The Legal Aid Department has been using an erroneously harsh test to vet applications for civil legal aid and created wrongly for itself a discretionary power to decide when to grant funding, the Bar Association says.
The errors raise a question of whether the department has set the bar higher than stated by law, effectively denying the poor access to justice because they cannot afford it.
In its criticism, the association cited the case of Chung Yuk-ying, who had a hard time getting financial help to claim compensation for injuries she suffered while delivering documents.
It challenged the department's interpretation of a merits test under the Legal Aid Ordinance, which states an applicant should show "reasonable grounds" for taking or defending a civil action.
By reasonable grounds, the department requires the applicant's case to have "reasonable prospects of success", meaning, as it has argued in court, a "more than even chance of success".
The association said the threshold could be lower.
"Reasonable grounds to take legal action may be established even in cases where the chance or prospect of success is thought to be less than 50 per cent," the professional body of barristers told the South China Morning Post when asked about the merits test.
Instead, it added, so long as the department could not show a case was "doomed to fail", it must grant legal aid.
Legal aid applications for civil cases totalled 15,691 last year, of which 8,305 were rejected. On top of the merits test, an applicant must satisfy the means test.
In January, the Post reported that the department had used a wrong test in refusing legal aid to Chung after initially approving her application.
The department had acted on the advice of a barrister who concluded she did not stand a "more than even chance of success".
Chung then appealed to the High Court, saying the department and the barrister were wrong to require a chance of higher than 50 per cent. She lost the appeal but later got permission to launch a judicial review.
Granting that permission, Madam Justice Queeny Au Yeung Kwai-yue said: "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 appellant's favour.
"But it has to be satisfied that the appellant 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'."
The judge also noted that the department, instead of admitting it had applied a wrong test, had claimed a reasonable chance meant a chance higher than 50 per cent by citing a legal aid handbook used in England.
The department granted Chung funding before the judicial review was heard.
On the merits test, the department said the "applicant's case must have reasonable prospects of success and depending on the facts of the particular case legal aid may still be granted where the prospects of success are sufficiently substantial even though they have been estimated to have less than an even chance of success". This statement drew flak from the body of barristers.
"The use of the words 'may still' shows the department thinks it has a discretion in the matter," although the law did not provide the Director of Legal Aid with any "subjective discretion", it said. "The Chung Yuk-ying case is an interesting example of how vigilant one needs to be in protecting access to legal aid."