B. 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.
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
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
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
Mr. Mo is single and lives alone in a rented flat at a monthly rent of $6,000 (inclusive of rates and management fees). He earns $15,000 per month and pays $1,570 salaries tax a year. He has $30,000 as savings in bank.
Can Mr. Mo obtain Legal Aid? Answer 4
Does Mr. Mo need to pay anything for obtaining legal representation under Legal Aid? Answer 5
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
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.
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 $197,040 (or $16,420 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 $197,040.
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 $540. 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.
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.
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 $31,800. Hence his financial resources are $61,800.
Details of Calculation
|Monthly Disposal Income||His Income||$15,000|
|Yearly Disposable Income||($2,650 x 12)||$31,800|
|Disposal Capital||His Bank Savings||$30,000|
|Total Financial Resource||$61,800|
Mr. Mo therefore satisfies the means test for the Legal Aid Scheme, because his financial resources do not exceed the limit of $307,130. 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.
If the accused person's financial resources exceed $38,391.25, 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 - $38,391.25||Free (no contribution required)|
|$38,391.26 - $76,782.50||2% (i.e. $768 - $1,536)|
|$76,782.51 - $115,173.75||2.5% (i.e.$1,920 - $2,879)|
|$115,173.76 - $153,565.00||5% (i.e. $5,759 - $7,678)|
|$153,565.01 - $191,956.25||10% (i.e. $15,357 - $19,196)|
|$191,956.26 - $230,347.50||15% (i.e. $28,793 - $34,552)|
|$230,347.51 - $268,738.75||20% (i.e. $46,070 - $53,748)|
|$268,738.76 - $307,130.00||25% (i.e. $67,185 - $76,783)|
|$307,130.01 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% - 67%|
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.