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What is legal aid?
Legal
aid is to provide eligible applicants with the services of a solicitor
or, if necessary, a barrister in court proceedings. The aim is to
ensure that no one who has reasonable grounds for pursuing or defending
a legal action in the courts of Hong Kong is denied access to justice
because of a lack of means.
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How to qualify for legal aid?
According
to the Legal Aid Ordinance, any applicant, whether or not a Hong
Kong resident, who passes both the means test and the merits test
is eligible for legal aid.
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What is the "means test"?
The
purpose of the "means test" is to assess the financial
resources of the applicant. Under the Ordinary Legal Aid Scheme,
the upper financial eligibility limit is $165,700 whereas that under
the Supplementary Legal Aid Scheme is $460,300.
Financial
resources of an applicant are his or her monthly disposable income
multiplied by 12 plus his or her disposable capital.
Monthly
disposable income is calculated as the net monthly income after
allowable deductions have been made from gross income. The deductions
include rent, rates and the statutory allowances for the living
expenses of the applicant and his or her dependants.
Disposable
capital consists of all the assets of a capital nature, such as
cash, bank savings, jewellery, antiques, shares, stocks and property.
However, some assets are excluded from the calculation of an applicant's
capital, for example, the applicant's owner-occupied property, household
furniture and effects, personal clothing, tools and implements of
the applicant's trade.
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What is the "merits test"?
The
main purpose of the "merits test" is to determine whether
an applicant has a reasonable claim or defence or whether the grant
of legal aid to an applicant is justified. To this end, the applicant
must provide all the information relevant to his or her case.
In
the course of assessing the merits of an application, the Director
may obtain information from other sources, including the opposite
parties in the case. For example, it may be necessary for him to
obtain a transcript of the court proceedings or records of decisions
or medical records.
Based
on the facts put forward and the law relating to them, the Director
must be satisfied that the case or defence has a reasonable chance
of success. If the facts of the case or the legal issues involved
are complicated, he may seek the opinion of counsel or solicitors
in private practice before making a decision.
Apart
from the prospect of success, the Director must also be satisfied
that it is reasonable that the applicant should be granted legal
aid. For example, legal aid may be refused if judgment could not
be enforced because the opposite party is uninsured and has no valuable
assets or cannot be located, even if the applicant has a prospect
of success or if no reasonable person will pay out of his or her
pocket to retain a lawyer to deal with the case due to its nature
or the fact that only a trivial advantage would be gained from it.
There
are, however, cases where the benefits to be obtained cannot be
measured in purely monetary terms. When dealing with such cases,
apart from objectively and carefully assessing whether the likely
benefit will be sufficient to cover the costs that may be incurred
in the proceedings, the Director will also give due weight to the
importance of the case to the applicant in deciding whether to grant
legal aid.
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Is legal aid free?
Aided
persons whose financial resources are assessed as between $20,001
and $165,700 are required to make a contribution
on a sliding scale ranging from $1,000 to $41,425. Moreover, in
cases where property or damages are successfully recovered or preserved
for the aided persons in the proceedings, they are required to reimburse
the Department the costs incurred on their behalf out of the property
or damages recovered or preserved.
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Can an applicant whose application
for legal aid is refused lodge an appeal?
In
civil cases, an applicant who is aggrieved by the decision of the
Director of Legal Aid to refuse the grant of legal aid may appeal
to the Registrar of the High Court; or in Court of Final Appeal
cases, to a Committee of Review. The decision of the Registrar or
the Committee of Review is final.The said procedure is not applicable
to the application of legal aid for criminal cases unless the application
relates to an appeal to the Court of Final Appeal.If legal aid is
refused in cases involving charges of murder, treason or piracy
with violence, the applicant can apply to a judge for granting of
legal aid, and exemption from the means test and from payment of
contribution.For refusal on merits in all other cases, a judge can
grant legal aid to the applicant provided he passes the means test.
In case the applicant is not granted legal aid and cannot afford
to employ any private solicitor to represent him in legal proceedings,
he can seek help from the Free Legal Service Scheme provided by
the Hong Kong Bar Association.
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After the applicant is issued
the Legal Aid Certificate, will he be covered by legal aid until
the conclusion of his case?
Not necessarily. A Legal Aid Certificate normally states the scope
of legal aid services. If the scope of services stated is only limited
to certain procedures or proceedings, the Director must ensure that
the aided person still has reasonable grounds for instituting legal
proceedings or it is reasonable to continue the grant of legal aid
before he extends the scope of services up to the conclusion of
the case. Under the Legal Aid Ordinance, the Director can discharge
legal aid granted to the aided person in one or more of the following
situations:
-
the
financial circumstances of the aided person change to the extent
that his financial resources exceed the upper eligibility limit
-
the
aided person requires the proceedings to be conducted or continued
unreasonably
-
the
aided person fails to give his counsel or solicitor the assistance
necessary or desirable for the proper conduct of the case
-
there is no longer any merit in continuing the proceedings, or
it is unreasonable for the aided person to continue to receive
legal aid.
