Through the story of Mr. Zhang, we shall give you an illustration of the more important aspects of the Legal Aid Schemes for civil proceedings.
A. Civil Case Illustration
A Government car hit Mr. Zhang, the Hong Kong branch manager of a mainland company, when he was crossing Nathan Road. He suffered serious injuries. The driver of the Government car was charged with careless driving and was convicted. Mr. Zhang wants to have free or subsidised legal assistance to help him claim for compensation from the Government.
Mr. Zhang wants to first obtain some free legal advice on his legal position. What should he do? Answer 1
Mr. Zhang now wants to sue the Government, but he is not a Hong Kong permanent resident. Can he apply for free or subsidised legal representation for taking the proceedings? Answer 2
Mr. Zhang knows that the Legal Aid Department is a Government Department. He is afraid that the lawyers and staff of the Legal Aid Department, being civil servants, may not help him full-heartedly against the Government. Is his concern justified? Answer 3
Mr. Zhang used to earn $20,000 per month, but he can no longer work as a result of the injuries. He owns a flat where he and his family live. The flat has a current market value of $5,000,000. He has $150,000 as savings in a bank, and some Hong Kong Bank shares with a market value of $100,000. He has outstanding medical bills amounting to $110,000. His wife, who is a housewife, has about $80,000 as her savings. The couple live together with their 30-year-old son, who earns $40,000 per month as an engineer and has $500,000 as savings.
Is Mr. Zhang financially eligible for Legal Aid?Answer 4
From Mr. Zhang's viewpoint, is it more advantageous for him to obtain Legal Aid under the Ordinary Scheme or under the Supplementary Scheme? Answer 5
In the above example, Mr. Zhang exceeds the financial resources limit of the Ordinary Legal Aid Scheme of $307,130. Can he ask the Director of Legal Aid to relax the requirement and grant him Legal Aid under the Ordinary Scheme? Answer 6
If Mr. Zhang is refused Legal Aid on the ground that he does not have enough merits in his claim, what can he do? Answer 7
Assume Mr. Zhang is under the Ordinary Scheme. He wins the case at trial and recovers a sum of $2 million as damages, plus $300,000 as legal costs. The legal costs actually incurred by the Director of Legal Aid for Zhang's case amount to $400,000. Mr. Zhang has paid $42,500 as contribution under the Ordinary Scheme. How much money can Mr. Zhang eventually obtain? Answer 8
Assume Mr. Zhang is under the Supplementary Scheme. He wins the case at trial and recovers from his opponent a sum of $2 million as damages, plus $300,000 as legal costs. The legal costs actually incurred by the Director of Legal Aid for Zhang's case amount to $400,000. Mr. Zhang has paid $76,783 as interim contribution under the Supplementary Scheme.
How much money can Mr. Zhang eventually obtain? Answer 9
What happens if Mr. Zhang loses at trial? Answer 10
Mr. Zhang also wants to sue a local newspaper, which wrongly alleged that he came to Hong Kong to work illegally. Can he obtain Legal Aid for taking the proceedings? Answer 11
Mr. Zhang may seek free preliminary legal advice from the Free Legal Advice Scheme run by the Duty Lawyer Service. However, this Scheme will NOT provide legal representation in court proceedings.
Yes, Mr. Zhang may apply for Legal Aid run by the Legal Aid Department. Legal Aid provides legal representation in civil proceedings to eligible applicants by a solicitor, and if necessary, a barrister. Mr. Zhang does not need to be a permanent resident of Hong Kong. Legal aid is available to any person in Hong Kong, whether the person is a Hong Kong resident or non-resident. Legal Aid will normally be granted if the applicant is able to satisfy thefinancial means test and the case merits test.
Although the Legal Aid Department is a Government Department, it has a long and established practice of being run independently and impartially. It is the duty of the Legal Aid Department to provide Legal Aid for qualified applicant and to maintain professional standard and ethics. Moreover, there is a statutory body named Legal Aid Services Council which would oversee the administration of the legal aid services provided by the Legal Aid Department.
As Mr. Zhang is taking action against the Government, upon granting of Legal Aid, the Legal Aid Department will normally assign lawyers in private practice to represent him in the proceedings to avoid any possible conflict of interest. Mr. Zhang may request the Legal Aid Department to assign a solicitor or barrister in private practice whom he trusts to represent him. If Mr. Zhang's suggested lawyer is on the Legal Aid Panel and the suggested lawyer has the time and expertise to represent him in the proceedings, the Director of Legal Aid will usually respect his choice.
First, we need to assess Mr. Zhang'sfinancial resourcesaccording to the Legal Aid (Assessment of Resources and Contributions) Regulations.
Financial resources are calculated by adding the applicant's disposable capital to his yearly disposable income. If the applicant is married, the spouse's income and capital will be treated as the applicant's for calculating the financial resources unless they have already separated or divorced, or that they have conflicting interest in the proceedings.Other family members' income or assets will not be taken in account.
Disposable capital consists of all the applicant's assets of a capital nature, such as cash, bank savings, jewellery, antiques, stocks and shares, flats and properties. But it does not include the value of the applicant's flat if he normally lives in it, nor his household furniture, personal clothing and tools of trade. The value of any outstanding debt or liability of the applicant cannot be taken into account in reducing the applicant's disposable capital (unless the applicant has actually repaid it before the application for Legal Aid).
Hence, in assessing Mr. Zhang's financial resources, his wife's assets will be included while his son's assets and income will be excluded. The value of his residential flat will be excluded. As he can no longer work and earn income, his disposable income will be treated as zero. Accordingly, Mr. Zhang's financial resources amount to $330,000.
