CONTENT

Foreword: Finding Pro Bono Legal Help in Hong Kong 5 Foreword: A “Rolls Royce” Legal System in Hong Kong? 6 Purpose of this Report 8 Scope of this Report 8 Methodology 9 Abbreviations and Glossary 11 Executive Summary 13

PART I: MEASURING THE LEGAL NEEDS 16 Introduction 18 Past Reviews of Access to Justice 18 This Legal Needs Assessment 19 Findings 20 NGO Surveys 20 SoCO Surveys and Interviews 22 Part I: Key Observations 24

PART II: EXISTING FREE OR SUBSIDISED LEGAL SERVICES 25 Introduction 27 A Brief History of Free or Subsidised Legal Services 27 Current Situation: Who Provides Free or Subsidised Legal Services to the Community? 28 Legal Aid Department 28 The Duty Lawyer Service 32 Duty Lawyer Scheme 32 Free Legal Advice Scheme 33 CAT & Non-Refoulement Claims Scheme 35 Free Legal Advice Scheme at the University of Hong Kong 35 Procedural Advice Scheme 36 Resource Centre for Unrepresented Litigants 37 Bar Free Legal Services Scheme 37 Law Society of Hong Kong’s Pro Bono Services 38 Equal Opportunities Commission 39 Consumer Legal Action Fund 40 Office of Legislative and District Councillors 41

02 | This Way – Finding Community Legal Assistance in Hong Kong Non-Governmental Organisations 42 Law Firm Pro Bono 42 Part II: Key Observations 43

PART III: REGULATORY ISSUES 45 Introduction 47 How to do Pro Bono as a Solicitor 47 How to do Pro Pono as a Foreign-Qualified Lawyer 49 How to do Pro Bono as a Barrister 49 How to do Pro Bono as an In-House Counsel 49 How to do Pro Bono as a Law Student 50 How to Provide Free Legal Service to the Community as a Law Firm or Sole Proprietorship 50 How to Provide Free Legal Service to the Community as an NGO 51 Conflicting Professional Obligations 52 Cost-Related Considerations 52 Part III: Key Observations 54

PART IV: MODELS OF COMMUNITY LEGAL SERVICE 56 Introduction 58 Australia 58 Redfern Legal Centre 58 Salvos Legal and Salvos Legal Humanitarian 59 Shopfront Youth Legal Centre 59 Justice Connect 60 Canada 61 Pro Bono Ontario 61 Republic of Ireland 62 Free Legal Advice Centre 62 Singapore 63 Law Society Pro Bono Services Ltd, Law Society of Singapore 63 United Kingdom 64 The PILS Project 64 Part IV: Key Observations 65

| 03 THIS WAY FORWARD: OUR RECOMMENDATIONS 68

ACKNOWLEDGEMENTS 71

APPENDICES 74 Appendix 1: Survey with Fourteen NGOs 75 Appendix 2: Supplemental Survey with Fourteen NGOs 79 Appendix 3: SoCO Staff Survey 80 Appendix 4A: SoCO Community Survey (English) 81 Appendix 4B: SoCO Community Survey (Traditional Chinese) 83 Appendix 5A: Additional Information from NGO Survey 85 Appendix 5B: Additional Information from SoCO Staff Survey 86 Appendix 5C: Additional lnformation from SoCO Community Survey 87 Appendix 5D: SoCO Interviewees’ Background and Issues 89 Appendix 6: The Law Society of Hong Kong’s Practising Certificate Application Form 90 Appendix 7: The Law Society of Hong Kong’s Circular 16-609 (Dated 1 August 2016) plus Guidelines, Application and Declaration 94

ENDNOTES 103

04 | This Way – Finding Community Legal Assistance in Hong Kong FOREWORD to refer that person to appropriate legal help – be it to Legal Aid, law firm pro bono or an NGO legal centre. FINDING PRO BONO LEGAL HELP IN It is also incumbent on those of us who offer pro bono HONG KONG assistance to assist NGOs and their clients in accessing lawyers. Strong, effective and reliable community service Everyone has the right to access justice. Indeed the providers are key to improving access to justice. right to access justice is at the core of sustainable development. For the first time ever, the international For several years, PILnet and DLA Piper have worked community has recognised this by agreeing on together to strengthen the pro bono culture among Sustainable Development Goal 16: to promote peaceful lawyers and improve access to justice in many and inclusive societies, ensure access to justice for all and communities. After listening to our community partners build effective, accountable and inclusive institutions at all in Hong Kong, we saw an important opportunity to study levels by 2030. the landscape of community legal service delivery in Hong Kong, identify the gaps and barriers for vulnerable Undoubtedly for vulnerable and marginalised people, groups, highlight the innovative solutions already being a properly funded legal aid system that provides ready employed by local NGOs and identify new solutions. access to good quality legal advice is essential to To this end, we seconded a lawyer to PILnet for realise this right. But while community and pro bono ten months to work on this Report, research and legal services play an important role – particularly in conduct in-depth interviews. supporting those people who fall through the cracks – they can never, and should never, be a substitute for This Way – Finding Community Legal Assistance in government-funded legal aid. Hong Kong is the culmination of extensive work by DLA Piper and PILnet, drawing on our respective As DLA Piper’s pro bono practice in Hong Kong expertise, know-how and networks. This Report is developed, it became apparent that Hong Kong’s intended for government, civil society, the private marginalised people, like their counterparts in so many sector and anyone wanting to improve legal services for other developed countries, suffered challenges in vulnerable people in Hong Kong. We urge everyone who accessing legal services, and gaps in services provided. is interested in access to justice to read it, and consider Increasingly, local NGOs expressed concerns to us about how we can implement the recommendations in this their clients’ growing demand for legal assistance and Report. appropriate referral pathways. NGOs questioned the apparent regulatory restrictions preventing them from Achieving Sustainable Development Goal 16 of access delivering legal advice and the lack of pro bono assistance to justice for all by 2030 is a stretch goal. This Report available in some areas of law. identifies a number of practical, progressive and tangible ways in which we all as a legal community can move Because of our longstanding experience in working closer in that direction for the benefit of our community in public interest law and building pro bono practice in Hong Kong. around the globe, DLA Piper understands that most marginalised clients have complex needs, and that their Annette Bain, Pro Bono Counsel – Asia, legal issues are usually the tip of the iceberg. Community DLA Piper Hong Kong. workers are often the first point of contact when a Catriona Martin, Pro Bono Director, Asia Pacific, pro bono client seeks assistance. It is critical then that DLA Piper Sydney. community workers are well informed and equipped

| 05 FOREWORD again if she ever goes to the police or files for divorce. In every one of these cases, to prevent problems from 9, 10 A “ROLLS ROYCE” LEGAL SYSTEM IN escalating, early legal advice and assistance are crucial. HONG KONG? This Way – Finding Community Legal Assistance in Despite the Hong Kong Government’s efforts to fight Hong Kong (this Report) aims to achieve two things. It poverty, the poverty rate in Hong Kong remains high, attempts to identify gaps in our current system when and social inequality is severe. it comes to legal services for Hong Kong’s poor and disadvantaged communities. We also hope to provide Underneath the city’s glistening façade, nearly one in some helpful comparative experience as we think about 1 five people fell beneath the poverty line in 2015, and how to bridge these gaps. income inequality is likely the highest among developed economies.2 The richest ten percent makes 29 times In the Hong Kong Chief Executive’s 2017 Policy Agenda, what the poorest earn,3 while the number of “working which lays out policy directions for the Hong Kong poor” – defined as households living under the poverty Government, the following commitment was repeated: line having at least one family member holding down a “Enhancing access to legal aid and free legal advice job – is now about half of all those in poverty.4 services to benefit more people who cannot afford private legal fees.” 11 While the government has continued If we look at specific communities, the picture gets to add to its legal aid and free legal advice services, the 5 grimmer: one in three elderly lives in poverty. Around improvement is not enough and not yet hitting where it 200,000 grassroots residents, among them about is most needed. 35,500 children, continue to live in subdivided units with an average of 62 square feet of space per capita.6 At the same time, while ensuring access to justice is Meanwhile, the wait for public housing is an average of primarily the responsibility of the government, it is 4.7 years, and the rise in rent has far outstripped income essential that other stakeholders are also supported to growth.7 In Hong Kong, the world’s most expensive city help meet community legal needs: public interest and to purchase a home, an apartment costs an average of pro bono law firms, law schools, professional bodies, 18.1 times annual income. Home ownership for most is and NGOs. Recent drastic legal aid cuts in the United simply not possible.8 Kingdom underline the danger of relying too heavily on government funding, and reinforces the need for an What has poverty and social inequality got to do with a ecosystem of diverse legal services.12 report of legal services for the Hong Kong community? We are deeply grateful for DLA Piper’s generous support In the past three years, PILnet has worked with more in sending us a secondee, Jennifer Yi Man Cheung, to than 100 NGOs and social enterprises in Hong Kong assist with the research and writing of this Report. through our workshops and Pro Bono Clearinghouse, Without the firm’s vision and support we would not have a “matchmaking” platform that connects pro bono been able to undertake this project at this time. lawyers with these organisations. Through this work, we have learned that our community faces a range of We also hope this successful collaboration will lead to complex socio-economic problems, often with a legal many similar collaborative initiatives to improve the dimension, that are not currently adequately addressed delivery of legal services to the Hong Kong community. by our legal system. In particular, we urge the Hong Kong Government to carry out a strategic review of its legal aid policy, Every day individuals face situations that could benefit conduct a comprehensive analysis of the legal needs of from timely and quality legal assistance. The exorbitant the community, and in the long term, embrace a more loan agreement. A potentially illegal threatened eviction. diverse use of legal aid funding and delivery models, with Losing employment due to discrimination against a focus on enabling and supporting early legal assistance disability or race. An abused spouse on a dependent visa and advice. who is told she will be deported and never see her child

06 | This Way – Finding Community Legal Assistance in Hong Kong As one interviewee for this Report, barrister and human rights consultant Sou Chiam, pointed out: Hong Kong’s legal system is well regarded in the world, but is essentially a “Rolls Royce” version of the law, one that is too costly for the community to access. Now more than ever, we need other versions of the law – bus, tram, ferry, bicycle; a variety of legal aid services and dispute resolution options – so that our law can really be accessible to all, not only in theory, but also in practice. And just as fundamental as having a variety of “transport” options, there is also a need for clear entry points and signage for the community to navigate what may seem like a daunting legal labyrinth – hence the name of this Report, This Way. Whether it is through community legal centres or better collaboration between various legal aid services, it is crucial that our legal aid landscape be more navigable, such that those in need can easily find these services, and that there is more coordination and continuity in these services. We look forward to working with you all to bring the law closer to the community. Tze-wei Ng Deputy Director for Asia PILnet: The Global Network for Public Interest Law

| 07 PURPOSE OF THIS REPORT often are only available 15-minutes before a court hearing to meet with a client. And to those in need, the This Report aimed to find out the most pressing legal myriad of services may appear to be a maze with no clear needs of the poor and vulnerable groups in Hong Kong, entry point. what free legal services already exist, and identify the gaps between them. The purpose was to understand Meanwhile, an NGO’s ability to meet these needs them so we can better design PILnet’s programme in is hamstrung for various reasons, including their Hong Kong to address these gaps and identify relevant inability to hire staff lawyers to advise and represent stakeholders for collaboration. the clients, the lack of general recognition that they are meeting legal needs, and the small pool of public Access to justice is a value long embraced by the interest and pro bono lawyers in Hong Kong to whom Government of Hong Kong (Hong Kong Government), they can refer their clients. NGOs would like to have and one of the fundamental rights protected access to more pro bono lawyers, but regulatory by Article 35 of the Basic Law. The Hong Kong restrictions and the nascent pro bono culture also mean Government has supported a litigation-based legal aid this is not an easy route, and help remains piecemeal in scheme (Legal Aid) since the late 1960s, and various most cases. other schemes, such as the criminal Duty Lawyer Scheme and a Free Legal Advice Scheme (FLAS) (both schemes are under the Duty Lawyer Service DLS), since SCOPE OF THIS REPORT the late 1970s. Many in the Hong Kong legal community In this Report, we attempt to identify the unmet legal agree that we have a comparatively generous system, as needs that exist between the community’s demand for governments in other jurisdictions have been cutting legal legal services and existing services, review previous aid budgets. attempts to fill those gaps, propose alternative Through PILnet’s work with NGOs in the past three community legal initiatives, and examine some leading years, we have learned about the growing demand for models of delivering legal services to the community in legal assistance from the community. Hong Kong has a other common law jurisdictions. vibrant community of NGOs serving a wide spectrum of For the purpose of this Report, when we use the term the poor and vulnerable groups, and many already include “community” we are thinking in particular about the some form of legal assistance in their service. Many poor and vulnerable groups such as the elderly, children, NGOs we interviewed cited this as a natural response to women, people with disabilities, ex-offenders, new the needs of the community they serve, as many social arrivals, ethnic minorities, migrant workers, refugees, and and economic problems involve a legal dimension. asylum seekers. NGO clients face two common problems: (i) their needs While contemplating how to close the gaps or meet fall outside the scope of the two biggest government- these unmet legal needs of the community, this Report funded schemes: Legal Aid and Free Legal Advice also hopes to provide some practical building blocks. Scheme; and (ii) they find the existing services inadequate We have pulled together our recommendations based or are not sure how to access them. These NGOs refer on comparative experience and the accumulated wisdom the majority of their clients to the government-funded of many experienced actors in the Hong Kong justice schemes, but they also note there are some significant system. gaps in these schemes. For example, Legal Aid only covers the proceedings stage, and FLAS does not provide In Part I, we aim to identify the community’s unmet follow-up. legal needs through surveys with a selection of NGO partners. The surveys identify what legal issues their A closer review of these schemes and interviews with clients encounter, how the legal issues are addressed, those who interact regularly with them have revealed which types of legal assistance these NGOs provide, and other, less obvious gaps. For example, the Duty Lawyers what their experience is with existing legal services.

08 | This Way – Finding Community Legal Assistance in Hong Kong In Part II, we aim to provide a better understanding of With our limited resources we could not undertake the legal services currently available to the community: a full-scale “unmet legal needs” assessment with the their scope on paper, their evolution over time, and how poor and vulnerable groups in Hong Kong. Instead, users perceive them. we conducted a preliminary assessment through our NGO partners, many of whom offer a range of free In Part III, we review laws and regulations relevant to legal assistance to their clients – such as referrals, filling the provision of pro bono legal services in Hong Kong, out forms, making legal aid applications or providing as well as those relevant to the setting up of a law firm community legal information sessions – but stop short of or NGO focused on serving the community by providing giving substantive legal advice and legal representation. free legal services. Under existing Hong Kong laws and regulations, NGOs In Part IV, we look at leading models of community legal are not allowed to offer those services. They can services from other common law jurisdictions and try to only refer clients to existing schemes offered by the see how they meet some of the gaps and challenges we government, professional bodies or the Judiciary, or identify in Hong Kong. help them find pro bono lawyers if existing schemes With that, we sum up our Report in the Recommendations cannot help. set out at the end of this Report. Our overall research approach was as follows: This Report does not attempt to provide a complete We selected 15 NGOs in Hong Kong whom we knew assessment of unmet legal needs in Hong Kong, nor a offered free legal assistance to the poor and vulnerable rigorous review of current government-funded legal aid groups, and conducted a survey (Appendix 1 and 2) with services. Instead, we hope this Report will provide some their team to find out: i) the top legal needs they see that helpful points of reference and lessons learned as we their community faces, ii) the types of legal assistance think about the legal needs of the Hong Kong community, they offer and the types of legal assistance that they consider how best to meet them in the future, and begin refer their clients to, and iii) the gaps they have observed future discussions. between the legal needs they identified, and the existing free legal services. A total of 14 NGOs returned our METHODOLOGY survey and 11 agreed to be named in this Report. “Gap” Analysis of Need and Supply of Free Legal Assistance Because few NGOs had systematically started collecting data on the legal needs of their clients, we wanted to From PILnet’s work internationally, we understand that test how an NGO might start the process. We designed “unmet legal needs” assessments or “justice gap” analyses a more in-depth survey with one NGO partner, Society are large-scale and highly technical projects if they are for Community Organization (SoCO), consisting of: to be done properly to inform a government’s access to i) a 90-day activity survey filled out by their staff justice policies. Many countries have carried out such an (Appendix 3), ii) a 60-day activity survey filled out by exercise, normally funded by government or professional the community (Appendix 4A and B ), and bodies. The Hong Kong Government also commissioned iii) an in-person interview with eleven clients whom the Department of Justice’s (DOJ) 2008 study The SoCO had identified as having faced legal or potentially Consultancy Study on the Supply and Demand of Legal and legal problems (Appendix 5D). Related Services (the 2008 DOJ Study), and we will share more of its findings in Part I. However, since the 2008 To inform the design of these surveys, we examined DOJ Study focused on the needs of small businesses and legal needs assessments in several other common law the community at large, it provides little information on jurisdictions including Australia, Canada (Ontario), the the unmet legal needs of the poor and vulnerable groups. United Kingdom (England & Wales), and Singapore.13 While each study has a slightly different focus, the most common tools used are direct surveys with clients, focus group discussions, and interviews with experts.

| 09 We have decided in the end on a combination of surveys legal question? Strictly speaking it is not, yet a lawyer with both clients and NGO staff, as well as in-depth may be able to assist with an appeal, especially if aided direct interviews with clients who have experienced by a social worker who knows the public housing legal problems, because we wanted to make sure we application procedure well. General legal awareness have taken into consideration both the service users and and culture may also impact whether a community providers, as well as taken a closer look at the problems member may classify a problem as a legal problem faced by a client with legal issues, the nuances of which i.e. something they would think of seeking help with may not be captured in a survey. from a lawyer. We decided to conduct in-person interviews with 16 key 2. How to categorise the legal needs. Should domestic stakeholders in Hong Kong, who are practitioners, elected/ violence fall under criminal law or family law? Is non-elected officials, or policy makers who have interacted making a legal aid application or appealing a legal aid regularly with the legal system. We not only asked them rejection a legal need on its own? Capturing both about the gaps they see, but also past efforts in addressing the substantive and procedural aspects of legal needs these gaps, and also what future reforms they believe are while not double-counting is a challenge. necessary to improve access to justice for the community. 3. Capturing all the gaps or dimensions of access to justice. Finally, for us to better recommend ways forward, we Barriers to access to justice can relate to the scope decided to conduct desk research into three areas: of existing services, the costs, the design of the procedures or flaws that only manifest through ■■ Scope of the most common existing free legal services implementation (e.g. long waiting time due to offered by government, professional bodies, law insufficient capacity), physical (e.g. the community schools, Judiciary, legislative and district councillors, lives too far from the nearest legal service or there NGOs and law firms in Hong Kong (Part II); may be mobility challenges), or knowledge (e.g. lack ■■ Existing laws and regulations that affect the provision of information on where and when to seek advice). of pro bono services and free legal assistance in Recognising all of these potential barriers and gaps is a Hong Kong (Part III); challenge. ■■ Leading community legal service models in five other Due to time constraints when we designed our surveys, common law jurisdictions: Australia, Canada (Ontario), we made a cursory review of some previous legal Ireland, Singapore, and the United Kingdom (Part IV). needs assessments carried out in Hong Kong and some About halfway through our surveys we held a roundtable gap analysis carried out in other jurisdictions. As we with NGO partners on 8 July 2016, which ten attended, progressed, we learned more about access to justice to share with them what we had found so far, and to research methodologies. Methodology is not just about how seek their input as to how we can make our Report most to collect data, but reflects and shapes how we see access helpful and practical for their work. As a result of the to justice. English law scholars Hazel Genn and Pascoe roundtable discussions we adjusted the topics covered Pleasance have written extensively on this topic. Their under Part III and IV, and also our recommendations. “Paths to Justice” methodology has been adopted by UK’s justice surveys since 1999, as well as the 2008 DOJ Challenges Study. Their methodology proceeds from the concept of When designing and implementing the NGO surveys, we “justiciable problems” – problems that may have a legal encountered various challenges and we share three key dimension, as opposed to a legal problem – and highlights ones here as lessons learned: the “complexity of legal need and advice-seeking behaviour”, focusing on the ways ordinary people experience law. We 1. Definition of a legal need. What constitutes a legal recommend any future unmet legal needs assessment in need may differ depending on who you ask: the social Hong Kong dedicate more attention to methodology, and worker, the community, or the lawyer. For example, review any lessons learned from the 2008 DOJ Study.14 is a question about a failed public housing application a

10 | This Way – Finding Community Legal Assistance in Hong Kong ABBREVIATIONS AND GLOSSARY

ABBREVIATIONS

BFLSS Bar Free Legal Services Scheme

CLAF Consumer Legal Action Fund

DLS Duty Lawyer Service (see more below)

DOJ Department of Justice

EOC Equal Opportunities Commission

FLAS Free Legal Advice Scheme

HAB Home Affairs Bureau

HKU University of Hong Kong

LAD Legal Aid Department

LASC Legal Aid Services Council

NGO Non-Governmental Organisation

PAS Procedural Advice Scheme

SoCO Society for Community Organization

GLOSSARY

community legal services Legal services for the community.

community legal centre A centre to handle legal needs of the community, often physically located in the community. Other common terms are law centres, legal centres.

Duty Lawyer Service (DLS) An umbrella service funded by HAB, consisting of four legal assistance and representation schemes, managed jointly by the Law Society of Hong Kong and the Hong Kong Bar Association through a governing council.

Duty Lawyer Scheme One of the four schemes under Duty Lawyer Service.

legal aid Free or subsidised legal assistance, normally state-funded.

legal advice Oral or written legal analysis of a specific case or question.

| 11 legal aid policy A government’s policy on free or subsidised legal assistance; in Hong Kong this would cover the various legal aid and assistance schemes under both LAD and HAB.

Legal Aid The three legal aid schemes provided by the Hong Kong Government’s Legal Aid Department.

legal assistance A general term used to encompass every form of legal help including referrals, legal information seminars, filling out court forms, legal advice, follow-up, legal representation.

legal representation Representation by a solicitor or barrister of a client in Court or other proceedings.

vulnerable groups Refers to groups of people within the community that are particularly prone to experiencing socio-economic hardship and legal problems, for example, people in poverty, people with disabilities, women, children, the elderly, ex-offenders, new arrivals, ethnic minorities, migrant workers, asylum seekers and refugees. In this Report we use the term interchangeably with “disadvantaged” and “marginalised”.

