THE LEGAL SYSTEM
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Legal aid in criminal cases
In criminal cases, legal aid is available for representation in proceedings in the Court of First Instance and District Court, in committal proceedings in the Magistrates' Courts, in appeals from the Magistrates' Courts, and in appeals to the Court of Appeal and the Court of Final Appeal. The choice of lawyer in criminal cases rests solely with the Director of Legal Aid, who may take an aided person's nomination into account in selecting a suitable lawyer to represent him.
While applicants will have to go through a means test, the Director of Legal Aid has the discretion to grant legal aid in a criminal case even if the applicant's financial resources exceed the limit if he is satisfied that it is desirable in the interests of justice to do so. In addition, a judge may grant legal aid on his own initiative if the applicant satisfies the means test. Applicants in cases involving a charge of murder, treason or piracy with violence may apply to a judge for a grant of legal aid, with exemption from the means test and payment of contribution.
The merits test is applied mainly in relation to applications for legal aid for appeal. However, it does not apply to an appeal involving a charge of murder, treason or piracy with violence. The grant of legal aid to such cases is required by statute subject to the applicant's meeting the means test.
There is no provision for appeal against the Director of Legal Aid's refusal to grant legal aid in criminal cases (except for appeals to the Court of Final Appeal) on grounds of means or merits. Appeals against refusal of legal aid for criminal appeals to the Court of Final Appeal are heard by a Special Committee appointed by the Registrar of the High Court.
During the year, 4 396 applications for criminal legal aid were received of which 2 859 were granted. Total expenditure on criminal cases was $108 million.
Duty Lawyer Service
The Duty Lawyer Service operates the Legal Advice Scheme, the Duty Lawyer Scheme and the Tel-Law Scheme. It is subvented by the government of the HKSAR but independently administered by the legal profession of Hong Kong. The Hong Kong Bar Association and the Law Society of Hong Kong each nominate four members to sit on the council of the service, which manages and administers its operations. Three lay members have also been invited to sit on the council.
The Legal Advice Scheme provides free advice to members of the public without means testing, at seven advice centres located in the District Offices. Members of the public can make appointments to see volunteer lawyers through one of the 120 referral agencies, which include all District Offices, Caritas Services Centres and the Social Welfare Department. Approximately 640 volunteer lawyers participate in the scheme under which 5 769 people received legal advice during the year.
The Duty Lawyer Scheme provides legal representation to virtually all defendants who are charged in the magistracies and whose gross annual income does not exceed $127,330. However, the Administrator of the Duty Lawyer Service has a discretion to grant legal representation to defendants whose gross annual income exceeds this limit, if she considers that it is in the interests of justice to do so. An applicant is also subject to a merits test. The prime consideration is whether the defendant is in jeopardy of losing his liberty or whether a substantial question of law is involved.
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