Mumtaz Hussain v. The Chief Executive in Council & Another

HCAL000163/2002

HCAL 163/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 163 OF 2002

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Coram: Hon A Cheung J in Court

Date of Hearing: 31 October 2003

Date of Judgment: 31 October 2003

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J U D G M E N T

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1.I have before me an application to lift the automatic stay set in motion by the Applicant's belated application for legal aid.

2.Having heard the parties and in particular the Applicant's explanation for the delay in applying for legal aid, I am not satisfied that it was a bona fide application.

3.The only reason supplied for the lateness - i.e. the sickness of the mother of the Applicant - does not really explain, let alone justify, the delay in application.

4.I am in general agreement with the arguments and reasoning set out in the Department of Justice's letter dated 28 October 2003 in which the department indicated its intention to apply for lifting the stay.

5.I have also borne in mind the implications to the Applicant's application for judicial review in case the stay is lifted. I am not satisfied that my lifting the stay today would cause undue unfairness to the Applicant in terms of his substantive application.

6.I note that the Director of Legal Aid has previously refused the Applicant's similar application for legal aid, which decision has been confirmed upon appeal to the Registrar. There is nothing before me to suggest that the Director would have any reason to change his mind in relation to the latest application. So the chances are that with or without my lifting the stay today, the Applicant would have to conduct his substantive application by himself, without legal aid.

7.So for all those reasons, I accede to the application to lift the stay.

8.The substantial application for judicial review must now be proceeded with.

Representation:

Mr Mumtaz Hussain, the Applicant, in person

Mr William Marshall, SC and Mr Lee Tin Yan, GC, instructed by the Secretary for Justice, for the 1st and 2nd Respondents