For discussion on
15 September 1998

Panel on Administration of Justice and Legal Services of the Legislative Council
Legal Aid Policy Review 1997: Public Responses

Purpose

1.This paper informs and seeks Members' views on the public's responses to the findings and recommendations of the Legal Aid Policy Review 1997, contained in a consultation paper released in December 1997.

Background

2.In early 1997, an inter-departmental Working Group (comprising representatives from the Administration Wing, the Legal Aid Department, the Finance Bureau and the Department of Justice) was formed to conduct a review of the criteria for assessing the financial eligibility of legal aid applicants, the scope of legal aid and the operation of the Legal Aid Ordinance (Cap. 91). A paper on the Working Group's findings and recommendations was released in December 1997 for public consultation. A list of the findings and recommendations is at the Annex. The consultation ended on 16 March 1998.

3.The Administration received a total of 13 submissions on the consultation paper. Their contents are summarised in the following paragraphs.

Major Comments and Responses

A. Assessment of Financial Eligibility

Recommendation 1:The current method for assessing the financial capacity of an applicant for legal aid on the basis of the aggregate of his disposable income and disposable capital should be maintained.


4.On this recommendation, we received one submission which is in support.

Recommendation 2:The average expenditure of the lowest 50% households (excluding rent) should be adopted as the amount of personal allowances deductible in the assessment of disposable income.


5.There were six submissions. It is suggested that the proposed index does not go far enough. Four of these submissions counter-propose that the median expenditure be used. A submission further suggests that even if our proposed index were to be used, it should be refined to take account of the expenditure situation of each household size group.

Recommendation 3:The present financial eligibility limits for the standard legal aid scheme and the Supplementary Legal Aid Scheme (SLAS) should be maintained.


6.We received eight submissions on this recommendation. One supports our recommendation; five suggest that the present limits should be increased. Two submissions suggest that a higher financial eligibility limit should be set for personal injuries cases.

Recommendation 4:The financial eligibility limits for the two legal aid schemes should be reviewed once every two years to take account of inflation, change in litigation costs and other relevant factors.


7.We received two submissions in response to this recommendation. It is suggested that the review should take place once every year.

Recommendation 5:The current method of calculating the financial eligibility of "infant" applicants (defined as an unmarried person under 18 years of age) should be maintained, i.e. the financial resources of the parents or guardians of an infant applicant will not be taken as his in the assessment of his financial eligibility.
8. We received two submissions on this recommendation. Both of them agree to our recommendation.

B. Legal Assistance for Persons required to Attend Coroners' Inquests

Recommendation 6: The Duty Lawyer Service should provide legal assistance to persons who are likely to face a reasonable chance of criminal prosecution that would lead to a jail sentence or loss of livelihood as a result of giving evidence at coroners' inquests.


9.We received four submissions on this recommendation. All support our recommendation. One further suggests that legal assistance should be extended to cover others who have a potential civil claim in respect of the death in question. Another suggests that assistance should be made available to cover the deceased's family, and that assistance should not be confined to the provision of legal advice.

Recommendation 7:The Legal Aid Department should provide legal aid to persons who have been granted legal aid to cover proceedings in a coroner's inquest where it appears to be necessary to do so for the proper conduct of the proceedings for which legal aid has been granted.


10.We received one submission which supports our recommendation.

C. Residency Status

Recommendation 8:The Legal Aid Department should continue to provide legal assistance to eligible persons regardless of their residency status or years of residency in Hong Kong.


11. All three submissions on this recommendation support our proposal to maintain the practice.

12.While supporting the recommendation, a submission further suggests that we should consider whether this proposal is consistent with the regulation that legal aid may be revoked by reason of absence from Hong Kong.

D. Operation of the Legal Aid Ordinance

Recommendation 9:The means test for employees in appeals brought by employers to the Court of First Instance against judgements of the Labour Tribunal should continue to apply.


13.There were seven submissions in response to this recommendation. One submission supports our recommendation. Five suggest that either the means test in these cases should be waived automatically, or the Director of Legal Aid be given the discretion to waive the upper limit of the means test in deserving cases. The remaining submission suggests that the means test should be waived in cases where the ground of appeal is an error in law.

Recommendation 10: The Director of Legal Aid should be given the discretion not to discharge a legal aid certificate even if the financial resources of a legally aided person have become greater than the respective financial eligibility limits after legal aid has been granted.


14.There were two submissions, both supporting our recommendation.

Recommendation 11:Contributions to be made by a legally aided person should continue to be determined on the basis of his financial resources.


15.We received three submissions, one supports our recommendation. Another suggests that the amount of contribution should be linked to the amount claimed. The remaining submission suggests that the amount should either be the financial capacity, the legal costs or the amount claimed, whichever is the lowest.

