HONG KONG 2004 - The Legal System

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 $155,800. 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, 17 609 applications for legal aid were received, and legal aid was granted to 8 927 applicants. The Legal Aid Department's expenditure on civil cases was $330.7 million, and $730 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 $432,900. 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 contributions from aided persons and damages or compensation recovered. In 2004, 120 applications for legal aid were received and legal aid was granted to 85 applicants. Expenditure was $12 million, and $50 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' Courts, 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 it is in the interests of justice for legal aid to be granted. 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 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. An applicant who is refused legal aid on merits grounds may apply to a judge for legal aid to be granted to him, provided that he passes the means test. Applicants charged with or convicted of murder, treason or piracy with violence, may apply to a judge not only for legal aid for the trial and appeal, but also for exemption from the means test or payment of a contribution.

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 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.

During the year, 4 477 applications for criminal legal aid were received and legal aid was granted to 3 033 applicants. Total expenditure on criminal cases was $94.7 million.

The Duty Lawyer Service operates the Legal Advice Scheme, the Duty Lawyer Scheme, the Legal Representation Scheme for Children/Juveniles Involved in Care or Protection Proceedings 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 nine advice centres located in District Offices. Members of the public can make appointments to see volunteer lawyers through one of the 27 referral agencies (with over 160 branches), which include all District Offices, Caritas Services Centres and the Social Welfare Department. A total of 6 089 people were given legal advice during the year by 922 volunteer lawyers participating in the scheme.

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's gross annual income must not exceed $116,880. 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 it is considered to be 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 hawkers at the hearing of their appeals to the Municipal Services Appeals Board.

More than 1 400 barristers and solicitors were on the duty lawyer panel and 50 760 persons were represented under the Duty Lawyer Scheme in 2004.

With effect from October 2003, the Duty Lawyer Service was commissioned to launch the Legal Representation Scheme for Children/Juveniles Involved in Care or Protection Proceedings to cover care or protection proceedings in juvenile courts. Legal representation is now offered to children/juveniles in care or protection proceedings who are detained in a gazetted place of refuge under the Protection of Children and Juveniles Ordinance. In 2004, 487 children/juveniles were represented under this scheme (including 423 new cases and 64 cases carried forward from 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 40 210 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 includes 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 has also considered the Government's proposal to launch a pilot scheme on legal aid for mediation of legally aided matrimonial cases and discussed with the Government the operation of the Legal Aid Services Council Ordinance. The council has also considered commissioning a consultancy to study legal aid practice on cost control and monitoring progress in other common law jurisdictions.

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. The council has reviewed the operation of the scheme during the year.

In 2004, aid was granted in respect of 79 applications, comprising 75 criminal cases and four civil cases, with a total financial commitment of $2,040,000.

The council continued to implement its work plan covering the period 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 2003-04 was 291, an increase of 11 per cent over the previous financial year.