12 | This Way – Finding Community Legal Assistance in Hong Kong EXECUTIVE SUMMARY Types of Legal Assistance Provided by NGOs

Access to justice is a fundamental human right, and ■■ NGOs reported the following types of legal assistance community legal services are a crucial component to as the most commonly delivered: referral to pro bono ensuring that access. Yet in Hong Kong, many people, lawyers; legal information sessions; assisting with Legal particularly those from already vulnerable groups, face Aid applications; assisting with forms; assisting with significant barriers when availing themselves of the a case before a Legal Aid lawyer becomes involved; existing legal system. Understanding these barriers and providing legal pamphlets; accompanying clients to the “gaps” in our current free legal services landscape police stations; referral to the Duty Lawyer Scheme is a first step to making access to justice available to all. (criminal); drafting statements and assisting with case preparation before the Duty Lawyer becomes This Way – Finding Community Legal Assistance in involved. Hong Kong is a collaborative effort between PILnet: The Global Network for Public Interest Law and DLA It is estimated that these NGOs together handle Piper, an international law firm with a strong pro bono thousands of legal requests per year; however, their tradition. The purpose of this Report was to gain a ability to serve is hamstrung by the current regulatory better understanding of community legal needs, provide framework, which prevents them from hiring staff an overview of existing community legal services and lawyers, and hence offering legal advice. Their work their limitations, identify legal and regulatory barriers highlights a great need for more early legal assistance in to providing pro bono assistance, and compare effective Hong Kong, and assistance with Legal Aid applications. models of community legal centres from other common We also noted that overall there is a lack of data on law jurisdictions. This Report provides valuable insights community legal needs. Detailed research into the unmet into how the current system might be structured to legal needs of the community is required to enable a better meet the legal needs of our community, as we strategic review of current services, and the development grapple with gaping social inequality in Hong Kong. of new, better and more coordinated services to close the access to justice gaps in Hong Kong. PART 1: MEASURING LEGAL NEEDS For a preliminary assessment of community legal needs, PART 2: EXISTING FREE AND SUBSIDIZED we surveyed and interviewed 14 leading NGOs which SERVICES provide legal assistance to a diverse mix of marginalised We conducted a review of the key community legal groups, including: homeless people, the working poor, services currently available in Hong Kong, complemented elderly people, new arrivals, ethnic minorities, victims of by interviews with an additional group of 16 key domestic abuse, women, youth, people with disabilities, stakeholders – practitioners, elected / non-elected migrant workers, asylum seekers and refugees. In officials, and policy makers – who have first-hand addition, we conducted a more in-depth series of surveys experience with access to justice policy-making or who with both case managers and clients at the Society of use the system regularly. We wanted to gain a holistic Community Organizations (SoCO), a leading NGO in understanding of the free legal services landscape in Hong Kong serving impoverished communities. What we Hong Kong, the strength and weakness of each service, have found: and the gaps in the system when all these services are considered together. Our findings are: Legal Issues Faced by the Community

■■ NGOs identified criminal, discrimination, housing, Key Service Gaps with the Current System employment, immigration, social welfare, family and ■■ Government legal aid funding focuses on domestic violence as the main legal issues faced by the representation, and there is limited assistance for an community. individual to obtain early legal advice.

| 13 ■■ Legal Aid only covers the proceedings stage, and the ■■ the use of a mix of staff, public interest and pro bono application for Legal Aid is itself a process that requires lawyers; and legal analysis, but it is not covered by Legal Aid. ■■ the use and availability of a mix of funding: such as ■■ In criminal cases, most defendants only get access to government, corporate, and philanthropy. a lawyer (Duty Lawyer in the Magistrates’ Courts) We also noted that each jurisdiction has diverse legal before their first hearing (not during police interview). service providers, with some service providers focusing Often a client will only have about 15-minutes to on early legal screening and referral, and others that discuss their case with the lawyer. specialise and provide continuity of care from early ■■ Free Legal Advice Scheme (FLAS) is a one-off advice to representation. 30-minute advice session with an average 8-week wait. Our research shows that over the past 30 years Hong Kong has on several occasions considered the PART 3: REGULATORY ISSUES need for early legal assistance. So far improvements have In this Report we considered regulatory issues that been piecemeal and that need has not been fully met. are relevant to the provision of pro bono legal services We believe there is enough collective knowledge and it is in Hong Kong, to NGOs that want to make use of time to move forward. pro bono lawyers, and to those that want to set up as a not-for-profit law firm. Our findings are: THIS WAY FORWARD This Report showed that the combination of service gaps Key Regulatory Issues Relevant to Pro Bono and within existing legal services, coupled with the restricted Community Legal Services in Hong Kong ability of NGOs to offer legal assistance, and the lack of likes of a community legal center in Hong Kong, ■■ Current indemnity insurance rules restrict ability of in-house counsel, retired practitioners and law results in substantive hurdles for marginalized people professors to do pro bono; to access justice in Hong Kong. In particular, two key system gaps are highlighted: inadequate early legal advice ■■ Current indemnity insurance and practising certificate and assistance, and the difficulty of navigating the free rules make it impossible for NGOs to hire lawyers; and legal services landscape in Hong Kong. Together they ■■ For law firms to operate as a not-for-profit, we need show that our legal system needs a clear entry point for clarification on rules on maintenance and champerty, the community, more coordination amongst services, and also tax exemption status for charities. and a more client-centered approach with emphasis on specialisation and continuity of care. PART 4: MODELS OF COMMUNITY LEGAL It is in our view that early legal advice is especially SERVICES pertinent to the community’s access to justice and to the government’s goal of reducing poverty. Early legal advice We looked at leading models of community legal service can play a crucial role to help prevent the “cascading” of in five other common law jurisdictions – Australia, legal problems and the subsequent costs in other socio- Canada (Ontario), Republic of Ireland, Singapore and economic policy areas (e.g. welfare, healthcare, housing). the United Kingdom – for ideas and inspiration on how we can improve the way community legal services are Given the complexity of community legal needs, delivered in Hong Kong. Our findings are: reforms to the provision of legal services must be made holistically. This Report therefore makes a total of Key ideas from community legal service models 24 recommendations, which require action from multiple in other common law jurisdictions stakeholders: government, the legal profession, civil society and universities, and also action both short-term ■■ a focus on specialization, early legal assistance, and and long-term. continuity of care;

14 | This Way – Finding Community Legal Assistance in Hong Kong It is important to note that while we are recommending ■■ that the Government review existing services to that the Hong Kong Government invest more in legal aid improve availability and quality of early legal advice and and free legal advice services, we are not seeking a simple representation [Recommendation 3] increase in funding, but a strategic review of its spending, ■■ that the professional bodies review policies and rules focusing on increasing early legal assistance and support to enable in-house counsel, law school professors, and for a more diverse landscape of free legal services. retired solicitors and barristers to provide pro bono We are also urging the Hong Kong Government to align services [Recommendation 8] its legal aid policy with its broader objectives on poverty alleviation. ■■ that the Law Society of Hong Kong review its current indemnity insurance policy to enable not-for-profit law firms, NGOs, law school legal clinics and community RECOMMENDATIONS legal centres to access affordable insurance for their One major recommendation is to establish community- lawyers [Recommendation 9] based legal centres, which should be funded by the ■■ that the Law Society of Hong Kong review practising government, in whole or in part, and may not necessarily certificate policies to allow qualified lawyers employed be run by the government. Community legal centers by NGOs to apply for a practising certificate have proven to be an effective vehicle for delivering legal [Recommendation 11] assistance in other jurisdictions, enabling the community to access legal advice in a timely fashion, and to obtain guidance ■■ that the Department of Justice and the Law Society of in navigating the complicated legal aid system as a whole Hong Kong confirm the access to justice exemption [Recommendation 5]. Other recommendations include: on maintenance and champerty applies to free legal services to the community [Recommendation 6] ■■ that the Government conduct a comprehensive assessment of unmet legal needs in Hong Kong, Ensuring access to justice for our community will require in particular, of vulnerable groups in the community collective input and investment. Let us work together to [Recommendation 1] make access to justice for all a reality in Hong Kong.

■■ that the Government, informed by results of the above unmet legal needs assessment, undertake a strategic review of legal assistance policies, programmes and funding [Recommendation 2]

| 15 PART I: MEASURING LEGAL NEED

016 | This Way – Finding Community Legal Assistance in Hong Kong “During that time, I was very confused.” “我嗰段時間真係好亂太多野煩.”

I received my Hong Kong Permanent ID card in 2004 and moved to Hong Kong in 2008, the year I gave birth to my son. At the time, I was receiving Comprehensive Social Security Assistance (CSSA). When my son was in Grade 1, my marriage failed and my son developed emotional problems. In 2013, my friend referred me to a job. I thought it was a couple of hours per day, but it was a nine-to-five job with overtime until 10pm. I was paid $320 per day and $28 per hour for overtime. In December 2013, the Social Welfare Department asked if I was working. At the time, because it was the Christmas holiday and I was at home taking care of my son who had chicken pox, I said “no”. In April 2014, I quit my job because I was unable to take care of my son. While talking to others, I found out that I was supposed to report the part-time earnings. So I voluntarily went to the Social Welfare Department to report the information. Afterwards, I was asked to go back to sign some documents. I didn’t think I needed a lawyer. I signed all the documents. Six months later, I was informed that I might be prosecuted for lying about my income. But I agreed to pay HK$500 per month for the next two years and signed a document to pay the monies back. I paid all the monies back. I thought that was the end of it. In May 2016, the police contacted me to give a statement at the police station about the CSSA issue. I did not know what to do. I contacted the priest at church and a social worker at SoCO for help. They were the first people who came into my mind. SoCO’s social worker accompanied me to the police station. The police told me they would be prosecuting me for CSSA fraud, but I have not yet received any notification of an upcoming court date. I am heartbroken to see the way my son is affected by all this. “Will the police come and take you away, Mummy? I am scared,” he asked. I had no answers for him. Ms. B, 49 years old

| 17 KEY TAKE-AWAYS

Top community legal issues NGOs are meeting substantial Hong Kong has never measured are criminal, discrimination, legal needs of the community, the “unmet legal needs” of its housing, employment, but are not able to meet all community, especially that of immigration, social welfare, the needs they see due to poor and vulnerable groups. family and domestic violence, regulatory restrictions, capacity according to NGOs. and resources.

INTRODUCTION Paths to Justice suggested in order to understand whether our existing services were sufficient, we needed to first There seems to be a common assumption in Hong Kong: understand the needs of the community, which may be as a wealthy city with Legal Aid, the legal needs of different from the needs of those in the community who vulnerable groups in the community “are already taken could afford legal services.17 care of.”15 But is this assumption correct? To answer the question, we need to better understand the legal needs Following Paths to Justice, Ng and Audrey Eu, who were of the community, how these needs are addressed, and if then Legislative Council members, submitted a proposal they are adequately met. in 2002 to introduce a Community Legal Services Centre (CLSC) in order to meet some of the gaps they In this chapter, we summarise past efforts in Hong Kong identified: the need for proper, timely, free and affordable to measure community legal needs, explain our survey legal advice, and also better community legal education. methodology and findings, and highlight key overall However, this proposal was not adopted by the Hong observations and patterns detected through the surveys. Kong Government.

PAST REVIEWS OF ACCESS TO JUSTICE Around the same time, the Judiciary in Hong Kong became increasingly concerned with the growing While there have been a number of studies which number of “unrepresented litigants” – litigants in civil attempted to consider the issue of access to justice in cases without legal representation, mostly because they the city, Hong Kong has yet to conduct a full-scale legal could not afford to engage lawyers18 – and a steering needs assessment with a particular focus on the poor and committee was set up by the Judiciary to look into vulnerable communities, what is sometimes known as a establishing a resource centre for unrepresented litigants “justice gap” analysis. and what services it should offer. The steering committee According to our research, Margaret Ng’s 2001 Paths conducted and commissioned (i) research on overseas to Justice report16 (Paths to Justice) was the first study experience in relation to courts’ provision of assistance to review the free legal advice channels available in to unrepresented litigants, (ii) a report titled Comparative Hong Kong with a goal to understanding whether the Analysis of the Position of Unrepresented Litigants in Various justice system serves the needs of the community in Common Law Jurisdictions, and most importantly (iii) a Hong Kong. Paths to Justice consisted of (i) a literature survey titled Questionnaire Survey on Services and Facilities review of annual reports of legal service providers, to be Provided at the Resource Centre, which centred on (ii) information gathered through questionnaires and collecting court users’ views. Some relevant findings from surveys sent to all the referral agencies of the FLAS, the Report of the Steering Committee on Resource Centre for all the offices of Legislative Council members, political Unrepresented Litigants (Unrepresented Litigants Report) parties and to various Non-Governmental Organisations were: (NGOs), and (iii) some interviews with service providers –– 83% of unrepresented litigants interviewed needed and users. advice on civil procedures,

18 | This Way – Finding Community Legal Assistance in Hong Kong –– 67% needed general advice; and geographic coverage. They are, nevertheless, constrained by their limited resources and –– a “general enquiries counter” was listed as the most inadequate professional support”; needed service whether or not the respondent was an unrepresented litigant; and –– Overall the level of knowledge in the community is low when it comes to the handling of difficult –– over 75% of respondents who were not legal problems, the support services available and costs professionals were unaware of the free advice involved;22 schemes provided by the DLS or the Hong Kong Bar Association (Bar Association). –– “Despite the variety of free legal services offered by different parties mentioned above, the fact that many As a result, the Judiciary created a Resource Centre for members of the public did not take any actions on the Unrepresented Litigants (the Resource Centre) in their difficult-to-solve problems because they did not 2002/2003, and, following a recent pilot, introduced the know how to do so is a concern;”23 and Procedural Advice Scheme in 2016. –– While as a profession Hong Kong’s barristers In April 2003, the Legal Aid Services Council (LASC), (52%) and solicitors (37%) have provided pro bono which governs Legal Aid services, established the services, by comparison to counterparts in England Working Party on the Institution of Legal Aid resulting in and Wales, and Australia, they are reported to the book titled Legal Aid in Hong Kong (2006).19 The book do less.24 provided the history of the development of legal aid in Hong Kong, including the law, procedure and practice of Among the historical studies, the areas of legal problems legal aid. most relevant to the community have been consistently landlord and tenant, personal injury, employment, crime, Finally, the only large-scale legal needs assessment ever bankruptcy, wills and probate, matrimonial and family, conducted by the government was The Consultancy land and property, debts, and building management.25 Study on Supply and Demand of Legal and Related Services (the 2008 DOJ Study), and the focus was on assessing “difficult-to-solve problems or disputes” with small and THIS LEGAL NEEDS ASSESSMENT medium-sized enterprises (SMEs) and individuals (via Our preliminary legal needs assessment comprises three 20 household units). sections. The first two focused on data collection, and While the 2008 DOJ Study did not focus on the poor the results are shared in Part I. The third section aimed and vulnerable groups, it nevertheless provided some at collecting professional observations and experiences, relevant information: and these are disseminated across the report. The three sections involved: –– Legal costs in Hong Kong are generally considered unaffordable;21 1. A written survey and one-hour interview with 14 NGO partners (Appendix 1). A follow-up survey –– Knowledge about legal services is generally lacking following the NGO roundtable in early July 2016 in the community: 79% of household and 65% of (Appendix 2). SME respondents considered most people did not know what to do when faced with a legal problem; 2. A more in-depth assessment with the Society for Community Organization (SoCO) which comprises: a –– Nearly half of the respondents felt that there were survey filled out by staff (Appendix 3), a survey filled not enough channels to seek free legal services; out by community members (Appendix 4A and 4B), –– “A wide range of legal related services are currently and interviews with SoCO’s clients (Appendix 5D). provided by NGOs which are eager to expand their services both in terms of service variety

| 19 3. Interviews with 16 stakeholders (elected and non- NGO Services Offered elected officials, barristers, solicitors, law professors) NGOs offer their clients a range of legal assistance who have experience in access to justice policy-making covering such things as referrals to pro bono lawyers, or who interact with the justice system regularly. legal information sessions, assistance with Legal Aid applications, completing forms, and assisting the Legal FINDINGS Aid lawyer and providing legal pamphlets. NGO Surveys As we set out in our Methodology, not many NGOs have The 14 NGOs serve a diverse range of communities: started to systematically collect data on caseload related homeless, working poor, workers, migrant workers, to legal questions. However, eleven surveyed NGOs sex workers, refugees, ethnic minorities, victims of provided data, which showed that collectively they have sexual violence, women, youth, elderly, and people assisted close to 8,000 cases requiring legal assistance in with disabilities. Many NGOs work with a mix of the last year. communities. Out of 14 NGOs 11 have agreed to be named in this Report. They are (in alphabetical order): –– Action for Reach Out –– Help for Domestic Workers , formerly known as Helpers for Domestic Helpers –– Hong Kong Confederation of Trade Unions –– Hong Kong Federation of Women’s Centres –– Hong Kong Unison –– Justice Centre Hong Kong –– Mission for Migrant Workers –– PathFinders Limited –– RainLily –– SILENCE –– ZiTeng Common Legal Problems NGOs identified both substantive and procedural legal problems encountered by their clients. In descending order the top legal problem categories were criminal, discrimination, housing, labour/employment, immigration social welfare, consumer, family and domestic violence.

20 | This Way – Finding Community Legal Assistance in Hong Kong SERVICES OFFERED BY NGOs

Services Offered Number of NGOs

Referral to pro bono lawyers 13

Provide legal information sessions 11

Assist with Legal Aid applications 11

Assist with completing forms 10

Assist with case before Legal Aid lawyer’s involvement 8 Providing legal pamphlets

Referral to Duty Lawyer Scheme 7 Assist with statements Accompany client to police station Assist with case before duty lawyer’s involvement

Provide legal advice clinics 6

Seek help from a lawyer friend 5

Referral to lawyer 4 Referral to other NGOs for legal assistance Referral to LAD

Referral to Legislative or District Councillor members 3

Accompany client to meet with attorney and others (e.g. Immigration 2 Department, Tribunals, and Court) Case management services Referral to FLAS

Providing legal information in formats other than a pamphlet 1 Referral to other resources (e.g. Bar Free Legal Service Scheme, Community Legal Information centre, Procedural Advice Scheme (for unrepresented litigants in civil procedures), other NGOs for humanitarian needs) Provide research Assist with Appealing Legal Aid denials

| 21 SoCO Surveys and Interviews events held among the four client groups (at least once for each group) during the 60-day period, and SoCO is a human rights NGO established in Hong Kong 321 responses were collected.26 A representative from in 1972 serving four main groups: elders, new arrivals, PILnet was present at two events to answer questions residents in sub-divided housing, and homeless persons. from staff and community members. This more in-depth legal needs assessment consisted of three parts: Survey Results

■■ a 90-day assessment of the legal needs identified Despite their informal nature, some patterns emerged by SoCO staff between the period 16 May to from the surveys: 16 August 2016 (SoCO Staff Survey, in Appendix 3); ■■ There are different levels of awareness of what is a ■■ a 60-day assessment of the legal needs identified legal need between SoCO staff and SoCO clients. by SoCO community members during events held Staff identified 129 clients with legal needs, but only between 1 August to 30 September 2016 (SoCO 31 clients self identified that they had a legal need. Community Survey, in Appendix 4A and B); and (See table of SoCO staff and clients’ difference on this point.) ■■ One-hour interviews with 11 SoCO clients who had legal needs (Appendix 5D). ■■ Many clients typically have multiple legal needs or experience what is known as “problem clusters”.27 We designed the SoCO Staff Survey and SoCO SoCO staff identified at least 158 legal needs among Community Survey together with SoCO, and therefore 129 clients, and 31 clients self identified having the categories of legal problems are slightly different 95 legal needs. from that of the NGO Survey. ■■ SoCO staff identified criminal cases and procedures Ten frontline case handlers completed the SoCO Staff as the top legal need, but community respondents Survey, recording all the public inquiries during the identified discrimination as the top legal need. 90-day period that could be classified as a “legal need”. The SoCO Community Survey was distributed at various

22 | This Way – Finding Community Legal Assistance in Hong Kong TABLE OF SOCO STAFF-IDENTIFIED LEGAL NEEDS (16 MAY 2016 – 15 AUGUST 2016) AND COMMUNITY-IDENTIFIED LEGAL NEEDS (1 AUGUST – 30 SEPTEMBER 2016)

Number of SoCO-Identified Type of Number of Community-Identified Type of Clients Legal Need Clients Legal Need

30 Criminal cases and procedure 13 Discrimination

19 Conduct of disciplinary forces 11 Housing issues (government)

17 Family law 10 Social welfare

17 Legal representation services 8 Domestic violence

16 Immigration 8 Personal injury

9 Personal injury 7 Housing (private landlord)

9 Social welfare 6 Family law

7 Health 6 Immigration

6 Housing issues (private 5 Privacy landlord)

5 Housing issues (government) 4 Criminal cases

5 Finance and bankruptcy 4 Civil cases

4 Discrimination 4 No answer provided

4 Privacy issues 3 Administrative law issue

3 Domestic violence 3 Conduct of disciplinary forces

3 Chinese law issues 3 Others

2 Adminstrative law issue 2 Chinese law issues

1 Consumer rights issues 2 Civil procedures 1 Other

| 23 SoCO Client Interviews Our assessment shows that NGOs are playing a key role in addressing substantial legal needs that are unmet by PILnet interviewed eleven individuals in the community – the legal system. This assessment also provides a glimpse six men, five women – whom SoCO identified among into how the NGO clients see Legal Aid and other free existing or past clients with legal needs. The goal was to legal services. learn directly from the community members about the situations they faced and how their legal and social issues On the criminal side, while Legal Aid and DLS provide intersected. The interviewees’ background and issues are representation in criminal proceedings, the NGOs tabled in Appendix 5D. identified these shortcomings:

While the interviewees’ legal needs ranged widely, some ■■ inadequate legal advice and consultation before common problems were identified: many said they could representation; not find legal assistance, or did not know where to find it, ■■ no access to advice before, during or at police or had misperceptions of the services. The most common interview; before formal arrest, clients often not being issues are housing-related (5), welfare (4), family (3), told of their rights as a suspect, such as their right to and criminal (3), but all experienced multiple or cluster remain silent;28 problems. ■■ lack of experience in handling cases involving All cases involved litigation, but in some cases litigation vulnerable groups or marginalised communities, could have been avoided if there had been early legal e.g. ethnic and liguistic minorities, disabled persons, assistance say with negotiation, advice on Small Claims victims of sexual violence. Tribunal procedures and completing paper work. On the civil side, NGOs reported the following problems: PART I: KEY OBSERVATIONS ■■ the application process for Legal Aid is complicated, While their legal issues may vary, the NGO client and that for FLAS it takes too long; communities all indicated substantial demand for legal assistance: ■■ it takes legal expertise to fill out the Legal Aid applications; ■■ The top legal issues reported by NGOs were criminal law followed by discrimination, housing, labour/ ■■ legal assistance is not free in all Legal Aid cases; employment, immigration, social welfare, family and ■■ lack of Hong Kong Government-funded legal domestic violence. assistance that falls short of representation ■■ It is interesting to note that the top legal assistance (e.g. negotiation, filing forms, writing letters); offered is referral to pro bono lawyers (whereas referral ■■ lack of follow-up services or assistance in the to other legal services ranked much lower), followed by existing FLAS; providing legal information sessions, assisting with filling out Legal Aid applications and completing forms, and ■■ difficulty in getting lawyers to help: there is only a helping with a case before the involvement of the Legal handful of public interest lawyers in Hong Kong and Aid lawyer. Six also said they offered legal advice clinics. it is not easy to get pro bono lawyers with the right expertise on short notice. ■■ It is worth finding out in future studies why referral to pro bono lawyers ranked higher than referral to other We explore the various existing free or subsidised legal legal services. services in Part II.

■■ Ten NGOs (excluding one supported by FLAS) From this preliminary legal needs assessment and a handled close to 8,000 cases or queries per year, cursory review of previous assessments, it is clear that a substantial number representing significant unmet in order to properly analyse our state of access to needs. By comparison, FLAS handled 6763 applicants. justice, there remains a need to conduct an “unmet legal needs” assessment specifically designed to understand community needs.

