Chapter 2

Legal Aid Services

Legal aid business is conducted in the following service areas:

• Receiving and processing of legal aid applications;
• Assignments and monitoring of legal aid cases;
• Litigation services; and
• Related supporting legal services.

Application and Processing Services

In 2012, a total of 20 217 applications for legal aid were received and 10 692 legal aid certificates were issued:

Mr Thomas Edward Kwong Deputy Director of Legal Aid (Application and Processing)

Legal Aid in Civil Cases

Civil legal aid applications, apart from applications relating to wages claims which are processed by the Insolvency Unit of the Litigation Division, are handled by the Application and Processing Division.

Ordinary Legal Aid Scheme

The Ordinary Legal Aid Schemes (OLAS) covers many different types of civil cases which are closely related to the public's daily lives. Types of cases covered include family disputes, employees' compensation claims, personal injuries claims, immigration matters and other miscellaneous proceedings in the District Court, the Court of First Instance, the Court of Appeal and the Court of Final Appeal. It also covers applications to the Mental Health Review Tribunal and death inquests if the Director is of the opinion that the interests of public justice require legal aid be given.

With effect from 30 November 2012, OLAS has been expanded to cover monetary claims in derivatives of securities, currency futures or other futures contracts when fraud, misrepresentation or deception is involved in respect of the sale.

Supplementary Legal Aid Scheme

Applicants whose financial resources exceed the statutory limit of OLAS of $260,000 but is below $1.3m may apply under the Supplementary Legal Aid Scheme (SLAS). With effect from 30 November 2012, the scope of SLAS has been extensively expanded. In addition to cover claims involving personal injuries or death, medical, dental or legal professional negligence where the amount of the claim is likely to exceed $60,000 and employees' compensation claims irrespective of the amount of the claim, it also covers the following new types of cases where the claim is likely to exceed $60,000:

• professional negligence claims against certified public accountants (practising), registered architects, registered professional engineers, registered professional surveyors, registered professional planners, authorized land surveyors, registered landscape architects and estate agents;
• negligence claims against insurers or their intermediaries in respect of the taking out of the personal insurance products; and
• monetary claims against vendors in the sale of completed or uncompleted first-hand residential properties.

It also covers representation for employees in appeals against awards made by the Labour Tribunal irrespective of the amount in dispute.

In 2012, there were 201 SLAS applications and 143 legal aid certificates were issued under SLAS.

SLAS is self-financing and is funded by contributions paid by the applicants upon acceptance of legal aid and from percentage contributions out of monies recovered in the aided proceedings. The rates of contribution for existing personal injuries and employees' compensation claims and the newly added provision of legal representation to employees for appeals against awards made by the Labour Tribunal range from 6% to 10%. For the remaining types of proceedings covered under the expanded scope and the existing professional negligence claims, the contribution rates range from 10% to 20%.

An operational deficit of $0.7 million was recorded as compared with an operational surplus of $0.5 million in 2011. As at 30 September 2012, the Supplementary Legal Aid Fund had a balance of $86.9 million. For details, please refer to Appendix 1.

Distribution of Applications Received for Civil Legal Aid in 2011-2012

Distribution of Certificates Issued for Civil Legal Aid in 2011-2012

Mr Chris Chong Yan-tung Assistant Director of Legal Aid (Application and Processing)

To facilitate the public to apply for legal aid, the Application and Processing Division also provides an information and enquiry service through the Information and Application Services Unit. The Unit deals with enquiries from the public on matters such as the scope of legal aid, financial eligibility limits and application procedures. In 2012, the Unit received a total of 40 584 enquiries.

Eligibility

Successful applicants regardless of their nationality or residence and who pass both the means and merits tests will be granted legal aid. They are given the services of a solicitor and, if necessary, counsel to represent them in legal proceedings conducted in Hong Kong courts.

Take-up Rate for Civil Legal Aid in 2011-2012

Ms Juliana Chan Miu-kuen Assistant Principal Legal Aid Counsel / Application and Processing (1)

Refusal of Legal Aid

An applicant who is refused legal aid in civil matters on either means or merits may appeal to the Registrar of the High Court. In respect of the Court of Final Appeal cases, the applicants may appeal to a Review 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. The decision of the Registrar or the Review Committee is final.

Refusal Rate of Civil Legal Aid Applications in 2011-2012

Success Rate of Legal Aid Appeals in 2011-2012

*Note : The figures do not include appeals withdrawn.

Ms Mo Yuk-wah Assistant Principal Legal Aid Counsel / Application and Processing (2)

Outcome of Cases Closed in 2012

Mr Steve Wong Yiu-fai Assistant Principal Legal Aid Counsel (Kowloon Branch Office)

Legal Aid in Criminal Cases

Criminal legal aid applications are processed by the Crime Section.

Distribution of Applications Received for Criminal Legal Aid in 2011-2012

Applicants whose means exceed the statutory limit may be granted legal aid if the Director of Legal Aid is satisfied that it is desirable in the interests of justice to grant legal aid.

Distribution of Certificates Issued for Criminal Legal Aid in 2011-2012

Take-up Rate for Criminal Legal Aid in 2011-2012

Mr Allan Chan Wing-cho Deputy Director of Legal Aid (Litigation)

Refusal of Legal Aid

If an applicant is refused criminal legal aid on merits, he can apply to the judge who may grant legal aid on his own initiative provided the applicant is eligible on means.

In 2012, there were 26 refusals on means, 24 of which were also refused on merits. The Director exercised discretion and granted legal aid in 19 other cases even though the means of the applicants exceeded the limit. 14 applications were refused because the applicants concerned failed to supply the Director with the necessary information to conduct a means test.

