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Legal Aid (Amendment) Bill 1999
Amend the Legal Aid Ordinance.
Enacted by the Legislative Council.
1. Short title and commencement
(1) This Ordinance may be cited as the Legal Aid (Amendment) Ordinance 1999.
(2) This Ordinance shall come into operation on a day to be appointed by the Director of Administration by notice in the Gazette.
2. Interpretation
Section 2(1) of the Legal Aid Ordinance (Cap. 91) is amended by repealing the definition "domestic proceedings" and substituting---
" "domestic proceedings" (家事法律程序) means proceedings under the Matrimonial Proceedings and Property Ordinance (Cap. 192), the Matrimonial Causes Ordinance (Cap. 179), the Guardianship of Minors Ordinance (Cap. 13), the Separation and Maintenance Orders Ordinance (Cap. 16) or the Parent and Child Ordinance
(Cap. 429);".
3. Power of the Legislative Council to
make amendments
Section 7(a)(ii) is amended by repealing "income and".
4. Endorsement of legal aid certificate
Section 13(3) is amended by repealing "(1)(b)" and substituting "(1)".
5. Charge on property recovered
Section 18A is amended---
(a) by repealing subsection (3A) and substituting---
"(3A) Where the property recovered or preserved is land or an interest in land, a charge under subsection (1) shall vest in the Director who may register the charge under the Land Registration Ordinance (Cap. 128) and may enforce the charge in any manner which would be available to a chargee in respect of a charge given inter partes.";
(b) in subsection (3B), by repealing paragraphs (a), (b) and (c) and substituting---
"(a) If the Director is satisfied that the property will provide adequate security for any sum as the Director would have retained in respect of the property he may defer enforcing the charge.
(b) Subject to paragraph (c), as from the date on which the charge is first registered, simple interest on the sum referred to in paragraph (a) payable by the aided person shall accrue for the benefit of the Director at the rate of 10% per annum or at a prescribed rate.
(c) Notwithstanding paragraph (b)---
(i) where the Director is satisfied---
(A) that it would cause serious hardship to the aided person for him to pay all or any of the interest accrued under that paragraph; or
(B) that it is in all the circumstances just and equitable to do so,
the Director may waive, either in whole or in part, the payment by the aided person of all or any of the interest so accrued;
(ii) interest payable by the aided person under that paragraph shall continue to accrue until the sum referred to in paragraph (a) is paid and the Director shall not seek to recover interest until such payment is made; and
(iii) nothing in this subsection shall prevent an aided person from making interim payments of interest or capital in respect of any sum referred to in paragraph (a) whether such payments are made at regular intervals or not and any such payment of capital shall reduce the sum accordingly.".
6. Prohibition against taking fees from aided person
Section 22(2) is amended by repealing "of $50,000" and substituting
"at level 5".
7. Proceedings for misrepresentations, etc.
Section 23(1) is amended by repealing "of $10,000" and substituting
"at level 3".
8. Regulations
Section 28(2) is amended---
(a) in paragraph (h), by adding---
"(iv) as to how the resources of a person receiving assistance under the Comprehensive Social Security Assistance Scheme administered by the Director of Social Welfare are to be treated for the purposes of determining the resources of that person;";
(b) by adding---
"(l) in the case of a request for legal aid by the family of a deceased person in respect of an inquest into deaths under the Coroners Ordinance (Cap. 504), determine the category of person to whom legal aid may be given under section 5;".
9. Contributions for benefit of the Fund
Section 32 is amended---
(a) by repealing subsection (1) and substituting---
"(1) Where legal aid is granted to any person under the Supplementary Legal Aid Scheme---
(a) the Director shall require the person who is offered the grant of legal aid to pay an interim contribution to the Director for the benefit of the Fund; and
(b) if that person is successful, either in whole or in part, in the proceedings brought by him with the assistance of such legal aid, the Director shall require him to pay to the Director a final contribution for the benefit of the Fund,
in an amount calculated in a manner, and according to such circumstances as may be prescribed.
(1A) Any interim contribution paid under subsection (1)(a) and any application fee paid under regulation 3(3) of the Legal Aid Regulations (Cap. 91 sub. leg.) shall not be liable to be refunded to the aided person where that person is not successful in the proceedings brought by him with the assistance of such legal aid:
Provided that where the sums paid or payable on his account out of the Fund and the costs incurred on his behalf before the legal aid certificate is discharged are less than the amount of interim contribution paid under subsection (1)(a), the Director shall refund the balance of the amount remaining to the aided person.
(1B) There shall be deducted from the final contribution payable under subsection (1)(b) any interim contribution paid under subsection (1)(a) and any sums recovered under or by virtue of an order or agreement for costs made in the aided person's favour and such other sums, if any, as may be prescribed.";
(b) in subsection (4), by adding ", (1A), (1B)" after "subsection (1)".
10. Proceedings for which legal aid may be
given under section 5
Schedule 2 is amended, in Part I, by adding---
"3. Inquests into deaths under the Coroners Ordinance (Cap. 504) where, following a request for legal aid in that behalf by the family of the deceased person concerned, the Director is of the opinion that the interests of public justice require that legal aid be given.".
Explanatory Memorandum
This Bill makes a number of miscellaneous amendments to the Legal Aid Ordinance (Cap. 91) as follows---
(a) clause 1 sets out the short title and provides for commencement;
(b) clause 2 removes a now redundant reference to the repealed Affiliation Proceedings Ordinance (Cap. 183);
(c) clause 3 corrects a reference to "income" in section 5A;
(d) clause 4 corrects a subsection reference in section 13;
(e) clause 5 amends section 18A so as to enable the Director of Legal Aid to more readily defer enforcement of any charge against the property of an aided person and to waive or reduce any interest payable as a condition of that deferment;
(f) clause 6 amends section 22(2) so that the penalty for the offence under that section, of taking fees from an aided person, is expressed as being at level 5 ($25,001 to $50,000);
(g) clause 7 amends section 23(1) so that the penalty for the offence under that section, of failing to comply with any regulations as to information to be supplied and of making false statements or false representations in the process of seeking or receiving legal aid, is expressed as being at level 3 ($5,001 to $10,000);
(h) clause 8 amends section 28(2) to enable regulations to be made relating to the financial resources of persons receiving Comprehensive Social Security Assistance and to the category of person to whom legal aid may be granted for the purposes of coroners inquests;
(i) clause 9 amends section 32 so as to require a person granted legal aid under the Supplementary Legal Aid Scheme to pay an interim contribution to the Director calculated in a manner and according to such circumstances as may be prescribed;
(j) clause 10 amends Schedule 2 so as to add coroners inquests to the description of proceedings for which legal aid may be given to the family of the deceased person concerned.
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