Guide to Legal Aid Services in Hong Kong

Transcription

1 Guide to Legal Aid Services in Hong Kong

2 Readers are requested to refer to the Financial Information Sheet for details relating to financial eligibility limits for legal aid, scale of contribution and the Director of Legal Aid s first charge.

3 Legal Aid Department VISION To be a cornerstone of the rule of law in Hong Kong by delivering quality legal aid services. MISSION We are committed: To ensure that no one who qualifies for legal aid is denied access to justice because of lack of means. To maintain the highest standards of professional excellence and ethics. To develop and maintain a highly-motivated, dynamic, welltrained and committed workforce. To work in partnership with the legal profession to reach our vision. To anticipate and meet the ever-changing needs of society. VALUES Independence Commitment Efficiency and effectiveness Professionalism Teamwork Caring and responsive 1

4 Contents WHAT IS LEGAL AID? Chapter Legal Aid How to Qualify? Funding The Two Different Legal Aid Schemes Choice of Lawyer Is Legal Aid Free? CIVIL LEGAL AID Chapter Ordinary Legal Aid Scheme Scope Matters not Covered? Contribution Director s First Charge Registration and Interest What Happens if a Case is Unsuccessful? Supplementary Legal Aid Scheme Scope Contribution Chapter The Means Test Disposable Income Disposable Capital Does Spouse s Income Count? Application on behalf of an Infant or Another Person Means Test Calculator 2

5 Chapter The Merits Test Chapter Discharge, Revocation and Legal Aid Appeal Discharge Revocation Appeal CRIMINAL LEGAL AID Chapter Ordinary Legal Aid Scheme Means Test Means Test Calculator Merits Test Contribution What if Legal Aid is Refused? WHERE TO APPLY Chapter Applications for Civil Legal Aid Applications for Criminal Legal Aid Enquiries Useful Contacts Statutory Provision 3

6 WHAT IS LEGAL AID? Chapter LEGAL AID L egal aid is a means by Coroner's Court (in cases where the which eligible applicants Director of Legal Aid (the Director) is of can obtain the services of a the opinion that the interests of public solicitor and, if necessary, a justice require that legal aid be given) barrister to represent them in proceedings before the How to Qualify? courts in Hong Kong. To qualify for civil legal aid, applicants must pass a means test and a merits Legal aid is available for test (see Chapters 3 and 4), regardless proceedings in: of whether or not they are a Hong Kong the District Court the Court of First Instance resident. and the Court of Appeal For criminal legal aid, please refer to (both part of the High Chapter 6. Court) the Court of Final Appeal the Magistrate's Court Funding The Legal Aid Department (the (committal proceedings Department) obtains its funding from the only) Government of the Hong Kong Special Mental Tribunal 4 Health Review Administrative Region through the annual allocation exercise.

7 The Two Different Legal persons in civil cases can nominate lawyers Aid Schemes on the Legal Aid Panel to represent them. If There are two different legal the Director considers the lawyer selected by aid schemes: the aided persons to be unsuitable, he will O r d i n a r y Legal Aid discuss the choice with the aided persons. Scheme for both civil and Where cases are assigned out, the Department criminal cases Supplementary Legal Aid Scheme for certain types will monitor the progress, continued merits and costs of the aided proceedings. of civil cases Is Legal Aid Free? Choice of Lawyer Not necessarily. A person receiving legal Proceedings for which legal aid may be required to contribute towards aid is granted will be handled the costs and expenses incurred by the either by the Department's Department out of his financial resources in-house lawyers or by and/or in civil legal aid cases out of the assigned solicitors and money or property recovered or preserved on counsel in private practice. his behalf, as the case may be, except where: The Director maintains the panels of counsel and solicitors who are willing to financial resources of the aided person are below a certain amount; and no money or property were recovered undertake legal aid work. or preserved in the civil proceedings for Except where the case is which legal aid is granted (please refer to assigned in-house, aided Chapter 2). 5

