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.

Eligibility

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

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 applicant may appeal to a Review Committee comprising the Registrar of the High Court, a barrister and a solicitor appointed by the Chairman of the Hong Kong Bar Association and the President of the Law Society of Hong Kong respectively. The decision of the Registrar or the Review Committee is final.

Legal Aid in Criminal Cases

Criminal legal aid applications are processed by the Crime Section.

Refusal of Criminal 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 2017, there were 14 refusals on means, all of which were also refused on merits. The Director exercised discretion and granted legal aid in 39 other cases even though the means of the applicants exceeded the financial eligibility limit. 16 applications were refused because the applicants concerned failed to supply the Director with the necessary information to conduct a means test.

For refusal in respect of an appeal to the Court of Final Appeal, the applicant 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 2017, no appeal was made to the Review Committee.

Legal Aid Electronic Services Portal

Civil legal aid applicants of the age of 18 and over and all criminal legal aid applicants can submit pre-application information online for non-urgent civil or 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 digital certificates 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 or the mobile phone version to access the means test calculator. In 2017, the means test calculator and its mobile version received 5200 and 7251 hits respectively.

Legal Aid Assignments and Monitoring

Assignments

When assigning legal aid cases, interest of the legally aided persons is the paramount consideration. Hence, legal aid work is not distributed to counsel or solicitors on the Legal Aid Panel equally. 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 2017

The Department 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 of the Department. It considers reports on the unsatisfactory performance/conduct of assigned lawyers.

In 2017, on the advice of the Committee, two counsel and four solicitors were removed from the Legal Aid Panel, three counsel and 23 solicitors were put on the Record of Unsatisfactory Performance/Conduct and advisory letters were issued to one counsel and one solicitor.

Since the assignment of legal aid cases is based on the experience of Panel lawyers in the past three years, the Department regularly updates Panel lawyers’ experience to maintain the integrity of the legal aid assignment system. Panel lawyers are reminded to submit Data Update Form before the expiry of the three-year period so that their personal particulars, experience and expertise can be updated regularly.

Mediation in Legal Aid Cases

Legal aid covers mediators' fees and related expenses incurred by legally aided persons undergoing mediation in the course of aided proceedings. In 2017, funding for mediation was approved in 974 assigned out cases, out of which 160 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 2017, Civil Litigation (1) of CLS took up 185 personal injuries cases including employees' compensation claims, traffic accident claims and negligence claims. Damages over $1 million were recovered for aided persons in seven cases. The total amount of damages recovered was about $55 million.

Legal costs recovered for the professional litigation work done by Civil Litigation (1) of CLS were about $7.2 million.

In 2017, the Family Unit of the Civil Litigation (2) of CLS took up a total of 907 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 inhouse.

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 2017, the Insolvency Unit took out 23 winding-up and three bankruptcy petitions. A total of 289 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, in-house lawyers in the Crime Section of the Litigation Division also represent legally aided persons at committal proceedings in the Magistrates’ 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. They also act as instructing solicitors in cases in the Court of First Instance, the Court of Appeal and the Court of Final Appeal.

In 2017, 83% of all criminal cases in the District Court in Hong Kong were legally aided, as were 98.4% of criminal cases in the Court of First Instance.

In 2017, the Crime Section handled 1 492 cases in-house:

Related Legal Support Services

Costing

The Department’s Costing Unit assesses all bills of costs submitted by assigned solicitors and opposite parties, prepares lists of objections and bills and attends taxation hearings.

Cases handled by the Costing Unit in 2016-2017

Enforcement

The Department's Enforcement Unit (EU) handles enforcement proceedings for the recovery of judgment debts and costs in legally aided cases. In 2017, a total of 237 cases were assigned to the EU. In 154 cases, enforcement proceedings were instituted. About 43% 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 2017:

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 installments.

The costs and damages recovery ratio for cases with enforcement actions handled by the Department and finalised in 2017 is as shown in the chart below: