Criminal Case Illustration
   
Mr. Mo was arrested by the police yesterday and was
charged with the offence of domestic burglary (i.e. breaking into another
person's flat to steal). The police have refused to release him on bail.
He is brought to the Kwun Tong Magistrates Court this morning.
Question 1:
Mr. Mo does not know what to do. Can Mr. Mo obtain any free legal advice or
representation for the hearing this morning? Answer
1
Question
2:
The Magistrate adjourns the case for 21 days and allows Mr. Mo
to be released on bail. Can Mr. Mo continue to have free legal
representation for subsequent hearings at the Magistrates Court?
Answer 2
Question 3:
At the next hearing, at the prosecution's request the Magistrate orders that
Mr. Mo's case be transferred to the District Court.
Can Mr. Mo continue to have free or subsidised legal representation
for subsequent hearings at the District Court? Answer 3
Question 4:
Mr. Mo is single and lives alone in a rented flat at a monthly rent of $2,000
(inclusive of rates and management fees). He earns $10,000 per month and
pays $2,640 salaries tax a year. He has $30,000 as savings in bank.
Can Mr. Mo obtain Legal Aid? Answer 4
Question 5:
Does Mr. Mo need to pay anything for obtaining legal representation under Legal
Aid? Answer 5
Question 6:
Mr. Mo is convicted by the District Court Judge after trial and is sentenced
to 3 years' imprisonment. He wants to appeal against the conviction. Can
Mr. Mo continue to have legal representation by Legal Aid for his appeal?
Answer 6
Answer 1:
Yes, Mr. Mo can obtain
free legal representation from the Duty
Lawyer Scheme run by the Duty Lawyer Service.
The Duty Lawyer Service has a Court Liaison Office in each and every Magistrates
Court in Hong Kong. As Mr. Mo is held in custody, he will be
contacted automatically by the staff of the Court Liaison Office at the cell
of the Kwun Tong Magistrates Court before the hearing. The staff will ask him
whether he
wants to have free legal representation from the Duty Lawyer Scheme. As this
is his first court appearance, the Scheme will not assess Mr. Mo's financial
situation and will not charge him any fee.
Once Mr. Mo confirms that he wants
to have the service, the staff will take instructions from him as to(1) his
personal and family background; (2) whether or not he intends to plead guilty
to the charge; (3) in case he intends to plead guilty, what he wants the
duty lawyer to say to the court in mitigation; and (4) if the case is
adjourned, whether he wants to apply for bail and the proposed conditions
for the bail.
Later the duty lawyer (who is a qualified solicitor or
barrister in private practice) will visit him at the cell of the Kwun
Tong Magistrates Court before the hearing to take further instructions
from him and answer his queries. He can seek advice from the duty lawyer
as to whether he should plead guilty or about the bail application.
The
duty lawyer will then appear for him at the first hearing before the
Magistrate.
Answer 2:
Any application for legal representation in subsequent
court hearing(s) is subject to a financial means test. In general,
the application will be granted if Mr. Mo's gross annual income does
not exceed $121,720 (or $10,143 per month). However, if the Administrator
of the Duty
Lawyer Service is satisfied that it is in the interests of justice
to do so, he may grant legal representation even if Mr. Mo's gross
annual income exceeds $121,720.
If Mr. Mo wishes to have legal representation for
his subsequent court appearance, he needs to attend the Duty Lawyer
Service's Court Liaison Office to go through the means test and fill
in a statutory declaration of means.
If Mr. Mo has successfully passed the means test,
he will be required to pay a fixed handling charge of $400. This
is the only charge he has to pay, no matter how long the trial lasts.
The Administrator of the Duty Lawyer Service has
the discretion to waive the handling charge in cases of genuine hardship.
Defendants receiving public assistance (e.g. Comprehensive Social
Security Assistance) are automatically exempted from payment of the
handling charge.
Answer 3:
Mr. Mo can no longer receive legal representation from
the Duty Lawyer Scheme, as it is not available in the District Court. But
Mr. Mo may apply for free or subsidised legal representation from the Legal
Aid Scheme run by the Legal Aid Department.
