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Following is a question by the Hon Frankie Yick and a reply by the Secretary for Home Affairs, Mr Tsang Tak-sing, in the Legislative Council today (March 26):
Question:
In the past four years, among the top 10 solicitors in each year to whom the Legal Aid Department (LAD) assigned the most legal aid cases, the number of cases assigned to the solicitor on top of the list was higher than that to the solicitor ranked the 10th by roughly 80%. Given that LAD generally assigns, according to the wishes of legally aided persons, the solicitors or counsel nominated by them to be their representatives, and legal aid cases are assigned mainly to a small number of lawyers at present, some members of the taxi and public light bus trades are worried that the legal aid system is susceptible to abuse. For instance, law-breakers may engage in champerty and abet the injured in traffic accidents to exaggerate the degree of their injuries sustained in order to make fraudulent insurance claims. Due to the increase in the amount of compensation payout, insurance companies raise the insurance premiums for vehicles, resulting in an increase in the operating expenditure of the trades. In this connection, will the Government inform this Council:
(1) of the annual numbers of legal aid cases in which LAD refused the assignment of the lawyers nominated by the aided persons, with a breakdown by reason for refusal; the average, the highest and the lowest amounts paid for the legal costs and other disbursements for unsuccessful legal aid cases, the average difference between the amount claimed and the amount of compensation awarded by the court in respect of the successful legal aid compensation claims, and the number of traffic accidents involving taxis and public light buses among such cases, in the past five years;
(2) whether LAD reviewed in the past five years the existing legal aid system, including the practice of nomination of lawyers by aided persons, the causes for legal aid cases being assigned mainly to a small number of lawyers, and whether allowing aided persons to nominate lawyers will give rise to problems such as champerty; if it did, of the outcome, and the solutions for the problems concerned; if not, whether it will conduct such a review; whether it will study the formulation of a code governing aided persons' nomination of lawyers, so as to ensure that legal aid cases will not be assigned mainly to certain lawyers; and
(3) whether it will invite the Corruption Prevention Department of the Independent Commission Against Corruption to give advice on the existing procedure for assigning legal aid lawyers, so as to ensure that the procedure is fair and transparent; if it will, of the details; if not, the reasons for that?
Reply:
President,
The Government's 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. According to the Legal Aid Ordinance (LAO), legal aid will only be granted to applicants who pass both the merits test and the means test, and all legal aid applications are processed by LAD's legal aid counsel.
In assigning legal aid cases to lawyers, Section 13 of the LAO provides that where a legal aid certificate is granted, the Director of Legal Aid (the Director) may act for the aided person through legal aid counsel or assign any lawyers in private practice who are on the Legal Aid Panel (the Panel) selected by either the Director or the aided person. To this end, LAD has devised a set of criteria on the assignment of legal aid cases which have been endorsed by the Legal Aid Services Council and uploaded onto LAD's website. In assigning legal aid cases to lawyers on the Panel, the aided persons' interest is of paramount importance to LAD.
When processing the nomination of lawyers, LAD will base on the assignment criteria to determine whether the choice of lawyer is appropriate by assessing whether the nominated lawyer has attained the relevant seniority, experience and expertise required to take up the assignment. If the nominated lawyer is considered not appropriate on grounds such as having previous records of unsatisfactory performance in handling legal aided cases or currently handling an overwhelming number of legal aid cases, etc., LAD will discuss the choice of lawyer with the aided person. When necessary, LAD will ask the aided person to select another Panel lawyer and assess whether the newly nominated lawyer is appropriate in taking up the case. As such, the lawyer eventually assigned to take up the case would be agreed to by both the aided person and LAD.
As regards the three parts of the Hon Yick's question, the answer is as follows:
(1) LAD has not maintained statistics on the number of legal aid cases where the nomination of lawyer by an aided person was refused.
The costs incurred in cases (irrespective of whether the lawyer was nominated by the aided persons) closed in the past five years relating to traffic accidents, employees' compensation and general damages claims for personal injuries are set out in the Annex. Meanwhile, all traffic accident cases, regardless of the types of vehicles involved, are classified under the traffic accident category. LAD does not maintain separate statistics on traffic accident cases that involved only taxis or public light buses.
Regarding the amount of damages claimed for personal injuries and the judgment sum eventually awarded by the court, the amount claimed in individual cases would often be revised for various reasons in the course of the proceedings. As such, LAD has not compared the amount of damages claimed and the judgment sum eventually awarded by the court for individual cases.
(2) Under the common law, maintenance and champerty are criminal offences, and are prohibited under the code of professional conduct of the Law Society of Hong Kong and the Hong Kong Bar Association. Notices are displayed at LAD offices to remind the public of the risk of engaging recovery agents and of the prohibition of improper touting activities by law firms within LAD premises. If a nominated lawyer is found to have engaged in any improper conduct, LAD will impose appropriate sanctions on the lawyer concerned and refer the case to the Hong Kong Bar Association or the Law Society of Hong Kong for follow-up action.
To address the public concern on improper touting or champerty activities, LAD has introduced a "Declaration System" for legal aid cases in September 2013 after consulting the Legal Aid Services Council and the two legal professional bodies. The system seeks to ensure that the aided person's choice of lawyer is not affected by the champerty or improper touting activities, etc. on the part of the lawyer concerned. A nominated lawyer who is unable to accept the above declaration condition will not be allowed to take up assignment to handle the case.
Meanwhile, LAD also noted that there were Panel lawyers who had been assigned with a relatively larger number of cases. Such situations may not necessarily be related to improper touting or champerty activities. LAD will consider enhancing liaison with the two legal professional bodies to combat improper touting, and imposing appropriate sanctions on law firms that have acted unreasonably or have not handled claims properly. LAD also strives to enhance the transparency of the claims procedures and welcomes the provision of evidence and relevant information, such as copying LAD in the correspondences between the defendant or insurer and the aided person, so that LAD may identify in a timely manner any improper conduct on the part of assigned lawyers. The Home Affairs Bureau and the Legal Aid Services Council will closely monitor the situation.
(3) A Departmental Monitoring Committee (DMC) chaired by the Director is established to evaluate the performance of assigned lawyers in handling legal aid cases and the number of legal aid cases assigned. In the past, a representative of the Independent Commission Against Corruption (ICAC) had attended DMC meetings as an observer.
To enhance the transparency and fairness in the assignments of lawyers, LAD and ICAC have formed a Corruption Prevention Group to discuss issues relating to prevention of corruption and bribery. We understand that the Group has agreed to commence a review of the lawyer assignment procedures in the middle of this year. The Home Affairs Bureau will closely monitor the situation.
Furthermore, LAD currently has in place a mechanism for making "representations" regarding legal aid cases. If anyone believes a person should not have been granted legal aid (for example, that the person has withheld essential information that affects the strength of the case), he/she can make a representation to LAD. If verified after LAD's investigation, LAD will discharge the relevant aided person's legal aid certificate. If improper conduct on the part of lawyers is involved, LAD will also take appropriate actions, including issuing advisory letters to the lawyers concerned, placing their names on the Record of Unsatisfactory Performance and Conduct, removing their names from the Legal Aid Panel, as well as referring the cases to the relevant legal professional bodies for follow-up actions.
Thank you, President.
Ends/Wednesday, March 26, 2014
Issued at HKT 15:06
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