Liu Wai Keung v. Liu Wai Man

HCA 1106/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1106 OF 2011

____________

_____________

D E C I S I O N

_____________

1.On 30 September 2013 I handed down judgment after the trial of this action declaring that the plaintiff is the beneficial owner of the sale proceeds of the property that had been paid into court. On 15 October 2013, the plaintiff took out a summons for payment out of the sum of HK$5,000,095 to the plaintiff via the Director of Legal Aid in accordance with section 19A of the Legal Aid Ordinance.

2.That summons was fixed to be heard before me this morning.  However, on 18 October 2013, the Director of Legal Aid filed in this court a memorandum of notification that an application for Legal Aid had been made by the defendant to the Director to prosecute an appeal against my judgment dated 30 September 2013.

3.Pursuant to section 15 of the Legal Aid Ordinance, upon the filing of that memorandum, all proceedings in the action shall be stayed for such period as may be prescribed unless otherwise ordered by the court.  That period is prescribed in regulation 7A of the Legal Aid Regulations to be 42 days.  Instead of making arrangements for the hearing date today to be vacated, the plaintiff’s solicitors have instead appeared this morning to ask me to lift the statutory stay.

4.Undoubtedly I have jurisdiction to do so but as the Court of Appeal has said in Lee Shu Ming v Yeo Hiap Seng (Hong Kong) Limited, unreported, CACV 39/1993, 14 July 1993:

“Although there will be cases that require them to lift a stay under section 15, the courts should be slow to do so before the application for Legal Aid is determined a fortiori where it is sought by a layman as here to enable him to contend with matters of law.”

5.There is, as I see it, little basis for seeking to lift the statutory stay.  There is no suggestion that the application for Legal Aid is being made in bad faith or is such as to constitute an abuse of the process of the court. 

6.All that is said this morning by Mr Shin on behalf of the plaintiff is that the plaintiff would soon have to move out of the property and would therefore be in need of a small sum of money to meet the payment of rent and rental deposit for alternative accommodation for the family.  There is, however, no evidence that the statutory stay would cause any prejudice to the plaintiff in that regard.  There is nothing before me to suggest that there is any difficulty, let alone hardship, on the part of the plaintiff to pay the relatively modest amount of rent that may be necessary in the interim. 

7.In all the circumstances, there is nothing that should cause me to exercise the power to lift the stay imposed by section 15.  The application to lift the stay is therefore dismissed.  The summons of the plaintiff for payment out stands adjourned and stayed pursuant to the Legal Aid Ordinance.

(Submissions on costs)

8.The costs of the application to lift the stay be to the defendant in any event.  Both parties’ costs are to be taxed in accordance with the Legal Aid Regulations.

(Further submissions on costs)

9.I am not sure there are any costs incurred in relation to the payment out summons.  It is not being heard today.  It simply stands adjourned.  For the avoidance of doubt, any costs in relation to that summons will be in the cause of that summons.

Mr Arthur Shin, of T H Koo & Associates, assigned by the Director of Legal Aid, for the plaintiff

Ms Carmen Kei, instructed by Fairbairn Catley Low & Kong, assigned by the Director of Legal Aid, for the defendant