Director can grant legal aid to applicant

PUBLISHED : Wednesday, 02 October, 2013, 12:00am
UPDATED : Wednesday, 02 October, 2013, 3:36am

I refer to the article by Professor Simon Young Ngai-man ("Is lack of legal aid inhibiting delivery of effective justice?" September 10).

While pushing for a review of the system of legal representation in criminal appeals, Professor Young asserts that the "problem" of unrepresented appellants is attributable to the unavailability of legal aid.

While the reasons for an appellant being unrepresented in their appeals are many, an outline of the operation of the criminal legal aid scheme in appeal cases may help assuage Professor Young's concerns.

To qualify for legal aid, an applicant must be financially eligible. But even where an applicant's means exceed the statutory limits, the director has discretion to grant legal aid where the interests of justice require it.

Between 2010 and 2012, the director exercised discretion and granted legal aid in 91 cases where the means of the applicants exceeded the statutory limit; and only four applications were refused solely by reason of financial ineligibility.

In addition to consideration of an applicant's means, the director is obliged to grant legal aid only if he is satisfied that it is in the interests of justice to do so. This involves a balancing exercise which, although weighted in favour of the appellant, is necessarily judgment-based.

Equilibrium lies somewhere between the individual interest of the convicted person in overturning his conviction or reducing his sentence at all costs and the wider interests of justice, for example the effects of unmeritorious appeals on limited judicial resources and the appellate system in general, including delays in hearing meritorious appeals.

It follows that there are bound to be cases where the director refuses legal aid to appeal on merits.

Statistics kept by the Department of Justice show that only around 19 per cent of all appeals heard by the court were allowed in 2011.

An Appellate Court has the power to grant legal aid to an appellant if it appears to the court that legal aid should be granted notwithstanding that the director has refused it for lack of merit.

Lastly, regrettable though it is that hopeful appellants will continue to appear unrepresented before the courts, it is inevitable in a system of justice where no appeal lies as of right to the Court of Appeal and barristers are duty-bound not to settle grounds of appeal unless they consider the intended appeal is properly arguable.

Thomas E. Kwong, director of legal aid