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Mk v Director Of Legal Aid

Judgment Cited authorities 3 Cited in Precedent Map Related
Vincent
JurisdictionHong Kong
Judgment Date01 August 2023
Neutral Citation[2023] HKCFA 22
Year2023
Subject MatterMiscellaneous Proceedings (Civil)
Judgement NumberFAMV179/2023
CourtCourt of Final Appeal (Hong Kong)
FAMV179A/2023 MK v. DIRECTOR OF LEGAL AID

FAMV No. 179 of 2023

[2023] HKCFA 22

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 179 OF 2023 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACV NO. 355 OF 2021)

___________________________

BETWEEN
MK Applicant
(Applicant)
and
REGISTRAR OF HIGH COURT Respondent
and
DIRECTOR OF LEGAL AID Interested Party
(Respondent)

___________________________

Before: Mr Justice Fok PJ in Chambers
Date of Decision: 1 August 2023

___________________________

D E C I S I O N

___________________________

Mr Justice Fok PJ:

1. On 7 July 2023, the Appeal Committee granted the applicant, MK, leave to appeal to the Court of Final Appeal in respect of a question of law relating to the proper interpretation of Regulation 21(1)(b) of the Legal Aid Regulations, Cap. 91A.[1] The respondent to the appeal is the Director of Legal Aid.

2. The order of the Appeal Committee granting the applicant conditional leave to appeal included the standard condition that the applicant should pay into court the sum of HK$400,000 by way of security for the respondent’s costs of the appeal.

3. The applicant wishes to vary that standard condition and seeks a waiver of the requirement to provide security for the respondent’s costs. Having failed to reach agreement with the respondent on a waiver of the requirement to provide security for costs, the applicant has applied by summons to a single permanent judge of the Court for an order to that effect. As provided for in the standard terms of the order granting conditional leave to appeal (see Practice Direction 2.3), the parties have filed written submissions in support of, and in opposition to, the application and it will be dealt with on the papers.

4. It is worth reiterating the “starting point” in this context, as succinctly summarised by Chief Justice Ma in Designing Hong Kong Limited v The Town Planning Board and Secretary for Justice,[2] namely: (1) an order for security for costs is a standard term in appeals to the Court of Final Appeal; (2) the purpose of the condition is to protect the respondent in an appeal from the injustice of not being able to recover costs from the appellant in the event of an unsuccessful appeal; (3) the starting point is reflected in the practice direction and in the case law of the Court; and (4) if it is sought to vary this standard term, good grounds have to be shown.

5. The applicant’s summons is supported by an affirmation made by her dated 18 July 2023. In the affirmation, the applicant addresses her grounds for seeking a waiver of the requirement to provide security for costs, namely that her impecuniosity means that without a waiver she will be forced to abandon the appeal and an appeal on an important point of law concerning legal professional privilege will therefore be stifled. The applicant deposes to the fact that she is insolvent and owes the Government over HK$3.5 million in outstanding costs and interest arising from the costs order made against her in the Court of Appeal below. She explains that she is working at a pet shop earning a monthly salary of HK$5,000 and does not own any property or valuable asset. She states that she has only one bank account maintained with the Bank of China (Hong Kong) Limited, in which, as at 10 July 2023, there is a balance of only HK$100.09. Bank statements over the past three years show that the balance in her account did not exceed HK$20,048.09. She is currently living in a village house in Lantau owned by a relative of her life partner, Madam C, who has allowed the couple to live there rent-free. The applicant states that Madam C also does not have any valuable assets and that, whilst she has two bank accounts, neither has sufficient funds to enable the applicant to fund the security for costs. She deposes to her belief that there is no prospect of her raising funds to furnish the security, stating that none of her friends or family are able to fund her in the pursuit of the appeal.

6. For the applicant, it is submitted that the evidence establishes that she is “plainly insolvent”[3] and there is no prospect of her providing the ordered security or otherwise being in a position to raise funds for that purpose. It is therefore submitted that it is not only “probable” but “a foregone conclusion” that the requirement to provide security, unless waived, would lead to the applicant having to abandon the appeal.[4]

7. The burden of establishing that the order for security would have the probable effect of stifling the appeal is on the applicant: Kwok Cheuk Kin v Director of Lands.[5] And as has been said before, applications of this nature will necessarily turn on their own facts.[6]

8. Here, the applicant’s parlous financial condition is supported by the evidence of her modest monthly salary and also her bank savings, as disclosed by the last three years’ of her account statements. Furthermore, she is...

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