BANK OF CHINA (HONG KONG) LTD v. FU MING KONG MICHAEL AND ANOTHER

HCA 7769/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 7769 OF 2000

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AND

HCMP 3909/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 3909 OF 2000

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REASONS FOR JUDGMENT

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1.  On 21 June 2005, I ordered that the stay consequent upon the 1^st defendant’s application for legal aid and the filing of a memorandum by the Director of Legal Aid (“the Director”) be lifted under section 15(4) of the Legal Aid Ordinance, Cap. 91, and that the costs of the application be to the plaintiff.  I told the parties that reasons for my judgment would be handed down on 24 June 2005.  My reasons follow.

2.  On 3 August 2000, the plaintiff issued the writ in HCA No. 7796 of 2000 and the originating summons in HCMP No. 3909 of 2000.

3.  On 28 September 2001, Master Wong ordered the proceedings to be consolidated.

4.  On 2 May 2003, Messrs Gary K.W. Tam & Co. filed the Amended Defence of the 1^st and 2^nd Defendants dated 2 April 2003 on behalf of the defendants.  The pleading contains allegations of fact and contentions in law.

5.  On 2 June 2003, an Amended Consolidated Reply was filed on behalf of the plaintiff.  The pleading contains allegations of fact and contentions in law.

6.  On 23 December 2003, trial dates (4 days commencing on 20 September 2004) were fixed.

7.  On 20 August 2004, the Honourable Mr Justice Yam conducted a pre-trial review.  In paragraph 6(II) of his affirmation affirmed on 20 June 2005, the 1^st defendant stated that:-

“	(1)	20 August 2004, I appeared in the pre-trial review conducted by the Honorable Mr. Justice Yam declaring that I am ready for the trial.  However, it was the opinion of Mr. Justice Yam, upon reading of the case files, that I should have a lawyer to represent me at the trial rather than acting in person.
	(2)	Mr. Justice Yam advised me to immediately approach either the Hong Kong Bar Association in the High Court or the Department of Legal Aid to seek assistance for legal representation.
	(3)	On 20 August 2004 (the same day) I went to Hong Kong Bar Association in High Court and was advised that I could approach them only if my application for Legal Aid failed.
	(4)	Under the circumstance I went to Legal Aid Department and submitted my application for legal aid.”

8.  Significantly, there was no allegation by the 1^st defendant that the learned judge advised him to make a second application for legal aid:-

(a) after his first application had been refused by the Director and after his appeal against the refusal to grant legal aid had failed; or

(b) nearly 10 months later.

9.  On 21 August 2004, the 1^st defendant made his first application for legal aid.

10.  On 9 September 2004, the Director refused the 1^st defendant’s first application for legal aid.

11.  On 10 September 2004, the plaintiff issued a summons to lift the statutory stay of proceedings under section 15 of the Legal Aid Ordinance.

12.  Meanwhile, the 1^st defendant lodged an appeal against the refusal to grant legal aid and the appeal was fixed for hearing on 15 October 2004.

13.  On 15 September 2004, the plaintiff’s summons of 10 September 2004 was heard by the Honourable Mr Justice Reyes who ordered that:-

(a) stay of proceedings to remain;

(b) trial to be re-listed for a date not earlier than 15 October 2004; and

(c) costs be in the cause.

14.  On 24 September 2004, trial dates (4 days commencing on 21 June 2005) were fixed.

15.  The 1^st defendant felt aggrieved by the fixing of these trial dates and corresponded with solicitors for the plaintiff. 

16.  By letter dated 2 December 2004, the 1^st defendant wrote to Deputy Judge Poon.

17.  By letter dated 21 December 2004, the clerk to Deputy Judge Poon wrote to the 1^st defendant informing him of the following direction by the learned Deputy Judge:-

“Please take out a summons supported by affidavit for the application for adjournment.”

18.  About 3 ½ months later, the 1^st defendant issued a summons on 4 April 2005 seeking an adjournment.

19.  On 21 April 2005, Deputy Judge Poon refused the 1^st defendant’s application.

20.  On 30 April 2005, the 1^st defendant filed a notice of appeal against the decision of Deputy Judge Poon.

21.  On 16 June 2005, the Court of Appeal dismissed the 1^st defendant’s appeal.

22.  On 16 June 2005, the 1^st defendant made his second application for legal aid.

23.  On 16 June 2005, the Director filed a memorandum that the 1^st defendant had made application for legal aid.

24.  On 18 June 2005, the plaintiff issued a summons to lift the stay of proceedings consequent upon the 1^st defendant’s second application for legal aid and the filing of a memorandum by the Director.

25.  The 1^st defendant made 2 affirmations (both in English, one type-written and one hand-written) in opposition to the plaintiff’s summons; placed a written submission in English before me; and took up the greater part of the time of the hearing before me.

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.  Despite the refusal by the Director of the 1^st defendant’s first application for legal aid, the 1^st defendant had enjoyed the stay for the whole statutory period and the trial dates commencing on 20 September 2004 had been vacated.  Since the 1^st defendant continued to act in person, I inferred that his appeal against the Director’s refusal to grant legal aid had failed. 

29.  There must be satisfactory evidence of a material change in circumstances to justify aborting the trial dates by reason of the 1^st defendant’s second application.  There is no allegation and no evidence on any alleged change in circumstances.  All I had was a bare assertion by the 1^st defendant at the end of his submission that in his second application for legal aid, he produced some changes.  This was simply not good enough.

30.  Even if the 1^st defendant had arguable grounds for having a second bite of the cherry, there was no reason why he did not make his second application until 16 June 2005.  The factual and legal issues were apparent from the pleadings which were served by mid-2003.  If the 1^st defendant over-rated himself in his consideration of the question whether he was a match for the plaintiff’s legal team, he was the author of his own misfortune.

31.   I was satisfied that this was a case where justice required me to exercise my discretion to lift the statutory stay and I granted the plaintiff’s application.