Article 35 of the Basic Law guarantees Hong Kong residents the right to confidential legal advice, access to the courts, choice of lawyers for timely protection of their lawful rights and interests or for representation in the courts and to judicial remedies. However, these guarantees are meaningless if those with legal needs do not have the means to access legal assistance.
Legal aid is therefore put in place to ensure that those in need of legal assistance will not be denied access to justice due to a lack of means. In the Policy Agenda 2018, the Chief Executive stated that the Government would strive to enhance legal aid services to benefit more people who cannot afford private legal fees.
The enhancement of legal aid services involves different aspects. Among them, a relaxation of the financial eligibility limits (“FELs”) for the legal aid scheme, an expansion of the type of matters under legal aid coverage and a procedural streamlining of the work process are measures that can effectively achieve the enhancements.
In 2017 when the Government conducted its review of the FELs, the Law Society had already highlighted the flaw of using the Consumer Price Index (C) (“CPI(C)”) as the basis of adjustment of the FELs. Strong objection was raised at the time to the Government’s proposal to adopt such an approach from the 2017 review onwards. The CPI(C) is compiled to reflect the impact of consumer price changes on household expenditures. Legal services fall within a completely different category from day-to-day household goods and services. The important factor of private litigation costs must be included for consideration in the review of FELs. On this point, the Law Society had drawn the attention of the Government to the type of factors that should be taken into account, as illustrated in an independent study on the level of adjustments that should be made to the solicitors’ hourly rates for taxation purposes (“SHRs”) to reflect changes in the market conditions in 2013. The 2013 study correctly took into account, among other factors, property rentals, employment costs of professionals and managerial staff and general operational costs which all contributed to the total operational costs of a law firm in Hong Kong. The changes to these costs are under an entirely different index from general household commodities.
Reviews, no matter how frequent, conducted with an erroneous methodology will only lead to erroneous conclusions. We strongly urge that the private litigation costs be included as an important component for the review on FELs.
Legal Aid Coverage
The Supplementary Legal Aid Scheme (“SLAS”) provides legal assistance to people whose financial resources exceed the statutory limit allowed under the Ordinary Legal Aid Scheme (“OLAS”), but are below the FELs specified for SLAS. SLAS is thus a key element of the legal aid system providing legal assistance to the sandwiched class between the needy group (who have easier access to legal aid) and the financially affluent group (who can more comfortably afford legal expenses).
As early as 2015, the Law Society had already advocated support, among other proposals, for expansion of the scope of SLAS to cover property damage claims exceeding $60,000 against incorporated owners. In its response in 2016, the Legal Aid Services Council showed reservation in this proposal. However, we strongly urge the Government to revisit this proposal as this extension could benefit a substantial group of the sandwiched class. This will help individual owners take appropriate actions with respect to any improprieties of incorporated owners, for instance, failure on the part of the incorporated owners to follow the established procedures like not giving sufficient notice or convening meetings without the requisite quorum to discuss matters adversely affecting individual owners.
Another area that should urgently be considered is the area involving mentally incapacitated persons (“MIPs”). The scope of SLAS should be expanded to cover those MIPs who are legally aided and who have received damages in their personal injuries claims but have no legal aid cover to handle the payments into court for settlement of their damages and those MIPs who are involved in family disputes and litigations for the maintenance of their health and care, as well as their assets.
Streamlining Work Process
Feedback from practitioners servicing the legal aid scheme has revealed an urgent need for improvement to its work flow. The substantial delay in assessing the final bills of costs, the lack of transparency in assessments of bills, prolonged delay in bills payments, duplicated or excessive requests of information during the bills assessment process, eg the itemised bills, index and paginated bundle of documents referred to in the narrative bills, and others are among a long list of comments on the scheme by practitioners. These inadequacies are not insurmountable. In fact, they can be easily rectified through the introduction of some practical procedures to standardise the time pledge, the format, the content or the criteria to fulfil, as the case may be, for all applicable procedures including the assessment and payment of costs and extend it to all relevant parties involved in the process including solicitors and aided persons.
The Law Society will be making further detailed submissions to the Director of Legal Aid on how the work processes can be streamlined for the long term benefit of the legal aid scheme.
Legal aid plays an important role in enhancing access to justice and upholding the Rule of Law. We are all duty bound to ensure that our legal aid scheme is operated in a manner that maximises its effectiveness, efficiency and sustainability with the limited resources that it has. We are working hard to do just that and hope that the other stakeholders will render their support in working together to achieve this common goal.