TED OHYA v. ABDO A. OSMAN

Coram: H H Judge Marlene Ng in Chambers (Open to public)

Present: Ms Susan Liang, of Susan Liang & Co., for the Plaintiff

Abdo A. Osman, also known as Abdo Abdelhanned Osman, In Person, Defendant

D E C I S I O N

1.  The matter has some history, which has been set out in my ruling on 23 March 2006.  By such ruling I declined to lift the automatic stay of proceedings that followed the defendant’s application for legal aid.  I do not propose to repeat the particulars of the history of this case, which must be familiar to the parties.  What I propose to do is to state briefly the developments since my ruling.

2.  On or about 30 March 2006, the plaintiff’s solicitors wrote to the defendant, with copy to Listing Officer, for an appointment to restore the following summonses for hearing:

(a)    the defendant’s summons, dated 3 February 2006, for leave to appeal against my judgment against the defendant dated 5 January 2006 and for stay of execution of the said judgment; and

(b)   the plaintiff’s summons, dated 23 February 2006, for security for costs of the appeal if I should grant leave to the defendant to appeal. 

3.  These summonses were originally fixed to be heard on 23 March 2006 but had to be adjourned by reason of the automatic legal aid stay.  On about 7 April 2006, the aforesaid summonses were fixed to be heard before me today. 

4.  By a Memorandum of Refusal of Legal Aid, dated 22 April 2006, the Director of Legal Aid notified the court he has decided to refuse legal aid to the defendant.  The defendant claimed that he received such notice on 26 April 2006. 

5.  The defendant wrote to the court on 27 April 2006 to say that he had decided to appeal against the decision of the Director of Legal Aid and the hearing of such appeal was fixed to be heard on 2 June 2006. 

6.  He also said that his health condition has worsened lately and he had been attending medical treatments regularly.  He claimed that his doctor informed him that he should undergo a medical test on 2 June 2006 at the St Teresa’s Hospital so it would be difficult for him to attend the scheduled hearing in his present poor health and because of his medical test. 

7.  The defendant said he was informed by his former lawyers that his intended appeal against my judgment of 5 January 2006 involved many law points and he would be prejudiced without legal representation.  He could not afford private representation and his health does not permit him to express himself clearly, so he sought another adjournment.

8.  The defendant enclosed copies of the referral letter and medical report of Dr Yong Kong-fan dated 25 April 2006.  By these documents, Dr Yong referred the defendant, who suffered from “DM and left UL neuralgia and numbness of both hands and soles” to the St Teresa’s Hospital for arrangement of an nerve conduction test for suspected diabetes neuropathy.  The medical report revealed that the nerve conduction test was to be done on 2 May 2006, i.e., almost a week before today, and Dr Yong advised that he should rest and avoid excessive travelling during the coming two weeks, i.e., from 25 April 2006, which period has expired by today. 

9.  On 27 April 2006 I directed that the defendant should copy his letter to the plaintiff’s solicitors and that the application for adjournment of today’s hearing should be made inter partes, so that pending such application the hearing would stand.

10.  The defendant did not issue any inter partes summons prior to the hearing today but pursued his application for adjournment at the hearing.  He informed the court that the legal aid application was refused because he had too many assets.  However, he claimed that he has no cash and is in the process of selling his assets.  No particulars were given about his assets and still later he submitted that he will sell his assets to hire a lawyer if his appeal on 2 June 2006 against the decision of the Director of Legal Aid is refused.

11.  I note nowhere in Dr Yong’s report can I find the suggestion that the defendant’s health and medical condition rendered him unfit to attend court to handle his own litigation or affected his faculties or ability to address the court, or his nerve conduction test would affect his ability to deal with the hearing today. 

12.  In the circumstances, I am not persuaded that there is sufficient evidence before me that the defendant’s health has worsened since he was last before me or even if it has worsened, that his health condition will impair his ability to handle the hearing today.