The
Director can also revoke the legal aid granted in one or more of
the following situations if the aided person:
-
fails
to make a full and true disclosure of his financial resources
-
fails
to provide information or attend an interview as required by
the Director
-
fails
to report change in financial circumstances
-
has
made a false statement or representation in furnishing information.
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What if legal aid is discharged
or revoked?
Upon
discharge of legal aid, the person receiving the legal aid shall
cease to enjoy the benefits and protection accorded to an aided
person. If contribution is payable, the aided person is still required
to pay the contribution or any balance which remains unpaid after
the discharge of the Legal Aid Certificate.
Upon
revocation of legal aid, the aided person receiving legal aid shall
be treated as never having received legal aid and shall be liable
for all costs incurred or payable by the Director on his behalf.
The
assignment of both of the solicitor and the counsel, who represent
the aided person to handle the case, will be terminated upon the
discharge or revocation of the Legal Aid Certificate.
Before
legal aid is discharged or revoked, the aided person will be given
an opportunity to make representation as to why the decision of
discharge or revocation shall not be made. The aided person whose
legal aid has been discharged or revoked and is aggrieved by the
Director's decision can appeal to the Registrar of the High Court.
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Can a legally aided person choose
his lawyer?
The
Director of Legal Aid maintains panels of counsel and solicitors
who are willing to undertake legal aid work. Except where the Director
has decided to assign the case in-house, the aided person can nominate,
or ask the Director to nominate for him, a lawyer on the Legal Aid
Panel to represent him. If the Director considers the lawyer selected
by the aided person to be unsuitable, he will discuss with the aided
person.
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How does the Legal Aid Department
monitor legal aid cases which are handled by assigned solicitors
or counsel?
The
Legal Aid Department has set clear guidelines for lawyers on the
Legal Aid Panels and requires assigned lawyers to report the progress
of and expenses incurred in the cases they handle periodically.
Furthermore, the Legal Aid Department has set up a Committee on
Monitoring Assignments to Counsel and Solicitors to formulate policy
and guidelines on assignment to private practitioners, oversee the
administration of the Legal Aid Panels and consider reports on unsatisfactory
conduct or performance of assigned lawyers and advise on appropriate
action to be taken including placing such lawyers' names on the
Record of Unsatisfactory Performance and Conduct or removing their
names from the Legal Aid Panels.
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Can a legally aided person lodge
a complaint if he is not satisfied with the performance of his assigned
lawyer? And how will the Legal Aid Department handle it?
If
an aided person is not satisfied with the performance of his assigned
lawyer, he may write to us and we will conduct an investigation
into the matter. He may also lodge a complaint concerning professional
conduct to the Law Society of Hong Kong or the Hong Kong Bar Association.
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What consequences will an applicant
face if he provides false information to the Legal Aid Department?
If
an applicant provides false information or conceals his asset when
he applies for legal aid, he is liable to prosecution and liable
to a maximum fine of $10,000 and 6 months' imprisonment upon conviction.
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Does the Director have the discretion
to exempt anyone from the means test or payment of contribution?
The
Director does not have the discretion to exempt anyone from the
means test or payment of contribution. But for applications involving
human rights related litigation, the Director may grant legal aid
to an applicant who has reasonable grounds for taking proceedings,
even if his/her financial resources exceed the upper limit for the
Ordinary Legal Aid Scheme. But under the Legal Aid Ordinance, the
applicant still has to pay contribution as assessed in accordance
with his financial resources by the Director.
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What is the Director's first
charge?
Please
refer to the answer to Question 15.
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What are the benefits and protection
for an aided person? Is the aided person required to pay any costs?
If
a litigant instructs a private lawyer to act for him, he is liable
to pay legal fees to the lawyer and any expenses incurred in the
proceedings. The private lawyer may require the litigant to pay
all or part of the costs and expenses as soon as he is retained.
If legal aid is granted to the litigant, the legal fees for the
assigned solicitor and the costs incurred in the proceedings will
be paid in advance or borne by the Director. If the expenses incurred
are paid by the assigned solicitor, the amount paid will be reimbursed
by the Director. If the aided person wins his case and is successful
in recovering damages or preserving property involved in the proceedings,
the Director has a right to recover all the costs and expenses incurred
and paid on behalf of the aided person and which cannot be recovered
from the losing party from such damages or property. The said right
is called the Director's first charge. In
addition, if legal aid is granted under the Supplementary Legal
Aid Scheme, the Director will deduct a further 6% or 10% of the
damages recovered as contribution and pay the amount into the Supplementary
Legal Aid Fund (please refer to the booklet "Contribution towards
Costs of Legal Aid Case and Director of Legal Aid's First Charge"
for details).
