Hong Kong should grant legal aid only to deserving cases
Tony Kwok says Hong Kong must not encourage the misuse of the judicial review process by backing highly politicised cases instigated by activists or political parties
Distinguished retired Court of Final Appeal judge Henry Litton last year publicly criticised the rising misuse of the judicial review process in Hong Kong. As expected, the Bar Association and lawyers from the Civic Party came out to defend the system. Clearly, lawyers have a conflict of interest in defending the issue – they are the greatest benefactors, given the high fees charged by many for participating in the litigation process.
The latest official figures point to abuse of the legal process. In 2015, there were 259 applications for a judicial review, an increase of 54 per cent over 2014 and double the figure five years ago. Only 77 cases, 30 per cent of the applications, were given permission by the High Court to proceed to a hearing.
Even though High Court judges have fulfilled their duty as a guard to weed out cases that have no merit, the mere hearing of a large number of absurd cases must have already wasted a lot of the court’s valuable time and resources. In addition, tremendous damage may have been done in some cases due to the delay to public projects.
It is not clear how many of those rejected cases were funded by legal aid. This would show whether the Legal Aid Department is taking a responsible position.
I have no strong view on judicial review cases launched by organisations or individuals of their own accord, even though they may abuse the judicial process. In the end, they will be responsible for the outcome, at least in terms of legal fees and possible punitive court costs.
What is ridiculous are the cases initiated by pan-democratic parties against the administration. Instead of taking up the case themselves, they use a frontman or woman, often a social welfare recipient, to seek a judicial review and apply for legal aid. Hence the whole case is funded from the public purse, with no adverse consequences for the litigant or the political party, even if the case is eventually dismissed.
The time has now come for the Legal Aid Department to conduct a public consultation and comprehensive review of the legal aid system in Hong Kong, similar to the review in the UK in 2010/2011. At that time, there was serious concern about the rising number of legal aid cases and the associated expense. The review aimed to discourage unnecessary litigation at public expense. In Hong Kong, the annual budget for legal aid is HK$845 million, which means every citizen is paying HK$115 a year for legal aid, most of which goes into lawyers’ pockets. This compares with the average equivalent of about HK$75 per head in European countries.
One suggestion is for low-income litigants clearly acting as a front for political parties to be barred from applying for legal aid for judicial reviews. In a recent case, the Labour Party is using a low-salary employee to apply for legal aid for a judicial review of the Legislative Council Finance Committee’s decision to approve additional funding for the high-speed rail link project. If the Labour Party believes it has strong justification, why did it not launch proceedings itself? This is exactly the problem described in the UK review paper – that legal aid encourages people to bring litigation before the courts which “people paying from their own pocket would not pursue”.
Hence, it is important to tighten the legal aid criteria for judicial review cases, for the applicant to prove that he or she is a real victim of a government decision which causes life or liberty to be at stake. If, for instance, someone is deprived of the chance to “watch frogs on the beach”, this can hardly be regarded as serious personal consequences. It does not mean that this person has no channel to air his or her grievances. They can always complain to the Ombudsman and other independent authorities, or approach the political parties and pressure groups who may seek a judicial review on their behalf – but not by using public money.
All eyes are on the Legal Aid Department’s handling of the request for aid for a judicial review over the high-speed rail link funding. The outcome will have enormous consequences for the public interest.
Tony Kwok is a former deputy commissioner of the Independent Commission Against Corruption and currently an honorary fellow and adjunct professor of HKU School of Professional and Continuing Education