Details of Calculation
|Disposal Income||His Income||Nil|
|His Wife's Income||Nil|
|His Son's income||Not applicable|
|Disposal Capital||His Savings||$150,000|
|His Hong Kong Bank Shares||$100,000|
|His Wife's Savings||$80,000|
|His Son's savings||Not applicable|
|Residential flat||Not applicable|
|Outstanding medical bills||Not applicable|
|Total Financial Resources||$330,000|
As it now stands, Mr. Zhang is not financially eligible for the Ordinary Legal Aid Scheme, because his financial resources have exceeded the limit of $307,130 But as his financial resources are between $307,130.01 and $1,535,650, he can satisfy the financial means test under the Supplementary Legal Aid Scheme. The Supplementary Scheme covers Mr. Zhang's case as his case involves personal injury claim.
Under the Ordinary Legal Aid Scheme, the contribution fee payable by an applicant ranges from $768 to $76,783(depending on his assessed financial resources). However, under the Supplementary Scheme, the applicant must first pay a non-refundable application fee of $1,000 and an interim contribution of $76,783 upon acceptance of Legal Aid. If he wins and recovers any damages, he needs to pay a contribution amounting to 10% of the damages (This contribution will be reduced to 6% if the case is settled before a barrister is briefed to attend the trial).
Please compare Answer 8 and Answer 9 to see the actual difference in the net sums Mr. Zhang eventually obtains under the two Schemes. In the example for the Supplementary Scheme, he effectively receives $200,000 less (i.e. 10% of $2 million damages awarded against the Government).
No. The Director of Legal Aid has no power to grant Legal Aid under the Ordinary Scheme if the financial resources of the applicant exceed $307,130. The only exception is that the Director of Legal Aid may waive the financial resources limit in human rights related litigation. But Mr. Zhang's case is not human rights related litigation.
However, Mr. Zhang has outstanding medical bills amounting to $110,000. If he first settles these outstanding bills out of his or his wife's assets before applying for Legal Aid, his financial resources will have been reduced from $330,000 to $220,000. In that situation, he will become financially eligible for the Ordinary Legal Aid Scheme.
It should be noted that under section 10(2) of the Legal Aid Ordinance (Cap.91 of the Laws of Hong Kong), the Director of Legal Aid may refuse to grant Legal Aid if, in his opinion, the applicant has disposed of any capital or income for the purpose of satisfying the means test. This provision should not however disentitle the applicant simply because he has first settled some genuine outstanding liabilities before applying for Legal Aid.
Legal Aid may be refused if Mr. Zhang does not have a reasonable chance of success in his claim against the Government. In his case, it seems that if there is a reasonable chance to establish that the accident was caused by the careless driving of the Government car driver, Legal Aid should not be refused.
If Mr. Zhang is not satisfied with the refusal, he should appeal to the Registrar of the High Court within 14 days of the refusal. The decision of the Registrar on appeal is generally final.
Mr. Zhang may also try to seek help from the Bar Free Legal Service Scheme provided by the Hong Kong Bar Association.
Under the Ordinary Legal Aid Scheme, if the aided person wins and recovers any money, he needs to pay for the legal costs incurred by the Director of Legal Aid on his behalf but which cannot be recovered from his opponent. The unrecoverable legal costs will (1) first be deducted from the contribution already paid and then (2) from the money recovered.
Hence, Mr. Zhang can obtain a sum of $1,942,500 out of the damages recovered.
Details of Calculation
|(ii)||Unrecoverable legal costs ($400,000 - $300,000)||(100,000)|
If we take into account the contribution of $42,500 previously paid by him, the net sum he obtains by taking the legal proceedings with the help of Legal Aid is $1,942,500.
Under the Supplementary Scheme, the applicant must first pay a non-refundable application fee of $1,000 and an interim contribution of $76,783 upon acceptance of Legal Aid. These are the only sums that the applicant needs to pay if he fails in the proceedings or cannot recover any money or property.
If he wins and recovers any damages, he needs to pay a contribution amounting to 10% of the damages (or 6% if the case is settled before a barrister is briefed to attend the trial). The applicant also needs to pay for the legal costs incurred by the Director of Legal Aid on his behalf but which cannot be recovered from his opponent. The 10% contribution (or 6% as the case may be) and the unrecoverable legal costs will (1) first be deducted from the application fee and the interim contribution already paid and then (2) from the money recovered.
Hence, Mr. Zhang can obtain a sum of $1,700,000 out of the damages recovered.
Details of Calculation
|(i)||Damages Recovered $2,000,000||$2,000,000|
|(ii)||10% contribution for successful claim||($200,000)|
|(iii)||Unrecoverable legal costs ($400,000 - $300,000)||($100,000)|
|(iv)||Application Fee paid||$1,000|
|(v)||Interim Contribution Paid||$76,783|
If we take into account the application fee and the interim contribution previously paid by him, the net sum he obtains by taking the legal proceedings with the help of Legal Aid under the Supplementary Scheme is $1,777,783.
The court will normally order an unsuccessful plaintiff (i.e. Mr. Zhang) to pay the legal costs incurred by the successful defendant. But as Zhang has obtained Legal Aid, any costs awarded against him shall generally be paid by the Director of Legal Aid as from the grant of Legal Aid. Hence, apart from paying the required contribution for obtaining Legal Aid, Zhang needs not be personally liable for the legal costs of the successful defendant (incurred after the grant of Legal Aid).
No. Mr Zhang's intended action is a defamation claim against the newspaper. But neither of the two Legal Aid Schemes covers the claim of defamation. Mr. Zhang may try to seek legal advice or representation from the Bar Free Legal Service Scheme provided by the Hong Kong Bar Association.