Hong Kong Legal System

Hong Kong Legal System: The expansion of 2012 of the Legal Aid Schemes
Name
Institution
The expansion of 2012 of the Legal Aid Schemes
Introduction
The Article 35 of the Basic Law of Hong Kong provides that all the residents shall have the right to a considerable representation in the courts of law (The Hong Kong Human Rights Monitor, 2010). Through this, Hong Kong’s people are ensured of access to legal advice, choice of lawyers, access to court and judicial remedies. Such provisions are necessary for timely protection of people’s lawful rights and interests. To ensure the viability of the article, the government, through the Legal Aid Department (LAD), has instituted Legal Aid Policy and Framework to provide financial assistance to eligible applicants to help them meet their financial obligations in their quest to seek the right to a fair hearing in both civil and criminal proceedings (Home Affairs Bureau, 2014). It is in the residents’ interests that the government provides proper provision of Legal Aid to guarantee of easy and convenient access to justice. This is what has mandated the LAD to see the need of increasing and implementing the Financial Eligibility Limits to accommodate more people in need of legal financial aid to cater for their different legal needs. Through the widening of the scope of different Legal Aid Schemes, more people especially those in the lower middle class would have substantial opportunity to access legal aid to help them access the justice system in the country (The Hong Kong Human Rights Monitor, 2010). The expansion of 2012, of the Legal Aid Schemes was one major turning point for the Hong Kong government to demonstrate its commitment to providing continuous support to its people, to meet their legal financial obligations in relation to the changing needs of the society. Although the expansion of the 2012 was aimed at providing more financial support to cater for additional legal needs, LAD retains the right to decision on rejecting applicants.
Overview of the Strategic Plan of the Legal Aid Department
Under the Legal Aid Ordinance (Cap. 91), the LAD is mandated “to provide legal representation to eligible applicants by a solicitor and, if necessary, a barrister in civil or criminal proceedings” (Legal Aid Department, 2013). In this regard, the LAD provides legal aid, among other things, to individuals with cases in the Court of First Instance, the District Court, and the Courts of Appeal. Legal aid is also available in the Magistrates’ Courts to cater for committal proceedings. The Hong Kong government guarantees any person whether a resident or not, of legal aid if involved in a court proceeding in the courts specified. However, every applicant to the legal aid should be able to satisfy the statutory criteria required for one to be eligible for such financial aid. The LAD strategic plan sets out the objectives of the Department in disbursing the legal aid. It provides the rationale upon which priorities are determined in order to determine how their financial resources would be distributed in meeting individuals’ legal aid needs. Through meticulous arrangements, the Hong Kong government through its justice departments ensures everyone has considerable access to justice, which is in the spirit of its mission and vision of delivering quality legal aid services in the region. The LAD acknowledges the constant challenges legal aid faces in the rapidly changing environment, most of which emanates from economic changes, social changes, legal changes and technological changes. It is in this essence that the LAD has to keep updating its provisions concerning its legal aid to accommodate the changing needs of the society on matters pertaining to access to justice. The LAD’s Strategic Plan in 2012 embarked on the expansion of the scope of its legal aid schemes. The legal aids pertaining to civil proceedings are provided through either the Supplementary Legal Aid Scheme (SLAS) or the Ordinary Legal Aid Scheme (OLAS). In criminal cases, defendants can access legal aid through the Duty Lawyer Scheme. Currently, the three schemes cover a wide scope of needs that face individuals seeking justice in the country (Department of Justice, 2014).
The Implementation of the Legal Aid Schemes Provided By the Legal Aid Department
The implementation of the expanded scope of SLAS and OLAS was effected on 30 November 2012 (Legal Aid Department, 2013). OLAS was expanded to cover monetary claims that can result from any form of deception or misrepresentation that may occur in the sale of future contracts such as derivatives of securities. The LAD saw it necessary to introduce such an amended in order to combat unscrupulous practices involved in the sale of structured financial products, which are becoming common in Hong Kong. At the same time, the LAD utilizes the provision in discouraging speculative activities among traders, as a way to reduce incidences of cases related to structured financial products. In this expansion, OLAS would cover only civil proceedings related to breach of contract between businesspersons. This would be in addition to its conventional scope where it covers cases related to traffic accident claims, matrimonial cases, landlord-tenant disputes, professional negligence, employer-employee disputes, and immigration matters among others. For an individual to qualify for OLAS, one must complete the means test by proving that his/her financial resources do not exceed the financial eligibility limit, besides another merit test of providing a concrete reason for the need to defend proceedings (Home Affairs Bureau and Legal Aid Department, 2010). Despite the expansion of OLAS’s scope, the government should also address the issue of increasing the financial eligibility limits to reflect the true public affordability of legal expense. Increasing the scope alone does not guarantee the accommodation of more people especially those in the lower middle class.
As for SLAS, the LAD expanded its scope to include monetary claims against vendors that could arise from the sale of first-hand residential properties, and eight more professional negligence claims. The expansion was designed to benefit more individuals from the middle class with stronger financial resources exceeding the upper limit allowed under the OLAS. This would allow the scheme to cover cases whose claims are likely to exceed $60,000 (Legal Aid Department, 2012). Prior to the expansions, SLAS used to cover claims pertaining to personal injuries or death, or other medical issues and various issues of legal professional negligence. It also catered for claims under Employees’ Compensation Ordinance (Legal Aid Department, 2010). Just as in OLAS, for an individual to be eligible for SLAS, one has to meet the financial resources requirements besides having a substantial ground for taking the proceedings. Given the success of the scheme in widening people’s access to justice, there is need to expand its scope even further, in the future, to accommodate more legal issues. The Hong Kong government should also inject more funds in both OLAS and SLAS as a way to expand the schemes in covering more cases (Legislative Council, 2011). This way, more people would be accommodated and this would help the government realize its vision of providing considerable support in delivering justice in the country.
Under the Duty Lawyer Scheme, people involved in criminal cases can access various legal aid services necessary to facilitate fair justice. Under the expansion of 2012, the scope of criminal legal aid was expanded to cover appeals of cases in the Court of First Instance, the Court of Appeal, and the Court of Final Appeal that do not involve conviction. The expanded provisions of the amended Rule 21 of the Legal Aid in Cr...