on 19 October 1999
Paper for LegCo Panel on Administration of Justice and Legal Services
Legal Aid Policy :
Criteria for Granting Legal Aid to pursue Criminal and Civil Proceedings
Given that the Director of Legal Aid (the Director) has a responsibility to manage the legal aid scheme competently so that public funds are not wasted, legal aid will only be granted to applicants who pass both the means test and the merits test.
2. The Legal Aid Department carries out an in-house means investigation of the capital assets and annual income of an applicant and his or her spouse to determine whether their financial resources exceed the upper limit as prescribed by the Legal Aid Ordinance (Cap. 91) (the Ordinance). This upper limit is currently set at $169,700. In cases involving issues relating to Bill of Rights or the International Covenant on Civil and Political Rights, the Director has the power to waive the upper limit pursuant to Section 5AA of the Ordinance.
3. For those whose financial resources are assessed at above $86,000, a contribution towards their legal costs is required. The amount of contribution is calculated by reference to a percentage, which varies from 10% to 43% of their assessed financial resources.
4. For cases involving personal injuries and professional negligence, an applicant whose financial resources exceed $169,700, but do not exceed $471,600 may apply for legal aid under the Supplementary Legal Aid Scheme. Under this Scheme, an applicant who has successfully recovered damages or compensation is required to pay a contribution to the Supplementary Legal Aid Fund (up to 15% of the sum recovered plus actual costs incurred).
5. An applicant who passes both a means and merits test will be granted legal aid. Merits test involves a consideration of the legal merits of the case and the reasonableness of the application (amongst other factors).
6. Legal aid can only be granted if the Director is satisfied that there are reasonable grounds for taking, defending or being a party to the proceedings. This is concerned with the legal merits of the case, that is whether the case has a reasonable prospect of success. Before reaching a decision on the merits, the Director must consider all the questions of fact or law arising in the relevant action cause or matter. The Director will therefore take into account the availability and strength of evidence to support the facts alleged and should be informed of the likely difficulty in establishing those facts. The burden is on the applicant to show that he has reasonable grounds for commencing or be a party to the proceedings. Estimating the prospects of success is sometimes very difficult. As accepted by Simon Brown J in the case of R.V. Legal Aid No. 8 (Northern) Appeal Committee Ex parte Angell and Others , the system has to rely to a great extent upon the Director and his officers' experience, their good sense, and their "judgment" about whether public funds should be committed to a particular case.
7. In considering whether it is reasonable to grant legal aid for any particular case, the Director can take into account all factors which would influence a private client considering taking proceedings including whether only trivial advantage would be gained by the applicant from the proposed proceedings and whether a person of moderate means paying privately would be advised to litigate.
8. In difficult cases, the Director would seek independent legal advice under Section 9 of the Ordinance.
Revocation and discharge of legal aid certificate
9. The Director is empowered to revoke or to discharge a legal aid certificate if it appears to the Director that the aided person is no longer, by reason of means or merits, eligible for legal aid or if the aided person has required his case to be conducted unreasonably.
10. Any applicant who is dissatisfied with the Director's decision to refuse his legal aid application may appeal to the Registrar of the High Court, or in the case of appeal to the Court of Final Appeal, to a Committee of Review. The decision of the Registrar or the Committee of Review is final and is not subject to further appeal.
11. Legal aid is available for representation in the following types of proceedings subject to the means test and the merits test (where applicable) :-
- committal proceedings in the magistrate's court where the prosecution is seeking committal of an accused to the Court of First Instance
- proceedings in the District Court
- proceedings in the Court of First Instance
- appeals from a Magistrates' Court, appeals to the Court of Appeal of the High Court
- appeals to the Court of Final Appeal
12. The means test is conducted under the same financial resources criteria as for civil cases. An applicant charged with murder, treason or piracy with violence may apply to a judge for exemption of means test and of payment of legal aid contribution.
13. The Director has the discretion to grant legal aid in criminal cases to an applicant whose financial resources exceed $169,700 if he is satisfied that it is desirable in the interests of justice to do so subject to payment of a contribution, if required.
14. In determining whether it is in the interests of justice, the Widgery Criteria apply. These are as follows :-
- the charge is a grave one, in the sense that the accused is in real jeopardy of losing his liberty or livelihood, or suffering serious damage to his reputation; or
- the charges raise a substantial question of law; or
- the accused is unable to follow the proceedings and state his own case, because of mental illness or other mental or physical disability; or
- the nature of the defence involves the tracing and interviewing of witnesses, or expert cross-examination of a witness for the prosecution; or
- legal representation is desirable in the interests of someone other than the accused, as for example, in the case of sexual offences against young children, when it is not desirable that the accused should cross-examine the witness in person.
15. For proceedings mentioned in para. 11 (a), (b) and (c), in the interests of justice legal representation will be provided to an accused for committal proceedings and for trials at the District Court and the Court of First Instance provided he passes the means test. This is irrespective of whether he pleads guilty or not guilty to the charges or the nature of his defence.
16. For proceedings under para. 11 (d) and (e) merits test will apply to all criminal appeals i.e. legal aid will be granted if there are meritorious grounds of appeal. The merits test however does not apply to an appeal from a case involving a charge of murder, treason or piracy with violence. There is a statutory requirement to grant legal aid in such cases even if there are no meritorious grounds of appeal.
17. For appeals to the Court of Final Appeal, Section 32 of the Hong Kong Court of Final Appeal Ordinance (Cap. 484) provides that no appeal shall be admitted unless the following statutory conditions are satisfied :-
- a point of law of great and general importance is involved in the decision of the lower court; or
- it is shown that substantial and grave injustice has been done by the lower court.
18. Legal aid will not be granted unless the above conditions are satisfied.
19. There is no right of appeal against a refusal to grant legal aid on means or on merits, except where the application is for legal aid to pursue an appeal to the Court of Final Appeal and legal aid is refused on merits.
20. For refusal on means in cases involving charges of murder, treason or piracy with violence, the accused may apply to a Judge for granting of legal aid, exemption of means test and of payment of contribution.
21. For refusal on merits in all other cases, a judge may grant legal aid to the accused provided he passes the means test.
23. For refusal in cases involving an appeal to the Court of Final Appeal, the appellant may appeal to a Committee of Review composed of 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 under Section 26A of the Ordinance.
Legal Aid Department
File Ref. : LA/ADM/115/54 Pt.3
Date : 13 October 1999