If
the aided person loses his case, he is not required to pay the costs
in excess of the contribution he is liable to pay.
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If an applicant is required
to pay a contribution after being assessed, is it a must for him
to pay the amount in order to receive legal aid?
Yes.
If the applicant applies for payment by instalment, the Director
will consider his application on a case by case basis.
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What are the types of cases covered by the Ordinary
Legal Aid Scheme?
The
major types of cases covered by the Ordinary Legal Aid Scheme are
:
- family
and matrimonial disputes
- personal
injury claims
- employment
disputes
- contractual
disputes
- immigration
matters
- professional
negligence claims
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What is the financial eligibility criteria for
the Scheme?
A
person is eligible for Ordinary Legal Aid Scheme if his financial
resources do not exceed $165,700.
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Can a person apply for civil legal aid on behalf
of another person?
A
person cannot apply for legal aid for another person unless the
application is made on behalf of an infant or mental patient by
a person who will act as his/her next friend or guardian ad litem
in the intended court proceedings.
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What is the financial eligibility for the Supplementary
Legal Aid Scheme?
The
Scheme provides legal representation to the "sandwich class"
whose financial resources are above the upper eligibility limit
for the Ordinary Legal Aid Scheme (i.e. $165,700) but do not exceed
$460,300.
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What are the cases covered by the Scheme?
Under
the 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 to $60,000.
It also covers claims under the Employees’ Compensation Ordinance
irrespective of the amount of the claim.
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Do I have to pay any contribution?
The
Scheme is a self-financing scheme funded by the application fee,
contribution and percentage deduction out of damages or compensation
recovered. Applicants must pay an initial application fee of $1,000,
plus an interim contribution of $41,425 upon acceptance of legal
aid.
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What happens if a case is successful?
If
a case is successful, the aided person has to pay to the Director
of Legal Aid out of the damages/compensation recovered all the expenses
and costs incurred in the case that are not recovered from the opposite
party. In addition, he will pay 10 per cent of the damages recovered
into the Supplementary Legal Aid Fund. If the case is settled before
counsel is briefed to attend trial, this percentage will be reduced
to 6%.
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Whether the Legal Aid Department handled criminal
proceedings heard in the Magistrates' Courts?
Legal
aid is not available in the Magistrates' Court for cases other
than committal proceedings. Those charged with an offence in the
Magistrates' Court could contact the liaison office of the
Duty Lawyer Service for assistance.
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What if legal aid is refused?
There
is no right of appeal against a refusal to grant legal aid on means
or merits, unless the application is for an appeal to the Court
of Final Appeal.
In
cases involving charges of murder, treason or piracy with violence,
even if the applicant cannot pass the means test he can apply to
a judge for granting of legal aid, and exemption from the means
test and from payment of contribution. For all other cases, a judge
can grant legal aid to the accused.
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How do I qualify for legal aid on means under
the Ordinary Legal Aid Scheme?
You
qualify for legal aid if your financial resources do not exceed
$165,700.
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How are the financial resources of an applicant
calculated?
The
financial resources of an applicant are the sum total of his annual
disposable income plus his or her disposable capital. Disposal income
is the monthly income minus certain allowable deductions, such as
rent or mortgage repayments in respect of the applicant’s
own dwelling, rates, income tax and a statutory personal allowances
for the living expenses of the applicant and his or her dependants.
Disposal
capital consists of all assets of a capital nature, such as cash,
bank savings, jewellery, antiques, stocks and shares and property.
Some assets are excluded from the calculation of an applicant’s
disposal capital, for example:
- the
property in which the applicant lives
- household
furniture and effects, clothing, and the tools and implements
of the applicant's trade
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Does my spouse's income count in calculating
the financial resources of the applicant?
In
calculating your financial resources, your spouse’s income
and assets will also be taken into account unless you are separated
from your spouse, or the spouse has a contrary interest in the dispute
in respect of which the application is made.
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How is the financial eligibility of an infant
applicant determined?
In
determining the financial eligibility of an infant applicant, only
the financial resources of the infant will be taken into account.
The financial resources of the adult applying on an infant’s
behalf will be disregarded.
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Will employees compensation received by a legal
aid applicant be regarded as his capital in the computation of his
means?
Where
a legal aid application relates to a claim for damages arising from
personal injuries to, or the death of, any person, the employees
compensation received by the person concerned arising out of the
same accident causing injuries or death will be disregarded in the
computation of his means.
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Are proceeds received pursuant to any life insurance
policies counted in the calculation of assets?
Yes.
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