THE LEGAL SYSTEM
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Legal Aid in Criminal Cases
Legal aid provided by the Legal Aid Department is also available for criminal proceedings in the District Court, High Court, Court of Appeal, and the Judicial Committee of the Privy Council in London and representation at proceedings in the Magistrates' Court where the prosecution is seeking committal of a defendant to the High Court for trial. The department also provides assistance in preparing petition for clemency to the Governor in Council.
Because of the legal costs involved, the severity of the charge and gravity of the possible sentence, legal aid is invariably given for District Court and High Court criminal trials subject to financial eligibility. Legal aid can also be given to conduct pleas in mitigation of sentence. For appeals against conviction for murder, irrespective of whether there are grounds of appeal, the granting of legal aid is mandatory to ensure that all relevant matters are placed before the court by the appellant's legal representative. For all other criminal appeals, including appeals from the decisions of the Magistrates' Court, the District Court, and the High Court, legal aid will be given subject to financial eligibility if the Director of Legal Aid is satisfied that there are arguable grounds of appeal. A person who is refused aid in a criminal matter may nevertheless be granted legal aid subject to financial eligibility by a trial judge or by the Court of Appeal or, in relation to appeals to the Judicial Committee of the Privy Council, by a committee of review.
The total estimated expenditure for 1991-2 was $77 million in criminal cases. During the year, 4 220 applications were received and a total of 2 360 applications were granted legal aid.
The Legal Aid Department has a criminal litigation division which handles the processing of applications for legal aid in criminal cases, assignment and monitoring of cases assigned to outside solicitors and counsels. The full-time lawyers in this division also conduct, as instructing solicitors in-house, litigation of criminal trials and appeals, and perform statutory requirement of assessing the fees payable to outside solicitors and counsels.
Legal Advice and Duty Lawyer Schemes
The Legal Advice and Duty Lawyer Schemes are jointly administered by the Law Society and the Bar Association. They comprise three programmes providing free legal representation, legal advice and legal information for people in Hong Kong. The day to day operation of the schemes is overseen by a management and administration committee, members of which are nominated by the Law Society and the Bar Association. The committee meets once a month. The government funds the entire operation of the schemes and the subvention in 1991-2 was over $26 million.
Until June 1991, the Duty Lawyer Scheme provided free legal representation to defendants charged with one of nine 'scheduled' offences in the Magistrates' Courts. Upon the enactment of the Bill of Rights Ordinance in June 1991, the scheme was expanded to offer free legal representation to all defendants in the Magistrates' Courts who fall within certain criteria (such as those in jeopardy of losing their liberty or those unable to follow the proceedings because of mental or linguistic disability). There are approximately 600 remunerated lawyers (barristers and solicitors) on the Duty Lawyer roster. In 1991, 16 662 defendants facing charges received preliminary advice and representation at trial.
The Legal Advice Scheme provides free advice without means testing at five advice centres at Sha Tin, Tsuen Wan, Wan Chai, Yau Tsim and Kwun Tong. Each centre