A Response to Legal Aid Policy Review 1997

March 1998

I. Financial Eligibility for Legal Aid

The high level of legal costs in Hong Kong has made it difficult for an average family to meet those costs. The average costs for an employee compensation case are $90,000. The average in a traffic running down case is $350,000 while that in a miscellaneous personal injuries case is $500,000. These figures will clearly deter a person from fighting his case in court (except in those set up to ensure a relatively cheap process such as the Labour Tribunal, the Small Claims Tribunal) unless he is relatively well-off or legally aided.

Currently, the amount deductible from the family resources to arrive at the personal allowance is the Comprehensive Social Security Assistance (CSSA) standard rate. This definition of personal allowance taken together with the current financial limit of disposable financial resource of $169,700 results in quite a harsh eligibility regime. It unreasonably deprives many families of legal aid services. It also drives many eligible families closer to or below the CSSA subsistence level.

The Government proposes to increase the deductible amount from the CSSA level to "the average expenditure of the lowest 50% households (excluding rent payment)" while maintaining the current eligibility limit. The Statistics Department is of the opinion that the lower middle class would become eligible for legal aid.

The Monitor agrees with the Government that "affordability" should be the key concept underlying legal aid policy. Basically, we agree with the Government's proposal if it would genuinely ensure that the lower middle class people would all be covered.

Our concern is that the costs in employees' compensation, traffic running down and miscellaneous personal injury cases are substantially higher than the current eligibility limit. Different and more relaxed financial limits should be set for these cases to take account of such differences in costs.

To ensure justice in some exceptional cases, the Director of Legal Aid (DLA) should have the discretion to exclude certain assets or incomes in calculating the aggregated financial resources if it is reasonable to do so. He should also have the discretion to grant legal aid to applicants where their disposable financial resources have exceeded the financial limit if there are good reasons to do so.

As the Consumer Price Index A is revised every year, it is reasonable and necessary for the Government to review the financial eligibility limit annually to reflect closely the inflation rate, the changes in legal costs and other relevant factors. The annual review should also keep track to ensure that legal aid coverage would continue to be available to all lower middle class people.

The Monitor supports the Government's current policy of excluding the financial resources of an infant's parents to prevent the parents from being discouraged from pursuing a case because of the threat of financial contribution. The interests of the infant should always be our first and paramount consideration.

The Monitor is concerned that the financial limit in the Supplementary Legal Aid Scheme is $471,600 which is even below the average costs of personal injury cases ($500,000). The Government's reason not to review it is that the scheme was expanded just two years ago and any increase may have an adverse impact on its financial viability. We, however, consider that the measures adopted and the resources allocated two years ago are probably insufficient to deal with the problem, and further review should not be delayed.

The Monitor is also concerned that special classes of people who are unable to replenish their financial resources in the future and who actually have limited means, should perhaps be given special consideration in requiring a contribution from them. The DLA should be given the discretion to waive or reduce the amount of contribution or the eligibility limit of such persons who are elderly, on pension, disabled or seriously ill. A rule of thumb may be to enable them to retain a minimum pension or fund of say $160,000.

Five hundred dollars will often mean a lot to very poor persons. Subject to the suggestion in the preceding paragraph, there should not be any nominal contribution or a nominal contribution of just 1% levied on them, especially for those with disposable resources of an amount less than $60,000.

We also want to remind the Government that the level of contribution of a person assessed in the high means bracket should not be charged at a rate which would leave them with a lower net balance than those assessed to be in a lower bracket -- an inevitable result of the current proposal as seen from the enclosed table we have prepared.

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II. Scope of Legal Aid

We support the extension of Duty Lawyer Service (DLS) and legal aid to coroners' inquests. Persons who are likely to face criminal charges should also be aided provided that they pass the means test.

However, subject to a means test, such legal assistance should also be made available to the deceased's family. Moreover, such legal assistance to the deceased's family should not be limited to legal advice. In many cases the proper conduct of the inquest may be compromised if the family is not legally represented. It is also essential in the interests of justice to have legal representation for the family funded by legal aid, especially in cases where the death involves the police or other Government agencies and in industrial accidents when the other parties are usually funded by the Government or more wealthy employers.

