Kwan Chi Ming v. Kwan Cheng Yin Sai

CACV000157/1994

IN THE COURT OF APPEAL

1994, No. 157
(Civil)

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Coram: Hon Nazareth, V.-P., Bokhary, J.A. and Leonard, J.

Date of Hearing: 4 July 1995

Date of Judgment: 4 July 1995

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J U D G M E N T

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Nazareth, V.-P. (giving the judgment of the Court) :

1. This is an appeal by the respondent husband against the interim order made on 28th July 1994 by His Honour Judge Surman exercising the Divorce Jurisdiction of the District Court. By that order, he continued an earlier interim order he had made in December 1993 giving the custody, care and control of the only child of the family, a daughter, to the petitioner wife, with access to the husband. He also ordered the husband to pay maintenance of $9,000 per month to the wife, to vacate the matrimonial home by 31st August 1994, and to pay the wife's costs of the hearing. He continued the wife's undertaking not to return to the matrimonial home until 31st August 1994.

2. The husband obtained legal aid and with that put in a notice of appeal prepared by solicitors, William Clarke & Co. against the order made by Judge Surman. The notice of appeal is dated 26th August 1994. It is needless to say a carefully drawn-up document. It sets out with precision one single ground of appeal in the following way:

"AND TAKE NOTICE that the grounds of appeal are that the learned Judge erred in law in proceeding to hear the Respondent's (Petitioner's) application on 28th July 1994. On that date the proceedings below were subject to a statutory stay of 42 days by virtue of the Legal Aid Ordinance, Cap.91, s.15 and the Legal Aid Regulations, ref 7A, which stay commenced to run on 18 July 1994 when notice of the Appellant's (Respondent's) application for legal aid was filed in the Court below. The Respondent was not represented before the learned Judge on 28th July 1994 and this point was not taken by him. If this point had been taken the learned Judge ought to have and would have found that the Court below was unable to proceed notwithstanding refusal of the Appellant's (Respondent's) application for Legal Aid unless and until application was made and an Order granted lifting the statutory stay of proceedings. Alternatively the learned judge ought to have found that the statutory stay ought to be allowed continue for the time being so as to enable the appellant (Respondent) to obtain legal representation."

3. That notice of appeal appears to have been lodged in pursuance of leave to appeal granted by Judge Surman in August 1994. What actually happened at the hearing of the wife's application on or about 28th July 1994 is clear from the judge's notes of the hearing of the husband's application for leave to appeal made in August 1994. What the judge said in the notes was:

"I heard an Application by the Husband for Leave to Appeal against my decision to refuse him an Adjournment on the 28th July, 1994 in the hearing of Applications by the Wife for Custody of their Child, for an Injunction that the Husband leave the Matrimonial Home, and for Interim Maintenance.

A Divorce Petition filed by the Wife in May 1993 has yet to be heard. There have been several Interim Applications concerning Custody & Access, and until now the Husband has been represented. In February 1994 Deputy Judge Eccleton made an Order that the Wife's Applications were to be heard on the 25th July 1994. On the 18th July (just 7 days before the Hearing) the Husband applied for Legal Aid, and by Section 15 of The Legal Aid Ordinance (Cap 91) a 42 day stay was given. However the Husband's Legal Aid Application was quickly refused and the Husband appeared before me in Person on the 25th July.

At that Hearing, on the 25th July, I was well aware of the 42 day stay, and of course I knew that the Husband's Legal Aid application had been refused. I was also aware that the Husband was to appeal the Refusal to a Supreme Court Registrar on the 3rd August 1994.

Notwithstanding that the Appeal had still to be heard, I decided that no further adjournment should be granted. The Orders that the Wife was seeking were of an urgent and important nature and there was little likelihood that another suitable hearing date would be available for several months. The Matter had already been adjourned from December 1993 to February 1994 and to July 1994. (In the event the Husband's appeal to The Registrar was dismissed). The Husband made no mention that he wanted private representation.

