Legal Aid and Duty Lawyer Service
The Monitor has carried out a review to identify problems with availability of legal aid or other free legal assistance. In ordinary civil cases (such as personal injury or commercial cases) the applicant for legal aid tends to face few problems in obtaining legal aid providing he or she passes the means test.
In sharp contrast are those cases which raise issues concerning the Bill of Rights. Here, the applicant may expect a struggle to obtain legal aid. Possible explanations for this include the "merit test" and independence of the legal aid department.
A case which considers the Bill of Rights sometimes does not involve a question of liberty, livelihood or monetary awards which will give a case obvious merit in the eyes of the officials dealing with the legal aid application, although the case may well raise an extremely important political or constitutional question. There is not necessarily deliberate discrimination against this sort of case.
Appeals in criminal cases have also been refused legal aid because they were found to be unmeritorious. These appeals have sometimes been pursued anyway and been successful. The decision to refuse legal aid may well have been based on the official's assessment of whether the applicant had reasonable prospects of success. Ask this question of a case concerning the Bill of Rights (which raises issues of relevance for the public) and the applicant may fail the merits test. It has been suggested instead that the department should consider if the applicant has an arguable case. The opportunity to bring issues about the Bill of Rights to court is very important for the people of Hong Kong in light of the handover next year. However, the merit test as it stands does not facilitate this.
It is maintained by the government that the legal aid department is independent, but at the same time the director of legal aid is a government post. Furthermore, the belief persists that the government attempts to dictate the granting of legal aid. Suggestions were made that a member of the Attorney Generals Chambers tried to dissuade the department from granting legal aid in the recent case of Lee Miu Ling & Law Piu v. AG of H.K. . It remains difficult to prove that the department is not independent and even if the department is under government pressure, it does not necessarily follow that the department complies with it. What is clear is that the government is keen to retain some sort of influence over the granting of legal aid. Independence has been an issue for about ten years and is supported by members of both branches of the legal profession and the Legislative Council. There are also many other commissions which have been set up and which are independent of the government (such as the ICAC and the Data Protection Commission). The question arises as to why the government wishes to retain its hold over the legal aid department. Presently the system does not appear to suffer greatly through lack of total independence. However in future, without either independence or assurances that there will not be interference, cases concerning the Bill of Rights may stand even less chance of gaining legal aid.
Representation of illegal immigrants who are due to be repatriated but have been detained pending their appearance as prosecution witnesses is not financed by the legal aid department and must depend on the work being done pro bono. Recently the bar association was told that legal aid will be available for these types of cases. Strangely it was a government administrative body from which the information came rather than the director of legal aid. This does not exactly fit in with the claim that the department is independent.
It is worrying that an applicant who has been refused legal aid and who wishes to appeal will not be granted legal aid for this. For an appeal the applicant has to hope for a lawyer willing to do the work pro bono. Discrimination against applicants, in the refusal of legal aid, is not unprecedented and is certainly a worry after June 1997. However, without the funding for appeals against these decisions, discrimination will continue to go unchecked.
Duty Lawyer Service
The Duty Lawyer Service is very effective in making legal advice available for a large number of people. This is done in three ways, two of which do not demand that the client qualifies for it (Tel-law and the Free Legal Advice Scheme.) The third service, the Duty Lawyer Scheme, does restrict the number of people to whom it is available. This is through a means and a merit test. The service (which includes legal advice and representation) will be provided for those who are not earning in excess of $108,000 a year and then only if the offence is included in a list of 200 offences. This appears at first glance to be very restrictive and not to take account of individual cases. In actual fact the DLS administrator can use his or her discretion in cases which do not fall within the designated list and which still seem to justify representation under the Duty Lawyer Scheme. The use of this discretion is perhaps curtailed due to the limits on funding.
The DLS has the responsibility of representing Vietnamese "overstayers" who wish to appeal to the Refugee Status Review Board but shortage of funds results in a failure to represent all 50-60 cases which appear each day. Seven or eight extra interpreters would be required every day for this task and the DLS can not afford this. While the Immigration Department has at least 20 members of staff to deal with this area of work the staff in the DLS are expected to just squeeze the extra work in. Similarly the government has asked if the DLS can expand their service to include representation of illegal immigrants who are due to be repatriated but are detained pending their appearance as prosecution witnesses. However the government appears unwilling to finance the extra work and would prefer the DLS to find a way to stretch their already over-stretched budget. The government must provide funding if it wishes the DLS in turn to provide a new and important service. It is a lack of money that means the DLS is short of staff and unable to offer legal representation to as many people as it would like.