Recommendation 12:Legally aided persons under the standard scheme should be required to pay a contribution according to a revamped sliding scale of contribution, except those on Comprehensive Social Security Assistance who should be exempt from paying any contribution.


16.There were four submissions. One submission supports our proposed contribution scale. One suggests that the level of financial resources under which no contribution should be made (the "non-contribution" level) should be set at $80,000. Two suggest that the non-contribution level should be set at $86,000.

Recommendation 13:Legally aided persons under the SLAS should be required to pay an application fee of $1,000 and contributions irrespective of the outcome of the case, with the amount set at the maximum amount under the standard scheme. The payment of $1,000 payable when legal aid is granted should be dropped.


17.We received three submissions on this recommendation. One submission supports our recommendation. One suggests that the amount of contribution should be 15% of the damages recovered or the actual legal costs, whichever is lower. One considers it unreasonable for an aided person under the SLAS to be responsible for the legal costs and to pay 15% of the damages received.

Recommendation 14: In Bill of Rights cases, legally aided persons with financial capacity falling under the coverage of the standard scheme should contribute according to the contribution scale under the standard scheme. If their financial capacity exceeds the limit for the standard scheme, they should contribute an amount in accordance with a revamped sliding scale, with band widths of $100,000.


18.We received three submissions. One supports our proposal. The remaining two suggest that persons involved in Bill of Rights cases should be exempt from contributing.

Recommendation 15: The Director of Legal Aid should be given the discretion to reduce or not to seek interest on his charge on a preserved or recovered property.


19.The only submission that we received supports this recommendation.

Recommendation 16:Amendments to the Legal Aid Ordinance should be made so as to better protect the Legal Aid Fund against omission or failure on the part of assigned solicitors to protect the Director of Legal Aid's first charge or to comply with the provisions in the Ordinance.


20.We received three submissions on this recommendation. One supports this recommendation. The other two oppose on the grounds that the existing arrangement already provides sufficient protection for the Fund.

Recommendation 17: Measures to further enhance the cost-effectiveness of our legal aid services should be explored.


21.We received three submissions on this recommendation. Agreeing that measures should be taken to enhance the cost-effectiveness of our legal aid services, a submission suggests that the structure of the whole legal system should be reviewed and reiterates the suggestions previously made to the then Attorney General's Chambers in the context of the Review on Legal Services in 1995. Another supports our existing practice that no ceiling on legal aid funding should be imposed. The remaining submission asks whether there is any real case for concern.

Other Suggestions and Responses

22.There are other suggestions in the submissions which are not directly related to the findings and recommendations set out in the consultation paper. These suggestions are summarised in the following paragraphs.

A. Assessment of Financial Eligibility

23.One submission suggests that the compensation obtained by applicants involved in industrial injury or accidents should not be treated as their financial resources. It also suggests that capital assets of permanently disabled applicants should be discounted according to the level of disability, age and family status, etc.

24.One submission suggests that the Director of Legal Aid should reassess the financial capacity of aided persons whose financial resources have diminished after legal aid has been granted.

25.One submission suggests that an order made in a maintenance pending suit should not be taken into account in the assessment of an applicant's financial resources.

26.Two submissions suggest that the formula on how the financial resources of legal aid applicants are calculated should be explained more clearly.

27.One submission suggests that the Director of Legal Aid should be given the discretion to discount a certain level of an applicant's financial resources if it is considered reasonable to do so.

B. Scope of Legal Aid

28.One submission suggests that legal aid should be provided to cases which involve administrative bodies whose decisions have serious consequences for the persons affected, for example, the Long-term Prison Sentences Review Board.

C. Operation of the Legal Aid Ordinance

(a)Contribution

29.One submission suggests that the Director of Legal Aid should be given the discretion to waive, reduce or return part of or all of the contribution if strict enforcement will bring hardship or if it is in the interests of justice to do so.

30.One submission suggests that it would not be reasonable for aided persons whose financial capacity is composed mainly of disposable income to make an interim contribution, since their financial capacity may become weaker in the following year.

(b)Means-testing

31.A number of submissions suggest that the means test (or the upper limit of it) for different types of cases should be waived. Some suggest waiving the means test for employees involved in wage claims relating to bankruptcy cases; employees in industrial injury cases; and applicants in cases where there is a disparity of resources or where the appellant is using its resources to hurt the respondent. Others suggest waiving the upper limit of the means test for cases involving the Sex Discrimination Ordinance (Cap. 480), the Disability Discrimination Ordinance (Cap. 487), the Personal Data (Privacy) Ordinance (Cap. 486), and the Family Status Discrimination Ordinance (Cap. 527), and provisions of the Basic Law relating to the rights of citizens; and applicants who are the elderly, pensioners, the disabled and those who are seriously ill. There were also suggestions that the means test (and contributions) should be waived for cases concerning the International Covenant on Civil and Political Rights, the Hong Kong Bill of Rights Ordinance (Cap. 383); and that the Director of Legal Aid should be given the discretion to waive or reduce the means test if strict enforcement will bring hardship or if it is in the interests of justice to do so.

