Chapter 2
Legal Aid Services

Legal aid business is conducted in the following service areas :

1. Receiving and processing of legal aid applications;
2. Assignments and monitoring of legal aid cases;
3. Litigation services; and
4. Related supporting legal services.

Application and Processing Services

A total of 18 727 applications for legal aid were received and 9 748 legal aid certificates were issued in 2008 :

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 dealt with by the Application and Processing Division.

Distribution of Applications Received for Civil Legal Aid in 2007-2008

Distribution of Certificates Issued for Civil Legal Aid in 2007-2008

Take-up Rate for Civil Legal Aid in 2007-2008

The Application and Processing Division also provides an information and enquiry service through the Information and Application Service Unit.  The Unit provides information and deals with enquiries from the public on matters such as the scope of legal aid, financial eligibility limits and application procedures.  In 2008, the Unit received a total of 39 034 enquiries.

Upon acceptance of an offer for legal aid, successful applicants are given the services of a solicitor and, if necessary, counsel to represent them in legal proceedings in the Coroner's Court, the Mental Health Review Tribunal, the District Court, the Court of First Instance, the Court of Appeal or the Court of Final Appeal.

Outcome of Cases Closed in 2008

Refusal of Legal Aid

In civil cases, an applicant who is refused legal aid either on means or on merits may appeal to the Registrar of the High Court.  In respect of the Court of Final Appeal cases, the applicants may appeal to a Committee comprising the Registrar of the High Court, a barrister and a solicitor appointed respectively by the Chairman of the Hong Kong Bar Association and the President of the Law Society of Hong Kong.

Mr Thomas Edward Kwong Deputy Director of Legal Aid/Litigation

Ms Jennie Hui Lai-yung Deputy Director of Legal Aid/Application and Processing

Refusal Rate of Civil Legal Aid Applications in 2007-2008

Success Rate of Legal Aid Appeals in 2007-2008

*Note : The figures do not include appeals withdrawn

Ms Alice Chung Yee-ling Assistant Director of Legal Aid/Application and Processing

Legal Aid in Criminal Cases

Criminal legal aid applications are processed by the Crime Section.

Distribution of Applications Received for Criminal Legal Aid in 2007-2008

Distribution of Certificates Issued for Criminal Legal Aid in 2007-2008

Take-up Rate for Criminal Legal Aid in 2007-2008

Refusal of Legal Aid

An applicant whose financial resources are in excess of the statutory limit may still receive assistance if the Director of Legal Aid is satisfied that it is desirable in the interests of justice to grant legal aid.

If an applicant is refused legal aid because his case lacks merits, he can apply to the judge who may grant legal aid on his own initiative provided the applicant is eligible on means.  Applicants in cases involving a charge of murder, treason or piracy with violence may apply to a judge for the grant of legal aid, and for exemption of the means test and payment of contribution. 

In 2008, there were 23 refusals on means and 21 of which were also refused on merits.  The Director, nevertheless, exercised discretion to grant legal aid in 29 other cases even though the means of applicants exceeded the limit.  Eleven applications were refused because the applicants concerned failed to supply the Director with the necessary information to conduct a means test.  There were 1 012 refusals on merits (997 for appeal cases and 15 for other cases).  Legal aid was granted in three appeal cases by judges notwithstanding the Director of Legal Aid's refusal.

For refusal in respect of an appeal to the Court of Final Appeal, the appellant may appeal to a Committee of Review 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.  In 2008, there was one appeal to the Committee of Review.

Ms Juliana Chan Oi-yung Assistant Principal Legal Aid Counsel/Application and Processing (1)

Refusal Rate of Criminal Legal Aid Applications in 2007-2008

Miss Linda Ng Wing-ping Assistant Principal Legal Aid Counsel/Application and Processing (2) (Acting)

Supplementary Legal Aid Scheme

An applicant with financial resources exceeding $165,700 but below $460,300 may apply to pursue a claim involving personal injuries or death, medical, dental or legal professional negligence under the Supplementary Legal Aid Scheme where the amount of the claim is likely to exceed $60,000.  Under this Scheme, legal aid is also available for Employees' Compensation claims irrespective of the amount of the claim.

