Eligible applicants receive legal aid through the provision of the services of a solicitor and a barrister, if necessary, in court proceedings to ensure that a 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.

Legal Aid Department

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 Scheme for Civil Cases

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 claims for 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 disposable 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 where a breach of the Hong Kong Bill of Rights or an inconsistency with the International Covenant on Civil and Political Rights as applied to Hong Kong is an issue. 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. A legally aided person is required to pay a legal aid contribution depending on his financial resources. He is also required to reimburse the Director of Legal Aid for the costs incurred or any shortfall in the event that property is recovered or preserved on behalf of the aided person in 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, 25 567 applications for civil legal aid were received and legal aid was granted to 9 853 applicants. The Legal Aid Department's expenditure on civil cases was $374 million and $961 million was recovered for the aided persons.

Supplementary Legal Aid Scheme

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 in respect of claims arising from personal injury and death as well as cases based on 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 funded by legal aid contributions and damages or compensation recovered. In 2002, 162 applications for legal aid were received and legal aid was granted to 124 applicants. Expenditure was $23 million and $69 million was recovered on behalf of the aided persons.

Legal Aid in Criminal Cases

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 appeal cases 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, 4 673 applications for criminal legal aid were received and legal aid was granted to 2 891 applicants. Total expenditure on criminal cases was $102 million.

Duty Lawyer Service

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. The Hong Kong Bar Association and the Law Society of Hong Kong each nominate 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 nine advice centres located in the District Offices. Members of the public can make appointments to see volunteer lawyers through one of the 27 referral agencies (165 branches), which include all District Offices, Caritas Services Centres and the Social Welfare Department. In 2002, 840 volunteer lawyers participated in the scheme, and a total of 6 084 people were given legal advice.

    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 Court 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 1 320 barristers and solicitors were on the duty lawyer roster and 45 162 defendants were represented under the Duty Lawyer Scheme in 2002.

    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 updated regularly and new tapes are added when new subjects are identified as being of interest to the public. During the year, 73 topics were available on tape, and 51 058 calls were received.

Legal Aid Services Council

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 on legal aid issues and on the services provided by the Legal Aid Department.

    As from April 2002, the Legal Aid Services Council helps implement a new scheme to enable a legal aid applicant seeking an appeal to the Court of Final Appeal to obtain a counsel certificate to review refusal of legal aid by the Director of Legal Aid on merits grounds. In 2002, aid was granted in respect of 86 applications, comprising 79 criminal cases and seven civil cases, with a total financial commitment of $2,316,000.

The Official Solicitor

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 2001–02 was 226, an increase of 3.67 per cent over the previous financial year.