Legal Aid (Amendment) Bill 1999

LEGAL AID (AMENDMENT) BILL 1999

1. The Bar’s overall view is that so long as the Bill would
assist more people who otherwise will not able to gain access to justice
due to their limited means and financial resources to qualify for
legal aid (subject of course to the ususal means and merit tests),
the Bar would welcome any positive changes introduced under the Bill.
If anything, we feel that the present Bill does not go far enough
in helping those in the "sandwich class" who is at present
not qualified under the Supplemental Legal Aid Scheme ("SLAS").

Recommendations which received no dissenting comments

2. We note the six different areas where the Government has not received
any dissenting comments.

3. The Bar particularly welcomes the continuation of the current
practice that (1) legal aid is granted to person who satisfied the
means and merit test, regardless of their residency status and years
of residence in Hong Kong; and (2) for infants disregard of their
parents or guardians means. These the Bar considers as the corner
stones of the legal aid system in Hong Kong and should not be removed
under any circumstances.

4. We also welcome that legal aid is to be extended for persons who
have already been issued legal aid certificates and who are required
to attend coroner’s inquests.

Recommendations which received dissenting views

(1) assessment of disposable income

5. While we welcome the increase on the personal allowances figures
and that more households become eligible for legal aid under the new
proposed revision on the assessment of disposable income (from the
existing 48% to the proposed 58%), caution has to be exercised in
the use of the expenditure patterns of households in the 35-percentile
as benchmark. In our view, such ‘percentile’ has to be reviewed
on a regular basis so as to ensure that at time of high inflation
or fundamental economic changes in society, e.g. like general reduction
of wages or high unemployment, it will not result in a situation where
less households in Hong Kong will become eligible for legal aid than
the 58% being envisaged at present.

(2) financial eligibility limit

6. We consider that the present limits on financial eligibility are
still too low, in particular uner SLAS. We note that often it is not
only the poorest in our society who are in need of legal aid, but
those who are in the "sandwich class" who need it most.
The current financial limits imposed will not assist those who are
caught in that category. The people fall within this category are
often not poor enough to be eligible for the standard legal aid scheme
nor are they qualified for the Supplemental Legal Aid Scheme. For
example, in personal injury cases, as we do not allow lawyers to charge
on a ‘contingency’ basis in our system (for good policy
reasons), these people who would not be able to afford the legal costs
will simply not able to commence their actions within the prescribed
statutory limits. Thus, we consider that there is still a strong case
to raise the financial eligibility limit particularly under the SLAS.

(3) review cycle

7. The Bar considers that the financial eligibility limits should
be reviewed annually instead of biennially. This will enable a better
allocation of resources and maintain the real value of the limits.
We note that such an annual review will not create a huge and cumbersome
administrative burden on the part of the Director of Legal Aid but
may potentially save a great deal of money on the Legal Aid Fund.
In our view, the Administration has not made out a case why a biennial
review cycle is more appropriate "for other factors".

(4) legal assistance for persons required to attend coroner’s
inquests

8. The Bar welcomes the proposal that the DLA will be vested with
the power to grant legal aid to the next of kin in coroner’s
inquest concerning cases of great public concern, regardless whether
claims for damages are involved. We however feel that there should
not be a limit to cases of ‘great public concern’ only.
In our experience, often the family of the deceased is in an extremely
vulnerable position in the Inquest. They are not familiar with the
legal proceedings and are most of the time at a loss as to how to
conduct any questions on witnesses or other interested parties who
are often represented by lawyers at the Inquest. So long as the next
of kin can satisfy the means test, we feel that legal representation
in the form of Duty Lawyers Service should be made available to the
next of kin. This should not create a great financial burden on the
Legal Aid Fund.

9. We also welcome legal representation for persons ‘in jeopardy’
by the Duty Lawyer Service.

(5) means test for employees

10. At present, the Labour Tribunal does not allow the parties to
have any legal representation in its proceedings. Thus the employer
will not have an advantage over the employee when it comes to legal
representation at any hearing at the Tribunal. Once the case goes
to appeal, the situation changes. The employer usually can afford
legal representation while the employee in most instances cannot.

11. The Bar accepts that while in most cases the employees will be
able to satisfy the means test and therefore waiving the means test
automatically does not seems to be warranted in such situations, there
is a strong case to support that the DLA should be given a discretion
to grant legal aid in cases involving with issues of great public
concern or importance or if the appeal involves with an important
point of law.

12. Supplemental Legal Aid Scheme should also be made available to
applicants who wish to appeal against the decisions of the Labour
Tribunal, if the same has not been made available already.