24 | This Way – Finding Community Legal Assistance in Hong Kong PART II: EXISTING FREE OR SUBSIDISED LEGAL SERVICES

| 25 “At times, not knowing whom I could turn to, I felt hopeless.” “有時真係覺得搵唔到人幫助好絕望.”

In 2015 I was unfairly dismissed. After being convicted several years ago for drug offences, I applied for a job inside the Hong Kong Airport’s restricted area. I got the job, but was fired shortly after – via a WhatsApp text message – because I failed a criminal background check. I approached the Equal Opportunities Commission (EOC) and the Public Complaints Office of the Legislative Council and filed a complaint. But EOC said the current anti-discrimination ordinances did not cover this type of discrimination and the Public Complaint Office said they would get back to me. With more research I found SoCO, who helped me a lot. They found out which entity had made the decision that left me jobless, helped me write letters requesting a formal notice of the decision, and even helped me apply for Legal Aid. But by the time I made my Legal Aid application, the statute of limitation was about to lapse. SoCO then helped me find a pro bono barrister to appeal, after which my Legal Aid was approved. With Legal Aid, I requested all the relevant documents. New information emerged and my legal team advised me of the next steps. I am going through the administrative process and I have asked that the court postpone my case until the administrative process is completed. I am now working as a social worker and am able to support my family. Mr A, 28 years old

26 | This Way – Finding Community Legal Assistance in Hong Kong KEY TAKE-AWAYS

There is a myriad of free legal Government-funded early Few free legal services are services in Hong Kong, but legal assistance is limited to a equipped to handle urgent overall there is no clear entry 30-minute one-off advice session matters or specialised areas point, little coordination, and with an up-to-8-week wait. of law. continuity of legal assistance from beginning to end is rare.

INTRODUCTION Complementing these two over time are various online database and hotline schemes run by the Hong Kong Part II provides an overview of existing free or subsidised Government and professional bodies, a free representation legal services available for the community in Hong Kong, scheme run by the Bar Association, the Resource Centre assesses the scope and eligibility of these legal services, and since 2002 operated by the Judiciary, and most recently the discusses some of the gaps that we have identified through new Procedural Advice Scheme run also by the HAB. our research, surveys and interviews. All these services focus either on proceedings, or A BRIEF HISTORY OF FREE OR SUBSIDISED preliminary advice; but there have also been other LEGAL SERVICES initiatives attempting to provide multi-stage support. For example, the Free Legal Advice Scheme at the University In 1966 Hong Kong established its first state-funded legal of Hong Kong (FLAS at HKU), established in 2010 and aid scheme, Legal Aid, run by the Legal Aid Department initiated by Professor Eric Cheung, provides a rare platform (LAD), with the introduction of the Legal Aid Bill. for comprehensive legal support to the community: from Prior to this, the only legal assistance available to those early legal advice with follow ups to legal representation in who could not afford it was provided by the Judiciary. cases considered of educational value to HKU law students. Judges could appoint free legal representation to certain defendants through the ad hoc “in forma pauperis” system, There are also two specialised statutory funds for cases which serviced only a small number of cases. The legal that fall into two categories: the Equal Opportunities practitioners saw it as charity or “fulfilment of their civic Commission for claims that fall under the anti- duty to the judicial system they served.”29 discrimination ordinances, and the Consumer Legal Action Fund for consumer cases. However, strict selection criteria In 1978, the Government established the Duty apply to cases supported by these funds. Lawyer Service (DLS) to provide criminal legal representation for pre-committal hearings in District While NGOs play a key role in meeting the legal needs of Court (known as the Duty Lawyer Scheme), and free legal the poor and vulnerable groups in many other countries, advice to the community (known as FLAS), complementing NGOs that see legal services as a core part of their work Legal Aid. are still few and far between in Hong Kong. While Legal Aid and DLS have evolved over the years, the There is also a handful of public interest law firms which landscape of free legal assistance in Hong Kong has largely have handled many ground-breaking judicial review and remained the same at the core: there is the government- human rights cases. One pioneer worth mentioning funded Legal Aid schemes, which focus only on the here is Pamela Baker, a barrister who quit the LAD to proceedings stage, conduct means tests for both civil and start her own law firm when she was told that she was criminal cases, and operate essentially on a “pay as you “fostering false hopes” amongst Vietnamese refugees for can” basis for civil cases; and then there is FLAS, a one-off taking their cases. Her firm, Pam Baker & Co, went on legal advice session with no follow-up. to win difficult legal battles for refugees, as well as for children of Hong Kong parents in mainland China waiting

| 27 to be reunited. Before all this in 1985 she already led Helpful basic legal information can also be accessed from the movement to establish the first shelter for battered the bilingual website Community Legal Information Centre women in Hong Kong. Baker’s inspiring career showed the (CLIC), launched in 2007, with funding by the Department huge access to justice gaps in Hong Kong, and how public of Justice.33 interest legal practice should be better supported.30, 31 In addition, there has been a growth in pro bono assistance LEGAL AID DEPARTMENT offered by law firms and individual lawyers. While much State-funded legal aid in Hong Kong is provided by the of this work historically has focused on assisting charities, Legal Aid Department (LAD) and is focused on litigation, increasingly, pro bono legal services is provided to covering both criminal and civil, and relying on both staff individuals in the community. lawyers and external lawyers at a fee.34 The Hong Kong Finally, Legislative Councillors and District Councillors are Government’s stated Legal Aid policy objective is “to also popular go-to resources for community members with ensure that no one with reasonable grounds for pursuing legal questions. Their follow-up support has been cited as or defending a legal action is denied access to justice one reason for the community’s preference for them over because of a lack of means.”35 32 FLAS, for example. Since formalising as a service in 1967 as a sub- department of the judiciary and then established as a CURRENT SITUATION: WHO PROVIDES FREE department of the Hong Kong Government in 1970,36 OR SUBSIDISED LEGAL SERVICES TO THE Legal Aid has evolved over time and today consists of three COMMUNITY? schemes:

The major providers of free or subsidised legal services in ■■ The Criminal Legal Aid scheme (Criminal Legal Aid), Hong Kong are: ■■ The Ordinary Legal Aid Scheme (OLAS), and 1. Legal Aid Department ■■ The Supplementary Legal Aid Scheme (SLAS), a self- 2. Duty Lawyer Service (includes the Duty Lawyer funding scheme introduced in the early 1980s for the Scheme, Free Legal Advice Scheme, CAT & Non- “sandwich class”,37 those whose financial resources Refoulement Scheme and Tel-Law Scheme) exceed the limit under OLAS, but still below a certain amount.38 3. Free Legal Advice Scheme at the University of Hong Kong Scope 4. Procedural Advice Scheme Criminal Legal Aid provides representation of an accused 5. Resource Centre for Unrepresented Litigants person, for committal proceedings39 in the Magistrates’ 6. Bar Free Legal Services Scheme Court, cases tried in the District Court and the Court of First Instance, and all criminal appeals.40 (The Duty Lawyer 7. Law Society’s Pro Bono Services Scheme under the Duty Lawyer Service covers all hearings 8. Equal Opportunities Commission in the Magistrates’ Courts except committal hearings.) 9. Consumer Legal Action Fund OLAS covers most civil proceedings in the District Court, 10. Offices of Legislative and District Councillors Court of First Instance, Court of Appeal, Court of Final Appeal, certain coroner’s inquests, as well as application to 11. NGOs the Mental Health Review Tribunal.41 12. Law Firm Pro Bono SLAS provides legal representation in claims involving personal injuries or death, or medical, dental and legal professional negligence, where the claim is likely to exceed HK$60,000.42 It also covers claims of employees’

28 | This Way – Finding Community Legal Assistance in Hong Kong compensation or representation of employees in appeals Following the means test, in both civil and criminal against awards made by the Labour Tribunal irrespective of cases, an applicant may be asked, at the outset, to make the amount of claim. a contribution to legal costs in accordance with the applicant’s financial resources.51 Eligibility For criminal cases, if the applicant is refused Legal Aid In general Legal Aid applicants must undergo a merits test because the case or appeal lacks merits, the judge hearing and a means test. the case (except for an appeal to the CFA) is empowered to grant Criminal Legal Aid provided that the applicant Merits test satisfies the means test.52 For certain serious cases the Criminal Legal Aid’s merits test differs slightly depending judge may even exempt the applicant from the means test on the stage of the proceedings. For trials in the District and payment of contribution.53 Court or the Court of First Instance, LAD considers For civil cases a rejected applicant can also appeal to the if it is “desirable in the interests of justice”; for appeals, Registrar of the High Court; and for all CFA rejections LAD looks at whether there are “reasonable grounds for appeal can be made to a Review Committee.54 appeal.”43

The OLAS merits test examines whether there are Procedure “reasonable grounds for taking or defending the To Apply for Criminal Legal Aid: proceedings”.44 If in custody, the applicant can apply through the The SLAS merits test is similar to OLAS’ merits test, but Correctional Services Department whose staff will help looks only at whether there are “reasonable grounds for complete the form and forward it to LAD. If the applicant taking proceedings”, and not defending a proceeding.45 is not in custody, he or she can apply at the Admiralty Means test branch or online via the Legal Aid Electronic Services The means tests for OLAS and Criminal Legal Aid Portal (LAESP). If attending in person, the applicant should applicants are the same: the applicant must have less than bring all documents related to the case and proof of 55 or equal to HK$290,380 in financial resources, which is financial resources. calculated as the combination of disposable income (gross The wait time for Criminal Legal Aid depends on the case monthly income less allowable deductions, such as rent, type. Committal proceedings take eight working days.56 rates and a statutory allowance for the applicant’s own Trials in the District Court or Court of First Instance take living expenses and that of his or her dependants) and ten working days. Appeals against sentencing take up to disposable capital.46 two months, and up to three months for appeals against 57 Since SLAS is meant for the “sandwich class”47, the conviction. applicant’s financial resources can exceed HK$290,380 but To Apply for Civil Legal Aid under OLAS or SLAS: not HK$1,451,900.48 An applicant can obtain an application form and case In OLAS cases, the means test can be waived by the questionnaire from the LAD office in Admiralty or Director of Legal Aid (the Director) in meritorious cases if Mong Kok, and submit it in person, by post, or online the case involves a possible breach of the Hong Kong Bill of via the LAESP.58 Rights Ordinance or an inconsistency with the International Once the form and questionnaire are submitted, and LAD Covenant on Civil and Political Rights.49 has received all the necessary information about the case For Criminal Legal Aid cases, the Director has discretion and means, the applicant is given an appointment at an LAD to grant Legal Aid to an applicant whose financial resources office for an interview and means assessment.59 exceed the limit if the Director “is satisfied that it is desirable in the interests of justice to do so”.50

| 29 The wait time for the results of LAD’s decision for OLAS Director’s First Charge and SLAS is three months.60 Emergencies are accorded The Director’s First Charge for an OLAS case is paid priority.61 at the conclusion of the proceedings if the legally aided Fees and Contribution person is successful in recovering or preserving any money or property from the proceedings.71 As a result a client’s Application fees apply only to SLAS. If the SLAS award can be significantly diminished after all costs are case involves personal injuries or death, employees settled. The first HK$4,800 per month in maintenance for compensation or representation of employees in appeal children and maintenance for spouse is exempted.72 against awards made by the Labour Tribunal, the application fee is HK$1,000.62 For medical, dental Statistics and legal professional negligence, professional negligence, In 2016, Criminal Legal Aid received 3,567 applications and negligence against insurers or intermediaries, and monetary granted 2,641 certificates.73 Of those rejected applications, claims against vendors, the application fee is HK$5,000. 63 25 were refused on means and 817 on merits.74 Also in the The legally aided person is liable to pay legal costs incurred same year, OLAS received 14,733 applications and granted by LAD, either through “contribution” (assessed and 6,878 certificates. Applications refused on means were 786 paid out of the person’s own financial resources at the and applications refused on merits were 5,294.75 Of 750 time of accepting Legal Aid) and/or through “Director’s appeals, 28 were allowed.76 First Charge” (paid out of the fruit of proceedings at the Historical data shows the top two case categories for end of the case, from money or property recovered or OLAS are matrimonial (43% in 2015) and personal injuries preserved).64 Legal costs include expenses incurred before (36% in 2015), a ranking steady over the decade 2005 – a Legal Aid certificate is granted, which may include fees for 2015. The remaining 20% or so cases comprise of land a bank search when conducting the means test or counsel and tenancy disputes, employment disputes, immigration 65 advice for investigating the legal merits of the case. matters, wage claims and others.77 While nearly half of Contribution Rates matrimonial and personal injuries applications receive Legal Aid each year, the rate of successful applications OLAS and Criminal Legal Aid are assessed at the same for some other categories like land and tenancy disputes sliding scale of contribution rates which starts at 2% for or immigration matters are much lower. It would be anyone earning more than HK$36,297.51.66 According to interesting to find out why certain cases have a lower LAD’s report to the Legislative Council in 2015, about success rate in getting Legal Aid. 79% of all persons granted legal aid under OLAS did not have to pay any contribution.67 SLAS requires an interim In 2016, SLAS received 225 applications and granted 164.78 contribution of HK$72,595 for cases involving (i) claims arising from personal injuries or death (ii) employees’ Service Gaps compensation claims, and (iii) representation for employees in appeals against awards made by the Labour Tribunal.68 Scope For certain other cases a higher interim contribution may Legal Aid does not cover all proceedings, for example, be required, either 10% of the assessed financial resources hearings at the Small Claims Tribunal, the Labour Tribunal or $72,595, whichever is higher.69 and the Immigration Tribunal, and the Appeal Panel 79 If the SLAS proceeding is unsuccessful, the interim (Housing). Nor does it cover certain categories of cases, contribution paid will be used towards the payment of legal such as defamation, or judgment summons, a common costs incurred by the claim and will not be refunded unless procedure used in matrimonial proceedings to enforce 80 there is a surplus after payment of the contribution.70 maintenance orders. In judicial review cases, which are often of significant public interest and involve novel legal questions, practitioners also note that the Legal Aid Department often takes more time than usual to make a

30 | This Way – Finding Community Legal Assistance in Hong Kong decision; and to comply with the 3-month limitation period for judicial review cases, the client may be obliged to file Application and Appeal the application for judicial review citing all relevant law, without a lawyer, unless pro bono help can be found.81 There is no assistance from LAD for appealing a Legal Aid refusal. Currently FLAS at HKU and BFLSS provides help Focus on Affordability and Calculation of Means on this point, but the number of cases they handle is small. According to Legal Aid in Hong Kong, “affordability” is the Public interest law firms also often offer pro bono support idea underlying the government’s legal aid policy,82 and for this step. therefore the Legal Aid schemes’ means test is designed There are limits to relying on pro bono for this step. For on the expectation that when a person is faced with legal example, in order to assess the merits of appealing a denied proceedings, he should draw on both his income and Legal Aid application in a medical negligence case, a medical capital to meet his legal costs to the extent that he can do expert report of equal standing to the LAD’s medical so “without suffering undue hardship”.83 report must be obtained. Even if a barrister from BFLSS What amounts to undue hardship? How much should a can help with the appeal, he or she may not be able to go person be reasonably expected to sacrifice financially in through the process of getting an expert report without order to pursue a legal action to achieve justice? Can the the help of a pro bono solicitor, and the applicant may still “allowable living expenses” be measured by one across-the- have to bear the costs of getting an expert report.87 board standard? Urgent Matters The calculation of financial eligibility is currently a One criticism of Legal Aid is that it is not well placed complicated exercise, and while the limits of disposable to handle urgent matters. For example, while there is a income and assets have been adjusted over time to take procedure for urgent applications to be made, such as inflation into account, the underlying formula for calculating applications for injunctions, the process is hard to engage. disposable income and assets appears to be the same today, According to LAD’s own report to the Legislative Council, and can be skewed towards “the young and the working”, in 2015 Legal Aid received only 27 applications from making it harder for those with erratic income or living on domestic violence victims for injunctions and urgent Legal past savings to apply84. Aid, and the average processing time was 33 days.88 For example, calculation of disposable capital currently Cost of Running LAD excludes things like the value of the house that the applicant lives in, but includes cash, bank savings, etc. This Assuming the SLAS scheme is excluded because it is can be highly prejudicial for those who have money in a self-financed,89 in 2015-16 LAD spent HK$855.5 million bank account but cannot afford to purchase a flat.85 and processed 18,795 legal aid applications, which reflects a 2.4% increase, netting inflation, over the past There are also other questions as to whether relying on decade.90 For 2015-16 LAD’s legal costs for civil cases are the Consumer Price Index – a general inflation index – to HK$453 million, within which HK$290 million, or 64%, of conduct the annual adjustment of the financial eligibility costs was recovered.91 It is unclear if the HK$855.5 million limits sufficiently reflects changes in market legal costs.86 includes or excludes costs recovered through contribution More fundamentally though, we question whether our and Director’s First Charge as such information is not civil legal aid scheme can be made more merits-based available publicly. This is a sizable investment but more regardless of means. A change in the underlying spirit of the comparative research needs to be carried out with Legal Aid schemes may not only lead to financial eligibility jurisdictions of similar population and legal systems, to calculations that better reflect the needs of the poor determine how cost-effective this money has been for and vulnerable, but also the way legal aid funding is used meeting access to justice needs. and other ways that make the Legal Aid schemes more accessible to the community.

| 31 Criminal Legal Aid Fees for External Counsel and Solicitors 1. Duty Lawyer Scheme – provides legal representation by lawyers in private practice for nearly all offences102 The sufficiency of criminal Legal Aid fees and Duty Lawyer at the Magistrates’ Court level (except committal fees has been a subject of hot debate within the legislature proceedings, which are covered by Legal Aid). In general and the legal community over the past few years. The there is a means test following the first hearing and concern is that with the low criminal Legal Aid fees, a one-time handling fee of HK$540. Interpreters are especially in comparison to civil Legal Aid, “it would be available for those who are not fluent in English or difficult to attract well qualified criminal law practitioners Cantonese.103 to take up criminal Legal Aid work”.92 For example, the reading fee for instructing solicitors in a criminal case in the 2. Free Legal Advice Scheme (FLAS) – provides one- District Court is now HK$870 per hour, but it could be up off “preliminary legal advice” without a means test. to several thousand dollars for a civil legal aid case under 3. CAT & Non-Refoulement Claims Scheme – the civil taxation rate scale.93 Practitioners have also urged provides legal representation in immigration proceedings the LAD to review its method of estimating criminal legal for claimants who may face torture or persecution if aid fees which are often too low and cannot be appealed.94 they were repatriated. Applications require a statutory After much lobbying, in 2016 the criminal Legal Aid fees declaration that the applicant is without means to pay increased by 50% for counsel and 25% for instructing for legal representation.104 solicitors, but legislators and the two professional 4. Tel-Law Scheme – a free pre-recorded legal bodies have stated that this increase is insufficient.95 information hotline in English, Cantonese and More importantly, Duty Lawyer fees have remained the Putonghua on 80 different topics of civil, criminal, and same: other than CPI adjustments, they have not been administrative law topics in eight categories.105 reviewed since 1997,96 and 80% to 90% of criminal cases in Hong Kong are tried in the Magistrates’ Courts, which In 2016, the Duty Lawyer Service’s recurrent subvention Duty Lawyers represent.97 At the urging of the Panel from the government, excluding handling fee income, was on Administration of Justice and Legal Services of the HK$122,025,000 and for 2015, it was HK$119,934,000.106 Legislative Council in December 2016, the government We will now discuss the Duty Lawyer Scheme, FLAS and agreed to consider a comprehensive review of the criminal the CAT & Non-Refoulement Claims Scheme in more legal aid fees or provide a response if it decides not to detail. conduct such a comprehensive review.98

DUTY LAWYER SCHEME DUTY LAWYER SERVICE Scope Duty Lawyer Service (DLS) (formerly known as the Law Society Legal Advice and Duty Lawyer Schemes) was The Duty Lawyer Scheme provides legal representation first introduced in 1978. It was then incorporated on at the Magistrates’ Court for some 300 statutory and 17 August 1993 as a company limited by guarantee.99 common law offences under the Standard List of Offences. Where the interests of justice so require, the Duty DLS is fully subvented by the Hong Kong Government, and Lawyer Scheme may also provide legal assistance on bail jointly managed by the Law Society of Hong Kong and the applications pending trial and sentence for Magistrates’ Hong Kong Bar Association through a governing council, Court defendants in the Court of First Instance of the High 100 and coordinated by a legally qualified administrator. It Court.107 provides indemnity insurance for lawyers serving under its schemes.101 In the Juvenile Courts legal representation will be offered to all defendants charged except for summons hearings; DLS is funded through HAB and is not to be confused legal representation will also be offered to the subjects in with the Duty Lawyer Scheme, which is one of DLS’s four Care or Protection cases.108 schemes:

32 | This Way – Finding Community Legal Assistance in Hong Kong It also provides Duty Lawyers in Coroners Court,109 Delay for Preparation of Cases hawkers appeal,110 and extradition proceedings.111 It can take 6 to 9 months for a case of a serious nature Eligibility to be transferred from the Magistrates Court to the District or the High Court, when Legal Aid can be granted. There is no means test for the first hearing in the Since Duty Lawyers are only involved in interim hearings, Magistrates’ Court and none at all in the Juvenile Court.112 substantial time will elapse before the case reaches a All others, e.g. applicants for legal representation in lawyer, i.e. the Legal Aid lawyer, who can properly prepare the Coroners Court, hawkers appeal, and extradition defence and collect evidence.121 proceedings, are subject to a means test, where the financial eligibility limit is set at a gross annual income of Scope of Duty Lawyer Scheme HK$185,810.113 There is also a merits test.114. Summonses are generally excluded from the Duty Lawyers Procedure Scheme. Practitioners are urging for summons to be included because they can be complicated and difficult to To apply for representation from the Duty Lawyer Scheme, defend, e.g. in hawkers cases. 122 the defendant should approach the Court Liaison Office located at every Magistrates’ Court where the defendant is Need for More Awareness of the Needs of Vulnerable and due to appear.115 For defendants already in custody, the staff Marginalised Communities of the Court Liaison Office are alerted on the day of the There is a need for Duty Lawyers to receive more training first court appearance.116 about the special needs of marginalised people, e.g. ethnic If representation is needed after the first court appearance, and linguistic minorities, disabled persons, victims of sexual then the means and merits tests take effect and one and domestic violence, and victims of human trafficking. would need to go to the Court Liaison Office to apply.117 Low Fees for Duty Lawyers A handling fee of HK$540 also applies after the first appearance in the Magistrates Court, but this is the only The fees for Duty Lawyers are too low: Duty Lawyers are charge, however long the trial. Conversely, a handling fee paid HK$3,490 for a half day and HK$7,020 for a full day.123 is charged at the outset for the other proceedings. The See more on this point under Criminal Legal Aid Fees for administrator has the discretion to waive the means test if External Counsel and Solicitors. it is in the “interests of justice to do so”.118 Statistics FREE LEGAL ADVICE SCHEME During 2016, the Duty Lawyer Scheme handled 25,096 Scope cases in the Magistrates Court.119 Free Legal Advice Scheme (FLAS) provides one-off Service Gaps preliminary legal advice, without a means test, relying on volunteer lawyers. Its aim is to “help clients to understand Some criticisms of the Duty Lawyer Scheme from our the nature of their problems, their rights and obligations NGO interviews and stakeholder interviewees include that: under the law and the channels available for resolution on Insufficient Time with Lawyer genuine and not hypothetical cases.”124 The Duty Lawyer Scheme does not allow enough time for a criminal defendant to meet with a solicitor, often only about 15-minutes before hearing on the day of the plea;120 and a defendant can expect to be represented by a different Duty Lawyer at each interim hearing.