The Monitor opposes the limit on the Director's discretion to grant legal aid to inquests where a legal aid certificate has been issued for a related civil case. Such a limit will lead to absurd and unjust results.

For example, on the one hand, the deceased's family, with limited means of investigation, rely heavily on the inquest to produce evidence that establishes that there is merit in a proposed civil action. Unless they get legal aid for the inquest, they may have difficulties in getting legal aid in the related civil claims because they will not have had skilled legal assistant in eliciting information during the inquest hearing. On the other hand, without a certificate of legal aid for a related civil action, they will not be eligible to legal aid in the death inquest. Therefore, the Government is in fact telling the poor family to find the open end of a closed loop.

Another likely absurd situation is that in an alleged police abuse case, the police officer is guaranteed legal representation while the family is not. The police officer who allegedly beat the deceased to death in custody either has government lawyers defending him until he is discharged by the police or, where he has been discharged, he is entitled to legal aid (subject to financial eligibility) as he is likely to be charged and sentenced to imprisonment. At the same time, the family is placed in the difficult situation of not knowing where to begin.

The Monitor therefore is strongly of the view that, subject to financial eligibility, the DLA should also have the duty to provide legal representation to at least the deceased's family if he reasonably considers it is in the interests of justice or the proper conduct of the inquest.

The McKenzie adviser available in coroners' inquests under the Green Form system of the UK Legal Aid Board highlights the need for legal representation at coroners' inquests. The UK system is inadequate and needs to be expanded. It would also be a serious waste of resources and a source of injustice in a death inquest if a lawyer is paid only for his sitting next to his client and for his strictly personal advice whispered into his client's ears. The strict rules of the McKenzie adviser system would bar him from addressing the coroner directly although such a direct address would be of more assistance both to the coroners' court and to his client. In reviewing and reforming our own system, we should not adopt a halfway solution mimicking a UK system which is itself inadequate and needs urgent reform.

The Monitor fully endorses the proposal that there should not be any residency status requirements. This is in line with the guarantee of legal representation enshrined in the International Covenant on Civil and Political Rights entrenched in the Basic Law.

Moreover, the Government should be very vigilant in guarding against unfavourable treatment to groups who face discrimination in society. Migrant workers, asylum seekers, illegal immigrants, ethnic minorities, drug addicts and political opponents are most vulnerable to discrimination if the Legal Aid Department is not vigilant enough. Positive measures should be introduced like circulars and posters to remind staff to guard against discriminatory attitudes and behaviour.

There are reports of a 1991 agreement between the then DLA and the then Solicitor General to withhold granting of legal aid to Vietnamese asylum seekers where procedural defects were found in the screening process so that those cases would only be dealt with administratively. The Monitor is strongly against any interdepartmental agreement to delay or deny legal aid to any class of people, especially to minorities. Such an agreement imposes new requirements which have no basis in law and amount to denial of these applicants' rights to legal representation and to have their case heard.

Legal aid or the DLS should also be extended to cover other administrative bodies whose decisions have serious consequences for the person affected, especially where volunteer services are not available to fill the gaps. The Monitor is particularly concerned that there is no legal aid to assist prisoners to prepare and argue their cases before the Long-term Prison Sentences Review Board (e.g. the "Her Majesty's Pleasure" cases).

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III. Operation of the Legal Aid Ordinance

1. Discretion to Waive the Means Test for Employees in Appeals to the Court of First Instance Brought by Employers against Judgments of the Labour Tribunal

There are calls in the community to grant the DLA a discretion to waive the means test for employees in appeals to the Court of First Instance brought by employers against judgments of the Labour Tribunal.

