WOO MING HAN JULIANA v. WOO KOO PING AND OTHERS

HCA 2558/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2558 of 2015

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REASONS FOR DECISION

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Introduction

1. On 20 November 2015, I made the following orders:

(1)  the stay of proceedings herein by reason of the plaintiff’s application for legal aid on 17 November 2015 be uplifted;

(2)  the plaintiff do provide security for costs in favour of the defendants by paying into court the sum of HK$200,000 as security for costs up to 30 November 2015 by 4pm on 23 November 2015 failing which all proceedings be stayed until further Order; and

(3)  the plaintiff do forthwith pay the defendants’ costs of the summons issued on 20 November 2015 assessed in the sum of $50,000.

2. I said reasons for my decision would be handed down in due course.  My reasons follow.

Plaintiff’s application for injunction

3. The plaintiff is the daughter of the 1^st defendant and the sister of the 2^nd defendant.  The 3^rd defendant is the registered owner of Unit 1, Cambridge Garden, No 1 Lancashire Road, Kowloon Tong, Kowloon (“the Property”).

4. On 3 November 2015, Hui & Lam issued the writ in this action on behalf of the plaintiff:

(1)  asserting “unlawful eviction”; and

(2)  seeking a declaration that the 1^st defendant “holds one‑fourth of the beneficial shares in the [Property] on common intention constructive trust for the” plaintiff.

5. The address of the Property is written on the writ in manuscript as the address of the plaintiff.

6. On 3 November 2015, Hui & Lam issued a summons on behalf of the plaintiff asking for an injunction restraining the defendants from:

(1)  “interfering … with … the right of the Plaintiff to access [the Property]”;

(2)  “interfering … with … the right of the Plaintiff to use, stay in, reside and reasonably enjoy [the Property]”; and

(3)  “handling … the personal belongings of the Plaintiff at [the Property]”.

7. On 3 November 2015, Hui & Lam filed an affirmation of the plaintiff affirmed on 2 November 2015.  In the affirmation, the address of the Property is given as the address of the plaintiff despite her allegation:

(1)  in para 4(3) that:

“…prior to the episode of unlawful eviction … [her son and she] were still living in [the Property]”; and

(2)  in paras 6‑11 of her father and brother “unlawfully evicting and ousting” her from the Property.

8. The plaintiff’s injunction application came up for hearing before me on 6 November 2015.  She was represented by Hui & Lam and Mr Martin Ho of counsel.

9. The plaintiff asked for time to file further evidence.  She had until 4pm on 20 November 2015 to file further evidence.  The hearing was adjourned to 30 November 2015. 

10. There was no mention on the plaintiff’s part of any (intended) application for legal aid.

Defendants’ application for security for costs

11. By a summons issued on 13 November 2015, the defendants applied for security for costs on the ground that the plaintiff “incorrectly stated her address and/or failing to state her address on the writ”.

12. The summons was returnable on 20 November 2015.

The plaintiff’s application in this action for legal aid

13. By a notice dated 17 November 2015, the Director of Legal Aid (“the Director”) gave notice that the plaintiff had applied for legal aid. 

14. By letter dated 19 November 2015, Hui & Lam wrote to my clerk asking for the hearing on 20 November 2015 of the defendants’ application for security for costs to be vacated.

Defendants’ application to lift the legal aid stay

15. On 20 November 2015, the defendants applied to lift the legal aid stay.

16. It transpired that prior to her application for legal aid in this case, she had twice applied for legal aid in two other legal proceedings between her on the one hand and the defendants on the other.

The plaintiff’s application for legal aid in HCMP 1449/2015

17. Woo Ming Han Juliana will be referred to as “the plaintiff”, Woo Koo Ping as “the 1^st defendant”, Woo Siu Hong Eric as “the 2^nd defendant” and Luen Ford Industrial Company Limited as “the 3^rd defendant”.

18. On 12 June 2015, the 1^st and 2^nd defendants issued an originating summons against the plaintiff in HCMP 1449/2015 asking for, among others, removal of the plaintiff as administratrix of the estate of her late mother.

19. By a notice dated 22 June 2015, the Director gave notice that the plaintiff had applied for legal aid.

20. By a memorandum dated 1 September 2015 the Director gave notice that the plaintiff had been refused legal aid.

The plaintiff’s application for legal aid in HCMP 1715/2015

21. HCMP 1715/2015 were commenced by the 3^rd defendant against the plaintiff on 16 July 2015.

22. By a notice dated 8 October 2015, the Director gave notice that the plaintiff had applied for legal aid.

23. By letter dated 13 October 2015, Hui & Lam wrote to the judge’s clerk asking for the hearing on 14 October 2015 to be vacated.

24. The hearing on 14 October 2015 was aborted.

Lifting the legal aid stay

25. Section 15 of the Legal Aid Ordinance, Cap 91, provides that:

“(2) Where an action has been commenced … and any party … makes an application for legal aid, the Director shall, as soon as practicable after the application is made, notify the other party or each of the other parties, and file in the court in which the action is commenced … as the case may be, a memorandum of such notification.”

