Chapter 3: Legal Aid

Eligible applicants receive legal aid through the provision of the services of a solicitor and a barrister in court proceedings, as necessary, to ensure that any person who has reasonable grounds for pursuing or defending a legal action is not prevented from doing so by lack of means. Publicly funded legal aid services are provided through the Legal Aid Department and the Duty Lawyer Service.

A series of improvements to the legal aid services arising from the latest Legal Aid Policy Review has been implemented as from July 2000. The improvement measures have widened the scope of legal aid services and increased the number of persons who may be eligible for assistance. Under the current arrangement, 58 per cent of the total number of households in Hong Kong are now financially eligible for legal aid, up from 48 per cent under the previous arrangement.

The Legal Aid Department provides legal aid services to any person in Hong Kong, resident or non-resident, who satisfies the criteria for legal aid. Legal aid services are funded by the Government. The provision for legal costs is not cash-limited; supplementary provision may be sought if necessary. This ensures that the grant of legal aid is not prejudiced by financial constraint.

Ordinary legal aid is available for representation in civil proceedings in the Court of Final Appeal, Court of Appeal, Court of First Instance and District Court. It is also available for certain other matters such as tenancy matters under Part II of the Landlord and Tenant (Consolidation) Ordinance in the Lands Tribunal, applications to the Mental Health Review Tribunal and cases of great public concern in the Coroner's Court.

The range of civil proceedings covered includes family and matrimonial disputes, personal injury claims, employment disputes, tenancy disputes, contractual disputes, immigration matters and professional negligence claims. Admiralty, bankruptcy and company winding-up proceedings for the claim of arrears of wages and other employment related benefits are also undertaken.

Applicants must pass means and merits tests to qualify for legal aid. For the means test, the applicant must show that his financial resources, i.e. annual disposable income and total capital assets after deduction of certain statutory allowances, do not exceed $169,700. The Director of Legal Aid may waive the upper financial eligibility limit in meritorious cases involving the Hong Kong Bill of Rights or an inconsistency with the International Covenant on Civil and Political Rights as applied to Hong Kong. For the merits test, the applicant must satisfy the Director of Legal Aid that he has reasonable grounds for bringing or defending the civil proceedings. Depending on the financial resources of the aided person and whether property has been recovered or preserved on his behalf, the aided person may be required to contribute towards the costs of the proceedings.

Upon the granting of legal aid, the aided person's case is assigned either to a lawyer in private practice or to a lawyer of the Legal Aid Department. The Director of Legal Aid has the responsibility to monitor the progress and expenditure of the cases assigned out. An applicant who is refused legal aid may appeal to the Registrar of the High Court, or in Court of Final Appeal cases, to a Review Committee. The decision in either event is final.

During the year, 20 620 applications for civil legal aid were received and 9 061 were granted. The Legal Aid Department's expenditure on civil cases was $405 million and $919 million was recovered for the aided persons.

This scheme provides legal assistance to applicants whose financial resources exceed the ceiling stipulated in the Ordinary Legal Aid Scheme but do not exceed $471,600. Under this scheme, legal aid is available to cases of personal injury and death and medical, dental and legal professional negligence, where the claim for damages is likely to exceed $60,000. The scheme also covers claims under the Employees' Compensation Ordinance irrespective of the amount of the claim.

The scheme is self-financing and is funded by legal aid contributions and damages or compensation recovered. In 2001, 220 applications were received and 159 of them were granted. Expenditure was $27 million and $128 million was recovered on behalf of the aided persons.

In criminal cases, legal aid is available for representation in proceedings in the Court of First Instance and the District Court, in committal proceedings in the Magistrates' Court, in appeals from the Magistrates' Courts, and in appeals to the Court of Appeal and the Court of Final Appeal.

The Director of Legal Aid has the discretion to grant legal aid in a criminal case even if the applicant's financial resources exceed the means test limit if he is satisfied that it is desirable in the interests of justice to do so. A judge may grant legal aid on his own initiative if the applicant satisfies the means test. Applicants in cases involving a charge of murder, treason or piracy with violence may apply to a judge for a grant of legal aid, with exemption from the means test or payment of legal aid contributions.

