Cheng Chao Wo v. Lam Suk Ying

DCCJ342/2005

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 342 OF 2005

___________________

BETWEEN

___________________

Coram:  Deputy District Judge W C Li in Chambers

Date of Hearing:  23 March 2007 at 3.23 pm

Date of Delivery of Decision:  23 March 2007

__________________

D E C I S I O N

_________________

1.The appellant, Mr Cheng, was the plaintiff in District Court case DCCJ342 of 2005.  He appeared before Master K W Wong of the District Court on 4 March 2005 for an order against the defendant for four things.

2.Firstly, the stay of proceedings on application for legal aid be dismissed; secondly, the defence of the defendant in DCCJ342 of 2005 to be made under oath and witnessed by a Commissioner for Oath; thirdly, the defence was not made under oath, or witnessed by Commissioner for Oath, therefore the appellant applied to have judgment entered in his favour for the amount of $478,000, and that is to be spent for the living expenses of the children; and fourthly, the defendant is to make an affirmation under oath and the affirmation be witnessed by a Commissioner for Oath. 

3.The defendant in DCCJ342 of 2005 applied for legal aid.  The defendant was called Madam Lam Suk-ying.  Legal aid certificate was granted, being dated 18 February 2005, and that was legal aid granted for the purpose of defending case DCCJ342 of 2005.

4.The appellant here, who was the plaintiff in DCCJ342 of 2005, also applied for legal aid.  Legal aid was refused.  A Notice of Refusal of Legal Aid dated 22 February 2005 was sent to the District Court.

5.The appellant’s summons asking for the four orders he sought was obviously groundless.  There is no reasonable ground for those applications.  The application to dismiss the order to stay proceedings on a party applying for legal aid had no ground at all, because when a party applies for legal aid, all proceedings has to stay 42 days.  That is a rule that must be complied with.

6.There were also no grounds to require the defendant’s defence to be under oath and be witnessed by a Commissioner for Oath.  And it follows that judgment cannot be given to the appellant because the defence made by the defendant was not under oath. 

7.The fourth application asking for an affidavit to be made under oath by the defendant also did not disclose any grounds or basis to make such a requirement.  On the application itself by the appellant, it was obvious that Master Wong would dismiss the summons.  The summons by the appellant was indeed dismissed.

8.According to the appellant today, it was dismissed not for obvious reason that he had no grounds for those applications.  Appellant informed this court that it was dismissed because Master Wong found that the appellant had not complied with Order 80 Rule 2 and 3 of the Rules of the District Court.  The appellant was not a guardian ad litem or next friend suing on behalf of the two children.

9.The appellant’s summons was dismissed by Master K W Wong with an order for costs against the appellant to be taxed if not agreed. 

10.By summons dated 12 March 2007, the appellant now appeals against the order of Master K W Wong.  It is more than two years since the order of Master Wong, which was dated 4 March 2005.  This was an appeal out of time.  The appellant gave reasons for the appeal out of time.  His reason was mainly that he was asking Master Wong to grant or make an order to direct legal aid be given to the two children and that the costs order against the appellant made by Master Wong was a burden on the family and therefore directly or indirectly was harmful to the two children of the family.  Another reason given by the appellant was that there were documents that he had to deal with, therefore there was a long delay for this appeal. 

11.The appellant also informed the court that the main purpose of hearing the appeal today is his wish or his application to seek to set aside the costs order against him.  His reason was that in many such applications there were no order as to costs, and the costs order was a burden on him and the children.  He was on social security, and the costs order means social security money that he obtained would be taken away to pay costs.

12.This is, really, strictly not a matter for the court.  It is strictly a matter for the appellant to talk to the Social Welfare Department to explain his situation to them.  And as to applying for legal aid, it is a matter for the appellant himself to approach Legal Aid Department. 

13.It is also clear on the record that the appellant had applied for legal aid and legal aid had been refused.  This was in relation to this case, DCCJ342 of 2005.

14.There are two other matters in the Family Court.  Appellant informed this court that there were Legal Aid counsel given or granted for him in the Family Court matters.

15.The reasons the appellant gave to this court for the late appeal out of time are not valid or reasonable reasons.  In the appeal document, four reasons appeared to be listed out by the appellant against the order of Master Wong. 

16.Firstly, Master Wong unjustly shielded and helped the defendant; secondly, the defendant ill treated her spouse, that is the appellant himself, and ill treated and neglected the children, and that was against matrimonial law; thirdly, Master Wong had failed to apply for legal aid and appoint a lawyer for and on behalf of the children, and the defendant seized the opportunity to take the money saved by the appellant for the children’s expenses; and the fourth ground is that the costs order made by Master Wong was harmful to the children.

17.The appellant expressed dissatisfaction with the Legal Aid Department, the Social Welfare Department and the Housing Department.  However, these complaints have no relevance to the present appeal.

18.I also noted that by an order made by Master Ko that was dated 3 April 2006, the present case in DCCJ342 of 2005 had been transferred to the Family Court and ordered to be heard together with Family Court cases FCMC9602 of 2002 and FCMC8333 of 2004.  This case has since come under the jurisdiction of the Family Court.

19.The grounds stated by the appellant in the present appeal have no merits.  The appeal against the costs order is also without merit.  Costs was a matter of discretion for the master who heard the application.  Master Wong had heard the parties, the appellant and the defendant’s counsel, and dismissed the appellant’s summons before he made the order for costs.

20.There is no reason for me to make any order contrary to the costs order made by Master Wong.  I would have made the same costs order if the matter had been heard before me.  Costs would have followed the event. 

21.As the appellant has no reasonable and valid grounds for this appeal, I therefore dismiss the appellant’s appeal.

22.And now there remains another matter to deal with.  That is the costs matter, costs consideration for this appeal. 

23.As the respondent, that is the defendant, has not appeared today, I make no order as to costs.

Representation:

Plaintiff in Person

Defendant in Person (absent)