Legal aid provides 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.
How do I 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.
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 financial eligibility limit is $302,000 whereas that under the Supplementary Legal Aid Scheme is $1,509,980.
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 items such as rent, rates and a statutory allowance for the living expenses of the applicant and that of his or her dependants.
Disposable capital consists of all the assets of a capital nature, such as cash, bank savings, jewellery, antiques, stocks, shares 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. If an applicant has reached the age of 60, an amount of capital equal to the financial eligibility limit of the Ordinary Legal Aid Scheme, i.e. $302,000, will not be counted as his or her capital.
You can compute your financial resources by clicking here
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 information and the relating law, 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. Even if the applicant has a prospect of success, the Director may refuse legal aid in cases where he would be unable to enforce a judgment. Examples include:-
- The opposite party is uninsured and has no valuable assets;
- The opposite party cannot be located; and
- No reasonable person would pay out of his/her own 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.
Aided persons whose financial resources are assessed as between $37,750.01 and $302,000.00 are required to make a contribution on a sliding scale ranging from $755 to $75,500. 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.
If I have a legal problem, can I seek legal advice from the Legal Aid Department?
The Legal Aid Department does not provide legal advice service to members of the public. If you need advice on a legal problem, you can consider consulting a solicitor in the private sector or seeking assistance from the Free Legal Advice Scheme provided by the Duty Lawyer Service. For more information on how to seek legal advice in Hong Kong, you may view our publication on “How to apply - Legal Services
If my application for legal aid is refused, can I lodge an appeal?
For civil cases, if you are aggrieved by the decision of the Director of Legal Aid to refuse the grant of legal aid, you 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. This procedure does not apply to the application of legal aid for criminal cases unless the application relates to an appeal to the Court of Final Appeal. For criminal cases, if legal aid is refused in cases involving charges of murder, treason or piracy with violence, you 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 may on his own initiative grant you legal aid provided you pass the means test. In case you are not granted legal aid and cannot afford to employ any private solicitor to represent you in legal proceedings, you can seek help from the Free Legal Service Scheme provided by the Hong Kong Bar Association.
After I have been issued the Legal Aid Certificate, will I be covered by legal aid until the conclusion of my 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 you still have 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 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.
What happens if legal aid is discharged or revoked?
If your legal aid is discharged, you will immediately cease to enjoy the benefits and protection accorded to an aided person. If contribution is payable, you are still required to pay the contribution or any balance which remains unpaid after the discharge of the Legal Aid Certificate.
If your legal aid is revoked, you will be treated as never having received legal aid and will be liable for all costs incurred or payable by the Director on your behalf.
The assignment of both of the solicitor and the counsel, who represent you to handle the case, will be terminated upon the discharge or revocation of the Legal Aid Certificate.
Before legal aid is discharged or revoked, you will be given an opportunity to make representation as to why the decision of discharge or revocation shall not be made. If your legal aid has been discharged or revoked and you are aggrieved by the Director's decision, you can appeal to the Registrar of the High Court.
As a legally aided person, can I choose my lawyer?
The Director of Legal Aid maintains panels of counsel and solicitors who are willing to undertake legal aid work. If the Director does not take up the case and act for you, you can nominate a lawyer on the Legal Aid Panel to represent you. If your choice is considered not suitable, the Director will discuss the matter with you. Or if you prefer, the Director can select a solicitor or barrister on your behalf.
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 Panel 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 Departmental 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 Panel;
- consider reports on unsatisfactory conduct or performance of assigned lawyers; and
- take appropriate action in cases of unsatisfactory conduct or performance of assigned lawyers, including placing such lawyers' names on the Record of Unsatisfactory Performance and Conduct or removing their names from the Legal Aid Panel.
As a legally aided person, can I lodge a complaint if I am not satisfied with the performance of my assigned lawyer? And how will the Legal Aid Department handle it?
If you are not satisfied with the performance of your assigned lawyer, you may write to us and we will conduct an investigation into the matter. You may also lodge a complaint concerning professional conduct to the Law Society of Hong Kong or the Hong Kong Bar Association.
What consequences will I face if I provide false information to the Legal Aid Department?
If you provide false information or conceal your assets when you apply for legal aid, you are liable to prosecution and liable to a maximum fine of $10,000 and 6 months' imprisonment upon conviction.
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 the applicant’s contribution. However, 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 the applicant's financial resources exceed the limit for the Ordinary Legal Aid Scheme. Nevertheless, under the Legal Aid Ordinance, the applicant still has to pay contribution as assessed by the Director in accordance with the applicant’s financial resources.
What is the Director's first charge?
Please refer to the answer to Question 16.
As an aided person, what are the benefits and protection? Am I required to pay any costs?
If you instruct a private lawyer to act for you, you are liable to pay legal fees to the lawyer and any expenses incurred in the proceedings. The private lawyer may require you to pay all or part of the costs and expenses as soon as he is retained. If you are granted legal aid, 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 you win your case and are 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 your behalf 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, depending on the type of cases where legal aid is granted, the Director will deduct a further 6%/10%/15%/20% of the damages recovered as contribution and pay the amount into the Supplementary Legal Aid Fund. (For more information of your liability for costs and the Director’s First Charge, you may refer to our booklet "Contribution towards Costs of Legal Aid Case and Director of Legal Aid's First Charge
", or view our video “Liability for Costs and How Monies Recovered are Released
If you lose your case, you are not required to pay the costs in excess of the contribution you are liable to pay.
If I am required to pay a contribution after being assessed, do I have to pay the amount in order to receive legal aid?
Yes. If you apply for payment by installments, the Director will consider your application on a case by case basis.