XCHRX CHAN SAI LUN, HENRY v. CHAN WAI WAH, LILY-ANN

CACV 143&205/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 143&205 OF 1998

(ON APPEAL FROM HCA P2 OF 1993)

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J U D G M E N T

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Ribeiro JA:

1. There is before me a summons taken out by the 2nd defendant, who I shall call simply "the defendant" as the 1st defendant is no longer a party, seeking a stay of execution of an order which I made on 20 March of this year, that she provide security for the costs of pending appeals against the judgment of Barnett J in this matter in the total sum of $400,000.

2. The defendant is absent. The Court's diary is extremely full today and the matter was listed at 9.30 am. I allowed her a grace period of some 5 or 7 minutes before I came into Court.

3. Mr Cheung has made an application that the summons be dismissed.

4. The order which I made on 20 March was not to take effect until the decision of the Master in relation to the defendant's appeal against the refusal of legal aid, then to be heard on 12 April 2000, was known. That legal aid appeal was not in fact heard on 12 April, but was eventually dismissed on 15 May 2000.

5. I was told that the defendant has lodged an appeal against my order of 20 March. That is of no concern to me today.

6. The summons, apart from seeking a stay of execution, asks in the alternative that the time for providing security be extended until after the hearing of the appeal. This adds nothing to the application for a stay. The other paragraphs in the summons deal with incidental matters.

7. My order of 20 March automatically takes effect after the Master's dismissal of the legal aid appeal without the parties having to apply for any further order. Therefore, unless the defendant provides security as ordered within 14 days after 15 May 2000, the appeal will stand dismissed without further order and with costs of such appeals to be taxed and paid by her to the plaintiff.

8. A few minutes before entering the Court, I received a fax from the Legal Aid Department indicating that a further application for legal aid has been made by the defendant in this matter. I assume that it is made in relation to the appeal lodged against my order. Papers have not yet been served on the plaintiff in relation to that application.

9. Under s.15(4) of the Legal Aid Ordinance, Cap. 91, the court has a discretion to order that the statutory stay of the proceedings not apply. In my judgment, the new legal aid application is plainly a delaying tactic and has no merit whatsoever given that the Master has already dismissed the outstanding appeal in relation to the refusal of the Director to provide legal aid. I therefore exercise my discretion to order that there be no stay under the Legal Aid Ordinance.

10. Accordingly, it appears to me that the defendant has provided no basis whatsoever for disturbing the order which I made on 20 March and the summons which is being heard today must be dismissed with costs.