Relying On The Department's Assessment Of Your Legal Aid Application? Think Twice!

Author:ONC Lawyers
Profession:ONC Lawyers
 
FREE EXCERPT

Introduction

Legal aid is fundamental to the access to justice. In the case of Chung Yuk Ying v the Registrar of High Court [2013] HKCU 2449, the Court of First Instance criticized the Department of Legal Aid ("DLA") for its failure to apply the correct test to assess the merits of the Plaintiff's case, which resulted in the discharge of the Plaintiff's legal aid certificate. This article provides an overview of the legal aid scheme in Hong Kong.

Overview of the Legal Aid Scheme in Hong Kong

There are two different legal aid schemes in Hong Kong, namely civil legal aid and criminal legal aid. This article shall focus on civil legal aid. To be eligible for civil legal aid, an applicant must satisfy both the means test and the merits test.

The Means Test

The means test, as laid down in the Legal Aid Ordinance (Cap. 91), determines whether the financial resources of an applicant exceed the financial eligibility limits allowed for ordinary legal aid or supplementary legal aid. At present, the financial eligibility limits for ordinary legal aid scheme and supplementary legal aid scheme are HK$269,620 and HK$1,348,100 respectively.

The DLA may refuse to grant legal aid in the following circumstances:-

the applicant's financial resources have exceeded the relevant financial eligibility limit; the applicant has disposed of any assets to render himself eligible for legal aid; or the applicant has failed to maximize his earning potential to render himself eligible for legal aid. The Merits Test

The merits test is applied to safeguard public funds from misuse by fruitless litigation. There are two aspects of the merits test, legal merits and reasonableness.

Legal aid shall not be granted to an applicant unless he shows that he has reasonable grounds for taking, defending, opposing or continuing his legal proceedings. It was held in Ngugen Trong Son v Director of Legal Aid LAA No. 20/1999 that in determining whether there are reasonable grounds, 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 applicant's favour. However, it has to be satisfied that the applicant 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.

In Chung Yuk Ying, instead of applying the reasonable chance of success test, the DLA wrongly applied the more than 50% chance of success test in assessing the merits of the...

To continue reading

REQUEST YOUR TRIAL