Lo Siu Lan and Another v. Hong Kong Housing Authority

CACV 378/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 378 OF 2004

(ON APPEAL FROM HCAL NO.154 OF 2004)

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BETWEEN

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Before: Hon Ma CJHC in Court

Date of Hearing: 21 February 2005

Date of Judgment: 21 February 2005

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J U D G M E N T

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Hon Ma CJHC :

1.In this application, which I have directed should take place in open court, the 1st Applicant seeks an order extending the time for serving a Notice of Motion under section 24(2) of the Hong Kong Court of Final Appeal Ordinance, Cap.484.  She seeks an extension until 7 days after the determination of the Legal Aid Review under section 26A of the Legal Aid Ordinance, Cap.91.

2.The background of this application is well known.  Following the decision of Hartmann J on 14 December 2004 dismissing the Applicants’ application for judicial review, the 1st Applicant appealed to the Court of Appeal (the 2nd Applicant abandoned his appeal).  The next day, the Court of Appeal ordered that the time for appealing be abridged.  On 16 December 2004 the appeal was heard and on that day, it was dismissed.  However, the Court of Appeal refused to give the Respondent an order abridging the time for appealing to the Court of Final Appeal.  On 17 December 2004, the Appeal Committee of the Court of Final Appeal also refused to abridge time.

3.After this hearing, on 5 January 2005, the 1st Applicant applied for legal aid to pursue an appeal against the decisions of the Court of Appeal to abridge time and in the substantive appeal itself.  Legal aid was refused by the Director of Legal Aid on 11 January 2005 and the 1st Applicant was informed of her right of review under section 26A of the Legal Aid Ordinance.  On 14 January 2005, the 1st Applicant initiated the steps necessary to bring a review of the Director of Legal Aid’s decision.  She has since obtained the opinion of leading counsel from both Hong Kong and London to the effect that she has a reasonable prospect of success in her intended appeal.  Notwithstanding this the Director of Legal Aid has refused to reconsider his earlier decision.  In a letter dated 16 February 2005 to the 1st Applicant’s solicitors (who are thus far acting pro bono), the Director of Legal Aid has maintained his refusal to give legal aid to the 1st Applicant.

4.The next step is for a committee to be convened under section 26A(1) of the Legal Aid Ordinance.  Here, I am given to understand that the Registrar of the High Court is still awaiting the appointment from the Law Society to this committee.  The reasons for refusing legal aid are also awaited from the Director.

5.In these circumstances, I see no delay on the part of the 1st Applicant in pursuing her review against the refusal of legal aid.  She is entitled by statute to a review and it cannot be said that her prospects are remote, in particular given the opinions from leading counsel to which I have already referred.

6.Against this, the Respondent argues that there is some urgency in any appeal to the Court of Final Appeal.  That may well be so but in my view, given the chronology to date, this factor is not so compelling as to enable the Court to deprive the 1st Applicant of her right of review.  Nor am I attracted by the argument that she should be compelled to lodge her application seeking leave to appeal to the Court of Final Appeal while at the same time pursuing the legal aid review.  If she were to be granted legal aid, then she would have the benefit of legal advice as to whether she should be appealing both decisions of the Court of Appeal and if so, in what form.

7.Much has been made in written submissions of the Respondent’s offer to fund the 1st Applicant’s legal costs.  I do not attach much weight to this factor.  Apart from anything else, it is not unconditional and does not represent in full what the 1st Applicant might be entitled to by way of legal representation should legal aid be granted.

8.In these circumstances, I am of the view that on balance, it is right to make the order the 1st Applicant seeks in paragraph 1 of the Summons and I do so.  I also order that there should be liberty to apply should circumstances change.

Mr Philip Dykes SC instructed by Messrs Barnes & Daly for the 1st Applicant

Mr Russell Coleman instructed by Messrs Clifford Chance for the Respondent