8 CIVIL LEGAL AID Chapter Ordinary Legal Aid Scheme To qualify for civil legal aid under the Ordinary Legal Aid Scheme, in addition to passing the merits employment disputes contractual disputes immigration matters professional negligence claims test, applicants' financial resources must not exceed Matters not Covered? the financial eligibility limit. Legal aid is not available for certain The Director may waive proceedings, for example: the limit in meritorious defamation cases involving a possible (other than defending a counter-claim alleging defamation) breach of the Hong Kong Claims Bill of Rights Ordinance or Tribunal brought in the Small Claims International Covenant on Claims brought in the Labour Tribunal m o n e y c l a i m s i n d e r i v a t i v e s o f Civil and Political Rights securities, currency futures or other ( BOR cases ). futures contracts save and except when an inconsistency with the fraud, misrepresentation or deception is Scope involved in respect of the sale The major types of cases Election petitions except involving a covered by the Ordinary possible breach of the Hong Kong Bill Legal Aid Scheme are: of Rights Ordinance or an inconsistency family and matrimonial disputes personal injury claims 6 with the International Covenant on Civil and Political Rights as applied to Hong Kong

9 Contribution the opposite party), the Director has a right Applicants are required to recover the costs and expenses incurred to pay a contribution or any shortfall from property recovered or calculated in accordance preserved in the proceedings. This right is with their financial known as the Director's first charge. resources. A different scale of contribution at higher Property recovered or preserved in the rates applies to BOR cases proceedings includes land or interest in where the applicants' land such as the matrimonial home in a financial resources exceed divorce case as well as pecuniary awards the financial eligibility limit. such as a lump sum maintenance payment for a spouse or for children, employees' Director's First Charge compensation, damages in personal injury Where no contribution is cases, wages arrears and severance payable or the contribution payment. All monthly maintenance for paid does not cover the children and maintenance for the spouse costs and expenses not exceeding a certain amount each incurred by the Department month are exempted from the Director's (including legal costs which first charge. cannot be recovered from 7

10 Registration and Interest The Director has the discretion to waive If the property recovered or reduce the interest if he considers that or preserved is the home charging it would cause serious hardship of the aided person or his to the aided person, or if he considers that dependants, the Director it is just and equitable to do so. An aided may defer enforcing the first person may apply in writing to the Director charge (i.e. delay selling the to have the interest waived or reduced at property to pay for the costs the time of satisfaction of the charge and and expenses incurred by should give reasons in support. the Department). Instead, he may register the charge What Happens if a Case is Unsuccessful? against the property in the If the case is unsuccessful, any Land Registry. contribution paid by the aided person will be used to offset the costs and If enforcement of the charge expenses incurred by the Department. If is deferred, the aided person the contribution has been partially paid is further liable to pay simple and the amount paid is less than the costs interest at a prescribed and expenses incurred, the aided person rate on the amount of the will be asked to pay an amount up to the charge plus costs and full amount of the contribution payable to disbursements incurred by cover the difference. If the contribution the Director in connection paid is more than the costs and expenses with the registration of the incurred, the aided person will receive a charge in the Land Registry. refund of the difference. 8

11 CIVIL LEGAL AID For further details of financial resources are below a certain contribution and the Director's amount. first charge, please ask for a copy of the booklet Scope "Contribution towards Costs of Under this scheme legal aid is available for Legal Aid Case and Director of the following types of cases where the claim Legal Aid's First Charge". is likely to exceed $60,000: Personal injury claims; Medical and dental negligence claims; Professional negligence claims against lawyers, certified public accountants (practising), registered architects, registered professional engineers, registered professional surveyors, Supplementary Legal aid Scheme registered professional planners, authorized land surveyors, registered landscape architects and estate agents; This scheme provides legal Negligence claims against insurers or their representation to people in intermediaries in respect of the taking out certain civil proceedings who of personal insurance products; and are financially not eligible for Monetary claims against vendors in the legal aid under the Ordinary sale of completed or uncompleted first- Legal Aid Scheme but whose hand residential properties. 9

