CHEUNG KWAI YIN v. MORAL LUCK FINANCE LTD

FACV Nos. 5 & 6 of 2015

FACV No. 5 of 2015

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 5 OF 2015 (CIVIL)

(ON APPEAL FROM CACV NO. 127 OF 2013)

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FACV No. 6 of 2015

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 6 OF 2015 (CIVIL)

(ON APPEAL FROM CACV NO. 128 OF 2013)

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BETWEEN

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JUDGMENT ON COSTS

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Mr Justice Ribeiro PJ :

1.  This is the judgment of the Court on costs. 

2.  On 24 June 2015, the Court allowed this appeal which concerned the proper approach to appointing a guardian ad litem in respect of a mentally incapacitated person.  Apart from setting aside the orders made below and giving directions for the further conduct of the proceedings, the Court made an order nisi that the costs of the appeals and specified proceedings below be paid by the plaintiff to the applicant, with liberty to the parties to lodge written submissions on the question of costs.

3.  In written submissions dated 8 July 2015, the applicant (who succeeded in the appeal) asked the Court to certify that the leave applications before the Court of Appeal and the Appeal Committee respectively, as well as the hearing of the substantive Appeal, were fit for three counsel. No submissions have been filed in reply.

4.  The grant of such a certificate is of course a matter of discretion and, as pointed out in Town Planning Board v Society for Protection of the Harbour Ltd (No 2),[1] certification may be appropriate in cases involving issues of sufficient importance and complexity.  As the Court recently reiterated in HKSAR v Pang Hung Fai (No 2),[2] its practice is that, subject to the reasonableness of the fees paid, the Registrar will allow the costs incurred by a party who has employed two counsel in the Court of Final Appeal,[3] but that a certificate for more than two counsel needs to be justified by “something exceptional”, the fact that the paying party has itself engaged more than two counsel not necessarily being a ground for grant of a certificate.[4]  The fact that the Court of Appeal or the Appeal Committee granted leave to appeal on the basis that the question involved in the appeal was of the importance required by sections 22 or 32 of the Court’s statute[5] has also been held not to be a sufficient ground, since it is a standard requirement (and not exceptional) that the issues arising should be of such importance.[6]

5.  We can see no possible basis for a certificate for three counsel for either of the leave applications where the Court of Appeal and the Appeal Committee were concerned merely with identifying the issues sought to be raised and forming a view as to whether they were of the requisite importance to merit leave to appeal.  Those applications involved no question of particular importance or complexity.

6.  So far as the substantive appeal is concerned, the applicant submits that a second junior counsel was needed because the appeal necessitated extensive research reviewing the law in different common law jurisdictions in a “relatively compressed time frame”.  But as the judgment demonstrates, questions regarding the appointment of a guardian ad litem turn quintessentially on the procedural rules and case-law of the local forum and not on the jurisprudence of foreign courts. 

7.  No basis for a certificate for three counsel exists in the present case.