Ho Loy v. Director of Environmental Protection and Another

CACV 216/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 216 OF 2014

(ON APPEAL FROM HCAL NO. 100 OF 2013)

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J U D G M E N T
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Hon Kwan JA (giving the judgment of the Court):

1.On 4 March 2016, this court handed down judgment dismissing the applicant’s appeal against the dismissal of her application for judicial review.

2.On 21 March, the applicant applied for legal aid to pursue an intended appeal against our judgment.  The Director of Legal Aid filed a memorandum of notification of her application for legal aid (“the Memorandum”) on 23 March. Pursuant to section 15(4) of the Legal Aid Ordinance, Cap 91 and section 7A of the Legal Aid Regulations, there was a stay of proceedings for 42 days from the filing of the Memorandum.  The stay expired on 4 May.  The Notice of Motion for leave to appeal to the Court of Final Appeal, if it was to be filed within time, must be filed by 13 May 2016.

3.On 4 May, the applicant by her solicitors took out the present summons seeking an order that the stay of proceedings upon the filing of the Memorandum be extended for 14 days (to and including 18 May 2016).  If the stay was thus extended, the deadline for filing the Notice of Motion would be extended correspondingly to 27 May.  The reason given for this application was that her application for legal aid was being processed.  In the event that legal aid was granted, she would immediately file the Notice of Motion.

4.In her supporting affirmation, the applicant exhibited a draft Notice of Motion ready for filing containing the proposed ground of appeal.  She also deposed that if legal aid was not granted, she “will not have sufficient financial resources to meet the legal fees and expenses and hence will not be able to pursue the application for leave to appeal nor the appeal.”

5.On 5 May, we gave directions for this application to be dealt with on paper and for submissions to be filed by the applicant and the respondents on 9 and 12 May.

6.On 13 May, the Director of Legal Aid filed a memorandum of notification refusing the application for legal aid.  The applicant’s solicitors wrote to the court on 20 May 2016 stating that the applicant would appeal against the decision to refuse her legal aid.

7.This has rendered the present summons academic, as the applicant indicated clearly she will not be able to pursue the application for leave to appeal in the event that her application for legal aid is refused.  We decline to take into consideration the applicant’s intended appeal from the decision to refuse her legal aid.

8.We therefore dismiss her summons.

9.Even if the refusal of legal aid were not known to us, we would not be minded to extend the stay.  A draft Notice of Motion was ready for filing by 4 May.  The applicant could have filed it within time on or before 13 May.  She could withdraw the Notice of Motion once it became known that her application for legal aid is unsuccessful.  The Director of Legal Aid has informed her solicitors on 6 May that it would take two to three weeks to process her legal aid application.  We are given to understand that counsel and solicitors have been acting for her on a no charge basis in the intended application for leave to appeal.  Any costs of the respondents she might have to bear in the event of a timely withdrawal of the Notice of Motion would have been minimal.

10.The applicant asked the court to make no order as to costs if we should dismiss the application.  Her counsel submitted that her intended appeal concerns matters of public interest being the construction of section 14(3) of the Environmental Impact Assessment Ordinance, Cap 499 and the legality of the decision of the Chief Executive in Council.  She confirmed that she has no personal benefit in the results of these proceedings.

11.The applicant has been advised by her legal advisors of her potential personal costs exposure, as deposed to in her affirmation.  The respondents submitted that this application is an abuse of process as it was made for protecting the applicant against any potential costs she might have to shoulder in the event that her legal aid application is refused.  We would not speculate on the real reason for this application.  Suffice it to say we are of the view it is ill conceived, for the reasons given earlier.  The fact that an applicant has a pending application for legal aid and that a legal aid stay was operative cannot shield such applicant from liability for costs, see Lai Hoi Ping v Persons Occupying Portions of Nathan Road, HCMP 3090/2014, 4 May 2015.  In the present circumstances, we see no reason not to order that costs should follow the event, but we decline to give a certificate for two counsel.

Written submissions by Mr Anson Wong SC and Mr Martin Kok,instructed by Bird and Bird, for the Applicant

ritten submissions by Mr Benjamin Yu SC and Ms Eva Sit, instructed by the Department of Justice, for the Respondents