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Following is the speech by the Chief Secretary for Administration, Mr Donald Tsang, on the motion on "Upholding the Rule of Law" in the Legislative Council today (November 7) :

Madam President,

I am responding to Members' comments and views on legal aid services. I am very grateful for their views and comments. Secretary for Justice will respond to the other points raised by Members during the debate.

Legal Aid Policy Objective

Our legal aid policy seeks to ensure that no one with reasonable grounds for taking action in the Hong Kong courts is prevented from doing so because of a lack of means. A key financial principle underpinning this policy is that the provision of legal cost is not cash-limited. This serves to ensure that financial constraint does not prejudice the grant of legal aid in Hong Kong.

If we go by overseas experiences, Hong Kong is the exception, rather than the rule, in not having a cap on legal aid spending. Other jurisdictions subject their legal cost to a financial limit, and some even impose spending cap on each individual case. We have from time to time considered whether we should also impose a financial limit on our legal aid spending, and have so far decided not to do so. We continue to believe that such impositions tend to prejudice the conduct and success of legal proceedings. This will not be in the interest of justice. We last confirmed this position during the 1997 legal aid policy review.

Scope of Legal Aid

The scope of our legal aid services is very wide by international standards and goes well beyond our international obligations. In addition to criminal proceedings, we have extended our legal aid services to civil cases covering major areas of the livelihood of the community at large. They include family and matrimonial disputes, personal injury claims, employment disputes, tenancy disputes, contractual disputes, immigration matters, professional negligence claims and, since last July, also coroner's inquests.

There have been suggestions from time to time that we should expand legal aid services further to cover, for instance, defamation actions, partnership disputes and other cases. We have carefully examined these suggestions, but remain unconvinced. We understand that other common law jurisdictions generally take a similar view. In looking into any new requests, we must bear in mind that legal aid is funded by tax payers, and we should not move away from practices in other common law jurisdictions without sufficient justification. While we will never be complacent and will continuously look for ways to improve the present system, we believe that the funding policy and coverage of our legal aid regime generally compares favourably with most other jurisdictions.

Financial Eligibility Limits

Some Members have commented on the current level of financial eligibility limits applicable to legal aid. They are concerned that these limits might be too restrictive.

Currently, a person with financial resources of not more than $169,700 has access to legal aid under the ordinary scheme. Under the supplementary scheme the limit is significantly higher at $471,600. In July last year, we adjusted the deductible allowances figures in order to make the legal aid scheme even more generous. This resulted in 58% of Hong Kong households being eligible for legal aid, a considerable step up from the previous 48%. The adjustment has made legal aid significantly more accessible to households in the lower and middle income groups.

That aside, we have in place a comprehensive mechanism and timetable to review the financial limits. It comprises three levels of reviews: first, an annual review to take account of inflation; second, a biennial review to reflect other relevant factors, including changes in litigation costs; and third, a review every five years of the criteria used to assess financial eligibility of legal aid applicants. The next review of financial criteria will fall due next year. I trust that these regular reviews should be sufficient in ensuring that the financial limits keep pace with the economic realities, social concensus and international practices of the time.

Free Legal Advice Service

I would now turn to Members' comments on the operation of the Duty Lawyer Service (DLS). The community must, first of all, pay tribute to the some 2,000 lawyers from the private sector participating in the Duty Lawyer and Legal Advice Schemes at present. Without their devotion and support, the DLS would not have been able to represent over 40,000 defendants and provided free legal advice to close to 6,000 individuals last year.

Under the current free legal advice scheme, any person, without going through any financial test, may have access to free legal advice in 8 district offices located in different parts of Hong Kong. The Honourable Margaret Ng and Audrey Eu have given us valuable suggestions on how we could enhance existing services. They highlight, among other things, the need to provide such services at convenient locations and the importance of having experienced & trained staff to assist in handling the clients' enquiries.

Let me briefly outline the plan we have to strengthen existing services. We opened a new free legal advice centre in the Eastern District in August this year. We are planning to open another in Wong Tai Sin later this year. These two offices will help shorten the average waiting time for consultation with duty lawyers from the current three weeks to two weeks. How far we could further expand the free legal service center network would depend on the availability of duty lawyers to staff them. We would continue to work with the DLS administration on this front.

We are also looking at ways to improve service quality. At present, colleagues at the District Offices conduct preliminary interviews with clients before they see the lawyers on duty. A well conducted preliminary interview not only leads to more efficient use of the time of the duty lawyers, it enables them to give more ready and comprehensive advice to their clients. To improve the quality of these preliminary interviews, we will organize training courses for front-line staff in District Offices on interview and note-taking techniques. We would also consider enlisting the help of university law students in doing the preliminary interviews. In this regard, we are very encouraged by the positive response from the Faculty of Law of the University of Hong Kong. Discussion is underway on the detailed arrangement. We hope to put in place a trial scheme early next year.

Conclusion

Madam President, within the confines of existing resources, we will continue to look for ways to enhance different aspects of our existing legal aid services. We continue to welcome Member' suggestions and views, and to work with the legal profession and the Legal Aid Services Council on improving our legal aid system and services in Hong Kong.

Thank you, Madam President.

End/Wednesday, November 7, 2001

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