With some hesitation I granted the Husband Leave to Appeal my last Order on the Adjournment Matter (only) because I considered that it was arguable whether I was right to refuse the Husband an Adjournment when an Appeal against the Legal Aid Refusal was still pending."

Given the ground of appeal and what the judge said in his note it is apparent that the provisions of s.15 of the Legal Aid Ordinance are crucial. After providing in subsections (2) and (3) that persons who are parties or who wish to be joined as parties to proceedings or appeals may apply for legal aid, and that when they do so the Director of Legal Aid is required to notify the other party and to lodge in court a memorandum of such notification, s. 15 goes on to provide in subsections (4), (5), (6) and (7) as follows:

"(4) Where any memorandum is so filed, then, unless otherwise ordered by the court in which the memorandum is filed, all proceedings in the action or in the appeal or in both the action and the appeal shall, by virtue of this section, be stayed for such period, being not less than 14 days, as may be prescribed, and during such period (unless otherwise ordered by any such court) time fixed by or under any law or otherwise for the doing of any act or the taking of any step in the proceedings shall not run. [Regulation 7A of the Legal Aid Regulations prescribes a period of 42 days.]

(5) The filing of the memorandum shall not operate to prevent the making of-

(a) an interlocutory order for an injunction or for the appointment of a receiver or manager or receiver and manager; or

(b) an order to prevent the lapse of a caveat against dealings with land; or

(c) any other order which, in the opinion of the court in which the memorandum is filed, is necessary to prevent an irremediable injustice.

(6) Unless otherwise ordered by the court in which the memorandum is filed, the filing of the memorandum shall not operate to prevent the institution or continuance of proceedings to obtain, enforce or otherwise carry into effect any such order as is mentioned in subsection (5) or a decree to the like effect.

(7) The time during which proceedings are stayed by virtue of this section may be reduced or extended by order of the court in which the memorandum is filed."

It can thus be seen that there are three ways in which the court can prevent the continuation of the 42-day period of stay, by ordering otherwise under subsection (4), making some other order which is necessary in the opinion of the court to prevent injustice under subsection (5)(c) and by reducing the period of 42 days under subsection (7). Now it is reasonably clear from the judge's note that he did not state in express terms that he was actually making an order in the terms of subsections (4), (5), (6) or (7). But it is quite clear that the judge was perfectly aware of the 42-day stay; he mentioned it and that he considered it proper nonetheless to proceed. Although he did not expressly state that he was terminating the 42-day stay under the subsections I have mentioned, that is what he in effect did.

4. By that time, I should add, the Legal Aid Department had already refused the husband's application for legal aid. In our judgment, the only proper construction in those circumstances of the judge's note is that he did terminate the 42-day stay. Accordingly, the ground set out in the notice of appeal fails and must be rejected.

5. As to the respondent not being represented, a point which also appears to be taken in the notice of appeal to support the contention that the judge ought to have allowed the statutory stay to continue, we do not think that submission can be accepted having regard to the considerations that the judge mentioned. He had a discretion in the matter and quite clearly, in our view, he was entitled to exercise his discretion in the way he did for the reasons he gave. We see no error of principle nor anything to show that he was plainly wrong. On the contrary he appears to have been plainly right. Accordingly we dismiss the appeal.

6. In doing so, we express the hope that the husband will now devote his efforts to preparing himself for the full and hopefully final hearing of the divorce petition due for hearing in a month's time. He says he is anxious to get this matter over and done with as it has taken too long. That is also the view and desperate wish of the respondent wife. It is within their grasp to ensure that the matter does go to a full hearing at the beginning of August without further delays. There has been far too much waste of the courts' time in the statutory stays that have ensued from the numerous applications for legal aid, in appeals from refusals, and in interlocutory hearings. The time of judges and masters and of the Legal Aid Department, and public resources and funds have been wasted. We can only endorse the wishes expressed to us by the parties to have this matter quickly resolved.

Representation:

Appellant in person

Respondent in person