The Legal Aid Department will assign qualified solicitors
or barristers, in private practice, to provide legal representation in
criminal cases to eligible defendants (1) for all cases tried in the
District Court
or the High Court; (2) for appeals against conviction or sentence passed
by a Magistrate or a judge of the District Court or High Court (including
further appeals to the Court of Final Appeal); and (3) for committal proceedings in
Magistrates Courts .
To qualify for Legal Aid, the applicant needs to pass
a financial means test. The means test is to determine whether the applicant's
assets and income have exceeded the financial
resources limit for Legal Aid. Legal Aid will normally be granted to
an accused person for dealing with a criminal charge without considering
the merits of his defence, as long as he can
satisfy the financial means test.
Answer 4:
We need to first assess
Mr. Mo's financial
resources according to the Legal Aid (Assessment of Resources and
Contributions) Regulations. Financial resources are calculated by adding
the applicant's disposable
capital to his yearly disposable
income .
Disposable capital consists of all the applicant's assets
of a capital nature, such as cash, bank savings, jewellery, antiques,
stocks and shares, flats and properties. But it does not include the
value of the
applicant's residential flat if he normally lives in it, nor his household
furniture, personal clothing and tools of trade.
Disposable income is the net income after various allowable
deductions eg. rent or mortgage repayments in respect of the applicant's
residential flat, rates, tax and the statutory personal allowances for one's
own living expenses and dependants'.
Mr. Mo has disposable capital of $30,000 in the form of bank savings. He has a yearly disposable income of $49,800. Hence his financial resources are $79,800.
Details of Calculation
| Monthly Disposal Income |
His Income |
$10,000 |
| |
LESS |
|
| |
Rental |
($2,000) |
| |
Salaries Tax
Personal Allowance |
($220)
($3,630) |
| |
|
$4,150 |
| Yearly Disposable Income |
($4,150 x 12) |
$49,800 |
| |
|
|
| Disposal Capital |
His Bank Savings |
$30,000 |
| Total Financial Resource |
|
$79,800 |
Mr. Mo therefore satisfies the means test for the Legal
Aid Scheme, because his financial
resources do not exceed the limit of $162,300. Legal Aid will normally
be granted to an accused person for dealing with a criminal charge so long
as he can satisfy the means test, without considering the merits of his
defence.
Mr. Mo should therefore be able to obtain Legal Aid for
the criminal proceedings in the District Court.
Answer 5:
Yes, Mr. Mo needs to pay a contribution fee of $3,990 (i.e. 5% of his financial resources of $79,800 ) for the Legal Aid service.
If the accused person's financial
resources exceed $20,000, he will have to pay a contribution in
accordance with the following table:
Scale of Contribution by an applicant for obtaining
Criminal Legal Aid
| Assessed Financial
Resources |
Contribution |
| $0 to $20,000 |
Free (no contribution required) |
| $20,001 to $40,000 |
$1,000 |
| $40,001 to $60,000 |
$2,000 |
| $60,001 to $80,000 |
5% (i.e. $3,000 to $4,000) |
| $80,001 to $100,000 |
10% (i.e. $8,000 to $10,000) |
| $100,001 to $120,000 |
15% (i.e. $15,000 to $18,000) |
| $120,001 to $144,000 |
20%(i.e. $24,000 to $28,800) |
| $144,001 to $162,300 |
25% (i.e. $36,000 to $40,575) |
| $162,301 or over(Legal Aid
normally refused, but may be granted in exceptional cases by the
Director of Legal Aid if the interests of justice require) |
30% to 67% |
Answer 6:
Mr. Mo needs to re-apply for Legal Aid as the Legal Aid Certificate previously granted only covered the trial proceedings in the District Court. As he is now serving a prison sentence, Mr. Mo should ask the staff of the Correctional Services to help him submit a new application for Legal Aid for the appeal proceedings. Apart from the means test, Mr. Mo also needs to satisfy the case merits test before he can obtain Legal Aid for the appeal proceedings. To satisfy the case merits test, Mr. Mo would have to show that he has reasonable grounds to appeal.
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