The merits test applies mainly in relation to applications for legal aid for appeal. However, it does not apply to an appeal involving a charge of murder, treason or piracy with violence.

There is no provision for appeal against the Director of Legal Aid's refusal to grant legal aid in criminal cases (except for appeals to the Court of Final Appeal) on grounds of means or merits. Appeals against refusal of legal aid for criminal appeals to the Court of Final Appeal are heard by a Review Committee appointed by the Registrar of the High Court.

During the year, 4 423 applications for criminal legal aid were received and 2 748 of them were granted. Total expenditure on criminal cases was $90 million.

The Duty Lawyer Service operates the Legal Advice Scheme, the Duty Lawyer Scheme and the Tel-Law Scheme. It is subvented by the Government but independently administered by the legal profession of Hong Kong. The Hong Kong Bar Association and the Law Society of Hong Kong each nominates four members to sit on the council of the service, which manages and administers its operations. Three lay members have also been invited to sit on the council.

The Legal Advice Scheme provides free advice to members of the public without means testing, at eight advice centres located in the District Offices. Members of the public can make appointments to see volunteer lawyers through one of the 113 referral agencies, which include all District Offices, Caritas Services Centres and the Social Welfare Department. 797 volunteer lawyers participate in the scheme. A total of 5 692 people were given legal advice during the year.

The Duty Lawyer Scheme provides legal representation to virtually all defendants who are charged in the magistracies. To be eligible for legal representation under the scheme, an applicant has to pass a means test: if his gross annual income does not exceed $127,330, he is eligible for assistance under the scheme. However, the Administrator of the Duty Lawyer Service has a discretion to grant legal representation to defendants whose gross annual income exceeds this limit, if she considers that it is in the interests of justice to do so. Applicants are also subject to a merits test. The prime consideration is whether the defendant is in jeopardy of losing his liberty or whether a substantial question of law is involved.

The scheme assigns barristers and solicitors to advise defendants facing extradition and to represent persons who are at risk of criminal prosecution as a result of giving incriminating evidence in Coroner's inquests. They are also assigned to represent suspects attending one-way viewer identification parades conducted by the police, and to represent hawkers at the hearing of their appeals to the Municipal Services Appeals Board.

More than 1 267 barristers and solicitors were on the duty lawyer roster and 43 313 defendants were represented under the Duty Lawyer Scheme in 2001.

The Tel-Law Scheme offers taped legal information to the public in Cantonese, Putonghua and English. The tapes cover various aspects of law including matrimonial, landlord and tenant, criminal, financial, employment, environmental and administrative law. They are constantly updated and new tapes are added when new subjects are identified as being of interest to the public. During the year, 73 topics were available and 62 300 calls were received.

The Legal Aid Services Council is an independent statutory body established to advise the Chief Executive of the HKSAR on legal aid policies. It also supervises the provision of legal aid services by the Legal Aid Department without interfering with its day-to-day operation. The council is chaired by a non-official who is not in the legal profession. Its members include lawyers, lay members and the Director of Legal Aid. During the year, it continued to conduct reviews and offer suggestions on various aspects of legal aid services provided by the Legal Aid Department.

The Director of Legal Aid has been appointed as the Official Solicitor under the Official Solicitor Ordinance since August 1, 1991.

The Official Solicitor's main duties are to act as guardian ad litem or next friend in legal proceedings for persons under disability of age or mental capacity, as representative of deceased persons' estates for the purpose of legal proceedings, as Official Trustee and Judicial Trustee, to act as committee of the estate of mentally incapacitated persons, to represent any party in care or protection proceedings and to act on behalf of a person committed to prison for contempt who is unable or unwilling to apply on his own behalf for release.

The Official Solicitor's case-load for 2000-2001 was 218, an increase of 13 per cent over the previous financial year.