This Scheme is self-financing and is funded by contributions paid by the applicants upon acceptance of legal aid and from percentage contributions payable by aided persons out of damages or compensation recovered in the aided proceedings.  The rate of percentage contribution is 10% of the damages or compensation recovered.  It is reduced to 6% if the case is settled before counsel is briefed to attend trial.

There were 146 applications made to the Scheme in 2008 and 95 legal aid certificates were issued.  An operational deficit of $14.2 million was recorded as compared with an operational surplus of $1.1 million in 2007.  The deficit was incurred mainly because the Fund had to pay out approximately $17 millions in legal costs in an unsuccessful claim.  As at 30 September 2008, the net assets of the Supplementary Legal Aid Fund stood at $87.7 million.  For details, please refer to Appendix 1.

Legal Aid Electronic Services Portal

Towards the end of 2008, the Department launched the Legal Aid Electronic Services Portal (LAESP) for person over the age of 18 to submit pre-application information online for non-urgent civil and criminal cases as a first step towards making an application for legal aid.  To make use of this online submission procedure, applicants must be holders of a digital certificate issued by the Hong Kong Post and Digi-Sign.  The "digital certificate" requirement is to protect confidentiality of information submitted and to ensure that the information comes from no other but the certificate holder only.  Applicants and aided persons who are holders of digital certificates can also check the progress of their applications and cases on line through the LAESP. 

The LAESP also provided a means test calculator for members of the public to find out whether they would be eligible for legal aid on means if they apply for legal aid.  The calculator was designed as a guide only for the public to get some idea if they would be financially eligible for legal aid.  Members of the public can access the means test calculator in the Department's website at www.lad.gov.hk by clicking "Electronic Services" in the menu bar on the homepage. 

Legal Aid Assignments and Monitoring

Assignments

Legal aid work is not distributed to counsel or solicitors on the Legal Aid Panel equally regardless of merit, the legally aided persons' interests being the paramount consideration.  Counsel or solicitors are selected having regard to their level of experience and expertise, the type 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.

Mr Allan Chan Wing-cho Assistant Director of Legal Aid/Litigation

March 17 Director of Legal Aid, Mr Benjamin Cheung and Senior Legal Aid Counsel, Mr Francis Chan, had a meeting with the Vice President of the High People's Court of Guangdong Province, Ms Tao Kaiyuan and the Deputy Head of Civil Court No.4, Mr Chen Youqiang, and exchanged views on legal aid services during a visit to the Department. Picture shows Director of Legal Aid, Mr Benjamin Cheung (left), presented a souvenir to the Vice-president, Ms Tao Kaiyuan (right).

Distribution of Assignments to Solicitors / Counsel in 2008

Miss Betty Chan King-wah Assistant Principal Legal Aid Counsel/Crime

Distribution of Assignments to Solicitors / Counsel in 2008

The Departmental Committee on Monitoring Assignments to Counsel and Solicitors comprising of directorate officers and a representative from the Independent Commission Against Corruption and chaired by the Director of Legal Aid, ensures that cases are assigned in accordance with the established assignment criteria and guidelines.  It also considers reports on the unsatisfactory performance/conduct of assigned lawyers.  In 2008, on the advice of the Committee, the names of three solicitors were removed from the Legal Aid Panel, one counsel and five solicitors were included on the Record of Unsatisfactory Performance/Conduct and warning letter was issued to one solicitor.

The launch of the LAESP served to provide a useful platform for conducting legal aid business in the areas of assignment and monitoring.  It enables legal practitioners to submit legal aid panel entry forms to the Department online.  Panel lawyers can download their data update form to update their particulars.  To facilitate the reporting of progress of cases, assigned solicitors / counsel can also submit their case reports through LAESP to the Department. 

