LEE CHICK CHOI v. THE DIRECTOR OF LEGAL AID

CACV 276/2018

[2021] HKCA 908

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 276 OF 2018

(ON APPEAL FROM HCAL 417 OF 2018)

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J U D G M E N T

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Hon Au JA (giving the judgment of the court):

1.  By a judgment dated 26 July 2019 (“the Judgment”), the Court dismissed the applicant’s Notice of Motion dated 11 March 2019 with costs to the Director of Legal Aid (“the Director”).  The Director filed a Revised Statement of Costs on 9 August 2019.  After considering the Director’s statement and the applicant’s comments, this Court informed the parties by a letter dated 13 July 2020 that the costs was summarily assessed to be HK$38,822.

2.  On 22 July 2020, the applicant filed a Notice of Motion seeking leave to appeal to the Court of Final Appeal against this Court’s aforesaid decision on costs (“the Notice of Motion”).  On 7 December 2020, the applicant wrote to the Registrar of Civil Appeals that he intended to withdraw the Notice of Motion.  Pursuant to [2] of Master Tsui’s directions, on 7 January 2021, the Director stated that it would not oppose the applicant’s application to dismiss the Notice of Motion and that leave should be granted for the discontinuance of the Notice of Motion.  On this basis alone, we will dismiss the applicant’s Notice of Motion.

3.  As to the costs of the discontinuance, the Director had at the same letter sought costs against the applicant because (a) the applicant’s Notice of Motion is devoid of merits[1]; (b) the applicant was well aware that the present application would be inter parte[2]; (c) the applicant’s application for discontinuance was made at 7 December 2020 after the Director had served its written submissions on 4 December 2020.

4.  On 13 January 2021, the applicant replied that costs of the discontinuance should not be awarded because he had demonstrated exceptional circumstances at points 1 to 13 in his letter dated 7 December 2020 which would justify a departure of the general principles.  Essentially, his claimed exceptional circumstances is that the present application is made on an ex parte basis.

5.  In our view, the applicant’s arguments in his letters dated 7 December 2020 and 13 January 2021 have no merits at all.  After the applicant filed the Notice of Motion, the Registrar of Civil Appeals directed on 30 July 2020 that the Notice of Motion should proceed on an inter parte basis.  The Director has since 30 July 2020 been involved in the present application.  We therefore do not see any exceptional circumstances that would justify departure from the general principles to award the costs occasioned by the Notice of Motion (up until the discontinuance application) to the Director.

6.  We therefore dismiss the Notice of Motion and order that costs of the Notice of Motion be paid by the applicant to the Director and be summarily assessed on paper.  The Director has filed its statement of costs for the Notice of Motion dated 4 December 2020 and claimed a sum of HK$31,480.  We direct that the applicant is to file his comments on the statement of costs (of not more than one page) within seven days from the date of this decision.