LCQ22: Review of application thresholds for legal aid and leave for judicial review
It has been reported that a number of judicial reviews (JRs) on subjects of political arguments have been lodged over the past decade, and nearly all of the legal aid applications made by the plaintiffs of those cases have been approved by the Legal Aid Department (LAD). In recent years, a Cheung Chau resident has been granted legal aid for lodging over 30 JRs one after another, and is therefore referred to as "King of Judicial Reviews from Cheung Chau" by the media. There are views that the fee of $1,045 charged for application for leave for JR is on the low side and the approval rate of the relevant legal aid applications stands high, and such situation is tantamount to encouraging some members of the public to repeatedly abuse the JR system. In this connection, will the Government inform this Council of:
(1) (i) the number of JR cases on subjects of political arguments in each of the past five financial years in which the plaintiffs were granted legal aid, (ii) LAD’s total expenditure on these cases so far, and (iii) the total time taken by the court to hear such cases so far;
(2) LAD's total expenditure on the JR cases lodged by the King of Judicial Reviews from Cheung Chau so far, and the total time taken by the court to hear such cases so far; the respective numbers of such cases ruled in favour of and against the said plaintiff, and the respective numbers of such cases being heard or listed for hearings; and
(3) the criteria based on which LAD approved consecutively the 30-odd legal aid applications made by the King of Judicial Reviews from Cheung Chau; whether LAD has, in the light of the situation that an individual may be granted legal aid to lodge a number of JRs and the rate of such cases ruled in favour of the plaintiff, analysed if the threshold for application for leave for JR is too low and the vetting and approval criteria for legal aid applications are too lax?
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 (Cap 91) (LAO) and have reasonable grounds for pursuing or defending a legal action in the courts of Hong Kong 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 LAO. To ensure that only cases with reasonable grounds are granted legal aid, all legal aid applications are processed by Legal Aid Counsel serving in the Legal Aid Department (LAD).
Regarding various parts of the Hon Paul Tse's question, having consulted relevant departments and organisation, we provide a consolidated reply as follows:
(1) The statistics maintained by LAD does not distinguish whether legal aid applications involve political arguments.
The number of legal aid applications involving judicial review (JR) received by LAD and the number of legal aid certificates granted in the past five years are tabulated below:
|Year||No. of legal aid applications involving JR received||No. of legal aid certificates granted for cases
Note: Legal aid certificates may not be granted in the same year as the applications were received.
The total legal expenditure on legally-aided cases involving JR in the past five financial years are tabulated below:
|Financial year||Total legal expenditure on cases involving JR
|Percentage of total legal aid costs of the year|
Note: The total legal expenditure on cases involving JR was the total expenditure for legally-aided cases involving JR in the year, including the expenditure for cases where the legal aid certificates were granted not within that year.
The Judiciary does not maintain statistics on the processing time on cases filed with at least one of the parties being legally aided as at filing of applications (Note 1).
(2) Owing to the provisions in the Personal Data (Privacy) Ordinance (Cap 486) and the LAO, LAD is prohibited from disclosing information on individual legal aid applications or cases unless with the consent of the persons concerned. The Judiciary does not have the breakdown of statistics by applicant.
The success rates of legally-aided cases involving JR concluded in the past three years are as follows:
|Year||Judgments in favour of the legally-aided person#||Total||Rate of obtaining in-favour judgment|
# The figures include cases in which:
(1) judgment was in favour of the aided person;
(2) precedent was set by the court subsequent to the grant of legal aid, thus favourable to the case of the aided person;
(3) relief was given to the aided person by the opponent (government department/organisation) before conclusion of the legal proceedings; and
(4) policy amendment was made by the opponent (government department/organisation) so that relief could be obtained by the aided person who therefore did not have to continue with the legal proceedings.
(3) Currently, LAD already has in place a stringent mechanism to process legal aid applications. The criteria for conducting the merits test for legal aid applications involving JR are the same as those for other civil legal aid applications. That is, according to section 10(3) of the LAO, legal aid would only be granted to applicants who can show that their cases have reasonable grounds for conducting JR proceedings. In conducting the merits test, 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, 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. 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 the LAO. However, the number of cases where legal aid has already been granted to the applicant and the success rate of his or her previous legally-aided cases are not among the factors to be considered under section 10(3) of the LAO.
The relevant mechanisms and penalties against abuse of legal aid are provided by the LAO and its subsidiary legislation. It is stipulated under section 23 of the LAO 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 six months. Anyone who believes that an applicant or aided person has furnished false information on the merits or means may provide relevant details to LAD. If the case is substantiated upon investigation, LAD shall cease the provision of legal aid concerned and refer the case to the Police for follow-up actions.
Furthermore, pursuant to Regulation 11 of the Legal Aid Regulations (Cap 91A), if anyone has repeatedly applied for legal aid after being refused, the Director of Legal Aid may order that no consideration shall be given to any future application by that person for a period of three years if it appears to the Director that his or her conduct has amounted to an abuse of the services provided by the LAO.
As for the threshold for application for leave for JR as mentioned in the question, currently, the JR system in Hong Kong adopts a two-stage approach. Before the court hears a JR application substantively, an applicant first has to apply for leave to bring JR from the Court of First Instance on an ex parte basis. The threshold for granting leave to apply for JR is determined and reviewed by the court on the basis of the relevant law and public interest. In fact, in a case (Note 2) in 2007, the Court of Final Appeal raised the threshold for granting leave to apply for JR from cases with potential arguability to those with reasonable arguability, i.e. whether the case is one which enjoys realistic prospects of success. Under the current legal system, the Government takes the view that it is appropriate for the independent Judiciary to determine the relevant threshold.
Note 1: The Judiciary only maintains statistics on the average processing time on leave applications processed by the Court of First Instance (from date of filing of leave application to date of decision). Statistics on the average processing time for leave applications filed in 2014, 2015 and 2016 captured the position as at February 15, 2017 are 112 days, 188 days and 105 days respectively. Such statistics only take into account the number of leave applications with leave granted or leave refused as at report generation date, but exclude those withdrawn or outstanding leave applications. Such statistics may vary at different report generation dates and time since they are live data subject to changes upon conclusion of the outstanding leave applications.
Note 2: Chan Po Fun Peter v Cheung CW Winnie & Anor (2007) 10 HKCFAR 676.
Ends/Wednesday, May 10, 2017
Issued at HKT 15:20
Issued at HKT 15:20