ENG-1986 — Page 59

CONSTITUTION AND ADMINISTRATION

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representation to defendants in certain criminal cases in the Magistrates' Courts and Juvenile Courts which are areas not covered by the Legal Aid Department. Both aspects of legal welfare are funded by the Hong Kong Government but the Legal Aid Department is itself a department of the government.

The report of a review by a working party of the administration on the scope of legal aid and its management was put to the legal profession during the year. Taking into account the views of the profession, the government will issue a document for public consultation.

Legal aid as administered by the Legal Aid Department is available to both residents and non-residents in Hong Kong who satisfy the Director of Legal Aid on financial eligibility and justification for legal action. The financial limits in both civil and criminal cases are the same. The maximum eligibility limits for legal aid were changed in 1986 to a monthly disposable income of $2,200 and a disposable capital of $15,000. Disposable income and capital are arrived at after allowances have been deducted from actual earnings and capital of applicants. Legal aid is provided either free or on payment of a contribution, depending on the amount of the disposable income and capital. If a legally aided person in civil litigation is successful and legal costs are recovered in the proceedings, then any contribu- tion he may have paid may be refunded. In unsuccessful litigation, the liability for costs of a legally aided person is limited to the amount of the contribution, if any paid by him.

In addition to financial eligibility, the applicant must satisfy the Director of Legal Aid in civil cases that he has a reasonable chance of succeeding in the litigation for which he seeks aid and in recovering the judgement debt thereafter. Legal aid is available for a wide range of civil proceedings in the District Court, High Court, Court of Appeal and appeals to the Judicial Committee of the Privy Council in London. Traffic accident claims, claims in respect of industrial accidents and employees' compensation, immigration matters and every branch of family law ranging from divorce, separation, maintenance and custody to wardship, all lie within the scope and jurisdiction of the department. Cases such as admiralty, bankruptcy and companies winding-up proceedings are also undertaken together with a large number of general litigation cases involving landlord and tenant, breach of contract and professional negligence. An applicant who is refused legal aid may appeal against such a refusal to the Registrar of the Supreme Court or in Privy Council cases to a committee of review.

The total estimated expenditure for 1986-7 was $28 million in civil cases. In all, 14 898 applications were received for legal aid in civil matters, of which 5 583 were granted legal aid with a sum of $84 million being recovered for aided clients in civil cases.

Legal aid is available for criminal proceedings in the District Courts, High Court, Court of Appeal, the Judicial Committee of the Privy Council and for representation at proceedings in the Magistrates' Courts where the prosecution is seeking committal of a defendant to the High Court for trial. The extension of legal aid to the Magistrates' Courts for the more serious offences is now under active consideration.

The majority of accused persons in these criminal courts are legally aided. For such criminal trials, legal aid is invariably given - subject to financial eligibility - because of the serious nature of the charge and the gravity of sentence. Legal aid can also be given to conduct pleas in mitigation of sentence. For appeals against conviction of murder, irrespective of whether there are grounds of appeal, the granting of legal aid is mandatory. For all other criminal appeals, including appeals from the decisions of magistrates, legal aid will be given again subject to financial eligibility, if the Director of Legal Aid is satisfied that there are arguable grounds of appeal. A person who is refused legal aid on a criminal matter may nevertheless be granted legal aid – subject to financial eligibility - by a trial judge or