12 The scheme also covers more than six monthly instalments. claims under the Employees Compensation Ordinance If the proceedings are successful, the aided and representation for person pays a percentage of the damages employees in appeal against recovered into the Supplementary Legal Aid awards made by the Labour Fund (the Fund). If the case is settled before Tribunal irrespective of the the date of commencement of the trial / amount in dispute. counsel is briefed to attend trial, the amount to be paid to the Fund will be reduced. In Contribution addition, all costs and expenses incurred The Supplementary Legal by the Fund (including costs which cannot Aid Scheme is a self- be recovered from the opposite party) will financing scheme funded by be deducted from the damages recovered. contribution and damages However, the total sum deducted will be or compensation recovered. reduced by the application fee and the Applicants must pay an initial interim contribution already paid. application fee plus an interim contribution upon acceptance If the proceedings are not successful, the of legal aid. The Director application fee and the interim contribution may allow, in appropriate will not be refunded. However, if the amount circumstances, payment of of interim contribution paid is more than the the interim contribution, by not actual amount of the costs and expenses incurred, the difference will be refunded. 10

13 CIVIL LEGAL AID Chapter The Means Test T he means test evaluates monthly income after allowable deductions whether an applicant's have been made from gross income. The financial resources exceed the deductions include items such as rent, rates, financial eligibility limit allowed care allowance for dependants who are for ordinary legal aid or for unable to care for themselves, maintenance supplementary legal aid. payment and statutory personal allowances for the living expenses of the applicant and Legal aid can be refused if the his or her dependants. applicant s financial resources exceed the appropriate Disposable Capital limit or if the applicant has Disposable capital consists of all assets disposed of any assets or of a capital nature, such as cash, bank failed to maximise his or her savings, jewellery, antiques, stocks earning potential to make the and shares and property. Some assets applicant eligible for legal aid. are excluded from the calculation of an applicant's capital, for example: Financial resources are taken as an applicant's the applicant s only or main self- occupied property monthly disposable income household furniture and effects, clothing, multiplied by 12, plus his or and the tools and implements of the her disposable capital. applicant's trade for applicants who have reached the Disposable Income age of 60, an amount of capital equal Monthly disposable income to the financial eligibility limit of the is calculated as the net Ordinary Legal Aid Scheme 11

14 Does Spouse s Income Application on behalf of an Infant or Count? Another Person In calculating an applicant's If the person applying on behalf of an infant or financial resources, a another person is concerned in the proceedings spouse's income and only in a representative or fiduciary capacity, assets will also be taken the financial resources of that person will be into account except when: disregarded, and only the financial resources of the infant or the other person on whose the applicant is separated behalf the application is made will be taken into from his or her spouse account. An infant is defined in the Legal Aid t h e spouse has an opposing interest in the Ordinance as an unmarried person who has not attained the age of 18. dispute for which the legal aid application is being Means Test Calculator made Prospective applicants can make use of the Means Test Calculator to find out if they are likely to be eligible for legal aid by visiting the Department s website at via computer or mobile phone. For further details on computation of financial resources, please ask for a copy of the leaflet "How Your Financial Resources and Contribution are Calculated". 12

15 CIVIL LEGAL AID Chapter The Merits Test T he merits test enables Based on the facts put forward and the the Director to determine law relating to them, the Director must be whether an applicant has satisfied that the case or defence has a a reasonable claim or reasonable chance of success. In some defence. In order for him to cases, notably those seeking public law do this, the applicant has to remedies or judicial review, he may seek provide all the information the opinion of counsel or solicitors in relevant to his or her case. private practice before making a decision. 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, he may need transcripts of court proceedings, records of decisions or medical reports. 13

16 For applications which Apart from the prospect of success, the involve challenging the Director must also be satisfied that it decision of a public body is reasonable that the applicant should by way of judicial review, be granted legal aid. Accordingly, the the Director will generally Director will take into account all factors grant legal aid if the court which would influence a private client has already given leave for considering taking proceedings. Therefore the judicial review or seems legal aid may be refused if the intended likely to do so. However, he proceedings are of a nature where a will also take into account solicitor would not normally be employed the ultimate prospects for or if the benefits to be obtained in the the application and may proceedings do not justify the likely costs. refuse legal aid if these For example, legal aid may be refused prospects are hopeless. if only a trivial advantage would be gained by the applicant from the intended proceedings, or where it is unlikely that a judgment could be enforced because the opposite party is uninsured and has no valuable assets or cannot be located. 14

