Chiu Man Fu and Others v. Chiu Chung Kwan Ying

CACV 40/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 40 OF 2012

(ON APPEAL FROM HCAP No. 9 of 2005)

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Before : Hon Cheung JA in Chambers

Date of Hearing : 5 July 2012

Date of Decision : 5 July 2012

Date of Reasons for Decision : 16 July 2012

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REASONS FOR DECISION

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1.The plaintiffs lodged an appeal against the judgment of Poon J dated 31 January 2012 in which he dismissed the plaintiffs’ claim against the defendant.

2.The plaintiffs applied for legal aid to assist them in their appeal.  Their applications were refused on 22 and 25 May 2012. 

3.On 31 May 2012 the Legal Aid Department (‘the Department’) issued a notice of application for legal aid by the 6^th plaintiff. 

4.By a summons dated 20 June 2012 the defendant applied to this Court for an order that:

(1)  the automatic stay of proceedings under section 15 of the Legal Aid Ordinance (‘LAO’), Cap. 91 consequent upon the 6^th plaintiff’s second application for legal aid dated 31 May 2012 be uplifted;

(2)  any future applications for legal aid by any of the plaintiffs in these proceedings shall not operate to stay the proceedings pursuant to section 15 of the LAO.

5.Upon hearing the parties I refused the defendant’s application.  I now give my reasons.

6.The plaintiffs were granted legal aid at the hearing before the Judge.  The solicitor and two of the counsel of the plaintiffs appeared at the hearing before me on a pro bono basis.  As explained in the affidavit of the plaintiffs’ solicitor, after the Department refused their application the plaintiffs had intended to appeal against the refusal.  On 31 May 2012 the Department offered them the option to make a fresh application for legal aid in which case the Department would seek a legal opinion pursuant to section 9 of the LAO on the merits of the appeal.  The plaintiffs accepted the proposal and it was agreed that, in order to simplify things, only the 6^th plaintiff was to apply for legal aid.  This is because the issues are common to all six plaintiffs and in the event that legal aid is granted to the 6^th plaintiff, it is anticipated that a grant of legal aid to the remaining five plaintiffs would be automatic. 

7.On 3 July 2012 the Department informed the plaintiffs’ solicitor that it was seeking counsel’s opinion and was waiting for leading counsel’s indication as to how soon he can deliver his opinion. 

8.This being the situation, the 6^th plaintiff should be given a chance to see whether legal aid would be granted or not and the stay should not be lifted at this stage. 

9.As to the second relief sought by the defendant, obviously this matter should only be considered if and when the plaintiffs make another application for legal aid in the future.

Mr Neville Sarony QC SC and Ms Angel W. Lau, instructed by Hui & Lam, for the 1^st to 6^th plaintiffs

Mr Kestrel Lam, instructed by C.O. Chan & Co., for the defendant