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.
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.
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 $420,400 whereas that under the Supplementary Legal Aid Scheme is $2,102,000.
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. $420,400, will not be counted as his or her capital.
You can compute your financial resources by clicking here.
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:-
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 $52,550.01 and $420,400.00 are required to make a contribution on a sliding scale ranging from $1,051 to $105,100. 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.
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”.
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.
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 Director can also revoke the legal aid granted in one or more of the following situations if the aided person:
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.
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.
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:-
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.
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.
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.
Please refer to the answer to Question 16.
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.
Yes. If you apply for payment by installments, the Director will consider your application on a case by case basis.
The major types of cases covered by the Ordinary Legal Aid Scheme are :
With effect from 30 November 2012, the Ordinary Legal Aid Scheme 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.
A person is eligible for Ordinary Legal Aid Scheme if his financial resources do not exceed $420,400.
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.
The Scheme provides legal representation to the "sandwich class" whose financial resources are above the eligibility limit for the Ordinary Legal Aid Scheme (i.e. $420,400) but do not exceed $2,102,000.
Under the Scheme, legal aid is available to claims involving the following types of cases where the claim is likely to exceed $75,000:
This scheme also covers claims brought by employees under Employees’ Compensation Ordinance and representation for employees in appeals against awards made by the Labour Tribunal, irrespective of the amount in dispute.
With effect from 1 April 2020, the Supplementary Legal Aid Scheme has been expanded to cover the following new types of cases where the claim is likely to exceed $75,000:
The Scheme is a self-financing scheme funded by the application fee, contribution and percentage deduction out of damages or compensation recovered.
For (i) claims arising from personal injuries or death; (ii) employees’ compensation claims; and (iii) representation for employees in appeals against awards made by the Labour Tribunal (Type I Proceedings), you are required to pay an initial application fee of $1,000 and an interim contribution of $105,100 upon acceptance of legal aid.
For the following types of cases (Type II Proceedings), you are required to pay an initial application fee of $5,000 and an interim contribution of 10% of your assessed financial resources or $105,100, whichever is the higher, upon acceptance of legal aid :
|(i)||medical, dental and legal professional negligence claims;|
|(ii)||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;|
|(iii)||negligence claims against insurers or their intermediaries in respect of the taking out of personal insurance products;|
|(iv)||monetary claims against vendors in the sale of completed or uncompleted first-hand residential properties;|
|(v)||professional negligence claims against financial intermediaries licensed or registered for Type 1 (dealing in securities), Type 2 (dealing in futures contracts) or Type 8 (securities margin financing) regulated activities within the meaning of the Securities and Futures Ordinance (Cap.571); and|
|(vi)||monetary claims in respect of derivatives of securities, currency futures or other futures contracts on the basis that the person was induced to deal in those derivatives, futures or contracts by fraud, deception or misrepresentation.|
If your case is successful, you have 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, depending on the type of cases where legal aid has been granted and whether the case has been settled before the date of commencement of the trial/counsel is briefed to attend trial, the Director will deduct certain percentage of the damages recovered and pay into the Supplementary Legal Aid Fund.
Type I Proceedings
For (i) claims arising from personal injuries or death; and (ii) employees’ compensation claims
If the proceedings are successful, you will pay 10% of the damages recovered into the Supplementary Legal Aid Fund. If your case is settled before the date of commencement of the trial/counsel is briefed to attend trial, this percentage will be reduced to 6%.
For (iii) representation for employees in appeals against awards made by the Labour Tribunal
If the proceedings are successful, you will pay 10% of the damages recovered into the Supplementary Legal Aid Fund. If your case is settled before the date of commencement of the appeal hearing in the Court of First Instance /counsel is briefed to attend the hearing, this percentage will be reduced to 6%.
Type II Proceedings
If the proceedings are successful, you will pay 20% of the damages recovered into the Supplementary Legal Aid Fund. If your case is settled before the date of commencement of the trial/counsel is briefed to attend trial, this percentage will be reduced to 15%.
Legal aid is not available in the Magistrates' Courts for cases other than committal proceedings. Those charged with an offence in the Magistrates' Courts could contact the liaison office of the Duty Lawyer Service for assistance.
If legal aid is refused on merits, the judge hearing the case/appeal may grant legal aid provided the applicant is eligible on means. If the case/appeal involves murder, treason or piracy with violence, the judge hearing the case/appeal may grant legal aid and exempt the applicant from the means test and payment of contribution. If the application is for legal aid to appeal to the Court of Final Appeal and is refused, the applicant may apply to a Review Committee made up of the Registrar of the High Court and a representative each of the Bar Association and the Law Society of Hong Kong. The decision of the Review Committee is final.
You qualify for legal aid if your financial resources do not exceed $420,400.
Your financial resources are the sum total of your annual disposable income plus your disposable capital. Disposable income is the monthly income minus certain allowable deductions, such as rent or mortgage repayments in respect of your own dwelling, rates, income tax and a statutory personal allowances for your living expenses and those of your dependants.
Disposable 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 your disposable capital, for example:
You can compute your financial resources by clicking here.
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.
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.
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 means.