CMT v. AS

FCMP219/2007

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 219 OF 2007

R U L I N G

1.  The Applicant in this case issued an originating summons on 21 December 2007, seeking maintenance for herself and for her daughter who is now about 2 years old.  The matter was first heard on 28 February and the Respondent was legally represented during this hearing and he consented to file the financial statement, that is the Form E, within 28 days which was by 26 March.  He did not comply with that order. 

2.  There was an interim maintenance made by consent on that day for the Respondent to pay 2,500 in total for the Applicant and the child, and that was without prejudice to the Applicant’s right to apply for adjustment in the interim maintenance.  The order made on 28 February was clearly an interim measure pending the filing of the Respondent’s Form E.

3.  On 30 March, the Applicant issued a summons for the interim maintenance to be increased.  At the hearing on 8 May, the Respondent appeared without any solicitors.  By that time, he still had not filed his Form E and this court gave him an extra 10 days to do so, and it was only after this hearing, sometime towards the middle of May that the Respondent decided to apply for legal aid.  The notice of the Respondent’s application for legal aid was dated 16 May and was filed in court on 19 May. 

4.  On 26 May, this court ordered there be no legal aid stay.  Normally, under section 15 of the Legal Aid Ordinance, there will be an automatic stay of 42 days unless otherwise ordered by the court.  In relation to this, I would quote from what Mr Recorder Kwok has said in a case Bank of China Hong Kong Limited v Fu Ming Kong Michael & Another.  It is a High Court action, 7769 and 3909 of 2000:

                        “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, secondly, in the event of legal aid being granted, for the assigned lawyer to effectively represent the assigned client, and where appropriate, to apply for more time.  The statutory stay is in aid of, not an obstacle to the administration of justice.” 

5.  Furthermore, the Court of Appeal in the case of Lee Shiu Ming v Yeo Hiap Seng (Hong Kong) Limited CACV 39/1993 (unreported, 14 July 1993)  has set out the principles for the court’s guidance when considering whether to lift the legal aid automatic stay.  The guiding principle is to do what is fair and just between the parties.  Yuen J, as she then was, also summarised the position in Re Ip Lai Fan v Ip Lam On HCSD/0111/2000 (unreported, 3 November 2000).  This is another case.  She summarised what Nazareth has said in the Lee Shiu Ming’s case as:

                        “The court should be slow to lift a stay before an application for legal aid is determined, especially if a point of law had to be dealt with by a layman.  However, if a court was satisfied that the application for legal aid was an abuse of process, then the court should exercise the discretion to lift the stay.”

6.  As I have said earlier, the Respondent was legally represented during the first hearing and he consented to file a Form E within 28 days.  He clearly was in breach of this order.  His then solicitors were still acting for him when the Applicant’s solicitors wrote on 14 April to seek additional interim maintenance.  Since on 18 April his solicitors were able to reply to say the Respondent was going through financial burden, but no reason was given as to why the Respondent had not yet filed the Form E and no evidence was given to support the Respondent’s allegation that he was going through financial burden.

7.  I also note that the Respondent notified the Business Registration Office on 23 April 2008, claiming that his business had ceased on 25 March 2008.  The respondent was clearly able to either do this himself or through his solicitors or through an agent.  Even if he had no money to pay his lawyers, there was no reason why he could not prepare his own Form E.  The Respondent claimed today that his lawyers did nothing for him, but this is a matter between him and his lawyers.  It may well be that he could make a complaint to the Law Society, but the interests of the Applicant and his child should not be affected.

8.  So far, the bank statements provided by the Respondent were up to sometime in 2007, I think up to July 2007.  There is no updated financial information. 

9.  There is no complicated law involved in an application for interim maintenance.  This court is mainly concerned with the reasonable needs of the Applicant and the child and the Respondent’s ability to pay.  The judge usually at this stage adopts a broad-brush approach.  There is no detailed investigation and if there is any further information, it is also open to the parties to apply for variation, which means that even if the court were to make an order today, if the respondent were indeed assigned lawyers in future and his lawyers were of the view that certain information had not been put before this court, he could apply for a variation. 

10.  Thus, having considered all the circumstances, I am not allowing any adjournment since I think it is fair and just for the application to go through.