on the same point that has been urged upon me in the Old Age Allowance context, viz the rationale given for this rule of one year continuous residence in the 2003 Legislative Council Brief. As I have said in Lam Wo Lun, that particular paragraph in the Legislative Council Brief should not be construed as if it was a statute. The aim of the rule as explained in the Legislative Council Brief at paragraph 29 is to protect public funds. I do not think it is right to construe the rationale for the scheme just by reference to the few paragraphs in the 2003 Legislative Council Brief because this one year continuous residence rule, as far as the Disability Allowance Scheme is concerned, has been there since 1973. Examining this requirement in the context of the Disability Allowance Scheme, I do not see any reasonably arguable ground to challenge that the line drawn is manifestly without reasonable foundation. Therefore I do not see any reasonable ground for challenge in terms of the constitutionality of this rule. As regards the reference to the Guangdong scheme, as I have said in Lau Siu Hung, the mere fact that there could be a more liberal scheme per se does not mean that the existing scheme is liable to be challenged as a matter of law. The Guangdong scheme is a new scheme in place for Old Age Allowance and as far as the one year continuous residence rule is concerned it is only relaxed on a one-off basis. This is apparent from reading paragraphs 6 to 8 of the Panel Paper in March 2012 placed before me by Mr Lo. The fact that a new scheme has been devised with a special one-off arrangement in the context of Old Age Allowance per se does not give rise to any challenge as to the rationality of the existing scheme. As for other grounds, I think I have sufficiently dealt with them in my judgment in Lam Wo Lun and Lau Siu Hung. That being the position, I do not see any reasonable arguable challenge in terms of the one year continuous residence rule for the Disability Allowance. Therefore, I have to refuse leave. Applicant’s own costs to be taxed in accordance with Legal Aid Regulations. (M H Lam) Justice of Appeal Mr P Y Lo, instructed by Tang, Wong & Chow, for the Applicant