|Chapter 2 Legal Aid Services|
Chapter 2 Legal Aid Services
Legal aid business is conducted in the following service areas:
Application and Processing Services
A total of 21 201 applications for legal aid were received and 11 713 legal aid certificates were issued in 2006:
Legal Aid in Civil Cases
Civil legal aid applications are processed by the Application and Processing Division. Applications relating to wages claims are processed by the Insolvency Unit of the Litigation Division.
The Application and Processing Division also provides an information and enquiry service through the Information and Application Service Unit. The Unit provides information and deals with enquiries from the public on matters such as the scope of legal aid, financial eligibility limits and the procedures for applying for legal aid. In 2006, the Unit handled a total of 44 276 enquiries.
Successful applicants are offered legal aid and upon acceptance of the offer, are given the services of a solicitor and, if necessary, counsel to represent them in legal proceedings in the Coroner's Court, the District Court, the Court of First Instance and the Court of Appeal of the High Court or the Court of Final Appeal.
Appeals Against Refusal
In civil cases, an applicant who is refused legal aid may appeal to the Registrar of the High Court or in respect of Court of Final Appeal cases, to a Committee comprising the Registrar of the High Court, a barrister and a solicitor appointed respectively by the Chairman of the Hong Kong Bar Association and the President of the Law Society of Hong Kong.
Legal Aid in Criminal Cases
Criminal legal aid applications are processed by the Crime Section. In 2006, a total of 3 779 applications were processed and a total of 2 357 legal aid certificates were issued.
Appeals Against Refusal
There is no provision for appeal against the Director's refusal to grant legal aid in criminal cases, except for appeals to the Court of Final Appeal (CFA). However, the Director of Legal Aid has a discretion to grant legal aid in criminal cases even though an applicant's financial resources exceed $158,300 if the Director is satisfied that it is desirable in the interests of justice to do so. A Judge may grant legal aid on his own initiative subject to the applicant's eligibility on means. Applicants in cases involving a charge of murder, treason or piracy with violence may apply to a Judge for the grant of legal aid, and for exemption of the means test and payment of contribution. In 2006, there were 40 refusals on means; and 1 216 refusals on merits (1 194 for appeal cases and 22 for other cases).
For refusal in respect of an appeal to the Court of Final Appeal, the appellant may appeal to a Committee of Review 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. In 2006, there were two appeals to the Committee of Review and a decision in both appeals was pending. There were six cases where the Judge granted legal aid notwithstanding the Director of Legal Aid's refusal.
Supplementary Legal Aid Scheme
This Scheme is self-financing and is funded by contributions paid by the applicants upon acceptance of legal aid from damages or compensation recovered in the aided proceedings. The rate of contribution for a successful aided person under the Scheme was reduced in 2006 from 12% to 10% if counsel is briefed to appear at the trial of the claim.
An applicant with financial resources exceeding $158,300 but below $439,800 may apply to pursue a claim involving personal injuries or death, medical, dental or legal professional negligence under the Supplementary Legal Aid Scheme where the amount of the claim is likely to exceed $60,000. Under this Scheme, legal aid is also available for claims under the Employees' Compensation Ordinance irrespective of the amount of the claim.
In 2006, a total of 137 applications were processed and 127 legal aid certificates were issued. An operational surplus of $7.5 million was recorded, which represented an increase of 436% as compared with $1.4 million in 2005. As at 30 September 2006, the net assets of the Supplementary Legal Aid Fund stood at $100.7 million. (For details, please refer to Appendix 1).
Legal Aid Assignments and Monitoring
Having regard to the interests of the aided persons and the types and complexity of the cases in question, the Department selects suitable solicitors or counsel on the Legal Aid Panels for legal aid work in accordance with established guidelines and criteria, which include, amongst others, minimum experience requirements, past performance records and the limit on assignments of legal aid work.
The Departmental Committee on Monitoring Assignments to Counsel and Solicitors, which is chaired by the Director and comprises relevant directorate officers and a representative of the Independent Commission Against Corruption, ensures that cases are assigned in accordance with the established assignment criteria and guidelines. It also considers reports on the unsatisfactory performance/conduct of assigned lawyers. In 2006, on the advice of the Committee, the names of one counsel and six solicitors were removed from the Legal Aid Panels, one solicitor was included on the Record of Unsatisfactory Performance/Conduct and a warning letter was issued to one solicitor.
In-house Civil Litigation
The Civil Litigation Section (CLS) of the Litigation Division undertakes civil litigation for aided persons whose cases have been assigned in-house.
Personal Injury Litigation
In 2006, CLS took up 230 assignments. The total amount of damages recovered by the Section for aided persons was about $136 million, while profit costs recovered was in the region of $19 million. There were six cases where damages exceeding $5 million were recovered and one case with damages exceeding $10 million.
CLS took up a total of 1 209 assignments during the year.
The Insolvency Unit of CLS assists employees referred by the Labour Relations Office of the Labour Department in the recovery of arrears of wages and other employment entitlements.
The Unit processes applications for legal aid from the employees and handles the ensuing litigation.
Legal aid is granted when court proceedings (winding-up or bankruptcy petitions) are to be instituted. Where there is sufficient evidence to support the presentation of a petition for winding-up or bankruptcy but it is uneconomical or unreasonable in the particular circumstances to institute court proceedings, CLS will refer the case to the Protection of Wages on Insolvency Fund Board for consideration of ex-gratia payments to the employees.
In 2006, 237 winding-up and 88 bankruptcy petitions were presented and 654 cases were referred to the Protection of Wages on Insolvency Fund Board.
In-house Criminal Litigation
The Crime Section of the Litigation Division represents aided persons at committal proceedings in the Magistrate's Court, at bail applications and plea days in the District Court, and at bail applications and listing applications in the Court of First Instance. It also acts as instructing solicitors in the Court of First Instance, the Court of Appeal and the Court of Final Appeal.
Other than granting legal aid for criminal trials, the Section also grants aid to defendants for plea, mitigation and sentence.
In 2006, some 85% of all criminal cases in the District Court in Hong Kong were legally aided, as were some 89% of criminal cases in the Court of First Instance.
In 2006, the Section handled 1 853 cases in-house:
Related Legal Support Services
The Department's Costing Unit assesses all bills of costs submitted by assigned solicitors and attends legal aid taxation.
The Department's Enforcement Unit conducts enforcement proceedings for the recovery of judgment debts and costs in legally aided cases. In 2006, the Unit was assigned 821 cases (649 in 2005) and took out 549 enforcement actions.
Of the enforcement actions taken, majority of them were instituted within one month from the time the cases were assigned to the professional officers for handling. The table below shows the actual length of time taken for the proceedings to be commenced from date of assignment:
The costs and damages recovery ratio for cases with enforcement action handled by the Department and finalised in 2006 is as shown in the chart below: