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)

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D E C I S I O N

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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 valua