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Following is a question by the Hon Ng Leung-sing and a written reply by the Secretary for Home Affairs, Mr Tsang Tak-sing, in the Legislative Council today (February 12):
Question:
The actual expenditure on legal aid services incurred by the Legal Aid Department (LAD) in 2012 to 2013 rose by 11% from the previous financial year. The authorities have advised that as legal aid expenditure is largely demand driven, if the expenditure of a certain financial year exceeds the approved provision, they will seek additional funding in accordance with the relevant provisions under the Public Finance Ordinance (Cap. 2), so as to ensure that the eligible legal aid applications will not be turned down. There are comments that such a practice is tantamount to allowing legal aid expenditure without a ceiling. Furthermore, while the Director of Legal Aid may act for the aided persons through lawyers of LAD, the Director or the aided persons may also select other counsel/solicitors as representatives. Under the Legal Aid Ordinance (Cap. 91), the Director is required to maintain separate panels of counsel and solicitors (panels) who are willing to investigate, report and give opinions in respect of legal aid cases and to act for the aided persons. In this connection, will the Government inform this Council:
(1) whether the authorities will draw reference from the relevant system of the United Kingdom and set a ceiling on the annual expenditure on legal aid services, so as to ensure that public resources are allocated properly and put to the best use;
(2) given that when the aided persons do not choose their own lawyers and let the Director of Legal Aid assign counsel/solicitors on the panels as their representatives, LAD will take into consideration the experience and expertise of the counsel/solicitors and the types and complexity of the cases concerned when assigning lawyers, of the specific procedures and criteria based on which LAD select the most suitable lawyers among the counsel/solicitors who meet such requirements; and
(3) of the details of the 100 publicly-funded legal aid cases which incurred the highest litigation fees (including the types of cases and the amount of litigation fees paid by LAD), and the respective amounts of litigation fees paid by LAD to the top 10 counsel and solicitors to whom LAD assigned the most civil or criminal cases, in the past five years?
Reply:
President,
(1) All along, the policy objective of legal aid is to ensure that no one with reasonable grounds for taking or defending a legal action is denied access to justice because of a lack of means. The major responsibility of the Legal Aid Department (LAD) is to administer the Legal Aid Schemes to ensure the prudent use of public money. To ensure the rational use of public funds, legal aid will only be granted to applicants who pass both the merits test and the means test in accordance with the Legal Aid Ordinance. In assessing the merits of an application, the LAD will consider the facts of the case, evidence available and the legal principles applicable to the case to determine whether there are reasonable grounds for legal aid to be granted. The Department also has an established mechanism to ensure that public resources are allocated properly and put to the best use. For example, all legal aid applications are processed by in-house legal aid counsel. If anyone believes that an applicant or aided person has given the Department false information on merits or means, he/she can provide details to the Department. If the case is substantiated after investigation, the Department will discontinue the legal aid and refer the case to the police for follow up action. As such, we have no intention to set a ceiling on the annual expenditure on legal aid services because such a move is detrimental to the principle of ensuring that a person's access to justice would not be hindered by the constraints of the fiscal position of the Department.
(2) When distributing legal aid work to lawyers on the Legal Aid Panel, the LAD will adhere to the fundamental principle that the aided person's interest is of paramount importance. The LAD's primary duty towards the aided person is to facilitate access to and attainment of justice through competent legal representation. To this end, the LAD has devised criteria on the assignment of legal aid cases based on factors such as the experience and expertise of the lawyers as well as the nature and complexity of the particular case. For example, for civil cases, counsel or solicitors should have at least three years of post-call/post-admission experience, and should have handled a minimum number of civil cases in the relevant area of work within a specified period. Assignment to counsel and solicitors who do not meet the selection criteria may be allowed only with the approval of a directorate officer. The criteria have been endorsed by the Legal Aid Services Council and uploaded onto the website of the LAD.
(3) Given the time constraint, we can only provide the information on the 20 cases which involved the highest litigation fees paid by the LAD in each of the past five years at Annex I.
In the past five years, the 10 counsel and solicitors who were assigned with the most number of cases (civil and criminal) and the amount of litigation costs paid for these assigned cases are at Annex II.
In accordance with the data protection principles under the Personal Data (Privacy) Ordinance and the restriction on disclosure of information concerning aided persons and their cases under the Legal Aid Ordinance, the LAD is not at liberty to disclose the names of the counsel/solicitors assigned to handle individual legal aid cases and their charges.
Ends/Wednesday, February 12, 2014
Issued at HKT 14:15
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