17 CIVIL LEGAL AID T h e r e a r e, h o w e v e r, importance of the case to the applicant in cases where the benefits deciding whether to grant legal aid. to be obtained cannot be measured in purely Legal aid can be refused if an applicant monetary terms. In such fails to pass the merits test as described cases, the Director will still above. Legal aid can also be refused for make an objective and one or more of the reasons specified in careful assessment of the the Legal Aid Ordinance such as if having cost benefit, but he will made the application, the applicant has left also give due weight to the Hong Kong and stayed outside Hong Kong for any continuous period of six months. Legal aid may also be refused if the applicant has failed to provide information or attend an interview as required by the Director. 15

18 Chapter Discharge, Revocation and Legal Aid Appeal To ensure proper use of public funds, the Legal Aid settlement offer and insists to have the claim proceeded to trial Ordinance empowers the the aided person fails to give his counsel Director to discontinue legal or solicitor the assistance necessary or aid in certain circumstances desirable for the proper conduct of the case before the end of the aided proceedings. The Director must discharge legal aid if there is no longer any merit in continuing the Discharge proceedings, or if it is unreasonable for the The Director can discharge aided person to continue to receive legal aid. legal aid for one or more of the reasons specified in the Legal Revocation Aid Ordinance, such as if: The Director can also revoke legal aid for the financial circumstances one or more of the reasons specified in the of the aided person Legal Aid Ordinance such as if the aided change to the extent that person: his financial resources fails to make a full and true disclosure of exceed the financial eligibility limit the aided person requires the proceedings to be conducted or continued unreasonably e.g. refuses to accept a reasonable 16 his or her financial resources fails to provide information or attend an interview as required by the Director fails to report change in financial circumstances h a s made a false statement or representation in furnishing information

19 CIVIL LEGAL AID Upon discharge of legal will be informed of the reasons and made aid, the person receiving aware of their right of appeal. legal aid shall cease to enjoy the benefits and Appeal protection accorded to An applicant or aided person who is an aided person. Upon aggrieved by any of the Director's decision revocation of legal aid, the made pursuant to the Legal Aid Ordinance, person receiving legal aid for example, to refuse legal aid or to shall be treated as never discharge or revoke legal aid can appeal having received legal aid to the Registrar of the High Court, or to a and shall be liable for all Committee of Review if the proceedings costs incurred or payable by to which the application relates are in the the Director on his behalf. Court of Final Appeal. On hearing the appeal, the Registrar of the High Court or Before legal aid is the Committee will step into the shoe of discharged or revoked, the Director and consider all the available the aided person may be information afresh to determine whether given an opportunity to legal aid should be granted or continued. make representation. Upon The decision of the Registrar or the discharge or revocation of Committee is final. legal aid, the aided person 17

20 CRIMINAL LEGAL AID Chapter Ordinary Legal Aid Scheme Legal aid is available with an offence in the Magistrate's Court for representation in can contact the liaison office of the the following criminal Duty Lawyer Service at the appropriate proceedings: Magistrate's Court. committal proceedings in the Magistrate's Court Means Test where the prosecution is Applicants for criminal legal aid have to seeking committal of an pass the same means test as those for accused to the Court of civil legal aid. An applicant charged with First Instance murder, treason or piracy with violence can cases tried at the District Court and the Court of First Instance of the High Court a p p e a l s heard in the Court of First Instance, the Court of Appeal of the High Court or the Court of Final Appeal Legal aid is not available in the Magistrate's Court for cases other than committal proceedings. Those charged 18 apply to a judge for exemption from the means test and from legal aid contribution.

21 The Director has the Means Test Calculator discretion to grant legal aid in Prospective applicants who like their civil criminal cases to an applicant counterparts can make use of the Means whose financial resources Test Calculator to find out if they are likely exceed the financial eligibility to be eligible for legal aid by visiting the limit if he is satisfied that it Department s website at is desirable in the interests via computer or mobile phone. of justice to do so, subject to payment of a contribution Merits Test on higher rates calculated in Legal aid will be granted if the Director of accordance with the financial Legal Aid is satisfied that it is desirable resources of the applicant. in the interests of justice to do so. The Director will consider all factors relating to the case, e.g. the seriousness of the offence(s), question(s) of law involved, guarantee of a fair trial, etc. Generally speaking, for committal proceedings and for trials in the District Court and the Court of First Instance, if an applicant passes the means test, legal aid will be granted to defend the case or for mitigation if the applicant decides to plead guilty. 19

