Legal aid is fundamental to the access to justice. In the case of Chung Yuk Ying v the Registrar of High Court  HKCU 2449, the Court of First Instance criticized the Department of Legal Aid ("DLA") for its failure to apply the correct test to assess the merits of the Plaintiff's case, which resulted in the discharge of the Plaintiff's legal aid certificate. This article provides an overview of the legal aid scheme in Hong Kong.
Overview of the Legal Aid Scheme in Hong Kong
There are two different legal aid schemes in Hong Kong, namely civil legal aid and criminal legal aid. This article shall focus on civil legal aid. To be eligible for civil legal aid, an applicant must satisfy both the means test and the merits test.
The Means Test
The means test, as laid down in the Legal Aid Ordinance (Cap. 91), determines whether the financial resources of an applicant exceed the financial eligibility limits allowed for ordinary legal aid or supplementary legal aid. At present, the financial eligibility limits for ordinary legal aid scheme and supplementary legal aid scheme are HK$269,620 and HK$1,348,100 respectively.
The DLA may refuse to grant legal aid in the following circumstances:-
- the applicant's financial resources have exceeded the relevant financial eligibility limit;
- the applicant has disposed of any assets to render himself eligible for legal aid; or
- the applicant has failed to maximize his earning potential to render himself eligible for legal aid.
The Merits Test
The merits test is applied to safeguard public funds from misuse by fruitless litigation. There are two aspects of the merits test, legal merits and reasonableness.
Legal aid shall not be granted to an applicant unless he shows that he has reasonable grounds for taking, defending, opposing or continuing his legal proceedings. It was held in Ngugen Trong Son v Director of Legal Aid LAA No. 20/1999 that in determining whether there are reasonable grounds, the court does not have to be satisfied that it is more probable than not that the issue of fact will be decided in the applicant's favour. However, it has to be satisfied that the applicant has shown that there is a reasonable, as opposed to a fanciful, chance of the court at trial deciding that issue of fact in his favour.
In Chung Yuk Ying, instead of applying the reasonable chance of success test, the DLA wrongly applied the more than 50% chance of success test in assessing the merits of the Plaintiff's case.
Apart from having a reasonable chance of success, the DLA must also be satisfied that the application for legal aid is a reasonable one. As such, legal aid may not be granted if only a trivial advantage would be gained by the applicant from the intended proceedings; or the intended proceedings are of a nature that a solicitor would not normally be employed.
Does an Applicant Need to Make Any Financial Contribution?
An applicant may be required to pay a contribution to the DLA, the amount of which is determined with reference to his financial resources.
Where no contribution is required to be paid or the contribution does not cover the costs and expenses of the DLA, the DLA may recover the costs and expenses incurred or any shortfall from property recovered or preserved in the proceedings.
Discharge or Revocation of Legal Aid
The DLA may discharge or revoke legal aid granted to an aided person under specified circumstances. Legal aid may be discharged under the following circumstances:-
- the contribution or payment required to be made by an aided person remains outstanding for more than 30 days;
- the aided person requires the proceedings to be conducted or continued unreasonably;
- the aided person fails to provide his counsel or solicitor the assistance necessary or desirable for the proper conduct of the case;
- the financial circumstances of the aided person have changed so that it exceeds the relevant financial eligibility limit; or
- the aided person has been outside Hong Kong for a continuous period exceeding six months.
Legal aid must be discharged if there are no longer any reasonable grounds for the aided person to take, defend or be a party to the proceedings, or that it is unreasonable for the aided person to continue to receive legal aid.
Legal aid may be revoked if the aided person:-
- knowingly makes a false statement or representation in furnishing information;
- fails to make a full and true disclosure of his financial resources;
- fails to report any change in his financial circumstances; or
- fails to attend an interview as required.
Before legal aid is discharged or revoked, the aided person has to be given an opportunity to explain why legal aid should not be revoked or discharged.
The revelation of the DLA's mistake in applying the wrong merits test in the case of Chung Yuk Yingsuggests that it is of paramount importance for legal aid applicants to have a thorough understanding of the legal aid scheme in Hong Kong in order to ascertain whether their legal aid applications have been properly assessed. One should seek legal advice when in doubt.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.