Yau Ka Po v. Town Planning Board

HCAL 67/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 67 OF 2015

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D E C I S I O N

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1.This morning, I ordered the hearing to proceed in closed chambers. I am satisfied from what I have heard in closed chambers that it was an appropriate step to take. In explaining the terms of the consent summons to me, the parties did have to refer to privileged materials and terms of without prejudice negotiation which should not be open to the public.

2.Suffice it to mention here that the applicant, Mr Yau, has tendered his apology to the court through his solicitors.  He was remorseful and had clearly been concerned over these show cause proceedings. He laid no blame on anyone.  He had, in a previous affidavit, mentioned to the court that the show cause proceedings might have serious consequences for him. He might probably become impecunious and go bankrupt.  He also mentioned something about his financial background.

3.This court makes it absolutely clear that impecuniosity of a person can in no way exempt a legally-aided person’s liability to bear personal costs in an appropriate case.  This is because legal aid funds are precisely there to assist impecunious litigants to have access to court.  Those funds should not be misused or abused.

4.I have considered the submissions on showing cause lodged by all the interested persons including, of course, Mr Yau.  I have heard the submissions today and the lengthy privileged note on the draft consent summons placed before me.  I am satisfied that the terms agreed upon by the parties are appropriate.  They were arrived at with the assistance of lawyers, past and present, of Mr Yau and the DLA, upon a proper reflection of responsibility or the lack of it, and a true recognition of not wasting legal aid funds.

5.In the premises, the court approves the settlement and I grant an order in terms of the consent summons as amended by me, which terms should remain not open to public search.

6.I only wish to add that in a case of this nature where a legally-aided litigant is asked to show cause as to why he should not bear personal costs and a settlement is reached which is not a simple all‑or-nothing liability as to costs, it would be useful for the litigant or the DLA to produce a short memorandum to explain the rationale behind the settlement terms.

Mr Jonathan Man, of Ho, Tse Wai & Partners, assigned by the Director of Legal Aid, for the applicant

Mr A Wong, of Yip, Tse & Tang, for Yip, Tse & Tang

Mr Chris Sharrock, of Kennedys, for Mr Philip Dykes, SC and Mr Valentine Yim

Ms A Lee, for the Director of Legal Aid