Upon the recommendation of the Legal Aid Services Council and endorsed by The Ombudsman, the Department introduced the use of checklist, on a trial basis, in June 2008 in several major types of legal aid cases, namely divorce cases, employees' compensation claims, personal injury claims, contractual claims and judicial review cases in an attempt to standardise the procedures for reporting progress of assigned out cases by panel solicitors.  The intention was that panel solicitors should use the checklists as reference to the steps to be taken in the proceedings and to provide a time frame to ensure steady progress of the aided proceedings.  It also served as a reminder to panel solicitors to report progress to the Director at key stages of the proceedings.  The checklists were uploaded to the Department's website for panel solicitors' reference.

Ms Mo Yuk-wah Assistant Principal Legal Aid Counsel/Kowloon Branch Office

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 2008, CLS took up 185 assignments.  The total amount of damages recovered by the Section for aided persons was about $75 million, while profit costs recovered was in the region of $19 million.  Damages exceeding $1 million were recovered in 20 cases.  In 2 cases, the damages exceeded $4 million.

Family Litigation

CLS took up a total of 960 assignments during the year.

Wages Claims

The Insolvency Unit of CLS assists employees referred by the Labour Relations Office of the Labour Department to recover arrears of wages and other employment entitlements.

The Unit processes applications for legal aid from employees and handles the ensuing litigation.

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, CLS will refer the case to the Protection of Wages on Insolvency Fund Board for consideration of ex-gratia payments to the employees.

In 2008, 182 winding-up and 41 bankruptcy petitions were presented and 306 cases were referred to the Protection of Wages on Insolvency Fund Board.

In 2008, the ICAC conducted a review of the Department's procedures in handling wages claims.  No deficiencies were found.  The ICAC, however, made a couple of suggestions to improve some work processes, for example, to provide employee applicants the contact details of all the eight court approved newspapers when assisting employee applicants to draft a newspaper notice requiring the employers to pay the outstanding amount if service of the statutory demand was unsuccessful, to review the flowchart on procedures for processing wage claim cases to ensure all staff adhere to the stipulated procedures.  These recommendations were accepted and implemented by the Department. 

In-house Criminal Litigation

Besides processing legal aid applications for criminal matters including appeals, the Crime Section of the Litigation Division represents aided persons at committal proceedings in the Magistrate's Court, bail applications and plea days in the District Court, and at bail applications and listing applications in the Court of First Instance.  It also acts as instructing solicitors in the Court of First Instance, the Court of Appeal and the Court of Final Appeal.

In 2008, some 77.1% of all criminal cases in the District Court in Hong Kong were legally aided, as were some 90.7% of criminal cases in the Court of First Instance.

Mr Chris Chong Yan-tung Assistant Principal Legal Aid Counsel/Civil Litigation 1

In 2008, the Section handled 1 732 cases in-house :

Related Legal Support Services

Costing

The Department's Costing Unit assesses all bills of costs submitted by assigned solicitors and attends taxation hearings.

Mrs Christina Hadiwibawa Cheung Ying-man Assistant Principal Legal Aid Counsel/Civil Litigation 2

Cases handled by the Costing Unit in 2007-2008

Enforcement

The Department's Enforcement Unit (EU) handles enforcement proceedings for the recovery of judgment debts and costs in legally aided cases.  In 2008, the EU was assigned 544 cases.  Some cases were settled upon the undertaking of the judgment debtors to pay by instalments.  Enforcement proceedings, nevertheless, had to be instituted in 496 cases.

Of the cases where enforcement proceedings were taken by the EU, nearly half of them were instituted within one month from the date the cases were assigned to the professional officers for handling.  The table below shows the length of time taken for enforcement proceedings to be commenced from the date of assignment:

The costs and damages recovery ratio for cases with enforcement action handled by the Department and finalised in 2008 is as shown in the chart below :

April 7 Assistant Principal Legal Aid Counsel/Civil Litigation 2, Mr Chris Chong (centre) and Legal Aid Counsel, Ms Dorothy Chu, briefed a delegation of Judicial Officials and lawyers from Jiangyin Justice Bureau on the legal aid services in Hong Kong.

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