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Link] [Graphical]Annual Report 2018 > 3. Duty Lawyer Scheme
3.1 TThe Duty Lawyer Scheme initially only provided free legal representation to defendants charged with six scheduled offences in three Magistrates’ Courts. This was subsequently extended to nine scheduled offences in 1981 and then to cover all adult and juvenile Magistrates’ Courts since 1983.
3.2 With the enactment of the Hong Kong Bill of Rights Ordinance in 1991, the Scheme was expanded to offer representation to defendants in the Magistrates’ Courts “where the interests of justice require, and without payment by him in any such case if he does not have sufficient means to pay for it” (Article 11(2)(d) of Section 8 of the Hong Kong Bill of Rights Ordinance (Cap. 383)).
Means & Merits Tests
3.3 Applicants are subjected to a simple means test. The financial eligibility limit was initially set at a gross annual income of $50,000 based on the income of the breadwinner of a “conventional family (husband, wife and two children)”. This limit was revised periodically and the last revision was from $193,750 to $197,040 on 1 June 2018.
3.4 The merits test adopted by the Scheme is based on the criteria set out by the Widgery Committee of UK in 1966. The Committee stated that the proper scope of an adequate scheme of legal assistance is “to secure that injustice does not arise through an accused person being prevented by lack of means from bringing effectively before the court matters which may constitute a defence to the charge or mitigate the gravity of the offence”.
3.5 The Criteria (apart from means) for deciding whether a grant of legal representation for summary trials is “in the interests of justice” were stated by the Widgery Committee as follows:
| (a) | that the charge is a grave one in the sense that the accused is in real jeopardy of losing his liberty or suffering serious damage to his reputation; |
| (b) | that the charge raises a substantial question of law; |
| (c) | that the accused is unable to follow the proceedings and state his own case because of his inadequate intelligence, mental illness or other mental, physical disability; |
| (d) | that the nature of the defence involves the tracing and interviewing of witnesses or expert cross-examination of a witness for the prosecution;
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| (e) | that legal representation is desirable in the interest of someone other than the accused as, for example, in the case of sexual offences against young children where it is undesirable that the accused should cross-examine the witness in person. |
Handling Charge
3.6 A handling charge of $570 per case is payable by all adult defendants, but can be waived at the Administrator’s discretion in cases of genuine hardship.
Scope of Representation
3.7 The Scheme covers some 300 statutory and common law offences and represents a vast majority of defendants. The list of offences for which the Scheme is providing representation appears at Appendix B-1.
3.8 The Scheme also assigns lawyers to advise defendants facing extradition, to represent persons who are at risk of criminal prosecution as a result of giving incriminating evidence in Coroners’ inquests and to undertake representation of hawkers upon their appeals to the Municipal Services Appeals Board enabling the appellants to receive licence to continue their trade.
3.9 With effect from 1 April 2014, the Duty Lawyer Scheme has been further expanded to provide legal representation in bail applications pending trial and sentence for Magistrates' Court defendants in the Court of First Instance of the High Court. Two defendants were represented by the Scheme in the High Court in 2018.
3.10 With effect from 3 December 2018, the Duty Lawyer Scheme has been extended to cover contempt proceedings in the Labour Tribunal (s.42 of the Labour Tribunal Ordinance Cap.25) and Small Claims Tribunal (s.35A of the Small Claims Tribunal Ordinance Cap.338). So far no such case in these Tribunals has been referred to the Scheme.
3.11 In the year under review, a total of 22,546 adult and juvenile defendants (Appendix B-2, B-3, B-4 and B-5) were represented by the Scheme. Of the cases proceeding to trial with Scheme representation throughout, an overall acquittal rate of 84.62% was achieved.
Juveniles
3.12 Legal representation was provided for 151 juvenile defendants appearing in the Juvenile Courts (Appendix B-3). Juvenile defendants are not subject to the means or merits test, but their families are encouraged to pay the Scheme’s $570 handling charge where possible. Juveniles charged with adults and therefore appearing in the adult courts are also offered Scheme representation.
3.13 Since the extension of the Duty Lawyer Service in October 2003 to cover legal representation in the Juvenile Court to children / juveniles under s. 34(2) of the Protection of Children and Juveniles Ordinance Cap. 213 of the Laws of Hong Kong, the Duty Lawyer Service so far has handled a total of 24,591 Care or Protection cases in the Juvenile Courts (Appendix B-6).
Duty Lawyer
3.14 There are 1,938 duty lawyers on the panel of the Duty Lawyer Scheme with 1,206 duty lawyers (List of Duty Lawyers in Appendix A-5) providing legal representation in the Magistrates’ Courts during the year under review.
Working Relations
3.15 The Service has continued to maintain a good working relationship with the Judiciary, the Chief Secretary for Administration’s Office, the Home Affairs Department, the Home Affairs Bureau, the Security Bureau, the Police, the Correctional Services Department, the Customs & Excise Department, the Immigration Department, the Social Welfare Department, and the Legal Aid Department. Useful contact was maintained on an ongoing basis with the Chief Magistrate, the Judiciary Administrator, the Director of Administration of the Chief Secretary for Administration’s Office, the Director of Public Prosecutions, the Commissioner of Police, the Commissioner of Correctional Services Department, the Director of Immigration Department, the Director of the Home Affairs Department, the Director of Legal Aid, the Permanent Secretary for Home Affairs and the Permanent Secretary for Security.
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