22 For criminal appeals, legal exceed the financial eligibility limit if the representation will be provided Director exercises discretion to grant legal aid if it is shown there are because it is desirable in the interest of justice reasonable grounds for appeal. to do so. However, for cases involving a charge of murder, treason What if Legal Aid is Refused? or piracy with violence, there If legal aid is refused, the judge hearing the is a statutory requirement to case/appeal may grant legal aid provided grant legal aid in such cases the applicant is eligible on means. even if there are no reasonable grounds for appeal. If legal aid is refused on means in cases involving charges of murder, treason or Contribution piracy with violence, the accused can apply A successful applicant is to a judge for granting of legal aid, and expected to pay a contribution exemption from the means test and from calculated in accordance with payment of contribution. his/her financial resources as in civil legal aid unless For application to appeal to the Court of the financial resources of the Final Appeal, the appellant may apply to a applicant are below a certain Committee of Review chaired by the Registrar amount. A different scale of of the High Court and comprising a barrister contribution at higher rates and a solicitor appointed by their respective applies to cases where the professional bodies for a review of the refusal. applicants' financial resources The Review Committee decision is final. 20

23 WHERE TO APPLY Chapter In person Office hours Applications for Civil Legal Monday to Friday 8:45 a.m. 1:00 p.m. Aid 2:00 p.m. 5:15 p.m. Saturday 9:00 a.m. 12:00 noon For civil cases, applications for legal aid can be made in person at the following offices of the Department: Headquarters 25/F Queensway Government Offices 66 Queensway Hong Kong Applicants are required to supply all documents relating to their case and all documents Kowloon Branch Office showing their financial status (for example, G/F Mongkok Government bank book, salary slips, rent receipts, mortgage Offices repayment schedule, Salaries Tax assessment, 30 Luen Wan Street documentary proof of Comprehensive Social Mong Kok Security Assistance, etc). Kowloon No application fee is needed except for applications under the Supplementary Legal Aid Scheme. 21

24 Applications for Criminal Crime Section Legal Aid 25/F Queensway Government Offices For criminal cases, applicants 66 Queensway who have been remanded in Hong Kong custody can apply through the Correctional Services Office hours Department. In most cases, Monday to Thursday 8:45 a.m. 1:00 p.m. an officer of the Department 2:00 p.m. 5:45 p.m. prison and assist with the Friday 8:30 a.m. 1:00 p.m. application. 2:00 p.m. 6:00 p.m. Applicants on bail can apply Online in person at the following In some circumstances, applicants for civil office of the Department: or criminal legal aid who are over the age will visit the applicant in of 18 and have an e-certificate can submit pre-application information as a first step towards making an application for legal aid through Legal Aid Electronic Portal via the Department s website at For details of online pre-application, please refer to the leaflets on How to apply legal aid in civil cases and How to apply legal aid in criminal cases. 22

25 Enquiries Free legal advice (in the evenings at 24-hour Enquiry Hotline District Offices, operated by the Duty Tel: Lawyer Service) Tel: (for enquiries) Facsimile No Legal assistance in the Magistrate's Court: Duty Lawyer Service Homepage on Internet 23/F, Asia Orient Tower Town Place, No. 33 Lockhart Road Wanchai Address Hong Kong Tel: (for enquiries) Useful Contacts Law Society of Hong Kong Tel-Law 3/F Wing On House (24-hour recorded legal 71 Des Voeux Road Central information provided by the Hong Kong Duty Lawyer Service) Tel: Tel: , Bar Free Legal Service Scheme: Hong Kong Bar Association LG2 The High Court 38 Queensway Hong Kong 23

26 Statutory Provision This guide serves to explain the provision of legal aid services in the Hong Kong Special Administrative Region. For further details, reference should be made to the Legal Aid Ordinance (CAP.91) and regulations made under it in relation to civil legal aid and Legal Aid in Criminal Cases Rules of the Criminal Procedure Ordinance (CAP.221) in relation to criminal legal aid. 24

27 Other legal aid reference materials How to Apply Legal Services How to Apply Legal Aid in Civil Cases How to Apply Legal Aid in Criminal Cases How to Apply the Supplementary Legal Aid Scheme How Your Financial Resources and Contribution are Calculated Financial Information Sheet Customer Service Standards

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