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Following is a question the Hon Ip Kwok-him and an oral reply by the Secretary for Home Affairs, Mr Lau Kong-wah, in the Legislative Council today (July 6):
Question:
Last year, the authorities rezoned several Green Belt sites in Tai Po to residential sites. Assisted by a green group, a tertiary student applied for judicial review (JR) seeking to overrule the aforesaid decision and was granted leave by the High Court. It has been reported that last month, a High Court judge set aside the aforesaid leave for JR and criticised the applicant for misleading the Legal Aid Department into granting him legal aid by providing documents with incomplete information and then making use of the legal aid to lodge JR, which was tantamount to abusing the judicial process. The judge indicated that she would consider requiring the applicant to bear the legal costs of some $1,900,000 of both parties to proceedings. Regarding members of the public applying for legal aid to lodge JR, will the Government inform this Council:
(1) whether it has assessed if the failure to disclose or withhold material information by legal aid applicants and the people assisting them when they apply for legal aid or lodge JR, constitutes a breach of law or an abuse of the relevant mechanisms; if it has assessed and the outcome is in the affirmative, of the penalties concerned; if the assessment outcome is in the negative, whether it will review the existing thresholds for application for JR and legal aid; if it will, of the timetable;
(2) of the details of each case in each of the past three years in which legal aid was granted for lodging JR, including the names of both parties to proceedings, the issue(s) involved, the legal aid expenditure, the amount to be borne by the legal aid recipient(s), the result of JR, and the impact of the proceedings concerned on public administration (e.g. the delays in public works), and set out such information in a table; and
(3) given that among the some 2,000 cases of legal aid applications involving JR in the past five years, less than one fourth of them were approved, whether the authorities have plans to impart to members of the public, through public education, the functions of the JR and legal aid mechanisms under the existing legal system, and the impacts on society caused by abusing these mechanisms; if they do, of the details and timetable?
Reply:
President,
Legal aid services form an integral part of the legal system in Hong Kong. The policy objective of legal aid is to ensure that all those who comply with the regulations of the Legal Aid Ordinance (the Ordinance) (Cap.91) and have reasonable grounds for pursuing or defending a legal action in the Hong Kong courts, will not be denied access to justice due to a lack of means.
To qualify for legal aid, a person is required to satisfy both the means test and merits test as provided by the Ordinance. To ensure that only cases with reasonable grounds are granted legal aid, all legal aid applications are processed by Legal Aid Counsel appointed to serve in the Legal Aid Department (LAD).
In conducting the merits test, the LAD will consider the background, evidence available and legal principles applicable to the case so as to determine whether legal aid should be granted. Before issuing a legal aid certificate, the LAD must, in assessing the merits, 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 documents available already demonstrate strong grounds for taking proceedings or if 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, the LAD may seek independent legal opinion from counsel in private practice on the merits of the application under section 9(d) of the Ordinance.
My reply to various parts of the Hon Ip Kwok-him's question is as follows:
(1) The relevant mechanisms and penalties against abuse of legal aid services are provided by the Ordinance and its subsidiary legislation. It is stipulated under section 23 of the Ordinance that any person seeking or receiving legal aid who knowingly makes any false statement in furnishing information shall be guilty of an offence and liable on conviction to a fine at level 3 (i.e. $10,000) and to imprisonment for 6 months.
The LAD may revoke a legal aid certificate if the aided person, in respect of his case, knowingly made a false statement concerning any information furnished by him; or wilfully failed to disclose his financial resources or any material fact, documents, information, etc. Furthermore, the LAD may recover from the person all costs paid or payable under regulation 9 of the Legal Aid Regulations (Cap.91A).
To tie in with the above provisions, the LAD has introduced measures and a monitoring mechanism to prevent abuse of legal aid services. The application form provided to applicants is attached with a points-to-note leaflet reminding them of the relevant regulations under the Ordinance, such as an applicant is liable to a fine and imprisonment for giving false statement or representation; an applicant should notify the Director of Legal Aid (the Director) immediately on any change in the information provided; and the Director has the power to revoke a legal aid certificate issued and recover the relevant costs if an applicant obtained legal aid by furnishing false information.
Anyone who believes that an applicant or aided person has furnished false information on the merits or means may provide relevant details to the LAD. If the case is substantiated upon investigation, the LAD shall revoke the legal aid certificate concerned and refer the case to the Police for follow-up actions.
It is also stipulated under section 17 of the Ordinance that, where it appears to a court that a legal aid certificate has been obtained by fraud or misrepresentation, the court may order the aided person to pay the costs of the Director and the costs of all parties to litigation.
(2) The number of applications in which legal aid was granted for lodging judicial review (JR) and the total legal aid expenditure in the past three years are at Annex. Under section 24 of the Ordinance, the LAD is prohibited from disclosing information on individual legal aid applications unless with the consent of the persons concerned.
Commencement of relevant government policies or works projects may be delayed due to the relevant JR cases. However, it is difficult for the Government to quantify the impact of such delays on the public administration and overall economy of Hong Kong.
(3) The Government understands that Members and the community are concerned about whether JR applications and the legal aid mechanism are used in a proper manner. Government officials have repeatedly reiterated on different occasions, including when responding to questions raised by Members at the Legislative Council and relevant panel meetings, that JR is an important safeguard to the rule of law. As always, the Government respects the rights conferred on residents under Article 35(2) of the Basic Law, including their legal right to apply for JR. The Government will abide strictly by the rule of law, and deal with JR through appropriate legal procedures.
The Government would also like to stress that JR should only be used to resolve legal disputes. It is not a means for tackling political or social issues. In their respective public addresses, the Chief Justice Geoffrey Ma and the former Chief Justice Andrew Li of the Court of Final Appeal have made clear remarks on this and explained the court's role in JR proceedings. The solution to political, social and economic problems cannot be found through the legal process and can only be found through the political process. The Government believes that with such remarks and relevant court judgments explaining the mechanism and scope of JR, the public will gain a better understanding of the proper use of JR.
At present, regarding general education and public awareness activities on Hong Kong's legal system (including those on JR), the public may access information on JR, including characteristics of JR, grounds on which JR can be lodged and important points to note for JR applications, through such channels as the website of the Community Legal Information Centre (www.clic.org.hk/en/) set up by the University of Hong Kong with the subvention from the Home Affairs Bureau. The Government will keep a close watch over the developments in this regard and consider timely enhancement in educational and publicity efforts on the rule of law, including JR.
As regards legal aid, the Government has been stepping up publicity and educational efforts through various channels, including reminding the public not to abuse the use of legal aid. The LAD is committed to promoting legal aid services. It organises and participates in various activities every year and enhances public understanding on such services via websites, booklets, announcements in public interest on television and radio, etc. Apart from explaining how the merits test works, the LAD also takes the initiatives to convey the important message of reminding the public to apply for and use legal aid services in a proper manner. These include a reminder to applicants that they may be prosecuted for making false statements or furnishing incorrect information, and that if a person has repeatedly applied for legal aid such that his conduct has amounted to an abuse, the Director may order that no consideration shall be given to any future application by that person for three years.
The Government will continue with its efforts on public education in future.
Ends/Wednesday, July 6, 2016
Issued at HKT 17:19
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