(c)Miscellaneous Suggestions

32.One submission suggests that applicants whose applications are rejected should be provided with information on the reasons for rejection.

33.One submission suggests that the Legal Aid Department should take positive steps to guard against discriminatory attitudes towards "vulnerable" groups.

34.One submission asserts that it was reported that the Legal Aid Department excludes lawyers from joining the Legal Aid Panel on the ground of political beliefs. It requests the Department to clarify and put in place a fair, open and transparent system of assigning out legal aid cases.

35.Two submissions suggest that payments to assigned lawyers and aided persons should be speeded up.

36.One submission alleges that some aided persons in personal injury cases are forced by their lawyers to accept settlement. It proposes that the system of monitoring should be strengthened.

37.Finally, four submissions suggest that the Legal Aid Department should be made more independent.

Way Forward

38.The inter-departmental Working Group (referred to in paragraph 2 above) has been reconvened to examine the public's responses and the various suggestions made. Current planning is that a final report will be released after a thorough consideration of the various submissions.

Administration Wing
Chief Secretary for Administration's Office
August 1998
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Annex

List of Findings and Recommendations in the Consultation Paper Assessment of Financial Eligibility

  1. The current method for assessing the financial capacity of an applicant for legal aid on the basis of the aggregate of his disposable income and disposable capital should be maintained.

  2. The average expenditure of the lowest 50% households in Hong Kong as revealed by the five-yearly Household Expenditure Survey (excluding rent payments) should be used as the amount of personal allowances deductible from an applicant's gross income in the assessment of his financial eligibility. The expenditure figure should be revised every year according to Consumer Price Index A and to take account of inflation, until the next survey has revealed a new expenditure figure.

  3. The current financial eligibility limit of $169,700 for the standard legal aid scheme and that of $471,600 for the Supplementary Legal Aid Scheme (SLAS) should be maintained.

  4. The financial eligibility limits for the standard scheme and the SLAS should continue to be reviewed once every two years to take account of inflation, change in litigation costs and other relevant factors.

  5. The current method of calculating the financial eligibility of "infant" applicants for legal aid should be maintained.
Legal Assistance for Persons required to attend Coroners' Inquests
  1. The Duty Lawyer Service should provide legal assistance to persons who are likely to face a reasonable chance of criminal prosecution that would lead to a jail sentence or loss of livelihood as result of giving evidence at coroners' inquests.

  2. The Legal Aid Department (LAD) should be empowered to provide legal aid to persons who have been issued legal aid certificates to cover proceedings in a coroner's inquest where it appears to be necessary to do so for the proper conduct of the proceedings for which legal aid has been granted.
Residency Status
  1. The LAD should continue to provide legal assistance to eligible persons regardless of their residency status or years of residency in Hong Kong.
Operation of the Legal Aid Ordinance (Cap. 91)
  1. A means test for employees in appeals brought by employers to the Court of First Instance against judgements of the Labour Tribunal should continue to apply.

  2. The Director of Legal Aid (DLA) should be given the discretion not to discharge a legal aid certificate even if the financial resources of a legally aided person have become greater than the respective financial eligibility limit after legal aid has been granted.

  3. Contributions to be made by a legally aided person should continue to be determined having regard to the amount of his financial resources.

  4. Legally aided persons under the standard scheme should be required to pay a contribution according to a revamped sliding scale of contribution, except those on Comprehensive Social Security Assistance who should be exempt from paying any contribution.

  5. Legally aided persons under the SLAS should be required to pay an application fee of $1,000 and interim contributions irrespective of the outcome of the case, with the amount being set at the maximum amount under the standard scheme. The payment of $1,000 payable when legal aid is granted should be dropped.

  6. In Bill of Rights cases, legally aided persons with financial capacity falling under the standard scheme should contribute according to the contribution scale under the standard scheme. If their financial capacity exceeds the limit for the standard scheme, they should contribute in accordance with a revamped sliding scale, with band widths of $100,000.

  7. The DLA should be given the discretion to reduce or not to seek interest on the DLA's charge on a preserved or recovered property.

  8. Amendments to the Legal Aid Ordinance should be made so as to better protect the Legal Aid Fund against omission or failure on the part of assigned solicitors to protect the DLA's first charge or to comply with the provisions in the Ordinance.

  9. Measures to further enhance the cost-effectiveness of our legal aid services should be explored.