| 33 FLAS also partners with a handful of NGOs: Hong Kong number of cases (19.49%).134 But there is another bigger Federation of Women’s Centres, Hong Kong Federation group of cases under “miscellaneous” (27.93%) and it is of Women, Action for Reach Out, Hong Kong Family unclear what it covers.135 Welfare Society (Mediation Centre) and the University of According to the 2016 Annual Report there were Hong Kong.125 These schemes are run independently by the 1,132 volunteer lawyers on the panel with 737 lawyers NGOs but draw on the FLAS pool of volunteer lawyers, participating and giving advice.136 The HAB provides each and each has its specific focus. volunteer lawyer attending a legal advice session a travel We will provide more detail on FLAS at University of allowance of HK$300.137 Hong Kong below. For information on other FLAS at Service Gaps NGOs, please refer to the DLS website. Need for Better Screening and Case Preparation Eligibility Many interviewees, both lawyers and clients, have There is no means test, and it is free of charge.126 There is commented that better screening and more case however a list of scenarios where free legal advice will be preparation could make the current system more effective. refused, for example if the applicant is already granted legal aid, or represented by Duty Lawyers or private lawyers, or Given the short period of time a client has with the presents an issue which “involves complicated legal issues volunteer lawyer, that time can only be best used if cases requiring detailed studying of documents”.127 are better screened and relevant documents are sent to lawyers before meetings. Likewise, one interviewee, former Procedure President of the Law Society, Lester Huang, suggested Appointments to see a volunteer lawyer can be made allowing lawyers to have more time to do research before at any of the nine District Offices of the Home Affairs the client meeting so their advice will not be off the cuff.138 Department or at the 28 referral agencies (153 branches).128 This aspect of FLAS was also extensively discussed in Ng’s Some clerical staff at the District Offices and referral proposal for a CLSC.139 agencies conduct preliminary interviews and prepare Some volunteer lawyers have also told us they feel the case summaries, which will then be sent to the Duty system is abused because there is no means test; others Lawyer Service to be vetted and processed.129 DLS arranges think we will always leave out people with a means test, the volunteer lawyer for the advice session at the District so it is better to have none for FLAS.140 A broader policy Offices.130 Each volunteer lawyer interviews five cases deliberation on the nature of FLAS is required. per session, with 20–30 minutes allocated to each interview.131 Lack of Follow-Up and Simple Assistance The average wait time to meet a volunteer lawyer is within Others pointed to the lack of follow-up, and lack of simple eight weeks, though in an emergency, FLAS tries to arrange assistance like writing a letter or filling out forms. Is it for an appointment to meet with a volunteer lawyer in possible to introduce a system with limited number of two weeks.132 times of follow-up?141 Even in the rare cases when there is follow-up, the time lag and the fact that a client has to speak to a new lawyer Statistics every time, will no doubt affect the quality of the legal In 2016, FLAS processed 8,426 cases and advised assistance, and amount to a barrier to access to justice if 6,763 applicants.133 The 2016 Annual Report highlights the client is vulnerable. The short period of time available “commercial and property disputes (including simple between lawyer and client with no follow-up also means contract matters, loans)” as accounting for the largest that if the advice is not well explained it may just be wasted because the client would likely not act on it.142

34 | This Way – Finding Community Legal Assistance in Hong Kong Need to Shorten Waiting Time Procedure The current average waiting time can be up to eight weeks. A claimant is referred to the CAT & Non-Refoulement Is there a way to reduce the waiting time by arranging Claims Scheme when the claimant provides notice to the more volunteer lawyers, increasing number of days FLAS is Immigration Department of their claim.145 available, or expanding FLAS to partner with more NGOs? Statistics This will also likely require the Hong Kong Government to hire or allocate more people to staff FLAS, but given this is For 2016, the CAT & Non-Refoulement Claims Scheme Hong Kong’s only government funded legal advice scheme, handled 3,122 claims.146 There are 442 active duty lawyers it is an investment much worth considering. participating in this scheme.147 Partner with More NGOs Service Gaps Given current regulatory restrictions make it challenging Need for Better Training on Refugee Law and Collaboration with for NGOs to offer legal advice, can FLAS extend its Experienced NGOs partnership to a bigger list of NGOs, such that FLAS The CAT & Non-Refoulement Claims Scheme is the lawyers can also attend clinic sessions at these NGOs? newest under DLS, following the creation of the Unified This model, together with the need for better screening Screening Mechanism (USM) following landmark cases C & and case preparation, was extensively discussed in Ng’s Ors v Director of Immigration (2013) 2 HKC 75 and Ubamaka proposal for a community legal services centre. Edward Wilson v Secretary for Security and another (2013) 4 HKC 563, which established the Hong Kong Government’s CAT & NON-REFOULEMENT CLAIMS SCHEME liability to screen applications from asylum seekers claiming torture or persecution. However, according to feedback The CAT & Non-Refoulement Claims Scheme, from our interviewees, expertise varies amongst the panel which started on 24 December 2009, provides legal lawyers, which points to the need for better training, representation for certain immigration cases – claims as well as ways to collaborate with NGOs that have to the Immigration Department under Article 3 of the specialised in this area of law for much longer. United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; Insufficient Interpretation Services and also claims of non-refoulement protection against While interpretation services are meant to be available (i) torture or cruel, inhuman, or degrading treatment or for those who are not fluent in English or Chinese, punishment in relation to Article 3 of the Hong Kong Bill practitioners have said that many languages have limited of Rights under section 8 of the Hong Kong Bill of Rights to no interpretation services available, which has been Ordinance Cap. 383; (ii) persecution, drawing reference observed to cause delays to some claimants’ cases.148 to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (persecution); and (iii) torture under Part VIIC of the FREE LEGAL ADVICE SCHEME AT THE Immigration Ordinance (Cap. 115).143 UNIVERSITY OF HONG KONG Eligibility Under the leadership of Professor Eric Cheung, the Free Legal Advice Scheme at HKU (FLAS at HKU) started as a Applications require a statutory declaration that pilot in January 2009, and one year later became a formal the applicant is without means to pay for legal Clinical Legal Education programme.149 representation.144

| 35 Scope are also part-time consultants of local law firms and one is a barrister, and therefore they are covered by their While FLAS at HKU provides legal advice on many types respective Professional Indemnity Insurance schemes. of cases, its two focus areas are clients not poor enough This makes the model harder to replicate by other law to obtain Legal Aid, and clients for whom Legal Aid is school clinics.154 Meanwhile, it is also hard to expand the unjustifiably refused for lack of merit. FLAS has successfully programme, as its resources are limited, and it relies on the appealed against criminal convictions, and against the capacity of the professors to be able to supervise all new Director of Legal Aid’s decisions in refusing to grant Legal matters. Aid in civil cases.150 FLAS at HKU does not normally provide any follow-up PROCEDURAL ADVICE SCHEME services or free legal representation after the advice session, but follow-up and representation may be available Procedural Advice Scheme (PAS) originated as a pilot in cases that fall within the focus areas above. scheme in March 2013 to provide legal advice on procedural issues.155 Due to immense demand, PAS was Eligibility formalised in April 2016, operated by HAB.156 PAS provides The eligibility rules on means and merits test is the same as advice sessions attended by Resident Lawyers of the those of FLAS of the Duty Lawyer Service. Scheme or Community Lawyers (volunteers), who are covered by PAS’s professional indemnity insurance.157 Procedure Community Lawyers must have at least two years’ post- The client intake process is similar to that of FLAS, but qualification experience and a current practising certificate, with an additional screening interview carried out by HKU and will be assisting “in their personal capacity on a pro law students. Anyone seeking legal assistance will attend bono basis”. Community Lawyers receive an honorarium of two 30-minute sessions – an interview conducted by HK$1,000 for a four-hour session, or HK$500 for a two- HKU law students to obtain background information and hour session.158 relevant documents, and then a second interview where a qualified lawyer provides preliminary legal advice with the As of 31 December 2016, 87 community lawyers and law student’s assistance.151 99 law student volunteers enrolled to participate in PAS.159 The advice sessions can last 30 minutes to one hour and Scope sometimes longer.152 PAS provides “free legal advice on civil procedural matters Statistics for unrepresented litigants who commence or are parties to legal proceedings in the Lands Tribunal, the District Between 2010-2014, FLAS at HKU assisted 599 cases. The Court, the Family Court, the Court of First Instance, the clinic has about 24 students enrolled each year. It aims to Court of Appeal of the High Court and the Court of Final handle 48 cases, but has been handling 128 cases per year. Appeal (including commencement of proceedings)”.160 It The clinic aims to build its own list of volunteer lawyers.153 does not cover Legal Aid applications or appeals against Service Gaps refusal.161 Model Difficult to Expand and Replicate Eligibility FLAS at HKU is unique amongst free legal advice services To be eligible, the unrepresented litigant must not have in Hong Kong because it can provide an all-in-one service been granted Legal Aid, must not have engaged lawyers, in some cases. This is partly possible because FLAS at and must satisfy PAS’s income eligibility limit of not HKU has access to the capacity of students; but this all-in- exceeding a monthly income of HK$50,000 or an annual one service is also only possible because two professors

36 | This Way – Finding Community Legal Assistance in Hong Kong income of HK$600,000.162 Unless a spouse is the opposing –– brochures broadly outlining civil proceedings in the party, a spouse’s income is included in the assessment of High Court and the District Court, the total monthly income.163 –– sample court forms, Procedure –– videos on court procedures, Applicants go to the PAS Office at the High Court and –– daily case lists of the High Court and the District complete an application form (or re-application form Court, and if it is not the first time the applicant has applied).164 The application and re-application can also be downloaded –– a writing area and self-service photo-copying online. The current scheme provides 15-minute “Quick machine.168 Advice Sessions” and 45-minute “Appointment Advice Judiciary staff run the Resource Centre, but they only Sessions”. Applicants can attend a maximum of five sessions provide basic assistance in relation to the Centre’s services. 165 every three months for each court action. If one asks where can one find free legal advice, they will Statistics provide a list of the nine district offices for FLAS, and also addresses of the LAD and the Law Society of Hong Kong.169 From 18 March 2013 – 30 November 2016, PAS conducted more than 7,600 advice sessions for 2,500 litigants.166 BAR FREE LEGAL SERVICES SCHEME Service Gaps In 2000, the Bar Association formalised its provision of Can We Really Separate Procedural Advice from Substantive pro bono assistance by setting up Bar Free Legal Services Advice? Scheme (BFLSS) to provide assistance mainly to cases One criticism of the premise of PAS is that procedures where Legal Aid has been rejected on merits.170 Previously do not happen in a vacuum.167 Because substantive and pro bono service was provided on an ad hoc basis.171 procedural matters often go hand in hand – for example The day-to-day operation of BLFSS is managed by a the choice of one procedure over the other will involve part-time co-ordinator, Sze Kin, who is a qualified analysis of the substantive issues – it is a fine line when an and retired barrister, and one member of staff.172 The advice moves from procedural to substantive, at which management of BFLSS is determined by a voluntary point PAS can refuse advice. management committee chaired by the Chairman of the Bar Association.173 RESOURCE CENTRE FOR UNREPRESENTED When BFLSS receives a case the co-ordinator will LITIGANTS first screen and see if there are “reasonably arguable An initiative of the Judiciary, the Resource Centre for grounds”.174 If she is of the view that BFLSS should help the Unrepresented Litigants (Resource Centre) at the case, she will look through the panel to identify the most High Court provides a range of administrative tools: suitable member, then discuss the facts of the case with the member. 175 If the member is interested, the co-ordinator –– oaths and declaration services for Unrepresented will prepare a memo of instructions and send the member Litigants who need affidavits to prepare their cases, the papers.176 –– guidance on completing forms and submission of The scheme is voluntary, and the panel members are court bundles, expected to spend no more than 20 hours a year or –– computer terminals to access information from the three days in court.177 When they sign up they are asked Judiciary or other legal service providers, whether they would be willing to “give advice either by –– databases of questions frequently asked by way of a written advice or opinion or in conference on a Unrepresented Litigants, legal problem” or “represent them in any court or in any tribunal where legal representation is permitted”.178

| 37 Barristers are invited to sign up to become members of Statistics either BFLSS Panel A or Panel B.179 Panel A barristers The scheme handles about 300 cases per year. As an have over five years of experience since commencing full example, between 1 December 2014 – 30 November 2015, practice and will provide their service free of charge.180 BFLSS reviewed 234 applications of 320 received during Panel B barristers have no more than five years of that time, plus 34 applications from December 2013 – experience since commencement of full practice and would November 2014.192 Of the 234 cases, there were two cases receive a HK$3,000 to HK$5,000 nominal subsidy per where BFLSS approached the Director of Legal Aid for case from the Bar Association.181 According to the BFLSS consideration/reconsideration, and five cases where BFLSS 2014/2015 annual report there were 231 Panel A members granted representation.193 BFLSS provided legal advice and 44 Panel B members.182 in another 84 cases, including 66 cases where BFLSS Scope provided legal advice even though it refused to provide representation due to merits or means.194 BFLSS provides advice or legal representation in court or any tribunal where legal representation is permitted.183 Service Gaps In practice BFLSS mostly assists proceedings at the appeals Limited Scope Due to Capacity and Resources stage.184 The current design of BFLSS means it is unable to Eligibility handle urgent applications or trials. There are other limits The stated purpose of BFLSS is “to provide free legal advice to what it can do: for example, its hands are tied if a case and representation in cases where Legal Aid is not available requires a lot of paperwork or evidence-collecting and or where the applicant is unable to afford legal assistance, there are no pro bono solicitors involved; or if the case and the case is thought to be one where assistance should involves significant costs for the applicants, for example in be given”.185 getting expert witnesses or if the applicant needs to pay to access transcripts for a criminal appeal at the CFA.195 Therefore, generally speaking, every applicant must have applied to Legal Aid first, and BFLSS will only consider Some panel members have questioned why Legal Aid does cases that have been rejected by Legal Aid on the basis of not expand to cover the inadequacies in the system as merit.186 The principle of the scheme is to act as a “safety demonstrated by the requests BFLSS receives.196 They hold net” or “last resort”.187 the view that relying on voluntary service to address these unmet legal needs is not sustainable. Procedure To apply, the applicant completes the application form LAW SOCIETY OF HONG KONG’S PRO BONO obtained by going to the BFLSS Office at the High Court, SERVICES writing to the BFLSS co-ordinator, or downloading it from the BFLSS website.188 BFLSS requires the court hearing to The Law Society of Hong Kong (the Law Society) provides be at least 28 days away, and needs six weeks to process an four key pro bono services – Free Legal Consultation application.189 Service, Personal Injuries Hotline, Free Legal Helpline and Free Legal Advice Service on Building Management.197 If the case is an appeal against civil Legal Aid, sometimes BLFSS will directly approach LAD with counsel’s opinion At the Free Legal Consultation Service, law firms provide explaining why Legal Aid should have been granted, and up to 45 minutes of consultation by appointment only sometimes that alone works. Other times, BFLSS would in 24 different practice areas.198 Law firms participating have to find a member to attend the appeal hearing too.190 in this service can be contacted directly on the website ChooseHKLawyer.com. The waiting period is normally one Barristers normally must be instructed by solicitors, but week. for pro bono work under BFLSS the Bar Association has granted an exception to this rule.191

38 | This Way – Finding Community Legal Assistance in Hong Kong The Personal Injuries Hotline offers a one-hour free consultation to personal injury victims on their legal rights Scope to compensation and information on applying for Legal Aid.199 All volunteers are required to have a minimum of The EOC provides legal assistance to people who want three years’ experience of personal injury matters and are to take action under the Sex Discrimination Ordinance, members of LAD’s panel of personal injury practitioners.200 the Disability Discrimination Ordinance, the Family Status Discrimination Ordinance or the Race Discrimination The Free Legal Helpline provides up to 45 minutes of free Ordinance.209 legal advice to the public in three areas of law – personal injury (only available for victims or relatives on behalf of Eligibility victims), matrimonial, and criminal. An assigned solicitor Legal assistance can be rendered by staff lawyers or by 201 will contact the caller within three working days. This external lawyers engaged by the EOC.210 The EOC looks at service also offers a telephone session of up to 45 minutes a wide range of factors to decide whether or not to accept on mediation; it is a pilot that has been extended until a case for assistance, including the legal question raised, 202 31 December 2017. complexity, strength of case, likelihood of success, setting The Free Legal Advice Service on Building Management of an important legal precedent leading to an effective provides free legal advice to owners or “concerned bodies” remedy, attitude and behaviour of the parties. Applications on issues related to building management.203 The targeted are decided by the EOC’s Legal and Complaints groups are owners’ corporations, owners’ committees, Committee within three months.211 There is no means Mutual Aid Committees, members of management test.212 committees/executive committees of owners/residents Procedure organisations, owners and tenants/occupiers.204 Those who are interested in this service should contact the District Before the EOC considers providing legal assistance, 213 Office of the concerned building to complete an application a complaint must be filed with the EOC. The EOC for an appointment.205 Each applicant can only use the will then investigate, and try to settle the complaint 214 service once, for a meeting not more than 45 minutes.206 by conciliation. If a complaint is not settled during conciliation, complainants can apply for legal assistance Service Gaps from EOC, which may include initial legal advice through to Apparent Low Awareness of these Services legal representation in court.215 Again all these services appear to focus on one-off advice Statistics with no follow-up. From our interviews it appears that In 2015-2016, the EOC reviewed 41 applications and the NGOs and also their community rarely mentioned granted legal assistance in 22 cases.216 these services. Is it because of lack of promotion or other reasons? It would be helpful to see if the Law Society has For 2015/2016, HK$19.81 million was allocated for 217 ever conducted any user reviews on these services, and EOC’s legal services. There is no dedicated line of explore how perhaps NGOs can better connect their subvention from the Hong Kong Government for EOC’s 218 clients with these services. 207 legal assistance. However if a case is successful, it can receive reimbursement of legal costs from the opposing

EQUAL OPPORTUNITIES COMMISSION The Equal Opportunities Commission (EOC), set up in 1996, is a statutory body established to eliminate discrimination based on sex, marital status, pregnancy, disability, family status and race. 208

| 39 party. 219 EOC will not pay for the legal costs of the Eligibility opposing party if a costs order is awarded against an The Consumer Council, acting as trustee of CLAF, is applicant.220 advised by a Management Committee when deciding on the Service Gaps eligibility and merits of the cases.227 It can take into account the applicant’s financial resources when deciding whether Semi-Mandatory Conciliation Process? or not to grant assistance even though there is no means While the conciliation process221 is voluntary, what happens test.228 Also in order to be eligible for CLAF’s services, during the conciliation process is a factor (e.g. whether the consumer normally has to have exhausted all means of the applicant unreasonably refused a reasonable offer of dispute resolution, such as conciliation and mediation, and settlement) for the EOC when it considers rendering legal the applicant does not qualify for Legal Aid.229 assistance.222 Sometimes it may be hard for a vulnerable There is a merits test which looks at a series of factors in client to have to go through a conciliation process with granting the applicant assistance: powerful counterparts (e.g. in a sexual harassment situation). –– is there a group or potential group of consumers that would be adversely affected, Furthermore, while one can bring a friend or a lawyer to the conciliation223, legal representation at –– is court action the most effective means of the EOC conciliation is currently not covered by Legal Aid, resolution, and therefore most clients will not be legally represented –– is the action cost effective, unless there is a pro bono lawyer who can assist. –– what is the chance of success, Representation can only be Available for Limited Cases with Strategic Significance –– what is the applicant’s bargaining power, It is understandable that the EOC can only assist a limited –– is there a common question of fact or law to the number of cases, and will have to focus on assisting cases group (if a group is involved), with strategic significance. What may be helpful is to have –– the size of the group (if a group is involved), data on the number of potential victims of discrimination the EOC was not able to assist each year, and how many of –– what is the financial security of the other party, these individuals were indigent, so it can better strategise –– what is there of publicity value, would the case how these individuals may be able to benefit from legal promote the consumer cause and deter unscrupulous assistance, from either an expanded EOC legal assistance business practices if successful, scheme or other service providers. –– would the matter create an undue financial burden for CLAF, and is it practical for CLAF to offer timely CONSUMER LEGAL ACTION FUND assistance.230 The Consumer Council created the Consumer Legal Procedure Action Fund (CLAF) in November 1994 to assist consumers seeking redress for consumer matters.224 It is a To access CLAF, the aggrieved consumer must first file a trust fund set up with a HK$10 million grant from the Hong complaint with the Consumer Council’s Complaints and Kong Government.225 Advice Officers, who will first try to resolve the complaint through appropriate dispute resolution methods.231 If these Scope fail, and the matter qualifies for assistance under CLAF, CLAF will assist a consumer or a group of consumers an officer will help the aggrieved consumer complete the with unresolved complaints that relate to a consumer application for legal assistance.232 There is an application transaction and involve “significant public interest or fee,233 and if the applicant is successful, the applicant would injustice”.226 need to pay legal costs as well as contribute 10% of the awarded “benefit value”.234

