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Legal Aid in Criminal Cases Rules
In April 2005 the Hong Kong Bar Association wrote to Council expressing a need to review legal aid in criminal cases. Council also came to know that in June 2005 the Law Society of Hong Kong had forwarded its submission to the Administration.
The two professional bodies felt that access to justice, protection under the law, and a fair criminal justice system were core values of a civilized society. Further, the right to be represented in a criminal trial was enshrined in the Basic Law and the Hong Kong Bill of Rights Ordinance.
The Legal Aid in Criminal Cases Rules (LACCRs) specify that fees payable to legal aid lawyers shall be determined by the Director of Legal Aid (DLA) "having regard to work actually and reasonably done", but the Rules then proceed to specify maximum amounts that may be paid for the work.
Following discussions, Council agreed that there should be a review on the LACCRs. In it's letter in October 2005 to the Director of Administration, Council raises the following points -
| (1) |
Work actually and reasonably done by lawyers should be paid. This principle is set out in the LACCRs, but has not been given full effect in implementation. The Rules stipulate specific rates which are regarded to be low by the legal profession.
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| (2) |
The Rules were made some decades ago. As Hong Kong has grown from a small community to an international city, from a trading economy to a sophisticated commercial centre, and with the increase in complexity in jurisprudence, these Rules are no longer able to cope with the realities of today. There is therefore a need to review the Rules overall.
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| (3) |
The principle of equality of arms should be upheld in the court process. Information provided by the profession suggests that there is a great deal of room for improvement in that the fees and the fee structure between prosecution and legal aid defence are not balanced, and the support in kind to the prosecution, e.g. through the bureaucracy of the Administration, outweighs the resources of the defence. For instance, Legal Aid Department (LAD) is subject to the rigidity of LACCRs while the Department of Justice (D of J) has much greater flexibility. Whereas LAD is bound to pay fees according to LACCRs, the D of J adopts the same scale of fees to outside practitioners on an administrative basis.
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| (4) |
It appears that the Rules Committee rarely meets and there is a need for the work of the Committee to be more transparent to those who are concerned, including the legal profession.
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| (5) |
Proper preparation and representation of a case can cut costs for all parties concerned, e.g. the prosecution, the court, and the defence. For example, the remuneration system should be revised to encourage thorough pre-trial preparation of case. As it currently stands, LACCRs do not provide sufficient remuneration for lengthy preparation required by judges and practice directions, especially in complex cases such as those involving commercial fraud.
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| (6) |
The Rules should be reviewed to allow for greater fairness and flexibility. The current arrangement of brief fee, refresher, and certificate of complexity or of exceptional length may hamper rather than facilitate adequate representation for the defendant. |
Subsequently, in December 2005 the Director of Administration, the Director of Legal Aid, representatives of the Bar Association, the Law Society and Council Chairman attended a meeting of the Legislative Council Panel on Administration of Justice and Legal Services to discuss the issue. At the meeting, the Director of Administration advised that she would invite the parties concerned to form a working party for the purpose of reviewing criminal legal aid fees. The first meeting, comprising the following persons, was convened in March 2006 -
- Director of Administration (Convener)
- Director of Legal Aid
- Ms Evena Chan, Senior Assistant Director of Public Prosecutions, - Department of Justice
- The Hon Mr Justice Stock, JA
- Mr Philip Dykes, S.C., the Hong Kong Bar Association
- Mr Christopher Knight, the Law Society of Hong Kong
The Administration was committed to ensuring that the following principles would be upheld in studying the subject of criminal legal aid fees system -
| (a) |
proper and effective legal representation for the legally-aided person;
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| (b) |
general compatibility of the fees system with the prosecution fees regime; and
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| (c) |
reasonable and effective remuneration for legal aid lawyers within the remits of public affordability.
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