Everyone gets their day in court

PUBLISHED : Thursday, 04 February, 1999, 12:00am
UPDATED : Thursday, 04 February, 1999, 12:00am

There is a common misconception that court proceedings are only for tycoons.

In fact, legal assistance may be provided either free or on payment of a contribution to any person in Hong Kong, resident or non-resident.

Applicants should satisfy the Legal Aid Department's means test - financial eligibility - and the merit test - the justification for taking legal action.

The means test sets the maximum total income and capital assets for legal aid applicants at $167,700 (after deduction of certain prescribed allowances).

The merit test determines whether in law there is a reasonable claim or a reasonable defence by the applicant.

However, the merit test is not applied in criminal trials except in appeal cases. The reason is that in criminal law everyone is presumed to be innocent until proven guilty. So criminal cases are already judged to be meritorious so as not to deprive defendants of their right to legal representation.

As a general rule in civil cases, a person on legal aid who litigates at public expense is required to contribute towards the cost of the proceedings for which legal aid is granted.

The only exception is where the financial resources of the aided person do not exceed $86,000 and where no property is recovered or preserved for him in the proceedings.

The Legal Aid Department also provides legal assistance for the 'sandwich class' whose financial resources are higher than the limit allowed under the standard Legal Aid Scheme, but who cannot afford the high cost of court proceedings.

The scope of the Supplementary Legal Aid Scheme is limited to civil cases, such as claims for compensation for personal inju ry or death, provided compensation is likely to exceed $60,000.

The applicant also has to satisfy the merit test and the means test, in which the lower and upper financial eligibility limits are $169,700 and $471,600 respectively.

Similarly, the applicant has to pay a certain amount of fees, especially in cases with a successful outcome.

People may worry that the standard of legal aid lawyers is lower than those in private practice.

This doubt is understandable but unnecessary. The Director of Legal Aid either assigns in-house lawyers or engages private legal practitioners, who are subject to the performance reporting system and strict codes of conduct to represent applicants.

Accordingly, the client's interests are secured.

'All persons are equal before the law and are entitled without any discrimination to the equal protection of the law' - this right is enshrined in the Bill of Rights.

Hence, all persons who have genuine need of legal aid are able to exercise their rights.

Roy Lee is a second year Law student at the University of Hong Kong