40 | This Way – Finding Community Legal Assistance in Hong Kong Statistics According to those who kept records, the more common types of legal services provided were debts and Between 1 April 2016 to 30 September 2016, CLAF bankruptcy, (provided by 8% of Legislative Councillors and received six new applications for assistance and considered 31% of District Councillors), wills and probate (12% and four applications from the previous reporting period.235 Of 22% respectively), matrimonial and family (40% and 40%), the ten applications, one was granted assistance, four were employment (56% and 28%), landlord and tenant (32% and denied, one was resolved and four were still pending.236 23%), land and property (40% and 16%), and building Also between 1 April 2016 to 30 September 2016, management (32% and 23%).242 CLAF’s income was HK$61,940 and expenditure was Another interesting thing to note is that a large proportion HK$1,331,204.237 The total accumulated fund, as of of Legislative Councillors and District Councillors who 30 September 2016, is $10.02 million.238 provided legal assistance employed paid staff, both full Service Gaps time and part-time for the provision of such services. Representation can only be Available for Limited Cases with On average Legislative Councillors have 4.1 paid staff Strategic Significance and 5.3 volunteers to provide such services, and District Councillors have 1.5 paid staff and 2.3 volunteers to Like the EOC it is understandable that CLAF can only provide legal or related services to the public.243 assist a limited number of cases, and will have to focus on assisting cases with strategic significance. What may In the Paths to Justice report, at least one political party be helpful is to have data of the number of aggrieved office said they provide legal assistance, and a total of eight consumers that CLAF had to turn away each year, and how Legislative Council members (out of 17 who responded) many of these individuals were indigent, so it can better said they provide legal advice services: three provided strategise how these individuals may be able to benefit face-to-face interviews; five provided both telephone from legal assistance, from either an expanded CLAF consultations and face-to-face interviews. All eight provided scheme or other service providers. follow-up services, which included contacting the client after the initial consultation, and accompanying the clients for further actions.244 Six of the eight were directly elected OFFICE OF LEGISLATIVE AND DISTRICT members. 245 COUNCILLORS Data provided by three legislators with legal background A significant proportion of Legislative and District showed that the demand from public was huge. Councillors provide legal assistance in Hong Kong. One legislator held a class for Litigants in Person – involving For example, according to the 2008 DOJ Study, 75% of “lecturers” from the profession – and 550 people attended Legislative Councillors and 81% of District Councillors 11 classes. 246 Another legislator handled 3,158 matters 239 provided legal or related services to the public: between July 1998 to April 2000, through telephone –– Legal services: 240 47% of Legislative Councillors and consultation and the “meeting the public scheme”. If it 44% of District Councillors; was a complicated case, there would be regular follow up meetings with the clients, preparing necessary documents –– Community legal education: 32% of Legislative for clients or accompanying the clients for further action.247 Councillors and 18% of District Councillors; Today the demand appears to remain substantial: we spoke –– Mediation services: 23% of Legislative Councillors and to Legislator Dennis Kwok’s aide who mentioned he once 21% of District Councillors; and assisted with 2,000 wills during a single year visiting nursing –– Referrals to lawyers and assistance in applying for homes, but normally it is about 800 to 1,000 wills per year Legal Aid: 62% of Legislative Councillors and 58% of plus an average of five legal queries per day.248 District Councillors. 241

| 41 Service Gaps Service Gaps Legislators and District Councillors are not Meant to be Legal NGOs’ ability to Offer Legal Services are Limited by Regulation Services Providers and Resources Due to capacity we did not survey Legislative and District As noted in the 2008 DOJ Report, while there are many Councillors, but it would be very helpful to have newer organisations offering a variety of services, “they are data on whether community demand for legal assistance only meeting a small proportion of the potential demand from them is still as substantial. from members of the public.” 256 The 2008 DOJ Report noted that many were eager to expand their service both While it is beneficial to the public that Legislative and in terms of scope and geographic coverage, but were District Councillors offer help in legal education and advice, “constrained by their limited resources and inadequate providing legal services is a key function of neither role. professional support.” 257 They should not be playing the role of a community legal centre. Unfortunately, these challenges are as true today as they were in 2008. And despite NGOs being recognised by However, their continued popularity as a go-to provider all the above reports as providers of “legal and related of legal assistance shows that they are filling significant services”, they are still not formally recognised as such, gaps. In an interview with Ho Hei Wah of SoCO in Paths unless they are NGOs who partner with an entity to Justice, he suggested that lack of follow-up actions with like FLAS. existing government-funded schemes may be one reason why people approach District Councillors instead of the With a growing number of non-profit organisations ready Free Legal Advice Scheme.249 It is worthwhile to find out and eager to play a role in filling the access to justice gaps whether this is still true today. in our system, how can we better match their supply with the demand of the community, while ensuring the quality? NON-GOVERNMENTAL ORGANISATIONS Could we address this by expanding FLAS partnership to more NGOs? Or allowing NGOs to formally hire lawyers? As we have shown in Part I of this Report, NGOs are a key service provider of legal or legal-related services. Their LAW FIRM PRO BONO significant role is also recognised in various reports: the Paths to Justice Report, the Unrepresented Litigants Report, Law firms and private practitioners in Hong Kong also offer and the 2008 DOJ Report. For example, in the latter free legal services to the community through pro bono report, 73 NGOs responded that they were providing activities. From the Latin term pro bono publico, pro bono “legal and related services”:250 refers to legal work for the good of the community, in the public interest. While pro bono work is a common feature ■■ 23 provided legal services, including those being in many jurisdictions, it is only an additional source of legal delivered as part of FLAS or their organisation’s advice, representation and advocacy to help fill justice gaps respective legal advice programmes251; in the system. ■■ 16 provided free mediation services252; In Hong Kong, there is a growing pro bono culture. ■■ 29 provided community legal education (e.g. Seminars Some common ways law firms and lawyers engage in and talks)253; and pro bono are: ■■ 41 provided other related legal services (e.g. Applying –– advising clients at FLAS; for legal aid and referral services) 254. –– advising and representing clients; The most common areas of law were employment, –– providing legal advice or doing research for NGOs;258 matrimonial and family.255 –– helping individuals apply for Legal Aid or appeal Legal Aid rejections.

42 | This Way – Finding Community Legal Assistance in Hong Kong An increasing number of law firms in Hong Kong have also Service Gaps begun to do pro bono in a structured way by establishing Pro Bono is No Substitute for Legal Aid a pro bono committee, having a lawyer act as a pro bono contact person, and creating pro bono policies. In 2016, In comparison with government-funded legal aid, pro bono DLA Piper Hong Kong became the first law firm in can only ever represent a tiny number of clients. However, Hong Kong to appoint a full-time pro bono counsel, pro bono can play a crucial role in identifying and filling Annette Bain.259 justice gaps. Large law firms have also provided lawyers on secondment Expertise to assist NGOs, assisted with submission and report It is a fundamental principle of pro bono practice that writing and provided other legal resources. pro bono matters are treated with the same degree of Overall, compared to other common law jurisdictions, professionalism as fee-paying work. This requires training the extent of pro bono engagement in Hong Kong is still in new areas of law and building expertise in understanding developing and at an early stage in terms of coordinated community needs. efforts within the profession. Although there is no Not all cases are suitable for pro bono support, e.g. aspirational pro bono target, this is under discussion, for if the case is urgent, too complex or requires specialised example in the March 2017 edition of Hong Kong Lawyer and knowledge, unless that pro bono lawyer has the relevant 260 on the agenda at the Hong Kong Pro Bono Roundtable. experience. Many other jurisdictions have pro bono targets including the USA, UK and Australia. In Singapore it is mandatory Regulatory and Indemnity Insurance Barriers for lawyers to report annually on the amount of pro bono As Part III explains, it remains difficult for lawyers not undertaken.261 employed by a law firm to practise pro bono if a law firm In 2010 the Law Society established a Pro Bono Committee chooses not to extend professional indemnity insurance to review programmes and policies in response to the to a particular pro bono matter. In-house counsel, law growing pro bono momentum.262 Since 2011 the “Law professors and retired lawyers – often active pro bono Society Pro Bono and Community Service Award” has legal service providers in other jurisdictions – are also been given out to individuals and law firms recognising limited in their ability to provide pro bono legal services their contribution to pro bono and community service.263 due to regulatory restrictions. For 2015–2016 a total of 117 individuals and 26 law firms – almost twice the previous year for law firm recognition – PART II: KEY OBSERVATIONS received this recognition.264 Almost half received the Gold While there are many legal service providers in award, meaning they engaged in no less than 100 hours of Hong Kong, there are limitations on each of the service pro bono or community service.265 providers’ capacity to respond to community legal needs. HAB organised its first “Recognition Scheme for Provision Since the responsibility for providing access to justice lies of Pro Bono Legal Services” in 2011-12, and again in 2014- with the Hong Kong Government, we will direct our key 15, recognising the pro bono work done through the observations to the legal services provided or funded by various government and Judiciary-funded schemes, those the Government. run by the Law Society and Bar Association, and certain One significant key observation is that current government recognised activities.266 In 2014-15, 298 legal professionals legal aid funding is directed at representation. For an and 22 law firms were recognised.267 individual to obtain early legal advice there is limited assistance – only a 30-minute interview and often a waiting time of eight weeks. Other observations Civil Legal Aid:

| 43 ■■ OLAS is not free and the financial eligibility test may not ■■ training for FLAS staff so they can better screen be fair. and prepare cases before they are passed onto volunteer lawyers; and ■■ Application for Legal Aid in and of itself requires legal analysis. ■■ partnership with a bigger list of NGOs; and

■■ The Legal Aid application process is unable to address ■■ development of expertise in areas of law most urgent applications for injunctions, say in domestic relevant to the community. violence cases. 3. The establishment of a community legal centre model ■■ There is no Legal Aid for certain proceedings, such as to provide a clear entry point to the legal system for Labour Tribunal and Small Claims Tribunal. the community, which can provide limited services like screening, referral and early legal assistance, Criminal Legal Aid and Duty Lawyer Scheme: through to full representation. This model will also ■■ The Duty Lawyer Scheme is reactive, where a enable client centered legal services with a focus on solicitor or barrister is assigned to only one hearing and continuity of care. there is no follow-through between court appearances. 4. Allow law schools to play a bigger role in addressing ■■ The absence of criminal Legal Aid until the committal community needs. While the University of stage means it could be up to six to nine months before Hong Kong’s clinical legal education programme a defendant meets his Legal Aid lawyer, by which time it is successful, it is the only clinic providing direct may be too late to collect certain evidence. 268 service to the community in Hong Kong. For both nurturing a new generation of lawyers who are more ■■ There is no free legal assistance at the police station/ arrest/detention stage. public interest-minded, as well as meeting genuine needs in the community, we recommend changes to ■■ Due to low fees the Duty Lawyer Scheme attracts regulations so that law professors and law schools junior, less experienced criminal lawyers resulting in can offer legal clinics to serve the public under the lower quality and incompetence. guidance of qualified lawyers. ■■ Non-native speaker defendants face all the above problems aggravated by language barriers and sometimes lack an interpreter because they are deemed to understand English or Cantonese.269 FLAS:

■■ FLAS does not provide follow-up for clients.

■■ District Officers at FLAS do not adequately prepare cases before passing them to volunteers, which is not the best use of volunteer lawyers’ time. In light of the above, we suggest the following : 1. An evaluation of the current state-funded schemes focusing on user experience, taking the above gaps into consideration. 2. Reforms based on results of the above evaluation, for example, in relation to FLAS:

44 | This Way – Finding Community Legal Assistance in Hong Kong PART III: REGULATORY ISSUES

| 45 “I found out I needed to visit many different departments, and I also had to pay court fees, so I didn’t even dare to eat. Every night I was so hungry I could not sleep.” “原來要走好多地方同埋要交錢比法庭，當時連去食飯都唔敢，每晚都訓唔著.”

While on a construction job, I fell off a building and became disabled. I have been receiving Comprehensive Social Service Assistance (CSSA) since the accident. While dealing with my health issues, a housing issue arose. I discovered I was not a tenant but a sub-tenant, and was told I had to move out in two days. The people who delivered the eviction notice told me I could ask for more time by going to the Lands Tribunal. The Lands Tribunal told me how to get more time, but I had to pay approximately HK$600 to HK$700 to file the case. While in constant pain and with no Legal Aid, I starved so I could pay the legal costs for the filing. I completed the documents and served them on the owner myself. In court, the judge said because I was a sub-tenant, I had no rights. During that time, SoCO helped me get a public housing unit. Without them, I would be living on the street. Despite avoiding homelessness, I lost my security deposit on the rent paid. This is because I mistakenly thought that the Small Claims Tribunal does not handle cases involving such a small amount. So I decided not to pursue the security deposit. I also had to repay HK$1,700 to the government because I was receiving a subsidy for the rent. I contacted the Home Affairs Bureau for help, but they could not answer any of my questions. Mr J, 51 Years Old

46 | This Way – Finding Community Legal Assistance in Hong Kong KEY TAKE-AWAYS

NGOs are hamstrung by Only a barrister and a solicitor For not-for-profit law firms regulatory restrictions in employed by a law firm can to operate, it will be helpful responding to legal needs, offer pro bono legal services at to have clarification on how for example, they cannot hire the moment; in-house counsel, the rules on maintenance and staff lawyers. retired practitioners and law champerty, and tax exemption professors cannot. status for charities, will apply.

INTRODUCTION Practising Certificate Our Report’s findings have made clear that there remain In order to practise as a solicitor, one must apply for a significant gaps in the provision of free and early legal practising certificate from the Law Society of Hong Kong service in Hong Kong. There is a particular need to help every year.271 Once a practising certificate is approved, the community navigate the current legal landscape the solicitor is entitled to practise during that calendar to seek the necessary assistance. In addition, legal year subject to any conditions that may apply.272 professionals also face challenges when navigating the The certificate currently costs HK$5,000.273 regulatory framework for providing community legal While there is no legislative definition on whom a solicitor service. This Part provides a practical overview designed can work for, the application form provides the working to help engage a wider pool of legal talent to increase definition: someone engaged in private practice as a sole access to justice. proprietor, partner, assistant solicitor, or consultant, and We have divided this Part into three sections: someone who is employed in commerce or industry, as a law teacher, or by the Hong Kong Government (Appendix 1. Individuals: For qualified individuals who want to 6). The form also asks for the status of the applicant’s provide pro bono legal services. indemnity insurance. 2. Law firms or NGOs: Information on corporate Hence an otherwise qualified lawyer in Hong Kong will structure for a law firm or NGO wishing to provide not be able to obtain a practising certificate if he or she free legal service to the community. works for an NGO. 3. Funding rules and other relevant considerations for Indemnity Insurance such a law firm or NGO. According to Rule 6(1) of the Solicitors (Professional HOW TO DO PRO BONO AS A SOLICITOR Indemnity) Rules (Cap 159M), “every solicitor who is, or is held out to the public as, a solicitor in Practice Under section 7 of the Legal Practitioners Ordinance in Hong Kong shall be required to have and maintain (Cap 159) (LPO), in order to be “qualified to act as a Indemnity”, subject to exemptions set out in Rule 7.274 solicitor” in Hong Kong, one needs to be (i) on the roll of solicitors, (ii) not suspended from practice, Indemnity here refers to the Professional Indemnity (iii) have a current practising certificate and (iv) comply Scheme provided by the Law Society of Hong Kong, with the indemnity rules made by the Council of which provides indemnity “against loss arising from the Law Society.270 Assuming compliance with the claims in respect of any descriptions of civil liability first two requirements, we will focus on (iii) and (iv). incurred” by a solicitor “in connection with his practice”. 275 The coverage is up to HK $10 million per claim inclusive of costs.276

| 47 The obligation to make contributions to this compulsory Key points to note about the exemption and application: scheme rests with the principal of a law firm. The ■■ The applicant would need to complete an application premium is calculated depending on the number of form, pay HK$1,000 per organisation that he/she does principals, assistant solicitors and consultants, and the pro bono work for, provide a “certified copy of the full gross fee income of each law firm.277 Many law practices set of the professional indemnity insurance policy of purchase top-up insurance.278 the organisation”, and provide a Statutory Declaration Three things relevant to pro bono practice: “declaring that professional indemnity insurance of the organisation is in a manner and to an extent similar to 1. Only the principal of a law firm or a sole proprietor that provided in the Professional Indemnity Rules.” can purchase this compulsory scheme, not any individual solicitor, law school or NGO. ■■ The exemption is valid for one year.

2. A solicitor working for a law firm will be covered by that ■■ In assessing the application, the Law Society of firm’s indemnity insurance when they do pro bono legal Hong Kong will consider various factors such as work, as long as this work is approved by the firm. whether the pro bono work breaches any laws, rules and regulations, and whether the organisation “has a 3. If a lawyer chooses to do pro bono work in a personal system in place which is acceptable to the Society.” capacity, i.e. outside of their employment, they will have to take extra care to ensure that indemnity ■■ In considering whether or not an acceptable system is insurance is provided, either by the legal service in place, the Law Society may take into account: provider or themselves. This is an area currently –– whether the organisation has “the necessary evolving – see the next section. mechanisms in place to assist the applicant to Law Society of Hong Kong’s Circular 16-609 (COM) comply with applicable professional ethical standards and requirements, including but not On 1 August 2016, the Law Society issued Circular limited to policies on confidentiality, record keeping 16-609 (the Circular) announcing a new exemption and conflict of interest”; and under Rule 7 of the Solicitors (Professional Indemnity) Rules are attached in this Report in the appendices. –– whether the organisation charges the public a The exemption allows a solicitor to provide pro bono fee for the pro bono services and whether the legal services without coverage of the Law Society’s applicant provides the pro bono services for free.279 Professional Indemnity Scheme. This gives the pro bono While this exemption allows solicitors in their personal lawyer flexibility to work for any organisation that has capacity to provide pro bono legal services to the purchased professional indemnity insurance if a list of public on behalf of an NGO, it places heavy onus on the criteria are met. NGO to become a qualified host for pro bono lawyers. The exemption applies if “a solicitor is held out to the The NGO must have professional indemnity insurance public as providing pro bono services and does so with providing coverage similar to that of the Law Society, and some degree of formality and regularity, as opposed to mechanisms in place addressing confidentiality, record an informal one-off basis”, and “if the pro bono legal keeping and conflict of interest. services are offered in the solicitor’s personal capacity Meanwhile, we understand there is a new insurance and not as part of the practice of his or her law firm”. product available which enables individual lawyers to buy To obtain an exemption a solicitor must apply to the their own coverage to do pro bono work (commercially Consents Committee of the Law Society, otherwise rather than the NGO buying an organisational policy).280 he or she will be in breach of Rule 6(1) of the Solicitors If such individual coverage is sufficient to enable a (Professional Indemnity) Rules. lawyer to meet the Law Society’s requirements for an

48 | This Way – Finding Community Legal Assistance in Hong Kong exemption under Rule 7 then it could enhance the impact with the legal practitioner’s risk management rules. of this Circular, and at the same time relieve NGOs, They can also be admitted as Hong Kong solicitors by particularly smaller NGOs, from the financial burden of passing the Overseas Lawyers Qualification Examination having to buy a policy.281 administered by the Law Society.284 At this time there are some questions about the implementation and impact of this Circular: HOW TO DO PRO BONO AS A BARRISTER

■■ Is the indemnity insurance for organisation readily Barristers must generally be instructed by solicitors available in the market and if so, how affordable is before they can provide legal service so as to maintain a it? While the Law Society negotiates on behalf of barrister’s objectivity. However, a barrister can engage all its members, NGOs must negotiate individually in “Direct Professional Access” work if the instructions with insurers for professional indemnity insurance, come from a “recognised professional body”, including weakening their bargaining power.282 the Ombudsman and Equal Opportunities Commission, or if the work falls under “exceptions authorised by ■■ Because the exemption is per lawyer and not per The Bar Council.”285 NGO, the application costs will be high for a lawyer who volunteers for multiple organisations, and for One of these exception is that a barrister can give an NGO with more than one volunteer lawyer if it pro bono legal advice directly to a client if it is part of assumes the cost of paying for the lawyer. the Duty Lawyer Service, or if it is “service provided pursuant to the Scheme for Pro Bono organised under ■■ It is unclear how long the application process will take, the supervision of the Council”, namely BFLSS. 286 and if there is a way to appeal a decision. If a law firm is involved, acting pro bono or not, One thing that is clear and welcome: the Circular, the barrister can also engage in pro bono work for when implemented, and assuming the issues above can the same client. be satisfactorily resolved, should better enable in- house counsel to participate in pro bono legal work. Unlike solicitors, barristers purchase professional But as of April 2017, we are not aware of any successful indemnity insurance for themselves through a Master application. Policy by the Bar Association.287 For barristers wanting to engage in pro bono work through Direct Professional Access, they should ensure that their professional HOW TO DO PRO PONO AS A FOREIGN- indemnity insurance covers the pro bono work that they QUALIFIED LAWYER engage in.288 Foreign-qualified lawyers are prohibited from practising Hong Kong law.283 However, this should not prevent HOW TO DO PRO BONO AS AN IN-HOUSE them from doing pro bono legal work on non-Hong Kong COUNSEL law, and also doing pro bono under the supervision of qualified Hong Kong law practitioners on issues Under Hong Kong law, an in-house counsel is otherwise pertaining to Hong Kong law. known as an “employed solicitor”.289 An employed solicitor must be on the roll of solicitors, not be Foreign lawyers practising in Hong Kong must maintain suspended from practice, and has a current practising a practising certificate in their jurisdiction and register certificate.290 When an employed solicitor is acting as with the Law Society as a foreign lawyer, maintain a solicitor for his employer or any other body of the professional indemnity insurance, have at least two years employer, the employed solicitor is in the same position of post-qualification experience, or if not, have a as acting for a client and must advise the parties involved supervisor qualified in the home jurisdiction and comply that he is acting as a solicitor not covered under the Professional Indemnity Scheme.291 The employed solicitor is not meant to act for clients other than his/

| 49 her employer, and it is up to the employer to purchase advice sessions with volunteer attorneys.292 But more appropriate insurance to cover the employed solicitor. can be done. For example law students can assist with It is not a requirement. Labour Tribunal cases where lawyers are not allowed in the proceedings293 or they can be involved in helping When it comes to doing pro bono work, previously in- unrepresented litigants fill out court forms.294 Students house counsel may find themselves in uncertain territory are currently involved as volunteers for the Procedural because they are often not covered by professional Advice Scheme, but it is unclear on the extent of their role. indemnity insurance, and even if they are, it may only cover their work for their client (their employer). Many have engaged in pro bono through partnership with law HOW TO PROVIDE FREE LEGAL SERVICE TO firms, in which they are supervised by solicitors from THE COMMUNITY AS A LAW FIRM OR SOLE the law firms, and are covered under the law firm’s PROPRIETORSHIP professional indemnity insurance. As set out in Part II, a small number of law firms in However, with the new Circular, in-house counsel can Hong Kong are already dedicated to public interest work now apply for the exemption from the Law Society’s offering a mix of pro bono, legally-aided and fee-paying Indemnity Rules for pro bono work, and engage in services. But the demand for free legal assistance far pro bono work directly. exceeds the supply of public interest lawyers. There are many laws and regulations governing the HOW TO DO PRO BONO AS A LAW STUDENT establishment and operation of a law firm. A public interest-minded law firm can operate as a regular law Since a law school is neither a law firm nor sole firm, but it will be subject to profits tax, and its ability proprietorship, it currently cannot subscribe to the to fundraise will be limited, unless it is registered as a Law Society’s Professional Indemnity. Therefore law charity. In order to be exempt from tax, and to allow professors as a category are not covered by professional donors to claim tax exemption for donations made indemnity insurance, unless they also happen to be to the law firm, the law firm would need to obtain consultants of law firms and therefore covered by the law charitable status from the Inland Revenue Department firm’s insurance. However, FLAS at HKU has found a way (IRD) under section 88 of the Inland Revenue Ordinance for students to engage in legal assistance working closely (section 88 status). with FLAS volunteer lawyers or the three professors, who are themselves two law firm consultants and The most common corporate structures to apply for one barrister. In other words, the students are always section 88 status are society or company limited by under supervision of a qualified lawyer with a practising guarantee. However, our research shows that there is certificate. nothing in the law that precludes a law firm partnership or sole proprietorship from applying for section 88 If law students wish to engage in pro bono legal work status, though there’s no precedent at the moment.295 outside their law schools, they should always make sure they do so under supervision of a qualified lawyer; and A charity is currently defined by case law in Hong Kong, if they are involved in researching or giving advice on as set out in the IRD’s Practice Note number 37 and Hong Kong law, they should always be under supervision A Tax Guide for Charitable Institutions and Trusts of a Public of a Hong Kong law-qualified solicitor or barrister. Character (Tax Guide). We believe it should be possible to structure a law firm so that it qualifies as a charity With the issue of supervision addressed, in many because (1) the Tax Guide does not provide an exclusive jurisdictions around the world law students play a key list of structures, only the common structures; (2) other role in meeting access to justice needs. Apart from common law jurisdictions recognise the provision of FLAS at HKU, DLS has a pilot scheme to allow law pro bono legal advice as a charitable activity; and students to conduct interviews with the applicants and (3) conversations with IRD confirmed that conceptually prepare instructions for consideration and observing and theoretically a law firm structure can be in accordance with section 88 status.296

