Legal Assistance

Legal Assistance

Introduction

Under the rule of law, everyone is equal before the law. There is nobody should be above the law and the law should not be applied differently to different persons regardless of position, wealth, class, political views, religion, race or sex. All people should be treated equally by the law according to Basic Law article 25. If not, it may hard to maintain the power between the state and people when people are excluded from the justice system. Also, it will harm the social harmony. It is important to provide the fair trial of people who are charged, suspected or criminal offence.

As a result of the complexity of the Hong Kong legal system, litigants without adequate legal representation are at a serious disadvantage. Under the Bill of Rights Article 11(2)(d), anyone charged with a criminal offence has the right to legal assistance if he lacks such assistance and the interests of justice so require. In such cases assistance will be provided without payment, if the defendant does not have sufficient means to pay for it. Hence, the legal assistance should be provided for people who cannot afford the legal costs such as fees and charges of the solicitor or counseling fee because the provision of publicly funded legal assistance to these people is a cornerstone of rule of law. (Po, 2009) Their legal and human right should be secured under the provision of legal assistance. In the following part, we will take Hong Kong as an example to examine the current legal assistant service.

Introduction of the current provision of legal assistance

There are two main government-funded bodies providing legal aid services in Hong Kong. The Legal Aid Department (LAD) is a separate government department to provides legal representation to eligible applicants by a solicitor and, if necessary, a barrister in civil or criminal proceedings. The legal aid services include the cases in the District Court, the Court of First Instance, the Court of Appeal and the Court of Final Appeal. It is also available for committal proceedings in the Magistrates' Courts. It is available for all Hong Kong people residents or non-residents to apply for this service. Legal aid will be granted if the applicant is able to satisfy the statutory criteria as to the financial eligibility and the merits for taking or defending the legal proceedings. To maintain the standard of legal representation, LAD avoids using young and inexperienced counsel. For example, counsel with less than three years' experience will only be assigned to handle pleas of mitigation. Trails in District Court and High Court are usually in charge of counsel with at least five years' experience and seven years' experience respectively.

To avoid abuse of the legal aid, recipients should pass means test. Every applicant is required