Secretary for Justice v. Yuen Oi Yee Lisa

HCMP2390/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 2390 OF 2008

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BETWEEN

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Before : Hon Chu J in Chambers

Date of Hearing : 5 October 2010

Date of Decision : 5 October 2010

Date of written Reasons for Decision: 5 October 2010

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REASONS FOR DECISION

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1.On 5 October 2010, I heard and dismissed with costs the summons issued by the respondent on 29 September 2010. I also refused the respondent’s oral application for leave to appeal to the Court of Appeal against the dismissal of the summons. I now reduce my oral reasons into writing.

The summons dated 29 September 2010

2.By the summons, the respondent applies to vacate the hearing date of 11 and 12 October 2010, pending her appeal against the decision of the Director of Legal Aid refusing her application for legal aid in relation to these proceedings.  11 and 12 October 2010 have been reserved for the continuation of the trial herein which had been part-heard. 

3.The refusal of the respondent’s application for legal aid was on the ground that her financial resources exceed the statutory limit prescribed in the Legal Aid Ordinance, Cap.91.  The respondent is presently an undischarged bankrupt.  Under The Legal Aid (Assessment of Resources and Contributions) Regulations, Cap.91B, in computing the financial resources, income or disposable income and capital of a legal aid applicant, the resources of his/ her spouse shall be taken into account and treated as his/ her resources.   According to the respondent, as her husband’s monthly income is over HK$100,000, she had been assessed by the Director of Legal Aid to have failed to meet the means test. 

4.The respondent is appealing against the Director’s decision and the appeal is scheduled to be heard on 12 November 2010.  The respondent indicated she would be contending at the appeal that: (1) her husband intends to retire by the end of the year and to be supported by their children; and (2) her husband have loans and liabilities, which ought to be taken into account when computing her resources and means. 

5.While it is not for me to decide on the appeal against refusal of legal aid, it is relevant to the exercise of my discretion on the present summons to note the following points.  Under the Legal Aid Ordinance and the subsidiary legislations, in computing an applicant’s financial resources, the method of computation and the heads of allowable deductions are all prescribed by statutes.  Since the respondent said she had, when making the legal aid application, already provided to the Director of Legal Aid all the information and documents about her husband’s loans and liabilities, in the normal course of events, one would expect the Director to have already taken them into account and would have given the appropriate deductions as permitted by the statutes.  Further, an applicant’s financial resources are assessed as at the date of the legal aid application.  Hence, the future plan of the respondent’s husband to retire, which is contingent at the moment, will be irrelevant.  Thus analysed and without determining the point, it would appear the respondent does not enjoy much prospect of a successful appeal against the Director’s refusal.  

6.More importantly, a pending legal aid appeal is by itself not a good reason to adjourn or vacate a hearing.  This is because, while the court will see to it that a litigant’s right to legal representation is respected, the court also has a duty to ensure fairness between all parties to the case and that legal proceedings are not subject to undue delay.  There is therefore a limit to the indulgence to be granted to a litigant to obtain legal representation.  In the context of the present case, the trial had been adjourned once as a result of a last minute legal aid application.    It should be noted that the trial date was fixed in her presence and she is well aware of it.  It is incumbent upon her to act promptly to seek legal assistance and representation.   If she chooses to leave matters to the very last stage, she cannot blame it on the applicant, or still less on the court, for being not sympathetic.  It is also not open to her to complain that she is forced to proceed with the trial on 11 October 2010.   It is further an extraordinary suggestion to say that if the trial date is not vacated, she will be driven to engaging a lawyer to make an adjournment application on 11 October 2010.

7.The respondent had raised various other matters in her affirmations filed for the purpose of the summons and also in her oral submissions.  None of them are relevant or provide a proper basis for vacating the trial date.  In particular, her contentions that the Secretary of Justice may also be guilty of contempt of court and that I should be disqualified from hearing this case because of the risks of bias were made without any or any proper basis.  

8.For the reasons stated above, I dismissed the summons.  Costs should follow event.  The respondent is ordered to pay the applicant the costs of the summons, summarily assessed at $6,000.  

Application for leave to appeal

9.The respondent applied orally for leave to appeal to the Court of Appeal against the order dismissing the summons. 

10.In support of the application, the respondent said she wished to have the appeal heard or dealt with together with her other applications for leave to appeal, currently pending in the Court of Appeal. She further submitted that apart from legal principles, the Court of Appeal would also have regard to humanitarian considerations and would view her application differently.         

11.I do not consider the respondent has put forward any arguable ground of appeal.  The application for leave to appeal is therefore refused.

Mr Eric Ko, Government Counsel, of the Department of Justice for the applicant.

The respondent, unrepresented, appeared in person.