50 | This Way – Finding Community Legal Assistance in Hong Kong With that said, there are potential issues with setting as a solicitor” when employed by an NGO. Not only up a charitable law firm. In order to qualify for the does this inhibit the ability of NGOs to fully serve the charitable status, the IRD would expect the governing community’s legal needs, it also limits the career options instrument of the entity to include a general clause for public interest-minded lawyers or law graduates in prohibiting the governing body from receiving any Hong Kong. remuneration or other benefits from the entity. 297 A sole Short of employing a staff lawyer (the significance proprietor, and the partners in a law firm, are all likely to of which will be explored in Part IV), some NGOs be considered as the governing bodies of the entities and already employ highly qualified coordinators with a legal cannot be remunerated.298 This would be a problem for background who handle case management and liaise partners who founded a charitable purpose law firm and with public interest and pro bono lawyers in the style want to be remunerated.299 It should not be a problem of an “instructing solicitor”. We have learned from our for staff lawyers to be properly remunerated, as long as NGO partners in Hong Kong, however, that it can be they are not considered part of the governing bodies. hard to obtain funding for a dedicated legal position. It is Another legal service structure is Limited Liability also difficult to attract law graduates to these positions Partnership (LLP) which has been recently recognised because they won’t be able to officially count the time in Hong Kong in March 2016.300 While it affords an with an NGO as being “in practice” even if they are individual partner more protection from liability incurred properly supervised by a locally qualified solicitor. by other partners, it does not remove the remuneration The Circular has imposed other requirements for an challenge presented above. Solicitors corporation, NGO wanting to make use of the bigger pool of lawyers: available in some other jurisdictions, is not an entity “necessary mechanisms” to comply with all professional available in Hong Kong right now. However, a draft ethical standards and requirements, in particular: Solicitor Corporation Rules is currently being circulated confidentiality, record keeping, and conflict of interest among the Law Society, the DOJ, the Legislative to ensure that legal standards owed to the client are Council, etc.301 maintained. The Circular gave specific examples on conflict of HOW TO PROVIDE FREE LEGAL SERVICE TO interest in relation to NGOs: THE COMMUNITY AS AN NGO ■■ two or more clients who have conflicting interests to Many NGOs already provide a range of legal assistance to each other; the community, but once a case requires legal advice or legal representation, the NGO must refer it to a qualified ■■ one or more clients where the other party to the legal lawyer covered by professional indemnity insurance. problem is a former client of the organisation;

However, with the Circular, NGOs may be able to ■■ acting against the organisation itself; purchase indemnity insurance commercially and put ■■ acting against an agency, charity or university which is in place systems to comply with the requirements set hosting the organisation; and out in the Circular. In that case, an NGO could make use of a bigger pool of pro bono lawyers, such as law ■■ acting against a law firm which employs a solicitor firm solicitors whose law firm is not willing to extend volunteer for the organisation. coverage to pro bono work, or law school professors, or It is currently unclear what would comply as “necessary in-house counsel. mechanisms”, and this is a point that needs further One thing an NGO cannot do is hire staff lawyers to clarification from the Law Society. practise law, because it is not a recognised employer under the categories in the application form for a practising certificate. Without a practising certificate, an otherwise qualified lawyer will not be able to “act

| 51 CONFLICTING PROFESSIONAL man to enable him to carry on his suit” and “that OBLIGATIONS which charity and compassion give a man on behalf of a poor man who, but for the aid of his rich helper, Apart from the conflict of interest scenarios already could not assert his rights, or would be oppressed and mentioned, there is one more to note when it comes overborne in his endeavour to maintain them.”305 to legal services for the community. In certain cases, vulnerable groups are best served through collaboration ■■ “access to justice” refers to the consideration that between lawyers and other professionals such as a certain arrangements, if prohibited because of social worker or health professional. Lawyer-client maintenance or champerty, “could well result in a communications are protected by the “legal professional claim which is perfectly good in law being stifled privilege” rule, which broadly means a lawyer cannot where the plaintiff deprived of the support of such an disclose information provided by the client without the arrangement, is unable to pursue it”.306 client’s consent. A conflict may arise between a lawyer The Court noted that the “access to justice” category and other professionals when it comes to handling is likely to result in “further shrinkage in the scope” of critical sensitive information from client, for example maintenance and champerty, as “different measures, a social worker may be legally obliged to report child whether statutory or judicial” have already been adopted abuse. More research has to be done on this topic. in some jurisdictions that would otherwise constitute maintenance and champerty.307 One example is SLAS COST-RELATED CONSIDERATIONS in Hong Kong, as a litigant funded by SLAS is required Before offering litigation services to the community, an to make contributions from recovered proceeds to the important consideration is the rules against champerty scheme. The crimes of champerty and maintenance were 308 and maintenance302 and conditional fees. abolished in the United Kingdom in 1967. Champerty and Maintenance In summary, champerty and maintenance are still unlawful in Hong Kong, and any consideration of third-party funding It is generally prohibited in Hong Kong for a litigant must obtain proper legal advice. However, it is an area of to be funded by another person (maintenance) and in law that is evolving. Legislators have been urging DOJ to particular, if the funder demands a reward in the event of review the champerty and maintenance law309, and third- success (champerty). These two crimes find root in the party funding for arbitration has been introduced in the public policy desire to prohibit “officious intermeddling Legislative Council on 11 January 2017.310 with the disputes of others” and the view that legal fees should be pre-determined before the start of a legal Conditional Fees proceeding and not be contingent on the result of the As set out above, a conditional fee arrangement could proceedings.303 potentially amount to champerty. In Unruh v. Seeberger (2007) 10 HKCFA 31, the Court The Conditional Fees Sub-Committee of the Law stated that there are three excluded categories to Reform Commission of Hong Kong (the Conditional champerty and maintenance: “common interests”, Fees Sub-Committee) issued a consultation paper in “access to justice,” and a miscellaneous category of 2005, recommending that conditional fees be allowed practices which have come to be regarded as lawful. for certain types of civil litigation in the interests of access to justice. The Conditional Fees Sub-Committee ■■ “common interests” refers to “certain relationships which have been judicially recognised as involving reviewed various “event-triggered fee arrangements” in persons with such a strong common interest that different jurisdictions, and the policy and judicial debates justifies one of them supporting the litigation of surrounding them. another”, and a relationship “in respect of charity” Event-triggered fee arrangements refer to civil litigation is one example.304 The Court cited: “it seems to be cases where lawyers charge on a “no-win no-fee” agreed, that anyone may lawfully give money to a poor basis.311 There are different forms and names for

52 | This Way – Finding Community Legal Assistance in Hong Kong such arrangements, but the most common ones are a conditional fee and take a share of any compensation conditional fees and contingency fees. A conditional recovered, so the fund would be self-financing. Under fee arrangement is one where a lawyer charges a this fund, an independent body would screen and brief normal fee plus a “success fee”, while a contingency fee out cases to private lawyers, finance litigation, and pay arrangement is one where a lawyer charges a percentage the opposing party’s costs if the litigation is unsuccessful. of the amount of damages awarded by the Court.312 This model is utilised in other jurisdictions for funding While conditional fees have been allowed in England and public interest cases, and even though the Conditional Wales since 1995 and also in some states in Australia, Fees Sub-Committee was considering it for the contingency fees are still actionable.313 “sandwich class”, such a legal aid fund can be of benefit to the broader community too.316 This is an option worth The Conditional Fees Sub-Committee recommended exploring in Hong Kong. that it is time to review the validity of conditional fees in Hong Kong, saying that the arguments in favour After the consultation, the Hong Kong Government of conditional fees (access to justice, freedom of a rejected the report’s recommendation in October 2010, consumer to choose legal services) outweighed the but expanded the coverage of SLAS by increasing the public consideration against conditional fees (conflict of financial eligibility limits in May 2011 and the types of interest, excessive damages, explosion of unmeritorious cases SLAS undertakes in November 2012.317 litigation, increase in litigation). It believed the downsides Costs Orders, Taxation, Court Fees and Other Expenses can be avoided if the conditional fee regime is “properly formulated and regulated”.314 The general costs order in Hong Kong at the end of proceedings is “costs to follow the event”, namely the The Conditional Fees Sub-Committee recommended unsuccessful litigant will usually be ordered to pay the that conditional fees should be allowed in certain types legal costs of the prevailing party, in addition to their of civil litigation, including personal injury cases, family own legal costs. The unsuccessful party, even with cases not involving the welfare of children, commercial pro bono assistance, may still be financially liable for cases in which an award of damages is the primary remedy legal costs. sought, product liability cases, probate cases involving an estate, insolvency cases, employees’ compensation cases, Costs “includes lawyers fees, charges, disbursements, and professional negligence cases. It also recommended expenses and remuneration.”318 The court can assess that the regime should not apply to criminal cases and the reasonable amount of costs through a process called defamation cases, and that mechanisms be put in place to “taxation”, which means not all legal costs demanded by safeguard defendants against nuisance claims: claimants the prevailing party are recoverable, only the reasonable utilising conditional fees should be required by law to and necessary portion.319 The unsuccessful party who notify the defendant about this arrangement, and be is liable for the prevailing party’s costs can apply for ordered to pay “security for costs” in appropriate cases.315 taxation within 12 months of receiving the bill of costs from the prevailing party.320 We have already examined The Conditional Fees Sub-Committee noted that what this means for a litigant aided by Legal Aid. without readily-available “after-the-event insurance” (such that an unsuccessful claimant’s liability to pay the NGOs and litigants should also note that they will other side’s legal costs would be covered by insurance), normally still have to bear the cost of court fees even it may be hard to immediately launch conditional if they are assisted by pro bono lawyers, and there are fees in Hong Kong. In the meantime, it called for the other expenses not immediately obvious, such as the continued increase of the financial eligibility limits of the costs of obtaining an expert statement or accessing SLAS, and also made an interesting proposal of a “non- transcripts in a criminal appeal at the CFA. government contingency legal aid fund”. This will be a In cases where a pro bono solicitor is engaged for fund where litigants only need to satisfy a merits test representation, under the Solicitors’ Guide to Professional but not any means test. The fund’s lawyers would charge Conduct, Principle 4.01, a solicitor should normally give

| 53 the client the best information about the likely costs actions would enhance access to justice. The Hong Kong under the circumstances.321 But who is to pay for these Government is now working to address the Law Reform costs remains unclear. Commission’s recommendations.327 Protective Costs Order PART III: KEY OBSERVATIONS A Protective Costs Order (PCO) is an order from the court protecting a losing party from paying the prevailing While there have been some promising changes in the party’s costs in public interest cases. While it is one regulatory framework for pro bono and legal services for potential way of protecting indigent clients in public the community, challenges remain. interest cases, it has not yet been successfully applied for One significant problem is that an NGO, unless it is set 322 in Hong Kong. up as a law firm, is still not able to hire staff lawyers. Recovery of Costs in Pro Bono Cases Meanwhile setting up a charitable purpose law firm, though technically an option, has its own difficulties. Currently when a client who is assisted by a pro bono lawyer wins the case, the losing party does not have to pay The Circular on pro bono legal services is a welcome legal costs of the winning party. “[T]he fact that his [or her] step, but its real impact will only become apparent as lawyers acted on a pro bono basis results in a windfall for more applications are made. Whether the Circular’s the losing party,” said Legislator Dennis Kwok.323 requirements for NGOs can realistically be met will be an area to watch. Further guidelines and clarifications In England the Legal Services Act 2007 allows for the would be helpful such as whether a lawyer working recovery of costs in pro bono cases. Rather than going to at an NGO can purchase the indemnity insurance the pro bono lawyer, the recovered sum goes to the Access commercially. to Justice Foundation, a charitable litigation fund supporting cases when neither legal aid nor pro bono is available.324 Alternatively, as shown in the Circular, the Law Society Council has wide discretion to exempt any “class of More recently in May 2016, the Singapore Court for solicitors”, the “categories of professional business”, and the first time awarded legal costs for work done on a such exemption can be for a “specific period or subject pro bono basis, and clarified that prohibition against to other conditions”.328 Will it one day be willing to waive champerty does not apply here as the impecunious client exemption for lawyers employed by NGOs, and allow would not have been able to afford a lawyer. The law them to apply for a practising certificate? firm chose to donate the costs awarded to a charity on migrant workers.325 If so, then how about allowing retired lawyers and judges to offer pro bono services in Hong Kong? They have Kwok has been pushing for a similar costs order to be years of expertise and are key resources of free legal made available in Hong Kong since 2014, and the DOJ is assistance in other jurisdictions. now set to advise.326 Meanwhile, we believe that there are immediate steps Class Action that the legal profession and the Department of Justice Hong Kong does not have class action, a multi-party can take, which will create more certainty under the litigation which allows litigants to pool their resources to current legal framework for law firms wishing to set pursue claims against powerful counterparts (such as in themselves up to serve the community. To survive as product liability cases). In a class action, a representative a model these law firms would need two things: the plaintiff litigates on behalf of him/herself and others ability to use a network of pro bono lawyers, and also because of the same or similar allegations of wrongdoing to receive donations without being seen as breaching and the allegations arise from the same question or maintenance and champerty. Therefore, it will be fact or law. The Law Reform Commission published extremely helpful if: a report in 2012 on this matter, concluding that class

54 | This Way – Finding Community Legal Assistance in Hong Kong 1. the Law Society and the DOJ can issue an interpretation clarifying that maintenance and champerty do not apply to cases where the client cannot afford to pay, as such cases fall within the “access to justice” exception; and 2. the Law Society can consider a lower or different tier of indemnity insurance for law firms (or in the future NGOs) that dedicate themselves to community legal service.329 How can we strike the right balance between quality and quantity: between maintaining the standard of legal services, and meeting the vast needs of the community? We hope that the models discussed in Part IV may provide food for thought.

| 55 PART IV: MODELS OF COMMUNITY LEGAL SERVICE “I do not know how much it costs to hire a lawyer, but I know it is very expensive.” “完全唔知請律師需要俾幾多錢，但就係覺得好貴.”

I am homeless, sick and unemployed. Because I am still waiting for public housing, I have been living at an Internet café. One day while trying to sleep at the café, I got into a fight with someone who approached me. I surrendered to the police, who were polite while taking my testimony. They read my testimony back to me later, but never told me about my right to request a lawyer. If I had a lawyer or even a social worker with me, things would be different now. The police are still investigating my case. Mr H, 43 years old

| 57 KEY TAKE-AWAYS

Experience in other jurisdictions All models show a client- Improving access to justice demonstrates a diversity of centered approach, with focus requires a cross sector models of delivering legal on specialisation and continuity commitment. services to the community, of care. for example, the use of staff lawyers by NGOs, and a mix of public and private funding.

INTRODUCTION In this section we summarise the overall legal services landscape in each jurisdiction and highlight a few In previous Parts we discussed our preliminary legal exemplary service providers. Unless otherwise noted, needs assessment findings, history of community we obtained all information from this section on different legal services in Hong Kong, existing legal services service providers through interviews. in Hong Kong, and laws and regulations relevant to providing free legal assistance in Hong Kong. Now we turn to different models of community legal services AUSTRALIA from other jurisdictions in order to examine what Each state and territory in Australia offers a wide range elements Hong Kong could adopt to better meet of legal assistance.330 In New South Wales, Legal Aid community legal needs. The jurisdictions we look at New South Wales – funded by the Australian Government are Australia, Canada (Ontario), Republic of Ireland, and interest on clients’ money held in solicitors’ accounts Singapore, and the United Kingdom – all common law – is the main legal services provider across the state.331 jurisdictions with a similar historical legal background and There is a large network of Australian Government-funded regulatory landscape to Hong Kong. community legal centres (e.g. Redfern Legal Centre) Despite differences amongst jurisdictions, three key plus unique models of community legal services such as features are common to each: the Shopfront Youth Legal Centre, Justice Connect, and non-profit law firms like Salvos Legal Humanitarian. 1. Unless the legal services organisation acts solely as a screening centre, almost all specialise in certain areas of law such as homelessness, debt, administrative Redfern Legal Centre fines, family, domestic violence, legal needs of young Based in Sydney, Redfern Legal Centre (RLC) was people, and women. established in 1977 to address the scarcity of affordable 2. Almost all legal services organisations use a mix of legal services for disadvantaged and marginalised people. staff and pro bono lawyers, relying on staff lawyers to Starting with one paid staff member funded by the local screen, assist, monitor, advise and at times even lead council, RLC now has 25 staff (solicitors and non- the representation where they are the specialists in solicitors), and more than 200 volunteers including law the particular area of law. students and solicitors. 3. They rely on a mixture of public (government) and General Operation private funding as well as other innovative mechanisms Each solicitor specialises in particular areas of law. (e.g. Interest on clients’ money held in solicitors’ Current areas of focus are administrative law, consumer, accounts). credit/debt, discrimination, domestic violence, employment, police powers, and a statewide service for international students. Four solicitors cover these

58 | This Way – Finding Community Legal Assistance in Hong Kong areas, so that each works across more than one practice estates.334 Salvos Humanitarian offers preliminary area. The solicitors provide advice, representation and assistance to all clients, but if the client has sufficient referral. income or assets to afford legal representation, it will not 335 Each practice area has a partnership with a pro bono represent the client. law firm, the nature of which varies depending on the Specifically, Salvos Humanitarian provides free legal area of law and what works best. Certain models involve services in practice areas including police matters, family & a secondee to RLC who helps with casework research children’s law, migration & refugee law, human rights & and policy drafting. Depending on the model, indemnity public interest law, credit & debt, housing law, and insurance is borne by RLC if RLC is supervising, or by the social security law.336 They do not advise on areas that law firm if the law firm is supervising. would touch on Salvos Legal’s paid work, such as wills Client intake procedure and estates disputes, and do not complete forms unless the applicant is a client of the Asylum Seeker Clinic in Clients access RLC services by walking in, calling or Queensland.337 emailing to arrange for an appointment if they meet the eligibility criteria. Intake is conducted by volunteers and Client Intake Procedure supervised by RLC staff. After intake, volunteers assist To qualify for Salvos Humanitarian’s services, Salvos the applicant with scheduling the appointments to meet Humanitarian considers: with pro bono solicitors. ■■ the client’s ability to pay for legal representation, Volunteers are lawyers who are trained on how to ■ handle emergency walk-ins and callers who are mentally ■ the existence of a more suitable service available to distressed. Further, a RLC solicitor is on duty to assist in the client, an emergency. ■■ its ability to make a difference in the client’s life, and

Funding ■■ the matter’s consistency with the mission of 338 RLC is currently funded principally through the The Salvation Army. Community Legal Centres funding programme, To apply, the applicant must visit an Advice Bureau, administered by Legal Aid NSW and the Commonwealth within Salvos Legal, where a solicitor, barrister or Attorney-General’s Department.332 Specific programmes registered migration agent who is supervised by a senior are funded by different sources. For example, Legal Aid solicitor from Salvos Legal advises the applicant and NSW also directly funds the Sydney Women’s Domestic determines if further assistance is needed.339 Violence Court Advocacy Services, one of RLC’s Funding activities. As a social enterprise law firm, Salvos Legal is funded Salvos Legal and Salvos Legal Humanitarian by its paying clients which in turn helps fund Salvos Humanitarian.340 As of 10 April 2017, Salvos Humanitarian Salvos Legal, a social enterprise law firm, was founded has represented 17,300 cases and advises 150 to 200 in 2010 and is wholly owned by the Salvation Army. The cases each week.341 profits that Salvos Legal generates fund the work of Salvos Legal Humanitarian (Salvos Humanitarian), Shopfront Youth Legal Centre a separate entity from Salvos Legal.333 Established in 1993, with two staff on secondment from General Operation Herbert Smith Freehills (HSF), the Shopfront Youth Legal Centre (Shopfront) has evolved to an in-house team of Salvos Legal provides fee paying legal assistance in nine including three staff lawyers. In addition, there are corporate and commercial law, property law, technology 15 volunteers and students weekly, and another HSF and intellectual property law, social impact and not- solicitor on a rolling six-month secondment providing for-profit law, residential conveyancing, and wills and

| 59 legal services. Shopfront provides a holistic service Justice Connect covering the legal and social/mental needs of marginalised Justice Connect helps people facing disadvantage who young people. Its model relies on secondees from its are ineligible for legal aid and cannot afford a lawyer to partners – HSF, Mission Australia and The Salvation Army. access free legal assistance.344 Justice Connect has five General Operation programmes – Self Representation Services, Not-for- profit Law, MOSAIC (advocacy for refugees, asylum Shopfront assists young people aged 25 and under, who seekers and recently arrived migrants), Homeless Law, are homeless or otherwise have complex needs including and Seniors Law.345 We will focus on Homeless Law mental health issues, with legal problems. because of its unique structure working with pro bono Shopfront also assists the youth services sector, law firms. providing information and training about legal issues General Operation affecting them and the young people they work with. Currently, Shopfront provides court representation and The Homeless Law programme assists people who are legal assistance in criminal matters,342 assistance with homeless or at risk of homelessness, including those who outstanding fines, legal advice and pursuing compensation are in transitional, emergency or social housing and poor entitlements for sexual assault, child abuse and other people facing eviction.346 The Homeless Law programme forms of violence. It provides referrals to other legal has a small team of staff lawyers who are homelessness services where they lack the capacity or expertise specialists, who work closely with pro bono lawyers on to assist. the cases and may sometimes act as instructing solicitors to guide a case through litigation. While Shopfront mainly practises in criminal matters, its partnership with Legal Aid NSW, which places one civil The legal practice focuses on public space offences, lawyer at Shopfront, enables Shopfront to also provide tenancy, credit and debt, guardianship and administration legal advice on a range of civil law issues, including family orders, social security and Centrelink and other issues law, care and protection, housing, victims compensation (e.g. homelessness discrimination, squatters’ rights, and administrative matters. mortgage arrears with other vulnerabilities causing risk of homelessness).347 Client Intake Procedure Homeless Law partners with several law firms and each Young persons can drop in or call Shopfront for law firm is assigned to one of seven outreach clinics, and assistance. If the applicant cannot contact Shopfront each firm is responsible for the work that comes out of during business hours, the applicant can leave a voicemail its respective clinic. message. Youth workers and other service providers can refer clients by calling Shopfront during office hours, Client Intake Procedure utilising detailed referral guidelines on its website.343 A prospective client contacts a toll-free telephone Funding number where a law student or clinic administrator records their information. A prospective client who Each partner of Shopfront provides a set of resources. meets the NGO or charity’s eligibility requirements is HSF employs Shopfront solicitors and legal support given an appointment with a pro bono lawyer at one of staff and provides information technology, management the clinics. If the prospective client is ineligible, he or she support, financial contribution towards disbursements is referred to another service. However, in the event of and pro bono legal assistance. Mission Australia employs an emergency, a qualified staff lawyer will provide limited Shopfront’s case workers, contributes to transport and advice. Prior to all appointments, a staff lawyer generates office overheads and helps support Shopfront’s clients an intake memo for the pro bono lawyer setting out the through its network of youth services. Salvos provides legal issue, relevant background information, next steps Shopfront’s office space and helps support Shopfront’s and useful resources. clients through its Oasis Youth Support Network.

