LI HING WAN v. FUNG CHI WAH

CACV000040A/1986

 

1986, No. 40 (Civil)

 

IN THE COURT OF APPEAL

 

BETWEEN

	LI HING WAN	Applicant (Appellant)
	and
	FUNG CHI WAH	Respondent (Respondent)

___________

 

Coram: Hon. Fuad, Hon. Clough, JJ. A. and Hon. Power J.

Date of hearing: 12th December 1986

Date of delivery of judgment: 12th December 1986

 

___________

JUDGMENT

___________

 

Power, J.

 

1. This is the judgment of the Court.

 

2. On the 19th July 1985, the applicant, Li Hing Wan, took out a summons seeking orders declaring the respondent Fung Chi Wah to be the putative father of a child, Fung Ting-yan, who was four years of age at the time of the application. The applicant also asked for custody of the child and for an order that the respondent pay maintenance for that child.

 

3. On the 2nd October 1985, Judge Wane, upon admission being made by the respondent, declared him to be the putative father of the child. On that day he adjourned the custody application to the 12th December 1985 and made an order that the respondent pay interim maintenance of $500 per month. He also called for the assistance of a Social Welfare Report.

 

4. This Social Welfare Report was in due course furnished and it recommended that custody be given to the applicant and stated, inter alia, that the applicant's present salary was $2,200 per month. As to the respondent, it stated that he estimated that after deduction of instalments and other essential expenses, he would be able to make an average net profit of about $3,000 - $4,000 per month. This information was, clearly, furnished by the respondent himself to the Social Worker.

 

5. The applicant in her affidavit had said that the respondent had an overall income, which included moneys both from his business and from rents, of more than $12,000 per month.

 

6. The respondent in his affidavit had said that he had incomings of $9,500 per month but that he had a surplus, after paying all his expenses and outgoings, of only $510.

 

7. The applicant, when the matter came on for hearing was seeking a maintenace order in the sum of $2,250, The judge's notes of the hearing on the 12th of December are very brief. He noted that the applicant was seeking $2,200 per month and that the respondent solicitor suggested that $1,000 "would be suitable". He then without, as far as the record shows, any evidence or any further submission made an order that the respondent pay $1,000 per month. It is against that order that the applicant now appeals.

 

8. About four months later on the 2nd of April 1986, the judge gave his reasons for judgment. He dealt with the hearing in the following way:

 

 

"On the 12th of December 1985, the parties agreed with the recommendation in the report that custody of the child should go to the applicant. The only remaining issue was an appropriate figure for his maintenance. I have ordered $1,000 per month. On the 28th February 1986, the applicant applied for a review of my decision, I refused the application. The arguments appeared on the record. At no point was any application made by the applicant solicitors for adjournment or to have the respondent cross-examined."

 

9. He noted that the applicant had not set out her financial position. It should, however, be pointed out that she did, in her affidavit, set out the needs of the child which included a claim for rent of $800 per month, that being the total amount paid for the accommodation for the mother and child, and a claim for food and other necessaries amounting to $1,450. These two figures make up the total claimed. The trial judge said that he accepted the figures in the Social Welfare Report on the basis that "neither party sought to challenge those figures at the hearing before me". He took the figure of $500 per month as the starting point for maintenance for a young child. He accepts this as a proper starting upon the basis of his experience in these matters. He considered, quite rightly, that the applicant was not entitled to make a claim for the whole amount of the rent. He did not, however, indicate as one would have thought he might, an entitlement to make a claim for an appropriate proportion of that rent. He said finally:

 

 

"I regard her claim as excessive in the circumstances. No attempt was made to explain why on wages of $2,200 per month, she should reasonably incur expenses of $2,215 in respect of her 4 year old child. I consider that the $1,000 per month for the child to which the respondent had agreed was rather more than I would have otherwise awarded."

 

He made no specific findings with regard to the needs of the child but seems to have proceeded upon the basis that, given he was trying the matter on affidavits, he had to do the best he could with the evidence before him.

 

10. The solicitor for the applicant, Miss Liza Chan stated in an affidavit filed on the 10th May 1986 that, at the hearing on 12th December, she had applied both to cross-examine the respondent and had sought an adjournment when the trial judge indicated that if she was questioning evidence as to the respondent's means she should have applied for an order for specific discovery. To this affidavit she annexed her note of the proceedings, made shortly after they concluded, which bore out the assertions made in the affidavit. Mr James Lee, the solicitor for the respondent, states in an affidavit filed on the 11th July 1986 that on the 12th December, Miss Chan had "mentioned that the respondent should be made available for cross-examination and for specific discovery regarding his financial position". He goes on to say that "the learned judge was not impressed and said that the respondent would simply say that he had no money" and that "seeing the learned judge was not with her at all, my learned friend did not pursue the matter further, I do not recall any formal application for adjournment being made".

 

11. We cannot, unfortunately, follow the course, which would otherwise have been appropriate, of sending Miss Chan's note of proceedings to the trial judge for his comment as he has now left Hong Kong.

 

12. The applicant was clearly entitled to cross-examine the respondent. This was the sort of matter where cross-examination should have taken place as a matter of course. Indeed, it is difficult to see how the issues of fact could have been resolved in a satisfactory way without there having been cross-examination. We are left in the position where we cannot with certainty declare what did actually occur. It appears from Mr Lee's version that the applicant's solicitor was persuaded not to pursue her application by the trial judge. We make no findings in this regard but consider that we must, in the circumstances, proceed upon the basis that Mr Lee's version is correct. We, therefore, approach the matter upon the basis that, the applicant's solicitor having suggested that she would like to cross-examine the respondent, was discussed from so doing by the judge. Even though a trial judge might consider that cross-examination would add nothing to what was already before him, he should, we are satisfied, without hesitation, grant the application to cross-examine. Cross-examination, in such circumstances, is a matter of right and is, indeed, normally a matter of course.

 

13. Given the above, we are satisfied that the only proper course is to remit this matter for a retrial. The matter is ordered to be remitted to the District Court for retrial.

 

 

 

 

Representation:

Miss Selina Lau (inst'd by M/s Li, Ma & Wong) for Respondent

Miss Audrey Eu (inst'd by M/s Joseph C.T. Lee) (D.L.A.) for the    Appellant/Applicant

CACV000040/1986

IN THE COURT OF APPEAL

1986, No. 40 (Civil)

Between

	LI	Applicant/Appellant
	and
	FUNG	Respondent/Respondent

_____________

 

Coram: Hon. Roberts, C.J., Fuad, J.A. & Clough, J.

Date of hearing: 12th June, 1986

Date of delivery of judgment: 12th June, 1986

 

___________

JUDGMENT

___________

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.

(P.G. Clough) Judge of the High Court

Representation:

Miss Selina Lau (P.H. Sin & Co.) for Respondent/Respondent.

Miss Alice Mok (Joseph C.T. Lee & Co.) for Appellant/Applicant.