“(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 … 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.”

“(5) The filing of the memorandum shall not operate to prevent the making of … (a) an interlocutory order for an injunction…”

26. Regulation 7A of the Legal Aid Regulations, Cap 91A provides that:

“The period during which any proceedings are stayed by section 15 of the Ordinance shall be 42 days.”

27. Sitting as a recorder, I said in Bank of China (Hong Kong) Limited v Fu Ming Kong and another, unreported, HCA 7769/2000, 24 June 2005 that:

“26. The purpose of the statutory stay under section 15 of the Legal Aid Ordinance is to allow sufficient time:-

(a) for the Director to process an application for legal aid; and

(b) in the event of legal aid being granted, for the assigned lawyer(s) to effectively represent the assigned client, and, where appropriate, to apply for more time.

27.   The statutory stay is an aid in, not an obstacle to, the administration of justice.  It does not mean that a defendant has the right to abort the trial of an action by making a fresh application for legal aid on the eve of every set of dates fixed for the trial of the action.”

28. The plaintiff was advised by Hui & Lam, solicitors and Mr Martin Ho, counsel, throughout.  It was not as if she was acting in person.  She twice applied for legal aid previously.  On the second occasion, Hui & Lam wrote on the eve of a scheduled hearing informing the judge’s clerk of her application for legal aid.  The hearing on 14 October 2015 was aborted.  Plainly she knew that an application by her for legal aid would result in an automatic stay of proceedings for 42 days. 

29. The plaintiff claimed she was destitute.  She knew about the legal aid scheme and had twice applied for legal aid in two other proceedings.  There was no reason for her to privately fund her application for injunction.  If her application for legal aid in this case was made for bona fide purposes, she should have applied for legal aid prior to the commencement of this action and wait until the outcome of her legal aid application was known.  The timing of her application and all the circumstances lead to the conclusion that it was calculated to abort or delay proceedings in an all too apparent tactical move in response to the defendants’ application for security for costs.

30. I was satisfied that this was a case where justice required the exercise of my discretion to lift the statutory stay and I granted the defendants’ application.

31. There is another route for reaching the same decision to let the injunction application and the security for costs application proceed despite the legal aid application.

32. Section 15(5) provides that:

“the filing of the memorandum shall not operate to prevent the making of … (a) an interlocutory order for an injunction.”

33. The plaintiff was and is applying for an interlocutory order for an injunction.  By reason of section 15(5), the legal aid stay does not apply to this injunction application which should therefore proceed.  The application for security for costs is closely related to the injunction application and should likewise proceed.

Security for costs

34. The plaintiff’s case is one of the 1^st and 2^nd defendants “unlawfully evicting and ousting” her from the Property.  Having been evicted and ousted from the Property, the address of the Property was plainly not her address.  If she should lose this case, she would not be found at the address of the Property and the defendants would have difficulties finding her to satisfy any judgment which they might have for costs.

35. Counsel for the defendants repeatedly pressed the plaintiff for her current and correct address.

36. In para 7 of an affirmation affirmed on 20 November 2015 by a solicitor in the employ of Hui & Lam, Mr Dai Chun Wa, he stated that:

“Third, in order to address the Defendants’ concern in any event, our client’s instructions are that given her depletion of funds, she can no longer afford to reside in a hotel. Instead, she is currently staying in her good friend [name withheld here] home, ie [address withheld here]. The reason why she is staying there is because she does not have enough money to pay for hotel costs for both herself and her son [name withheld here]. Seeing the terrible state (both mentally and financially), her very good friend [name withheld here] agreed to let [son] and herself reside at [address withheld here] on a temporary basis.”

37. Order 41, rule 5 of the Rules of the High Court, Cap 4A, provides that an affidavit may contain only such facts as the deponent is able of his own knowledge to prove and that an affidavit sworn for the purpose of being used in interlocutory proceedings may contain statements of information or belief with the sources and grounds thereof.

38. Mr Dai Chun Wa did not take the trouble to state whether he was deposing in para 7 to facts of his own knowledge if he should claim to have personal knowledge. 

39. So far as hearsay evidence is concerned, it is not known from Mr Dai Chun Wa’s assertion of “our client’s instructions”:

(1)  by whom or how instructions were given; and

(2)  to whom and how instructions were given and how Mr Dai came to know of the instructions.

40. Mr Dai could and should have given direct and specific information.  He failed to do that.  There is no assumption (and in any event, the court should not be asked to assume) that Mr Dai’s client’s instructions were necessarily given personally by the plaintiff to Mr Dai. He has not satisfied the requirement of disclosing the sources and grounds of information or belief.

41. Para 7 does not disclose admissible factual evidence of the plaintiff’s address.  Also it does not say how temporary is “temporary”.

42. Having regard to all the circumstances of the case, I considered it just to order the plaintiff to provide security for costs.  The defendants asked for security in the sum of $200,000 to avoid unnecessary argument on quantum.  I was satisfied that this amount was reasonable and I so ordered.

Costs

43. Costs of the defendants’ 20 November 2015 summons were summarily assessed in the sum of $50,000.