60 | This Way – Finding Community Legal Assistance in Hong Kong Funding Pro Bono Ontario Justice Connect receives local, state and federal Pro Bono Ontario (PBO), a not-for profit entity, was government funding.348 It also receives funding through launched in 2001 to provide organised pro bono in the membership fees of law firms, philanthropic trusts and province.359 PBO bridges the gap between low-income foundations, corporates, fees for services they provide, Ontarians who cannot afford to get help for their and fundraising events.349 Aside from the financial support everyday legal problems and lawyers who want to donate from the aforementioned sources, it also receives in- their services. kind support such as secondment of staff, volunteer General Operation engagement and donation of resources and facilities.350 PBO directly manages court and hospital-based programmes, legal clinics and telephone helplines. PBO CANADA also provides continuing development training so that In Ontario, Legal Aid Ontario (LAO) is the main provider lawyers can develop expertise in their pro bono work. of free legal services. LAO is independent but publicly PBO focuses its efforts on civil law (including consumer, funded by the Ontario Government and is a publicly corporate law, debt, education law, employment, accountable non-profit corporation.351 It also receives housing, going to court, immigration and wills and funding from the Law Foundation of Ontario (LFO), a estates). In 2016, PBO develops and manages pro statutory non-profit organisation that builds its funding bono programmes that helped 20,807 clients who had through interest earned on lawyers’ and paralegals’ nowhere else to turn. They include: trust fund balances (i.e. clients’ monies held in a lawyer’s account), and Cy-près awards made by courts when it is ■■ Programmes for self-represented litigants at every not practical to distribute all proceeds of a class action level of court, from Small Claims to the Supreme to individual plaintiffs.352 After the foundation’s operating Court of Canada. Three court-based walk-in centres expenses are met, LFO provides LAO with 75% of the and a Remote Services programme make it as easy as interest earned.353 possible for people in need to access services.

LAO provides various types of legal services to low ■■ Medical-Legal Partnerships in every children’s income individuals through its toll-free telephone hospital in Ontario to help families address legal services, duty counsel programme where a lawyer issues resulting from or giving rise to health issues (in criminal or family court) provides immediate legal (e.g. substandard housing conditions – like mould – assistance to an unrepresented low income individual, that exacerbate their children’s asthma, or job loss and representation by a lawyer in private practice paid resulting from parents take time off to care for their for by LAO.354 Aside from these services, LAO is the sick children). primary funder of 76 independent community legal clinics ■■ Education Law Programmes helps children get special across Ontario, including 17 specialty clinics.355 LAO also education support, combat bullying and contest unfair funds Student Legal Aid Services Societies, which provide suspensions. legal advice and representation.356 ■■ Corporate Pro Bono Programmes helps low-income Complementing the work of LAO are the Community entrepreneurs and NGOs’ address their business law Legal Clinics (CLCs), which have three specific issues (e.g. incorporation, intellectual property). characteristics – (1) local community governance, (2) practise in areas of poverty law, and (3) legal response Client Intake Procedure through a holistic approach. CLCs are also funded Clients are subject to a brief eligibility screening by the Ontario Government and are not-for-profit that includes financial and subject matter eligibility 357 organisations. LAO supports the CLCs in various ways, assessments. This is mostly conducted by staff, but 358 including the provision of indemnity insurance. volunteers can participate in screening as well. Clients are referred to pro bono lawyers for summary advice,

| 61 brief services and/or full representation as appropriate. law centre model.365 This resulted in the passage of the PBO keeps an open file even if the client retains a law Solicitors Acts 1954 to 2002 (Independent Law Centres) firm, so that it can ensure law firm follow through with Regulations, 2006 (ILC Regulation), and in 2014 the the case, and also to use the cases in reports to funders. ILCs network was established.366 The ILC Regulation For brief service clinics, which are clinics that provide a sets forth the requirements to be an ILC, which were limited scope of legal assistance, the conflicts check is developed in discussion with the Law Society of Ireland. based on a “knowledge test”. That is, if the lawyer can Until 2006, the indemnity insurance scheme was identify a conflict then and there, the lawyers cannot provided through the Law Society of Ireland, but became assist. unsustainable due to the increasing number of claims Funding against the scheme. Ireland moved to a commercial market system in which the Law Society of Ireland sets PBO’s main funder is the LFO, which was explained the terms and conditions for the compulsory indemnity earlier in this section. Other sources of funding include insurance, and ILCs purchase it from commercial the Ontario Government, and fundraising from law firms. providers. ILCs are supported by the Bar Association and Indemnity Insurance and Conflicts Checks Law Society of Ireland in various ways. For example, the PBO has changed the free legal assistance landscape Law Society of Ireland waives the practising certificate in Ontario. It removed barriers for pro bono work fee for lawyers working at an ILC. by expanding the indemnity insurance coverage and amending the conflicts check rules. Indemnity insurance Free Legal Advice Centre is now provided to pro bono lawyers without additional Free Legal Advice Centre (FLAC) is an ILC, established cost depending on the pro bono lawyer’s status – such as a company limited by guarantee, under ILC Regulation. as whether they are currently practising, or in-house counsel.360 General Operation FLAC provides advice and information, research and REPUBLIC OF IRELAND analysis in priority areas of law – civil legal aid, social welfare law reform, debt law reform, and consumer law In the Republic of Ireland, the Citizens Information Board reform – and advocacy. FLAC also runs Community (CIB), a statutory body, provides information, advice and Based Law Centres, which differ from Legal Advice advocacy on a broad range of public and social services. Centres because of their focus on strategic litigation and It delivers its service online, by phone or in person.361 legal education. Community Based Law Centres allow Established in 2000 and given its current name in 2007, clients to come to such centre to discuss their legal CIB is a one-stop centre that directs inquiries to the problems and obtain representation or brief service if it appropriate entities.362 fits within FLAC’s priority areas and is not covered by A source of legal services in Ireland is the Legal Aid the State Legal Aid Board. FLAC and Citizen Information Board (LAB), a statutory and independent body Centres, part of CIB, operates Legal Advice Centres. responsible for the provision of legal aid and advice to Client Intake Procedure persons within its means and merits requirements.363 LAB provides civil legal aid and advice primarily through Legal advice and information is provided by volunteer a network of law centres by solicitors employed by LAB solicitors and barristers in three ways: (1) a telephone and three criminal legal aid ad-hoc schemes.364 information and referral line, (2) Legal Advice Centres, and (3) online.367 The Legal Advice Centres368 treat Independent Law Centres (ILCs) have been in operation consultations anonymously. At some Legal Advice since 1969. Over the years, different ILCs collaborated and advocated for the recognition and regulation of the

62 | This Way – Finding Community Legal Assistance in Hong Kong Centres a person can drop-in and receive advice from bono assistance per lawyer per year; and two, setting up a volunteer lawyer on a first-come, first-served basis; a pro bono service office to look for new programmes other centres are by appointment only. 369 and to provide criminal legal aid services.375 Funding Law Society Pro Bono Services Ltd (formerly FLAC’s funding comes from sources such as philanthropic the Pro Bono Service Office), Law Society of funding, Bar Council and Law Society members, Singapore government funding, fundraising, donations, and legal cost refunds.370 The Pro Bono Service Office (PBSO) was created in 2007 to provide a holistic approach to access to justice, Indemnity Insurance which includes preventative legal awareness.376 Formerly FLAC has a general indemnity insurance scheme, which a department of the Law Society of Singapore, from 1 provides 1.5 million euros as the basic coverage for all April 2017, PBSO commenced operations as the Law solicitors at FLAC. This insurance costs FLAC 5,000 Society Pro Bono Services Ltd (LSPBS), a wholly owned euros regardless of the number of staff and practising subsidiary of the Law Society of Singapore. pro bono solicitors. But FLAC also has a separate General Operation special indemnity insurance policy for the free Legal Advice Centres and volunteers, and for the telephone LSPBS represent qualified applicants under CLAS. information and referral line. CLAS covers specific offences under the statutes, but if the applicant is charged with an offence that carries a death penalty sentence, the applicant should apply for SINGAPORE assistance at the Legal Assistance Scheme for Capital Singapore’s main provider of legal assistance to citizens Offences, administered by the Supreme Court.377 and permanent residents who meet the means and Besides providing criminal legal services, LSPBS provides merits tests is the Legal Aid Bureau, established in a network of legal clinics. They are community legal 1958. 371 The Legal Aid Bureau provides legal advice, clinics administered by LSPBS, or clinics in collaboration legal aid/representation, and legal assistance on civil with NGOs. According to Tanguy Lim, Chief Executive matters, including divorce, modification or enforcement Officer of LSPBS, they work in collaboration with NGOs of Court orders on ancillary matters in divorce, because NGOs are often better equipped to understand adoption, child custody, monetary claims, claims for the needs of the community. In general, solicitors go out compensation (injury or medical negligence cases), and to the legal clinics to provide 20-30 minutes of pro estate matters.372 It does not handle criminal cases and bono advice per client to clients who have already certain civil cases (e.g. defamation, Small Claims Tribunal, been screened by LSPBS. Tribunal for the Maintenance of Parents, proceedings in family court for maintenance, and personal protection Aside from pro bono assistance to individuals, LSPBS orders when the opposing party is not legally also provides pro bono assistance to NGOs on their represented).373 corporate needs and provides capacity building for NGO staff. Since the Legal Aid Bureau does not provide legal services in criminal cases, the Law Society of Singapore Client Intake Procedure in 1985 set up the Criminal Legal Aid Scheme (CLAS) Applicants for CLAS must apply in person.378 To access to fill in the criminal legal assistance gap.374 In 2006, the community legal clinics, administered by LSPBS, the the Law Society of Singapore’s study on the provision applicant must either call the LSPBS, email the LSPBS of legal assistance to see how lawyers could be called or speak to a LSPBS officer at the Community Justice to provide pro bono assistance resulted in two major Centre in the State Court of Singapore.379 There is recommendations: one, an aspirational 25 hours of pro pre-screening before an applicant meets with a lawyer.

| 63 The NGO legal clinics have its own operating times, CA also has staff lawyers.390 The Steering Committee on types of services provided, areas of focus, and other Resource Centre for Unrepresented Litigants in 2002 requirements.380 reported that one particular CA scheme, which was set up in the Royal Courts of Justice (London) as a pilot Funding in 1996 and had since expanded, engaged three paid LSPBS is funded by the government, philanthropic full-time solicitors, an administrator, a bureau manager foundations, the Law Society of Singapore, and law firms. and a receptionist.391 On top of its paid staff there LSPBS has charity status. were also eight voluntary (not legally qualified) part- 392 Addressing the Prohibition on NGOs’ Direct Employment of time workers and about 100 honorary legal advisers. Lawyers CA in the Royal Courts of Justice provided advice to unrepresented litigants on court procedure, merits of Singapore is similar to Hong Kong in that NGOs cannot the case and assistance in preparing for court hearings.393 directly employ lawyers to provide legal representation. Unrepresented litigants were also given free advice from The Legal Professional Act however allows the Law qualified barristers from the Bar’s pro bono scheme and Society of Singapore to employ lawyers to provide pro bono solicitors from large city law firms.394 legal representation, and LSPBS has 7 full time lawyers on secondment from the Law Society of Singapore LawWorks is a charitable organisation that works to undertaking criminal legal representation under CLAS. enable access to justice to individuals who are in need Insurance for volunteer lawyers is provided by LSPBS.381 of legal services but without means to pay for a lawyer, and to small not-for-profit organisations to support their UNITED KINGDOM service continuation and expansion. LawWorks utilises In the United Kingdom (UK), Legal Aid Agency (LAA), several different pro bono models. It works with advice part of the executive agency of the Ministry of Justice382, agencies (such as Law Centres and CA), law schools, law helps meet the cost related to legal advice, family firms, and develops clinics with other third parties (for mediation and representation in criminal and civil example, legal clinics in homeless shelters). The model matters, subject to the applicants meeting a means and varies depending on volunteer capacity and local demand, merits tests.383 If legal aid from LAA is not available, Law but often involves 30–45 minutes of initial legal advice Centres, which are independent and accountable to their and the identification of the client’s options and next communities, also play a role in the delivery of access steps with the possibility of providing further assistance to justice in the UK.384 A Law Centre has distinguishing like writing a letter or filling out forms. characteristics: it must employ at least two lawyers; it Similar to Singapore’s LSPBS, LawWorks can provide must be a not-for profit entity; and it must engage in professional indemnity insurance for individual a legal practice the nature of which is to address the practitioners who are not part of a law firm but who 385 underlying cause of poverty. Recent cuts to legal want to provide legal assistance. Similarly LawWorks also funding in the UK in 2013 forced Law Centres to review provides the indemnity insurance for volunteers from their operations. in-house legal teams or in certain cases where volunteer Besides Legal Aid and Law Centres, Citizens Advice solicitors are supervised by LawWorks to provide advice (CA), formerly known as Citizens Advice Bureau, is in a new area of specialisation, for example a corporate available to help people to resolve their problems.386 lawyer being supported to provide advice in housing law. CA is the UK’s largest advice provider and in 2015/16 helped 2.7 million people with 6.2 million problems.387 The PILS Project CA delivers services from 2,900 locations across England Formed in 2009, the Public Interest Litigation Service and Wales.388 Most of the 23,000 people who work Project (PILS Project) is an NGO aiming to “advance for CA are volunteers, but there are approximately human rights and equality in Northern Ireland through 6,500 paid staff.389 the use of and support for public interest litigation.”395

64 | This Way – Finding Community Legal Assistance in Hong Kong According to NGO sources, the PILS Project operates developments and support of public interest advocacy under a waiver to practise law in a NGO setting from campaigns, raise awareness of the outcomes and practical the Law Society of Northern Ireland, which sets out effects of any public interest litigation, and allows for the parameters such as case selection criteria, the area capacity building of members to use litigation as an of practice, policies and procedures. The NGO must advocacy tool by learning to identify potential public write to the Law Society for approval for changes to interest cases and the process and steps involved in their practice, and report annually on how many cases taking a case.403 were handled and referred to the private bar. The NGO Funding purchases compulsory indemnity insurance from the private market but at an amount agreed between the Law The PILS Project was established with funding from Society and the NGO. the Atlantic Philanthropies.404 In 2014, the PILS Project received further funding from the Atlantic Philanthropies The PILS Project is also a membership organisation for strategic litigation for a two-year term.405 open to solicitors and NGOs.396 To become an NGO member, the organisation must satisfy certain criteria.397 Indemnity Insurance To become a solicitor law firm member, the firm must Professional indemnity insurance in Northern Ireland is be interested in public interest litigation and have compulsory but purchased through the private market. experience conducting any legal work on human rights A copy of the indemnity insurance must be sent to the 398 and equality issues in Northern Ireland. Law Society. When the PILS Project first started, it was General Operation very difficult for the PILS Project to obtain the indemnity insurance because it was a pilot project and it was The PILS Project provides strategic public interest considered high risk since it did not have a specific area litigation “to advance the cause of minority or of practice. disadvantaged groups or individuals, or which raises issues of broad public concern.”399 The types of cases It is unclear if the indemnity insurance is calculated by they engage in are wide ranging.400 the number of solicitors at the PILS Project. When the PILS Project applied for the waiver from the Law Society Most solicitors working with the PILS Project help before starting, the waiver asked about the number of with training and legal research. Barristers generally solicitors. The level of indemnity insurance coverage provide legal representation and it is the barrister’s own differs from NGO to NGO based on the type of work indemnity insurance that applies. However, students the NGO is engaged in, which is also specified by the assisting with legal research would need the Council of Law Society when it grants the waiver. the Bar of Northern Ireland’s approval.

PILS also operates a register of pro bono practitioners PART IV: KEY OBSERVATIONS interested in taking on cases with the PILS Project or its NGO members.401 When a pro bono opportunity arises, In this Part, we looked at a selection of legal service the PILS Project contacts practitioners on the register to models that serve the poor and vulnerable groups in see if they can assist. different common law jurisdictions. While they may differ in the subset of the community they serve, the exact Client Intake Procedure legal services they provide, or how they operate or are Through its stakeholder forums with NGOs and funded, several things about these models became clear meetings with solicitor members, NGOs and solicitors from this comparative exercise: help identify potential public interest human rights ■■ they focus on specialisation, early legal assistance, and 402 and equality cases. These forums with NGOs and continuity in legal services; solicitor members are also a place to discuss and share information on issues affecting them and individuals ■■ they use a mix of staff, public interest and pro bono or groups they represent, a place to communicate the lawyers;

| 65 ■■ they rely on a mix of funding: government, corporate exploration of how existing programmes, such as FLAS, and philanthropy. can be extended or work closely with these community legal centres. Other interesting things to note: Indeed, our suggested model is in line with previous ■■ many specialise in what can be called “poverty law”,406 proposals in Hong Kong. Our research shows that the namely issues like housing, social welfare, debt and credit, government is aware of the need for early legal assistance administrative fines, employment and family; and advice, given that there have been proposals by various ■■ the key role played by the staff lawyers is in case consultation bodies or legislators over the past 30 years for management and building up expertise; measures that could potentially address this need:

■■ the availability of various funding mechanisms that may ■■ For example, in 1986 the Working Party on Legal be worth exploring for Hong Kong: interest on clients’ Aid issued Legal Aid: A Report by the Working Party money held in solicitors’ accounts, legal cost refunds, etc. (the “Scott Report”) to examine options including the Such characteristics also reflect global trends and stand Green Form scheme in England and Wales, a fixed fee 407 in contrast to the current system in Hong Kong where, interview scheme, and Law Centres. The Working as illustrated in Parts I and II, the free and subsidised legal Party on Legal Aid considered the Green Form services are still delivered mainly by government-funded scheme a “simple method” which “might be suitable schemes, and these schemes mainly focus on two things: for Hong Kong once the extent of the need was 408 legal representation and one-off free legal advice. established.” The Green Form scheme enabled an individual who was of limited means to consult a Complementing the government-funded schemes are solicitor for two hours to (i) get initial general advice various pro bono initiatives offered by the professional about their legal situation and the options available; bodies, pro bono services offered by law firms and (ii) get help to try and settle the dispute; (iii) seek a individual lawyers, and NGOs trying to fill in the gaps barrister’s opinion; and/or (iv) write letters. with whatever legal assistance they can offer short of advice and representation. However, as previously ■■ Subsequently, in 1993, as set out in the Consultative discussed, these services can be piecemeal, and NGOs Paper on Legal Aid, the Working Group on Legal Aid often struggle to find funding. As a result, community Policy Review consulted the legal profession as to the members struggle to find legal help. feasibility of a voluntary “fixed fee interview scheme” by which a member of the public might obtain one What is still missing is a strategic focus to provide early hour of legal advice in a specified area of the law at a assistance and advice. To fill this gap, we strongly believe fixed fee, with the possibility for further interviews. that the discussion should be re-opened on setting up a But this was subsequently rejected by the DLS and the community legal centre, which can become a clear entry legal profession, who said it would appeal neither to point for community members to access legal advice, clients nor lawyers.409 simple legal assistance, or even representation. ■■ The same Working Group on Legal Aid Policy Comparative experience, as detailed in this Part, can Review also invited the legal profession to relax their offer some guidance on how such a community legal restriction regarding lawyers working for voluntary centre can operate. For instance, such a community agencies as practising lawyers, so that the agencies legal centre should be funded by the government, but might employ qualified lawyers to provide free not necessarily run by the government, and could also legal advisory services on a full-time basis, but the receive other funding and income. NGOs or law school working Group received no response and could only programmes that meet a set list of criteria should also be recommend a follow-up.410 able to apply for such funding. There should be a careful ■■ As set out in Part I, in March 2002, Ng and Eu circulated a proposal to establish a CLSC, one that was to build upon the existing FLAS where a broader

66 | This Way – Finding Community Legal Assistance in Hong Kong network of NGOs – coordinated through Hong Kong To customise a Hong Kong specific strategy for Council of Social Services (HKCSS) – would be able to improving community legal services would no doubt refer clients to the CLSC, operate interview centres involve some major reforms: from allowing NGOs or walk-in specialist clinics and co-organise outreach to hire lawyers, to a more diversified use of legal aid programmes for legal education and training with funding. However, there are also steps that we can take DLS.411 Why it was not adopted is unknown.412 immediately: e.g. better screening and preparation of FLAS cases before volunteer lawyers meet with clients On more than one occasion, the LASC has made and allowing follow-up assistance, or making professional recommendations which emphasised the need for indemnity insurance more available to NGOs so that community-based legal services. In 2006 the LASC called they can better utilise pro bono lawyers. At the very for a strategic review of Hong Kong’s legal aid policy, and least, Hong Kong – qualified lawyers employed by a “strategic model” of delivery of legal services to the Hong Kong’s three law schools should be allowed to lead community. LASC underlined how the legal aid policy law clinics to provide legal services for those in need. is currently lawyer-centric, focused on the lawyers, and what legal services they can offer, rather than what the In this new legal architecture for Hong Kong, it may also community needs.413 In its book Legal Aid in Hong Kong, a be worth evaluating the potential of a not-for-profit law review of the Legal Aid system at the tenth anniversary firm. There are two items which will make this easier of LASC, it stated that there was “undeniable … need to progress. First, the not-for-profit law firms need to in the community for legal advice and assistance short of be able to receive donations. For this to happen, we legal representation.”414 would need clarification on whether receiving donations to offer free legal services to the community would A “mixed delivery system” of legal services was also breach the rules on maintenance and champerty, and also discussed in Legal Aid in Hong Kong, one that is not whether such a law firm can apply for the tax exemption confined to lawyers but also community-based solutions status of a charity. delivered by paralegals or non-professional advocates at lower costs through advice, assistance and negotiation. Second, we need to better enable not-for-profit law This is in line with trends around the world looking firms to draw on the help of a network of pro bono at alternatives to litigation including information and lawyers, given that there may not be enough financial education, support for self-help, and mediation, and to resources available for a firm of this type to hire enough find the most cost-effective way to meet community lawyers. It is now time to review our indemnity insurance needs. 415 and practising certifcate rules to see if we can have separate categories for lawyers employed by not-for- LASC hoped that the 2008 DOJ Study “would yield profit law firms. valuable information for Hong Kong to formulate its own ‘strategic model’ for the provision of legal services.”416 But as we set out in Part II, that has yet to happen. Most recently in 2012 LASC advised the Chief Executive that there is room to expand existing services, particularly in relation to education, promoting the public’s legal knowledge and its awareness of how to access legal services that can help them, and setting up an electronic information system to help the public resolve legal matters.417 Subsequently the CLIC was enhanced to cover special topics concerning the youth, elderly and family groups.418