Ms Sherman Cheung Suk-ying Assistant Director of Legal Aid (Litigation)

For refusal in respect of an appeal to the Court of Final Appeal, the appellant may appeal to a Review Committee chaired by the Registrar of the High Court and comprising a barrister and a solicitor appointed by the Chairman of the Hong Kong Bar Association and by the President of the Law Society of Hong Kong respectively. The decision of the Committee is final. In 2012, no appeal was made to the Review Committee.

Refusal Rate of Criminal Legal Aid Applications in 2011-2012

Miss Linda Ng Wing-ping Assistant Principal Legal Aid Counsel (Crime)

Legal Aid Electronic Services Portal

Person over the age of 18 can submit pre-application information online for non-urgent civil and criminal cases as a first step towards making an application for legal aid. To make use of this online submission procedure and to ensure confidentiality of information transmitted online, applicants must be holders of a digital certificate issued by the Hong Kong Post or Digi-Sign.

The Legal Aid Electronic Services Portal (LAESP) also has a means test calculator which allows members of the public to conduct a preliminary assessment of their eligibility on means if they apply for legal aid. Members of the public can visit the departmental website at www.lad.gov.hk and access the means test calculator. To further widen public access to the means test calculator, the Department also developed a mobile means test calculator in July 2011 enabling the public to access the calculator through mobile phone. In 2012, the means test calculator and the mobile version means calculator received 3 898 and 2 069 hits respectively.

Legal Aid Assignments and Monitoring

Assignments

Legal aid work is not distributed to counsel or solicitors on the Legal Aid Panel equally. Interest of the legally aided persons is the paramount consideration. Counsel or solicitors are selected having regard to their level of experience and expertise, the nature and complexity of the particular case, with reference to established guidelines and criteria, which include, amongst others, minimum experience requirements, past performance records and the limit on assignments of legal aid work.

Distribution of Civil and Criminal Assignments to Solicitors / Counsel in 2012

*Years of post-call experience

*Years of post-admission experience

The Department has set up the Departmental Committee on Monitoring Assignments to Counsel and Solicitors to ensure that cases are assigned in accordance with the established assignment criteria and guidelines. The Committee is chaired by the Director of Legal Aid and comprises directorate officers and a representative from the Independent Commission Against Corruption. It considers reports on the unsatisfactory performance/conduct of assigned lawyers.

In 2012, on the advice of the Committee, 4 solicitors were put on the Record of Unsatisfactory Performance/Conduct.

Mediation in legal aid cases

Legal aid covers mediators' fees and related expenses incurred by legally aided persons undergoing mediation in the course of the aided proceedings. In 2012, funding for mediation was approved in 754 assigned out cases, out of which 110 were matrimonial cases.

Litigation Services

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 2012, Civil Litigation (1) of CLS took up 218 personal injuries cases including employees' compensation claims, traffic accident claims and negligence claims. Over $1 million damages were recovered for aided persons in 4 cases. Over $6 millions were recovered in 1 other case. The total amount of damages recovered was about $36.7 millions.

Legal costs recovered for the professional litigation work done by our in-house officers were about $5.6 millions.

Ms Tse Sze-fong Assistant Principal Legal Aid Counsel (Civil Litigation 1)

Family Litigation

In 2012, the Family Unit of the Civil Litigation (2) of CLS took up a total of 1 117 family cases including divorce, maintenance, custody and property disputes. It also handled enforcement proceedings for the recovery of outstanding maintenance and costs in family cases litigated in-house.

Ms Doris Lui Wai-lan Assistant Principal Legal Aid Counsel (Civil Litigation 2)

Wages Claims

The Insolvency Unit of the Civil Litigation (2) of CLS assists employees referred by the Labour Relations Office of the Labour Department to recover arrears of wages and other employment-related benefits. It also handles the ensuing winding up or bankruptcy proceedings.

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, the Unit will refer the case to the Protection of Wages on Insolvency Fund Board for consideration of ex-gratia payments to the employees.

In 2012, the Insolvency Unit took out 64 winding-up petitions and 6 bankruptcy petitions. A total of 310 cases were referred to the Protection of Wages on Insolvency Fund Board for ex-gratia payments.

In-house Criminal Litigation

In addition to processing legal aid applications for criminal cases, the Crime Section of the Litigation Division also represents legally aided persons at committal proceedings in the Magistrate's Court, plea day hearing in the District Court, listing hearings in the Court of First Instance as well as bail applications at all levels of court. It also acts as instructing solicitors in cases in the Court of First Instance, the Court of Appeal and the Court of Final Appeal.

In 2012, 84.6% of all criminal cases in the District Court in Hong Kong were legally aided, as were 92.2% of criminal cases in the Court of First Instance.

In 2012, the Crime Section handled 1 913 cases in-house:

Mrs Christina Hadiwibawa Cheung Ying-man Assistant Principal Legal Aid Counsel (Legal and Management Support)

Related Legal Support Services

Costing

The Department's Costing Unit assesses all bills of costs submitted by assigned solicitors and attends taxation hearings.

Cases handled by the Costing Unit in 2011-2012

Enforcement

The Department's Enforcement Unit (EU) handles enforcement proceedings for the recovery of judgment debts and costs in legally aided cases. In 2012, a total of 421 cases were assigned to the EU. In 314 cases enforcement proceedings were instituted. About 55.4% of the proceedings were instituted within 1 month from the date the cases were assigned to the handling professional officers. The table below shows the length of time taken for enforcement proceedings to be commenced from the date of assignment:

Time taken for commencement of enforcement proceedings in 2012 (2011 figures in bracket)

Some of these cases were settled prior to the commencement of or during the enforcement proceedings when the judgment debtors undertook, through negotiation and production of supporting documents, to pay the outstanding amount by instalments.

The costs and damages recovery ratio for cases with enforcement action handled by the Department and finalised in 2012 is shown in the chart below: