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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 (November 20):
Question:
Recently, large-scale illegal occupation of roads occurred in a number of districts in Hong Kong. On the 20th of last month, the Court granted interim injunctions to a number of organisations affected by the occupation, restraining the occupants from continued occupation of the roads in Mong Kok, and from obstruction of the passageways leading to a commercial building in Admiralty. Subsequently, an occupant was granted legal aid by the Legal Aid Department (LAD) to apply to the Court for discharging the interim injunctions granted in respect of the occupied area in Mong Kok. On the other hand, under Section 10(3) of the Legal Aid Ordnance (Cap. 91) (Section 10(3)), the Director of Legal Aid (DLA) may refuse to grant legal aid where it appears to him that there are circumstances as set out in that provision in a legal aid application. As occupation of roads is illegal, some members of the public have queried why LAD approved the legal aid application. In this connection, will the Government inform this Council:
(1) given that the aforesaid legal aid applicant intends to institute legal proceedings for continuation with the illegal occupation of roads, of the reasons why, at the time when DLA vetted and approved the legal aid application concerned, it did not appear to him that there were circumstances as set out in Section 10(3) in that case, and hence he had not rejected the application;
(2) apart from considering whether the applicant could pass the means test and merits test, of the specific factors that LAD took into account in vetting and approval of the legal aid application, and of the precedent cases available for reference; and
(3) whether an independent monitoring mechanism is currently in place to ensure the vetting and approval results of similar legal aid applications are reasonable; if so, of the details; if not, the reasons for that?
Reply:
President,
Occupying roads and blocking traffic are unlawful acts. The Government is determined in safeguarding the rule of law and committed to securing public order. Legal aid is an integral part of the legal system in Hong Kong. The policy objective of legal aid is to ensure that no one with reasonable grounds for pursuing or defending a legal action in the Hong Kong courts is denied access to justice because of a lack of means. To qualify for legal aid, a person has to satisfy the means test and the merits test as provided by the Legal Aid Ordinance (LAO) (Cap. 91). The Legal Aid Department (LAD) processes legal aid applications in accordance with the established principles and procedures, and the Home Affairs Bureau will not comment on the processing of individual applications.
Our reply to the three parts of the question is as follows:
(1) and (2) To ensure that only those cases with reasonable grounds are granted legal aid, all legal aid applications are processed by Legal Aid Counsel appointed to serve in LAD. In conducting the merits test, LAD will consider the background 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. In assessing the merits (including compliance with Section 10(3) of LAO), LAD must be satisfied that there are reasonable grounds or points of law involved for which it is desirable to grant legal aid to enable the matter to be submitted to the court for decision or judgment. For individual applications, if the available documents already demonstrate strong ground(s) for taking proceedings or that the issues raised are already covered by previous judgments or advice, legal aid may be granted to applicants who have passed the means test. If complicated legal issues are involved in the application, LAD may seek independent legal opinion from counsel in private practice on the merits of the application under Section 9(d) of LAO.
Regarding the legal aid applications for the discharge of the injunctions, in accordance with Section 24 of LAO, which imposes restrictions on the disclosure of information concerning applicants and aided persons, and the provisions of the Personal Data (Privacy) Ordinance, LAD is not at liberty to comment on any individual legal aid application nor disclose the specific merits, principles or facts of the case concerned. However, LAD can confirm that the above merits/reasonable ground tests have been applied to all cases which have been granted legal aid.
(3) Legal aid will only be granted to applicants who pass both the merits test and the means test in accordance with LAO. LAD has also put in place a monitoring mechanism to ensure that the processing of legal aid applications is reasonable and to safeguard against abuse of legal aid. If an application is refused, the applicant may appeal against the decision of the Director of Legal Aid to the Registrar of the High Court in accordance with Section 26 of LAO, for which the decision of the Registrar is final. Furthermore, if anyone believes that an applicant or aided person has provided false information on either merits or means, he/she can provide LAD with such details from which the Department will conduct an investigation into the matter. If it is found that an aided person has provided false representations or withheld material information about the facts of the case or his/her financial resources, LAD would discontinue legal aid and refer the matter to the Police for follow up action.
Ends/Thursday, November 20, 2014
Issued at HKT 13:00
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