TANG YUK CHUN v. LAW SUI MAN AND ANOTHER

DCCJ13517/2001

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 13517 OF 2001

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D E C I S I O N

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1. This is an appeal against a decision of Acting Registrar Yu given on 19 March 2003 lifting the Legal Aid stay.

2. The 1st Defendant applied for legal aid on 19 February 2003. A Legal Aid Certificate was subsequently granted to the 1st Defendant on 21 March 2003, limited to the attendance of the hearing on 26 March 2003 and the argument of the Notice of Contributions and/or Indemnity by the 1st Defendant against the 2nd Defendant.

3. In respect of the application to lift the legal aid stay, the 2nd Defendant has all along adopted a neutral stance. So far as the Plaintiff is concerned, he supports such application by reason of two grounds. Firstly, the 1st Defendant's application for legal aid had indeed been refused once on 22 October 2001; and secondly, the 1st Defendant could have applied for legal aid at a much earlier time and there was substantial delay in the making of such application.

4. In the hearing today, the 1st Defendant seeks to explain the delay in applying for legal aid in paragraphs 12 to 15 of the 1st Defendant's skeleton argument. One of the reasons given is that it was only due to the recent change of her financial status that the 1st Defendant could be eligible for legal aid. Unfortunately, the 1st Defendant has not filed an affirmation to verify the truth of her explanations, but for the purpose of this application, I am prepared to take those explanations into account upon the undertaking by the 1st Defendant's solicitors to file a supporting affidavit within 7 days.

5. I agree that there has been some delay in the making of the legal aid application. However, in view of the 1st Defendant's latest explanations, I do not think that the 1st Defendant has tried to abuse the process of the court by delaying the making of the legal aid application. Indeed, it would not have been in her interest to do so. If she could have obtained legal aid at a much earlier time, she would be protected on the issue of costs as she need not pay for the legal fees incurred after the granting of the Legal Aid Certificate. I do not accept that the 1st Defendant has intentionally tried to delay the legal aid application, and there is some degree of truth in her explanations. Indeed, the subsequent granting of the Legal Aid Certificate shows that the 1st Defendant does have some merits in her application for legal aid.

6. In such case and taking into account the 1st Defendant's explanation given today, I am of the view that the court should not have lifted the legal aid stay, and I therefore set aside the order of Acting Registrar Yu.