LI v. FUNG

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JUDGMENT

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Clough, J. (delivering the judgment of the Court):

1. This is an application, by the Respondent to an appeal, for security for costs of the appeal to be furnished by the Appellant.

2. The appeal is brought by the mother of an illegitimate four year old child from the order of a District Court Judge made on the 12th December 1985 under Section 5(2)(a) of the Affiliation Proceedings Ordinance, Cap. 183, requiring the Respondent (the putative father of the child) to pay the Appellant $1,000.00 per month for the maintenance of the child. The Appellant claims that the amount of maintenance awarded is insufficient and should be increased.

3. The Appellant is legally aided for the purposes of the appeal with a nil contribution liability.

4. Under Order 59 rule 10(5) of the Rules of the Supreme Court this court may in special circumstances order that such security be given for the costs of an appeal as may be just. The practice, in the absence of proof of other special circumstances, is to require an appellant to give security if he would be unable to pay the costs of an unsuccessful appeal through poverty.

5. The Respondent contends that he is put in an unfair and prejudicial position because if the appeal is dismissed he will not be able to recover costs from the Appellant who has a nil contribution liability under the Legal Aid Ordinance, Cap.91, and claims in her evidence to be impecuious. On the other hand he points out that he will have to pay the Appellant's costs if the appeal succeeds. Such costs will have to come out of his own pocket because he is not legally aided.

6. The Appellant contends that if she is required to give security for costs she will be unable to prosecute a meritorious appeal and her child will be deprived of reasonable financial support.

7. In our judgment the Respondent's contentions are based on a misapprehension of the effect of the relevant provisions of the Legal Aid Ordinance.

8. Counsel for the Respondent has very properly accepted this and has not drawn out this matter. She has therefore asked this court to dismiss the Respondent's application on the basis that the relevant provisions of the Legal Aid Ordinance do not preclude the Respondent from recovering such costs as may be awarded to him if the appeal should be dismissed.

9. Thus section 19(1) provides that a court may make an order for costs against an aided person in the same manner and to the same extent as it may make an order for costs against any other person, but such an order may only be enforced against the aided person and the Director of Legal Aid to the extent permitted by section 16C. The effect of section 16C(1)(a)(ii) is that an aided person will not be liable for costs incurred by the Director on his behalf in excess of such aided person's contribution, but section 16C(1)(b)(i) provides that in the case of an appeal, where a court makes an order for costs against an aided person in favour of a person not receiving legal aid who is a respondent in that appeal, such costs shall be paid by the Director o￡ Legal Aid.

10. It follows that for all practical purposes the legally aided Appellant in this appeal is in the same position as any other appellant who is backed by financial resources, albeit of a third party, namely the Director of Legal Aid, which are sufficient to satisfy any adverse order for costs which might be made against the Appellant when the appeal is heard. For those reasons we dismiss the application.