13.  I come now to the defendant’s claim that he intends to appeal against the refusal of legal aid.  The statutory stay period has expired.  The purpose of a statutory stay under section 15 of the Legal Aid Ordinance is to facilitate justice by allowing sufficient time for the Department of Legal Aid to process the application for legal aid, and if he grants legal aid, the Legal Aid Department will assign lawyers to effectively represent the aided person.  Here such process has been completed and the Director of Legal Aid has refused to grant legal aid.  But despite such refusal the defendant has enjoyed a stay for the whole statutory period and the last hearing has been aborted. 

14.  Although the defendant has a right to appeal against the Director’s decision it does not mean that the defendant has a right to abort today’s hearing by lodging such appeal.  The defendant has not filed any affidavit to support the application for further adjournment.  Other than his assertion, in his affirmation dated 22 March 2006, that he was impecunious and that he owed his lawyers substantial amounts, and his oral submissions at the hearing on 23 March that he was selling his sole property in Arizona - which assertions were challenged by the plaintiff’s solicitor at the hearing - the defendant has not placed any substantial evidence of impecuniosity before the court. 

15.  It is true that there has been no recovery from the garnishee proceedings against Hongkong Bank.  The defendant has produced a copy of his current account statement with DBS Bank showing a balance of $1,601.36.  But such statement shows transactions as from the end of January 2006 only.  The defendant has not explained how, if he has not more than $4,000 in his bank accounts, he has been able to survive and, indeed, afford to travel to the United States and London to raise finance.  The defendant also has not advised the status of the liquidation of his property in Arizona. 

16.  At the hearing today the defendant admitted that his legal aid application was refused because he had too many assets and he would be able to arrange private legal representation if he sold his assets upon a refusal of his legal aid appeal, if that comes to pass.  The defendant has had time since March 2006 to place evidence of his means before the court but he has not done so. 

17.  Submissions have been made that there would be injustice because the defendant, acting in person, will not be able to deal with the legal arguments arising from his draft grounds of appeal against my judgment of 5 January 2006 and if legal aid is granted after the application for leave to appeal is heard today.  But the defendant’s solicitors argued at the last hearing that there are no merits to the defendant’s application for leave to appeal and any further stay on top of the delay, as evidenced by the history of this case, will cause prejudice to the plaintiff. 

18.  I pause here to observe that the question of the defendant’s merits for leave to appeal and to stay execution is one that should be more appropriately considered in the context of such application.  However, it is a matter of common sense that if a party fails to establish some merits without condescending to fine particularity in respect of the substantive application, it will be pointless to adjourn the application.  It is unnecessary for me to come to a definitive view but I have borne in mind the defendant’s draft grounds of appeal and the arguments of the plaintiff’s solicitors. 

19.  But upon careful consideration, there is some substance to the argument that further delay beyond the period of the statutory stay will prejudice the plaintiff.  The plaintiff’s solicitors informed the court that the plaintiff is keen to proceed with execution of the judgment and therefore wishes to resolve the summonses fixed before me today.   Whilst there is no stay of execution as yet and no current action taken for execution of the judgment, if the summonses before me are further adjourned, the plaintiff, in commencing any attempt at execution of my judgment will be faced with an argument by the defendant that there is a pending and an as yet unresolved application for stay of execution that has been adjourned for argument.  In such circumstances, whether the plaintiff will then be able to proceed with the execution of the judgment will be subject to the discretion of the court, which brings a degree of uncertainty in contrast to a final resolution of the defendant’s summons. 

20.  Considering the above matters and the whole history of the case as set out in my ruling of 23 March, and bearing in mind the need to balance the interests of both parties to do justice, I decline to grant the adjournment sought by the defendant.  Although there are some legal arguments in respect of the grounds of appeal, I do note that the defendant has had the benefit of legal representation and advice from 27 January 2006 to 22 March 2006, i.e., before and after the filing of the draft grounds of appeal.  Further, if after the hearing today I am against the defendant on his summons, he is still entitled to apply to the Court of Appeal for leave to appeal against my judgment and if successful would be able to renew the application for stay of execution. 

21.  I propose to reserve the questions of costs of this application to be dealt after the hearing of the parties’ summons.