The special situation in these cases is that the employees have judgments in favour of them already. Moreover, such judgments were awarded to them in the Labour Tribunal which is relatively inexpensive, quick and informal, making the legal contest fairer as the advantage of wealth, education, and other resources the employer has over the employee become less significant. By appealing to a higher court, the employer revives the disparity and even transfers his costs to the employee if the employer wins his case. If an employee is not legally aided, he has to consider the possibility that he has to bear the exorbitant costs -- the average cost is $90,000. If he is legally aided, he has to pay his contribution. Even if the employee wins his case in higher courts, the contribution accompanying the means test will dissipate the limited amount of money an employee gets.

The mischief which should be addressed is that unscrupulous employers can take advantage of their overwhelming financial resources and other advantages in filing an appeal to a higher court as an oppressive measure to deter their current or former employees from continuing their cases in the higher court. It was reported not long ago that an employee who had won his case in the Labour Tribunal gave up his defence when the employer filed an appeal to the Court of First Instance. In addition, we should also bear in mind that an employer sometimes may have an incentive to concentrate his effort in singling out an employee to bring him to a higher court to set an example to his employees to deter them from making similar claims. While the employer has the benefit of bringing a test case, the employees are less well-off and are unable to do so.

Clearly, there are sufficient reasons for the DLA to have such a discretion.

Alternatively, the DLA should only be allowed to conduct means tests and require for contribution if he considers the employer's case is overwhelming and he should always be given the discretion to waive the means test for the respondent employees.

The report's argument, that most of the employees involved in the majority of the cases would come within the current financial eligibility limit, means that the resource implications are relatively small in implementing the alternative we are proposing.

The Government's argues that there are similar appeal cases to the Court of First Instance against judgments from other Tribunals. We see no difficulties in granting the Director such a discretion to ensure an even playing field for parties with disparity in resources or where the appellant is using its resources unfairly to hurt the respondent.

2. Discretion Not to Discharge a Legal Aid Certificate

The Monitor supports the proposal that the DLA should have the discretion not to discharge a legal aid certificate in cases where the aided person's financial situation improves beyond the eligibility limit. If he is allowed to discharge a certificate during a case it may seriously affect the interests of the legally aided party and it will raise doubts as to the impartiality of the Government before the Legal Aid Department becomes independent.

3. Rights and Constitutional Cases

The Monitor is of the opinion that in cases concerning the ICCPR or the Bill of Rights Ordinance (BORO) or rights clauses found in the Basic Law, especially those in Chapter Three but not limited to it, or those about the constitutional safeguards of rights or institutions, where the applicants would have no or only nominal financial gain, should not be required to be means tested nor any contribution required provided they pass the merit test. No financial hurdle should be placed in the way of such cases as they are more often in the nature cases brought for the public good than for any personal gain.

4. No Capping of Expenditure in Any Single Case

No ceiling on the spending on each publicly-funded legal aid case should be imposed. Otherwise justice will be rationed. It would involve a lot of value and political judgements to set and implement a cost ceiling. It is both impractical, dangerous, and compromises the justice process to set and enforce such a cost cap. It is almost an impossible task to place a cap in any case beforehand. It will not be in the interests of justice to avoid important arguments or courses of action just to save costs.

The Monitor will be opposed in the strongest possible terms were there any fund-rationing element introduced into our legal aid system. We strongly support the Government's current proposal not to cap the spending on any publicly-funded legal aid case.

The Monitor reiterates that the Director of Legal Aid should be able to apply for further funding without holdup by the Government whenever the fund allocated for legal cases is exhausted or is just sufficient to cope with the moment until new funding is approved by the Legislative Council.

While the Monitor is sensitive to ensuring our legal aid system is more cost-effective, we would like to caution the government not to compromise justice and introduce political and value controversies into the administration of the legal aid scheme.

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IV. General Discretion to Alleviate Hardship

The DLA should have a general discretion to waive or reduce the means test or dispense with the eligibility limit for a particular applicant if the strict enforcement of such a test or limit will bring undue hardship to a person or it is in the interests of justice to do so. Similarly, he should also have a general discretion to waive, reduce or return part of or all of the contributions a legally aided person is or has been required to pay.

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1998 (c) Hong Kong Human Rights Monitor