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  • Dec 21, 2014
  • Updated: 12:42am
NewsHong Kong

No need for independent legal aid service, say advisers in U-turn

Council now says government has not been found to be interfering in the service

PUBLISHED : Monday, 13 May, 2013, 12:00am
UPDATED : Monday, 13 May, 2013, 10:09am

The legal aid service should remain in the hands of the government, according to an official advisory body that has backtracked on a recommendation it made 15 years ago to set up an independent legal aid authority.

The Legal Aid Department, a government-run body providing help to people unable to afford legal representation, should instead be "repositioned" from being accountable to the Home Affairs Bureau to answering to the chief secretary, which would be a reversion to the arrangement in place before 2007.

The recommendation was made in a report submitted by the Legal Aid Services Council to the chief executive late last month that was seen by the South China Morning Post. The council was formed in 1996 and empowered to advise on "the feasibility and desirability of the establishment of an independent legal aid authority". It passed a resolution in 1998 on setting up an independent authority.

Fifteen years on, it now says there is no need for an independent body on the basis that there has been no "substantiated example of the government's interference" in the Legal Aid Department.

"The council agrees ... that there is no immediate need to establish an independent legal aid authority," council chairman Dr Eric Li Ka-cheung stated in a letter to Chief Executive Leung Chun-ying. "The council believes that the proposal to revert [the department] back to the purview of the Chief Secretary will leave ... the community in no doubt that the status and independence of [the department] has been hitherto fully restored."

It rejected placing the department under Leung himself, saying the chosen option "is less likely to provoke another round of unnecessary speculation".

The report, prepared by consultants Deloitte, recommended that the director of legal aid continue to be a civil servant and that the council have a say on the appointment. The council, though, said further discussions with the government would be needed on this point.

On the neutrality of the department, the report said there had been no evidence of government interference.

"On the contrary, there are ample examples of legal aid being granted to applicants to pursue claims against the Hong Kong government as long as the cases have reasonable grounds," it stated, citing cases involving the Hong Kong-Zhuhai-Macau bridge and domestic helpers' right of abode.

But not all the council's 10 members were satisfied with the recommendations.

Barrister Josephine Pinto, nominated by the Bar Association to join the council just one month before the recommendations were released, suggested the council might have breached its legal duties by failing to observe the 1998 resolution.

"She opined that the council should provide strong reasons to explain why its latest recommendations on the independence issue were different from those made previously," according to an annex of the report.

Stephen Hung Wan-shun, vice-president of the Law Society, a legal body that oversees solicitors, called the latest proposals "disappointing".

"It is true that no one in Hong Kong has banned any legal aid applications for any political agenda. But as legal aid remains operated by the government, the problem is a matter of perception," Hung said. "The fact that there has been no complaint does not mean it is perfect."

Legal-sector lawmaker Dennis Kwok Wing-hang, of the Civic Party, was also disappointed. He has urged Priscilla Leung Mei-fun, chairwoman of the administration of justice and legal services panel of the Legislative Council, to call a special meeting to discuss the issue.


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This article is now closed to comments

Why did they make this ridiculous recommendation? Leading the 10 is Chairman Dr Eric Li. Here's a guy who comes from the heart of the rich in-crowd, sitting on the boards of numerous large corporates, owning racehorses, etc., and, clutching his Gold Bauhinia Star, attends the CPPCC, renowned for their finely-honed human rights consciousness. How vigorous is he going to be in agitating for a strong LAD? Impecunious litigants are a gift to his interest group, so why on earth would he propose anything likely to enhance the LAD's independence and strength? Fellow councillors: Witman Hung, the force behind iProA, the group involved in that notorious cosy tender fiddle so it could help do pro-Beijing promotional work on the side; Anna Kwong, who served as President of the Hong Kong Institute of Architects so is likely to spend most of her day contemplating how to please big developers; Edward Leung is the guy who lost his DB seat for making a false claim in his promotional flyer. Then you four solicitors and professional board-sitters, the government-appointed LAD director and then, lone voice of reason, Ms Pinto. Where was the voice for the people with an interest in using LAD services? Not an NGO in sight.
Futurevision is what is required, not just searching the past for instances of interference. Dislodging the LAD from government control would help ensure future independence. These councillors have their heads in the sand.
Access to Justice is now in the control of the Chief Secretary. With no private sector alternative as in UK or Australia due to archaic champerty laws, poorly funded plaintiffs are potentially now going to be judged by a Govt civil servant instead of the courts.
By holding the Legal aid purse strings, it will be interesting to see how many meritous cases against the govt get legal aid. This is the only reform that I have ever seen that goes backwards.


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