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Eligible applicants receive legal aid through the provision of the services
of a solicitor and, if necessary, a barrister 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.
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.
The Ordinary Legal Aid Scheme is available for representation in civil
proceedings in the Court of Final Appeal, Court of Appeal, Court of First
Instance and District Court covering proceedings relating to major areas
of the livelihood of the community at large, including family and matrimonial
disputes, personal injury claims, employment disputes, tenancy disputes,
contractual disputes, immigration matters and professional negligence
claims.
An applicant must pass the 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 Ordinance 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 contribution
depending on his financial resources and in the event that property is
recovered or preserved on his behalf in the proceedings.
An applicant who is refused civil legal aid may appeal
to the Registrar of the High Court, or in Court of Final Appeal cases,
to a Review Committee. The decision of the Registrar or the Review Committee
is final.
During the year, 21 643 applications for legal aid
were received, and legal aid was granted to 10 694 applicants. The Legal
Aid Department's expenditure on civil cases was $343 million and $769
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 for cases
involving personal injury or death as well as medical, dental or 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 2003, 106 applications for legal
aid were received and legal aid was granted to 79 applicants. Expenditure
was $23 million and $61 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.
Legal aid is granted to applicants who pass the means
test and if the Director of Legal Aid is satisfied that legal aid is desirable
in the interests of justice.
The Director of Legal Aid has the discretion to grant
legal aid in a criminal case even where the applicant's financial resources
exceed the financial eligibility limit if he is satisfied that it is desirable
in the interests of justice to do so, subject to payment of a contribution.
There is no provision for appeal against the Director
of Legal Aid's refusal to grant legal aid in criminal cases on grounds
of means or merits (except for appeals to the Court of Final Appeal).
Appeals against refusal of legal aid for appeals to the Court of Final
Appeal are heard by a Review Committee chaired by the Registrar of the
High Court and comprising of a barrister appointed by the Chairman of
the Hong Kong Bar Association and a solicitor appointed by the President
of the Law Society of Hong Kong.
An applicant may apply to a judge for legal aid to
be granted to him provided he satisfies the means test. However, applicants
charged with or convicted of murder, treason or piracy with violence may
apply to a judge for legal aid for the trial or appeal and for exemption
from the means test or payment of a contribution.
During the year, 4 411 applications for criminal legal
aid were received and legal aid was granted to 2 803 applicants. Total
expenditure on criminal cases was $89 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 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 (with over 100 branches),
which include all District Offices, Caritas Services Centres and the Social
Welfare Department; 940 volunteer lawyers participate in the scheme. A
total of 6 036 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
Coroners' inquests. They are also assigned to represent hawkers at the
hearing of their appeals to the Municipal Services Appeals Board. With
effect from October 1, the Duty Lawyer Scheme was expanded to cover Care
or Protection Proceedings in the Juvenile Court. Legal representation
is offered to those children/juveniles in Care or Protection Proceedings
who are detained in a gazetted place of refuge and whose parents/guardians
have consented to such representation.
More than 1 384 barristers and solicitors
were on the duty lawyer roster and 50 172 persons were assisted
under the Duty Lawyer Scheme in 2003.
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, 78 topics were available and 44 145 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. Chaired by a non-official
who is not in the legal profession, the council's members include lawyers,
lay members and the Director of Legal Aid. During the year, it continued
to conduct reviews of legal aid issues and of the services provided by
the Legal Aid Department. The council discussed with the Government the
annual and biennial review of financial eligibility limits of legal aid
applicants, the five-yearly review of the criteria for assessing financial
eligibility of legal aid applicants, and the operation of the Legal Aid
Services Council Ordinance.
The Legal Aid Services Council also operates a scheme
under which a legal aid applicant seeking to appeal to the Court of Final
Appeal may apply for a counsel's certificate for a review of the Director
of Legal Aid's refusal to grant legal aid on merits grounds.
In 2003, aid was granted in respect of 94 applications,
comprising 86 criminal cases and eight civil cases, with a total financial
commitment of $2,544,000.
The council has drawn up its work plan covering the
period from 2003 to 2008.
The Director of Legal Aid was appointed the Official Solicitor under
the Official Solicitor Ordinance which took effect on 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 2002-03 was
262, an increase of 16 per cent over the previous financial year. |
