MA PUI TUNG v. LEUNG LIT ON AND OTHERS

HCA 4492/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 4492 OF 2003

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J U D G M E N T

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1. The Plaintiff was a solicitor and officer of the Court. The Defendants were members of a Solicitors Disciplinary Tribunal appointed by the Law Society to investigate into certain conduct of the Plaintiff.

2. A total of 40 sections of enquiry were held by the Tribunal and it pronounced the findings on 16 July 2003 against the Plaintiff. The Plaintiff appealed to the Court of Appeal and the appeal was dismissed on 11 November 2003. He then instituted this action on 9 December 2003 and applied for Legal Aid on 18 December 2003. The application for Legal Aid was rejected on 18 March 2004. The Defendant applied to strike out the writ of summons and the Statement of Claim. The application was heard before a Master on 11 May 2004 which was allowed with costs. The Plaintiff filed a notice of appeal on 30 May 2004, seeking to overturn the judgment of the Master. Today is supposed to be the date for the hearing of that appeal.

3. On 20 July 2004, that is 3 days before today, the Plaintiff applied for Legal Aid for the second time in this action. The Defendants applied by summons on 22 July 2004 for the statutory stay imposed by the Legal Aid Ordinance to be uplifted. The summons also sought abridgment of the time for service.

4. Mr Mak instructed by the Defendants has assured me that the application to uplift the stay was made as soon as those instructing him were aware of the application for legal aid by the Plaintiff and I accepted this assurance and therefore ordered that time for service of the summons be abridged.

5. I have referred to three cases which are Lee Shiu Ming v. Yeo Hiap Seng (Hong Kong) Limited, CACV No. 39 of 1993; Chan Wu Qian v. Chan Pak Wai, CACV No. 100 of 1994 and The China State Bank Limited v. Wong Chun Ying trading as Wing Fung Hong Company, HCA 10825 of 1999. The two matters that I have to consider on this application are firstly, whether there might be merits of the appeal and secondly, whether there is any reason or justification for the late application for legal aid.

6. On the delay in applying for legal aid, the Plaintiff told me that he was not aware that he had to appear for this appeal today because he has been adjudicated bankrupt and the Official Receiver has taken over many litigations that involved him. He assumed that the Official Receiver has also taken over the conduct of this appeal. He only found out on 19 July that the Official Receiver has not taken over this action on the ground that it is a personal action and hence he has to conduct the appeal by himself. He then applied for legal aid on the next day. He further told me that the Legal Aid Department was in fact considering a number of matters in relation to or in connection with this action and he has applied for legal aid for these matters to be considered on as earlier as 27 April 2004. On whether the Legal Aid Department is indeed considering this matter in association with other matters, I asked the Plaintiff to seek clarification from the Legal Aid Department and the Department has very helpfully in the very little time available furnished a letter to me in the following terms:

"We were informed by Mr Ma Pui Tung that during the hearing of the appeal in the above action, the court directed him to seek confirmation from the Legal Aid Department in respect of the progress of Mr Ma's application for Legal Aid to set aside the verdict made by the Solicitors Disciplinary Tribunal, to apply for re-hearing before the Court of Appeal and to seek judicial review of the verdict (reference: LA/M16007/2004). The application was made on 27 April 2004. We confirm that the legal aid application was still under consideration.

7. This letter serves the purpose of showing that this matter and also matters in association with it have been considered by the Legal Aid Department since some time in April this year and these matters are still under consideration. It further shows that the defendant has applied for legal aid not as late as 20 July although that was a date when he made a specific application in relation to this appeal.

8. In these circumstances, I find that there is an explanation for the delay and I accept that Mr Ma was labouring under the misconception until 19 July that this matter was in hands of the Official Receiver. Since the Legal Aid Department has been considering this matter and related matters since 27 April 2004 and still has not come to any conclusion, I take the view that it would not be right for me to uplift the stay and proceed to deal with the appeal without giving Mr Ma an opportunity of legal representation as the Department may eventually allow him. So I would dismiss the Defendants' application. I propose to order costs be in the appeal and I do not know whether Mr Mak and Mr Ma would have any objection or any other view to my proposal.

(Submissions on costs)

9. I order that the costs of this application be in the appeal.