The China State Bank v. Fung Chin Kan and Others

CACV000178A/2000

CACV 178/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 178 OF 2000

(ON APPEAL FROM HCMP 3050 OF 1998)

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Coram: Hon. Rogers, VP, Le Pichon and Cheung, JJA in Court

Date of Hearing: 24 October 2001

Date of Judgment: 24 October 2001

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J U D G M E N T

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Hon. Rogers VP:

1.In this application, the plaintiff applies for leave to appeal to the Court of Final Appeal. Mr Lam, on behalf of the second-named 1st defendant, concedes that they are entitled to leave to appeal as of right. Mr Fung, who represents himself today, is unaware of the provisions but the Court has already informed him that it sees no basis upon which leave to appeal could be resisted.

2.It should be mentioned that Mr Fung has applied for legal aid very recently so that he can be represented on this appeal. It should be said that it would be in everybody's interests, not only of Mr Fung but of the parties generally, and particularly of the Court, if legal aid were granted in this case. It is a matter of some complication as regards the law. Also there are questions of fact as well as the construction of the documents which are important and all concerned would benefit if Mr Fung were legally represented.

3.Hence, were there any discretion in the Legal Aid Authority to grant legal aid for one reason or another, it would certainly be beneficial if that discretion could be exercised in favour of granting legal aid. If that were not to happen, Mr Fung could perhaps see whether legal assistance would be available from the pro bono legal service run by the Bar Association. That said, it only remains to formally grant leave to appeal.

4.On behalf of the second-named 1st respondent, no security for costs is sought. Since Mr Fung represents himself, it is thought appropriate that there should be security for costs in respect of Mr Fung. There should be no difficulty in the plaintiff providing a bank guarantee approved by the Registrar for the sum of $400,000 within 28 days. The costs of this application will be costs in the appeal.

Representation:

Mr Alan Leong, SC, and Mr Justin K W Wang, instructed by Messrs Wat & Co., for the Plaintiff/Applicant

Fung Chin Kan, the 1st-named 1st Defendant/Respondent, in person

Mr Simon H W Lam, instructed by Messrs Philip Ng & Wong, for the 2nd-named 1st Defendant/Respondent