(6) basis for calculating contribution

13. The Bar does not support the amount of contribution payable by
an aided person should be linked with the amount claimed. This will
only encourage higher legal fees and more lengthy litigation. This
may also create a situation where an aided person is encouraged to
either compromise his position in accepting a smaller amount of compensation
in settlement because of a smaller contribution he is to make to the
legal aid fund or to try to maximise his claim in order to get the
best ‘value’ for his legal aid services. In our view, both
situations will not be conducive to a fairer society nor better administration
of justice.

14. The Bar supports that the current practice should be maintained.

(7) contribution under the standard legal aid scheme

15. The Bar notes that the proposed contributions set out under Annex
C of the Government’s Papers represents a worse off situation
for the lowest income groups with limited financial resources than
those under the current scale. We suggest that the contribution should
start with the group of persons whose financial resources start in
the $80,000 to $100,000 bracket in order to make it compatible with
the current scale.

16. The proposed non-contribution level at $20,000 is far too low.
In our view, it is exactly the group of persons who fall within the
$20,000 to $80,000 financial resources who are not able to afford
to contribute to the Fund. In any event, the nominal sum of $1,000
to 5% contributions proposed for persons with financial resources
brackets of $20,000 to $80,000 will make little or no difference to
the Legal Aid Fund but may mean a great deal to a poor and large family’s
budget.

17. In our view, one of the major problems regarding the present
legal aid scheme is that the current ceilings of $169,700 set as eligibility
for the standard legal aid scheme and $471,600 for the SLAS respectively
are too low and do not reflect the increases of the standard of living
and the substantial increases in wages in the lower income groups
in the 1990s prior to the current economic downturn. This in particular
applies to the "sandwich class" family who often does not
qualify under the SLAS. We would strongly urge a substantial increase
in the ceiling under the SLAS so as to benefit more people under this
category.

(8) Contribution under SLAS

18. The Bar in principle supports that legal aided persons under
SLAS should be asked to make a contribution towards the SLAS Fund
irrespective the outcome of the litigation. This is consistent with
the principle that those who can afford should pay for the service.
In addition, this will help to ensure that the SLAS Fund will maintain
a healthy balance and will therefore will help any future applicants
to the Scheme. In any event, if the aided person were to engage private
lawyers, he will in any event have to pay an amount upfront at the
outset of the case and will not be able to recover 100% of his costs
even if he were to succeed in the litigation after taxation.

19. We consider that provides the maximum contribution amount is
set at a reasonable amount and that the percentage of contribution
is set at a reasonable level, such proposal should be supported. However,
the proposed 12% contribution subject to the ceiling of $42,425 in
our view is still too high considering the relatively healthy state
of the SLAS Fund. We would propose a contribution of no more than
10% should be introduced, with the rider that such percentage should
be reviewed from time to time taking into account of the prevailing
economic situation and that the ceiling level should also be adjusted
according to inflation. It is not clear if under the proposed amendments
a person who is required to contribute under the SLAS is to do subject
to a maximum ceiling amount. We would strongly urge that any contribution
should be subject to a maximum ceiling amount.

(1) contribution in Bill of Rights cases

20. The Bar considers that the present system where legal aid is
granted to a person involved in Bills of Rights cases even though
his financial capacity exceeds the eligibility limit for the standard
legal aid scheme, subject of course to contribution according to a
sliding scale should be improved. In most if not all the Bills of
Rights cases, they inevitably involve with an important point of law
affecting rights of not only the aided person but a much larger sector
of the community. We would like to see that persons involved in the
Bill of Rights cases should not be asked to contribute according to
the sliding scale so as to deter any cases coming before the court.
As the cases involved with the Bills of Rights are not high each year,
such aided persons should in our view be exempted from contribution.

21. We would further urge the same should apply to cases involving
with the Basic Law.

(10) protection of Legal Aid Fund

21. The Bar considers that the present common law remedy for negligence
adequately protects the DLA from situations where assigned solicitors
fail to remit money payable to aided person to DLA. We are pleased
to learn that the proposed power to recover any loss to the Legal
Aid Fund from the assigned lawyer directly by the DLA is dropped.

(11) cost-effectiveness of our legal aid services

22. The Bar welcomes the continuation with the present practice where
no ceiling is imposed on spending on legal aid cases. At the same
time, we note the recent developments on the legal services in other
jurisdictions such as England and Wales. We agree that before the
removal of any ceiling on the spending on legal aid cases, an overall
review of the structure of our entire legal system including that
of the way lawyers charge their fees and the provision of legal aid
services in different categories of cases should be conducted. There
may be a case in Hong Kong to introduce conditional fee arrangements
in ceratin type of cases like personal injury litigation. However,
until such exercise is done, we consider that it would not be in the
public interest to impose an artificial ceiling on the amount of spending
in each case. There is simply no evidence to suggest that the present
system is being abused.

Dated 28th January 2000

Hong Kong Bar Association