LCQ6: Problems related to damage claims lodged by torture claimants in respect of unlawful detention
In March 2014, the Court of Final Appeal (CFA) held that, on the basis of the circumstances of the case, a person convicted of overstaying in Hong Kong had been "unlawfully detained" for part of the period for which he was placed, after serving his sentence, under administrative detention by the Director of Immigration Department pursuant to the Immigration Ordinance, and the person was entitled to claim damages for unlawful detention. It is learnt that since the handing down of CFA's judgment, the number of damage claims for unlawful detention lodged by torture claimants has soared. As at February this year, the District Court had a backlog of about 730 such claims. In addition, in August this year, a District Court judge pointed out in his judgment that 450 cases of such claims were handled by the same law firm and 212 of them were granted legal aid. The judge questioned the sources of funding for the claimants who had not been granted legal aid in their institution of proceedings, and warned that the court would not hesitate to refer any such cases to the authorities for investigation if there was evidence to show that they involved champerty. The judge also pointed out that as the claimants of some cases appeared to be economic migrants and their claims had a low success rate, the relevant proceedings should not be commenced at all. The judge also said that a copy of the judgment would be sent to the Director of Legal Aid for reference and consideration. In this connection, will the Government inform this Council:
(1) in respect of the aforesaid cases involving the institution of proceedings by claimants who had not been granted or who had not applied for legal aid, whether the authorities will take the initiative to investigate if the legal services provided by the law firm concerned involved champerty;
(2) in the light of the situation in which 212 claim cases granted with legal aid were handled by the same law firm, whether the authorities will review the existing declaration system to ensure that in nominating lawyers to act as their legal representatives, the aided persons have not agreed to share with any person any damages or costs which they may be awarded at the close of the proceedings; and
(3) given that the cumulative number of non-refoulement claims to date has exceeded 11 000, whether the authorities have assessed if there will be a further surge in the number of claim cases related to unlawful detention; whether the Legal Aid Department (LAD) will review if the threshold for approving legal aid applications lodged by claimants is too low; if LAD will, of the details; if not, the reasons for that?
The question straddles different bureaux and departments, and the Government's consolidated reply is as follows:
(1) Generally speaking, upon receipt of a complaint, the Police will assess the merits of each case as to whether any criminal activity is involved so as to decide whether investigation should be pursued. If the court, in the course of handling cases before it, proactively requests the Department of Justice to refer a complaint to the Police for investigation, the Police will follow up according to the law upon receipt of such referrals.
(2) 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 (LAO) (Cap 91) 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.
For legal aid cases, as a measure to combat improper touting or champerty activities and to prevent aided persons' nominations being affected by improper conduct of lawyers, the Legal Aid Department (LAD) introduced a declaration system for legal aid applications in September 2013 after consulting the Legal Aid Services Council (LASC) and the two legal professional bodies. The system seeks to ensure that nominations of lawyers are made out of aided persons' own free will and they have not agreed to share with any person(s) (including nominated lawyers or their employees, agents or claims agents) any damages, property and costs which they may recover in the proceedings.
LAD will remind legal aid applicants to report to LAD staff in case they are approached by any person claiming to offer assistance in applying for legal aid or suggesting nomination of a particular lawyer. Aided persons may contact and consult LAD if they need advice on the choice of legal representatives.
Moreover, LAD has maintained communication with the two legal professional bodies to prevent improper touting in legal aid cases. A clear message has been conveyed to the public through publicity and education that any improper conduct of assigned lawyers will be taken very seriously by LAD.
Regarding the situation where a certain number of damages claims granted with legal aid have been assigned to the same law firm, it is believed to be related to LAD's past arrangements in assigning legal aid cases to lawyers.
Section 13 of the LAO provides that the Director of Legal Aid (DLA) may act for an aided person through legal aid counsel or assign any lawyer in private practice selected from the Legal Aid Panel (Panel) by either DLA or the aided person. LAD has devised a set of criteria on the assignment of legal aid cases which have been endorsed by LASC and uploaded onto LAD's website.
Regarding assignment of legal aid cases to lawyers in private practice, in light of legal advice and precedent cases, when an aided person nominates by himself/herself lawyer pursuant to section 13 of the LAO, LAD takes the view that the nomination should be given due weight and should not be rejected unless there are compelling reasons. Compelling reasons include unsatisfactory past performance of the nominated lawyer, disciplinary action taken against the nominated lawyer by regulatory body, or language requirements of the proceedings which are likely to undermine the aided person's interest in the proceedings and/or to jeopardise the legal aid fund; or the aided person has made repeated or late requests for change of lawyer without reasonable grounds. Therefore, some lawyers did take up a higher number of legal aid cases in the past.
LAD has, since 2013, gradually tightened up compliance with the limits on the number of assignments handled by a lawyer and the cumulative amount of legal aid fees payable as stipulated in the Manual for Legal Aid Practitioners. Strict enforcement of the assignment limits has now been extended to cover civil and criminal cases of all categories. When considering nominations of lawyers, if the number of cases assigned to a nominated lawyer has exceeded the limit, LAD will ask the aided person to select another panel lawyer.
The Independent Commission Against Corruption completed a study on LAD's assignment system for lawyers and experts in early 2015 and the Corruption Prevention Advisory Committee recommended that LAD should review, in a timely manner, the system for assignment of legal aid cases, including the current limits on the number of cases handled by a lawyer in private practice. LAD is further reviewing the limits on the number of assignment of legal aid cases and will consult LASC in due course.
(3) The Court of Final Appeal ruled in March 2014 that the detention powers exercised by the Immigration Department (ImmD) is subject to the common law Hardial Singh principles, i.e., a person may be detained only for a period that is reasonable to effect removal. What constitutes a reasonable period depends on the circumstances of the case. Some past cases that did not fully comply with the said principles may constitute "unlawful detention". According to ImmD's record, since 2008, 1 288 claims for damages on the ground of "unlawful detention" have been lodged against ImmD. ImmD has already implemented a number of measures to ensure every decision on detention meets with the above ruling, including making and publishing detention policies to set out factors that ImmD may consider in determining whether a person should be detained, and reviewing each detention case regularly. When there are particular changes in the circumstances of the case, ImmD would decide whether to continue with detention. If ImmD decides to detain or continue to detain a person, reasons will be provided to him in writing. These practices ensure the legality of detention decisions. We believe the chance of another influx of damages claims is low.
LAD has all along adopted a set of stringent and objective criteria in processing all legal aid applications. All legal aid applications are processed by legal aid counsel of LAD. As with processing cases of other categories, LAD will, when conducting the merits test for non-refoulement cases, investigate and examine the background, evidence available and legal principles applicable so as to determine whether legal aid should be granted. 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 judgment before granting a legal aid certificate.
For individual applications, if the case documents demonstrate strong grounds for taking proceedings or issues raised are already covered by previous judgments or advice given by the court for similar cases, legal aid may be granted to applicants who have passed the means test. For applications involving complicated issues of law, LAD may, pursuant to section 9(d) of the LAO, seek independent legal advice from practising counsel on the merits of such applications.
Regarding legal aid applications in respect of damages claims for unlawful detention, LAD will continue to process each case in accordance with the requirements of the LAO to see if both the means test and merits test as provided by the LAO are satisfied, thereby ensuring that only cases with reasonable grounds are granted legal aid.
Ends/Wednesday, November 9, 2016
Issued at HKT 17:02
Issued at HKT 17:02