| 67 THIS WAY FORWARD: OUR RECOMMENDATIONS

68 | This Way – Finding Community Legal Assistance in Hong Kong THIS WAY FORWARD: government, the legal profession, civil society and OUR RECOMMENDATIONS universities. Our recommendations include short-term and long-term action. The Hong Kong legal aid landscape has significantly evolved since the 1960s; however, two key issues continue to restrict access to justice in the community: lack of early RECOMMENDATIONS FOR THE legal advice and difficulty in navigating the free legal services GOVERNMENT framework in Hong Kong, as borne out by this report and 1. Conduct a comprehensive assessment of unmet legal in the four case vignettes shared. needs in Hong Kong, in particular, of vulnerable groups To improve the provision of free, early and accessible legal in the community advice, community legal services must be reimagined. Unlike 2. Informed by the results of the above unmet legal needs many other common law jurisdictions, Hong Kong does assessment, undertake a strategic review of legal not have a government funded community legal centre or assistance policies, programmes and funding citizen advice bureau. The time is right to advocate for and establish such a community legal centre, with the support of 3. Review existing services to improve availability and the broader legal sector. quality of early legal advice and representation, for example, develop new screening and case management Community legal centres play a pivotal role in improving processes community legal services. They screen client matters, provide case management, follow up advice and continuity 4. Increase training for all lawyers involved in of representation for clients, and make referrals to other government-funded schemes on key areas of law for legal service providers where necessary. Community legal the community centres should be funded by government but do not need 5. Establish and/or fund community legal centres or other to be run by government – NGOs and law school clinics types of one-stop government service centres where in other jurisdictions are common providers of free legal the community can access early legal assistance services to the community and can continue to be. 6. Confirm the access to justice exemption on Reforms to enhance the adequacy of free legal advice maintenance and champerty applies to free legal should be approached holistically, given the complexity of services to the community the current system and because past attempts to address the situation have been done in a piecemeal manner. RECOMMENDATIONS FOR PROFESSIONAL Consequently, to a lay person, the current legal assistance BODIES landscape seems like a maze with no obvious entry point, and is particularly unhelpful if a matter is urgent. This 7. Review existing free legal schemes to improve their inhibits the community’s ability to access their legal rights. effectiveness in addressing unmet legal needs in the community The key recommendations below are starting points from which this legal community can commence the process of 8. Review policies and rules to enable in-house strengthening community legal services. It is incumbent counsel, law school professors, and retired on the wider legal profession to ensure that the most solicitors and barristers to provide pro bono marginalised members of our community can access the services basics of life, such as housing, employment, healthcare, 9. The Law Society of Hong Kong to review its current safety, education and above all justice through timely legal indemnity insurance policy to enable not-for- advice and representation. The reform process will require profit law firms, NGOs, law school legal clinics collective input and investment from multiple stakeholders: and community legal centres to access affordable insurance for their lawyers

| 69 10. The Law Society of Hong Kong to provide further RECOMMENDATIONS FOR LAW SCHOOLS guidance on the application and procedures for 20. Establish more law school clinics similar to FLAS at obtaining the new indemnity insurance exemption HKU in relation to pro bono work as set out in Circular 16-609 21. Develop an access to justice curriculum focusing on the unmet legal needs of the community 11. The Law Society of Hong Kong to review practising certificate policies to allow qualified lawyers 22. Strengthen and increase partnerships with NGOs employed by NGOs to apply for a practising that work with marginalised groups to teach certificate students about how the law is experienced by these groups and the importance of free, timely and 12. The Hong Kong Bar Association to clarify its accessible legal services. rules on how pro bono clients can have direct professional access to barristers RECOMMENDATIONS FOR NGOS THAT WANT TO OFFER LEGAL SERVICES RECOMMENDATIONS FOR THE JUDICIARY 23. Collect good data in relation to the legal needs of 13. Review the effectiveness of the Resource Centre for marginalised groups Unrepresented Litigants 24. Develop a client case management system, if there 14. Consider liaising with HAB to extend FLAS to is not already one, to comply with the Law Society’s the Court’s premises to provide better early legal requirements under Circular 16-609 advice In order to pave the way forward, PILnet will establish 15. Consider opportunities with law schools to assist a task force comprised of key members of the legal with unrepresented litigants such as filling out forms community and NGOs that work with poor and 16. Consider awarding legal costs for successful parties vulnerable groups to discuss these recommendations and represented by pro bono lawyers strategise on how best to implement them. The Hong Kong legal system needs urgently to provide RECOMMENDATIONS FOR LAW FIRMS adequate early legal advice and navigable pathways to 17. Build a culture of pro bono practice which free legal services. Let us work together to improve encourages lawyers to help increase access to the provision of free, early and accessible legal services justice for the poor and vulnerable groups, such to the Hong Kong community, and do our part in as through supporting free legal aid schemes and contributing to reducing social inequality in Hong Kong. collaborating with NGOs 18. Provide training in the areas of law most relevant to the needs of the poor and the vulnerable groups, to ensure that the usual standard of legal services are upheld in pro bono work 19. Support the development of the community legal sector in Hong Kong

70 | This Way – Finding Community Legal Assistance in Hong Kong ACKNOWLEDGEMENTS

| 71 ACKNOWLEDGEMENTS

PILnet and DLA Piper Hong Kong would like to thank ■■ Azan Marwah, Barrister, Gilt Chambers the following individuals and organisations who made this ■■ Brooke Massender, Head of Pro Bono and Citizenship, Report possible: Australia and Asia, Herbert Smith Freehills (Australia) Our key partners that provided invaluable data on legal ■■ Catherine Hickey, Director of Funding and needs are: Development, Free Legal Advice Centre Ltd (Republic ■■ Action for Reach Out of Ireland)

■■ Anonymous NGOs (three) ■■ Chan Wai Hung, Assistant to Legislator Dennis Kwok

■■ Help for Domestic Helpers, formerly known as ■■ David Raeburn, Director of Programmes & Deputy Helpers for Domestic Helpers Chief Executive, LawWorks (United Kingdom)

■■ Hong Kong Confederation of Trade Unions ■■ Davyd Wong, Solicitor and President, Public Interest Law Society of Hong Kong (PILS Hong Kong) ■■ Hong Kong Federation of Women’s Centres ■■ Dennis Kwok, Barrister at Prince’s Chambers; ■■ Hong Kong Unison Legislative Councillor for the Legal Functional ■■ Justice Centre Hong Kong Constituency (2012 to present)

■■ Mission for Migrant Workers ■■ Eric Cheung, Principal Lecturer and Director of Clinical Legal Education, Faculty of Law, the University ■■ PathFinders Limited of Hong Kong ■■ RainLily ■■ Fiona McLeay, CEO, Justice Connect (Australia) ■■ SILENCE ■■ Jane Sanders, Principal Solicitor, Shopfront Youth ■■ Society for Community Organization Legal Centre/Special Counsel, Herbert Smith Freehills ■■ ZiTeng (Australia) In particular, we would like to thank the team of case ■■ Joanna Shulman, CEO, Redfern Legal Centre workers at the Society for Community Organization who (Australia) completed and answered the staff survey, distributed ■■ Julie Bishop, Director, Legal Centres Network community surveys, helped us refined the surveys, and (United Kingdom) arranged for client interviews. Our deepest gratitude to Richard Tsoi for his overall guidance and support with ■■ Kay McArdle, CEO, PathFinders Limited the legal needs assessment and this Report. ■■ Lenny Abramowicz, Executive Director, Association of We would like to acknowledge the contribution of Community Legal Clinics of Ontario (Canada) interviewees who have offered invaluable guidance and ■■ Lester Garson Huang, Partner, P.C. Woo & Co. information for this Report (all based in Hong Kong ■■ Lindsay Ernst, Lecturer, Faculty of Law, The University unless otherwise specified): of Hong Kong ■■ Ada Wong, JP Solicitors; Convenor of Good Lab ■■ Lucy Adams, Manager and Principal Lawyer, Homeless ■■ Alan Schiffman, Retired Partner, Global US Law Firm Law at Justice Connect (Australia)

■■ Anna Wu, Chairperson, Competition Commission of ■■ Lynn Burns, Executive Director, Pro Bono Ontario Hong Kong; Solicitor, and Non‑official member of the (Canada) Executive Council of Hong Kong

72 | This Way – Finding Community Legal Assistance in Hong Kong ■■ Lynn McMahon, Senior Associate – Pro Bono, We would also like to thank the following for agreeing Herbert Smith Freehills (Australia) to be our stakeholder reviewers, and for providing much appreciated feedback on the draft Report: ■■ Margaret Ng, Barrister, Sir Oswald Cheung’s Chambers; former Legislative Councillor for the ■■ Joan Shang, Senior Associate, RS Group Legal Functional Constituency (1995 to 1997); former ■■ Kay McArdle, CEO, PathFinders Limited Chairperson of the Panel on Administration of Justice and Legal Services Panel (1998 – 2012) ■■ Lester Garson Huang, Partner, P.C. Woo & Co.

■■ Mark Daly, Solicitor and Principal, Daly & Associates; ■■ Palin Ngaotheppitak, Human Rights Communications Council Member, The Law Society of Hong Kong and Advocacy Consultant

■■ Marnie Berk, Director of Pro Bono Programs, The lead authors of this Report are Annette Bain, New York Lawyers for the Public Interest (New York) Jennifer Yi Man Cheung and Tze-wei Ng.

■■ Melissa Murray, Project Manager and Solicitor, Editor: Virginia Lloyd The PILS Project (Northern Ireland) Many PILnet staff worked on this Report. Special ■■ Michael Vidler, Solicitor and Principal, Vidler & Co. thanks to Garth Meintjes and Devon Kearney from the New York Office, and to the core team in Hong Kong: ■■ Michelle Luk, Senior Counsel, Wells Fargo; Committee Charlotte Walkovik, Julie Cheng and Leontine Chuang. Member, Pro Bono Committee of the Law Society of Also a big thank you to our interns and volunteers Hong Kong Charlene Xialiang Zhang, Jenna Lee, Jenny Dai, Ryan ■■ Paul Zimmerman, CEO, Designing Hong Kong Siu, Venus Park Ka Jong, Wenyu Wang, and especially Samantha Kierath for helping us come up with the title of ■■ Puja Kapai, Director, Centre for Comparative and this Report. Public Law; Convenor, Women’s Studies Research Centre; Director, Summer Social Justice Internship; At DLA Piper, special thanks to Nicolas Patrick and Associate Professor, Faculty of Law, The University of Catriona Martin, who launched this Collaboration, and Hong Kong to Alex Luk, Alice Sun, Annette Beashel, Bettina Wang, Claire Kermond, Coeli Cheung, Gary Chan, Hannah So, ■■ Samantha Sowerwine, Senior Lawyer, Homeless Law Jennifer Wu, Jonathan Wong, Karen Cheng, Ken Chau, at Justice Connect (Australia) Maggie Wong, Michelle Wong, Patrice Marceau, ■■ Sinead Lucey, Managing Solicitor, Free Legal Advice Punia Ho, Queenie Chan, Samantha Mak, Wundy Lee. Centres, Ltd (Republic of Ireland)

■■ Sou Chiam, Barrister & Human Rights Consultant

■■ Sze Kin, Co-ordinator, Bar Free Legal Services Scheme

■■ Tanguy Lim, Chief Executive Officer, Law Society Pro Bono Services Ltd, The Law Society of Singapore (Singapore)

■■ Wong Man Lai, Assistant to Legislator Dennis Kwok

| 73 APPENDICES

74 | This Way – Finding Community Legal Assistance in Hong Kong APPENDIX 1: SURVEY WITH FOURTEEN NGOs

FEASIBILITY STUDY ON POTENTIAL MODELS FOR COMMUNITY LEGAL SERVICES IN HONG KONG

Preliminary Legal Needs Assessment

All information collected through this survey and our interview may be used in the Feasibility Study. If your organisation prefers not to be named, please kindly let us know.

COMPLETED BY: Click here to enter text. DATE COMPLETED: Click here to enter text.

1. Do you currently provide legal information or assistance to individuals?

☐Yes, proceed to question a. ☐No

a. Please choose the form of legal services being provided:

☐ Provide Legal Information ☐ Basic Legal Assistance

☐ Legal Pamphlets ☐ Complete Forms

☐ Legal Information Sessions ☐ Draft Statements

☐ Legal Advice Clinics (please ☐ Accompany Client to Police provide detail in Question 2) Station

☐ Other: Click here to enter text. ☐ Handle and Prepare Case Before ☐ Non Legal Aid Referral Duty Lawyer Involved ☐Duty Lawyer Scheme ☐Other ☐ Free Legal Advice Scheme ☐ Legal Aid Department

☐ Tel-Law Scheme ☐ Referral Only

☐ Bar Free Legal Service Scheme ☐ Help with Application

☐ Community Legal Information ☐ Prepare Case Before Legal Aid’s Center (CLIC) Lawyer is Involved

☐ Procedural Advice Scheme (for ☐Other: Click here to enter text. unrepresented litigants in civil procedures)

☐ Resource Centre for Unrepresented Litigants

☐ Seek Help from a Lawyer Friend

☐ Other: Click here to enter text. ☐ Other: Click here to enter text.

Comments: Click here to enter text.

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2. If you have legal information sessions and/or legal advice clinic, please provide more details.

Click here to enter text.

3. Do you have lawyers on your staff?

☐ Yes, proceed to question a. ☐ No, proceed to question 3.

a. How many lawyers do you have on staff? Click here to enter text.

b. What kind of work do they handle? Click here to enter text.

4. Do you use pro bono lawyers?

☐Yes, proceed to question a. ☐No, proceed to question 4.

a. How many pro bono lawyers do you have on your list? Click here to enter text.

b. What kind of work does pro bono lawyers handle? Click here to enter text.

5. Do you see the need / or are you interested in providing legal services to individuals?

☐ Yes ☐ No

Why? Click here to enter text.

6. Have you ever carried out an assessment of the legal needs of the community you serve?

☐ Yes, please proceed to question a. ☐ No, please proceed to question c.

a. Can you share results of the needs assessment(s)?

☐ Yes, proceed to question b. ☐ No

b. Can you provide more details of the needs assessment(s)?

☐ Details (name, date, results): Click here to enter text.

c. Why? Click here to enter text.

2

76 | This Way – Finding Community Legal Assistance in Hong Kong

7. Who is the targeted community you serve?

☐Children ☐Homeless ☐People with ☐Sexual (under 18) ☐Low income Developmental and Minorities ☐Domestic ☐Migrant Intellectual Disabilities ☐Women Violence Workers ☐People with Mental ☐Youth (18 to Victims ☐New arrival Disabilities 25) ☐Elderly (60+) ☐People with Physical ☐ Refugees ☐Ethnic Disabilities ☐Sex Workers Minorities

Other: Click here to enter text.

8. Please choose from below the legal problems that your community faces. Please feel free to provide any additional information.

Substantive Issues: ☐Consumer ☐Domestic Violence ☐Bankruptcy ☐Family ☐Debt ☐Housing ☐Others: Click here to enter text. ☐Public Housing ☐Criminal ☐Private Tenancy Issues ☐Petty Crime ☐Other: Click here to enter text. ☐Fines ☐Immigration ☐Other: Click here to enter text. ☐Labor / Employment ☐Discrimination ☐Personal Injury ☐Disability ☐Gender ☐Social Welfare ☐Family Status ☐Race ☐Will and Probate

Comments: Click here to enter text.

Procedural Issues:

☐ Civil Procedures ☐ Labour Tribunal

☐ Criminal Procedures ☐ Mediation

☐ Equal Opportunities Commission ☐ Other: Click here to enter text.

9. Please highlight the top five legal issues (one being the most important and five being the least important) that you see are faced by the community(s) you serve.

1. Click here to enter text. Choose one Community. 2. Click here to enter text. Choose one Community. 3. Click here to enter text. Choose one Community. 4. Click here to enter text. Choose one Community. 3

| 77 5. Click here to enter text. Choose one Community.

Comments: Click here to enter text.

10. For the top five legal issues highlighted in Question 9, please also check how many cases do you see in the most recent year that you have data available, if any.

1. ☐1-5 ☐6-10 ☐11-20 ☐21-30 ☐31-50 ☐51-100 ☐101-200 ☐201+ 2. ☐1-5 ☐6-10 ☐11-20 ☐21-30 ☐31-50 ☐51-100 ☐101-200 ☐201+ 3. ☐1-5 ☐6-10 ☐11-20 ☐21-30 ☐31-50 ☐51-100 ☐101-200 ☐201+ 4. ☐1-5 ☐6-10 ☐11-20 ☐21-30 ☐31-50 ☐51-100 ☐101-200 ☐201+ 5. ☐1-5 ☐6-10 ☐11-20 ☐21-30 ☐31-50 ☐51-100 ☐101-200 ☐201+

What time period was this data from?

2005-2006 2006-2007 2007-2008 2008-2009 2010-2011 2011-2012 2012-2013 2013-2014 2014-2015 Other Click here to enter text.

Thank you very much for completing this survey. We look forward to working with you as we develop this Feasibility Study.

PILnet Hong Kong

78 | This Way – Finding Community Legal Assistance in Hong Kong

4

APPENDIX 2: SUPPLEMENTAL SURVEY WITH FOURTEEN NGOs

Supplemental Survey

Q1. Please type in your name.

Q2. Please type in which NGO you are from.

Q3. What would you like to see happen to better address community legal needs in Hong Kong for the low income and/or marginalized communities? Please list your top 3 choices (1 being your first choice and so forth) and state your reason. Some examples are: improving the various existing schemes, such as, Legal Aid Department schemes, Duty Lawyer Scheme (criminal representation in Magistrates’ Court), Free Legal Advice Scheme (free preliminary legal advice), etc..., government to set up and fund community legal services centres, government to allocate funding to NGOs to provide legal assistance, changes to the law and/or Law Society regulations to allow NGOs to provide legal services, and justice gap analysis in Hong Kong to ascertain unmet legal needs.

Q4. Does your NGO want to remain anonymous in PILnet’s report on how to serve community legal needs in Hong Kong?

Q5. What are your thoughts on the new Pro Bono Legal Services provision issued by the Law Society in Circular 16609 (dated 1 August 2016)?

| 79 APPENDIX 3: SoCO STAFF SURVEY

醫療問題 :

Disciplinary Forces Disciplinary 私人 )

別 政府 ) ( :

法律 問題 行為 ( : Injuries 性 期 齡 日

年 財務及破產 人身侵害 Date Gender Age LawAdministrative Issues 政府行政 Chinese Law Issues 中國法律問題 of Conduct CasesCriminal and Procedure 刑事案件及程序 Consumer Issues Rights 消費者權益問題 Discrimination 歧視 Domestic Violence 家庭暴力 Family Law Issues 家事 法律 問題 Bankruptcy and Finance Issues Health (Government) Issues Housing 房屋問題 Landlord) (Private Issues Housing 房屋問題 Law Issues Immigration 入境 法律 問題 Services Legal Representation 法律 服務 Personal Privacy Issues 私隱 問題 Welfare LegalSocial Issues 福利 法律 問題 Specify) Other (Please Issues 其他問題（請註明）

紀律部隊

80 | This Way – Finding Community Legal Assistance in Hong Kong APPENDIX 4A: SoCO COMMUNITY SURVEY (ENGLISH)

Dear Community Members,

As part of the partnership between Society for Community Organization (“SoCO”) and PILnet: The Global Network for Public Interest Law (“PILnet”), we are implementing a series of surveys to understand the “unmet legal needs” of the community. Your response is important. Thank you for your time.

Instructions: Please check the boxes that apply to you.

PART 1: PERSONAL INFORMATION

1. Gender: ☐Male ☐Female

2. Age: ☐ 18-24 ☐ 25-34 ☐ 35-44 ☐ 45-54 ☐ 55-64 ☐ 65 and over

3. Which of the community(ies) do you self-identify with? (You may choose more than one answer): ☐Elderly ☐New Arrival ☐Women ☐Homeless ☐Tenants of Sub-Divided Housing ☐ Other ______

4. Household Size: Adults (including yourself) ☐1 ☐2 ☐3 ☐4 ☐5 ☐6 ☐7 ☐8 ☐8+ – Children (under 18) – ☐1 ☐2 ☐3 ☐4 ☐5 ☐6 ☐7 ☐8 ☐8+ 5. What type of housing do you live in? ☐ Boarding House ☐ Street ☐ Own Flat ☐ Sub-divided Housing ☐ Public Housing ☐ Other ______☐ Shelter

6. Monthly Household Income: ☐ Under $4,000 ☐ $10,000 - $14,999 ☐ $30,000 - $34,999 ☐ $4,000 - $5,999 ☐ $15,000 - $19,999 ☐ $35,000 - $39,999 ☐ $6,000 - $7,999 ☐ $20,000 - $24,999 ☐ $40,000 - $44,999 ☐ $8,000 - $9,999 ☐ $25,000 - $29,999 ☐ $45,000 +

7. Source of Income: ☐Employment ☐Friends ☐ Self Employment ☐Family ☐Non-governmental Organizations ☐ Social Welfare ☐ Other ______

8. Do you have any legal need? ☐Yes (please continue to complete the survey on the next page) ☐No (The survey is completed, please hand it back to the staff)

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| 81 PART 2: LEGAL NEEDS ASSESSMENT Legal issues you had between May 2015 to now (Check as many boxes as applicable): ☐ Administrative ☐ Criminal Case ☐ Domestic Violence ☐Housing (Government) ☐ Personal Injury ☐ Disciplined Services Law Issues Legal Issues Legal Issues Legal Issues Legal Issues ☐ Chinese Law ☐ Civil Case ☐ Family Law ☐Housing (Private) ☐ Privacy ☐ Civil Procedure Issues Legal Issues Legal Issues ☐ Discrimination ☐ Social Welfare ☐ Immigration Law ☐ Finance & Bankruptcy ☐ Others (Please specify): ______Legal Issues Legal Issues Legal Issues What did you do with the legal issues identified above? (Check as many boxes as applicable): ☐ SoCO assisted ☐ Complete forms ☐ Accompany to court ☐ Provide legal information ☐ Referral ☐ Accompany to police station ☐ Others: ______☐

Did not offer help, because: ______☐ Contacted another NGO ☐ Complete forms ☐ Accompany to court ☐ Provide legal information ☐ Referral ☐ Accompany to police station ☐ Others: ______☐

Did not offer help, because: ______☐ Contacted District Councilor / Member of Legislative Council ☐ Complete forms ☐ Accompany to court ☐ Provide legal information ☐ Referral ☐ Accompany to police station ☐ Others: ______☐

Did not offer help, because: ______☐ Contacted Duty Lawyer ☐ Provide legal advice ☐ Provide legal representation ☐

Did not offer help, because: ______☐ Contacted Legal Aid Department ☐ Provide legal representation ☐ Did not offer help, because: ______

☐ Hired a Lawyer ☐ Provide legal advice ☐ Provide legal representation ☐

Did not offer help, because: ______☐ Did nothing, because: ☐ ☐ ☐

Nobody could help Cannot afford a lawyer Others: ______☐ ☐ Are you satisfied with the services being provided above? Yes No If not, please answer the reasons for why are you not satisfied. (Check any boxes as possible): ☐ SoCO assisted ☐ Took too long to help ☐ They asked for too much financial proof ☐ They didn’t help, because: ______☐ They asked for too much ☐ They did not spend enough time to help me ☐ Others:______

information about the case ☐ Contacted another NGO ☐ Took too long to help ☐ They asked for too much financial proof ☐ They didn’t help, because: ______☐ They asked for too much ☐ They did not spend enough time to help me ☐ Others:______

information about the case ☐ Contacted District Councilor / Member of Legislative Council ☐ Took too long to help ☐ They asked for too much financial proof ☐ They didn’t help, because: ______☐ They asked for too much ☐ They did not spend enough time to help me ☐ Others:______

information about the case ☐ Contacted Duty Lawyer ☐ Took too long to help ☐ They asked for too much financial proof ☐ They didn’t help, because: ______☐ They asked for too much ☐ They did not spend enough time to help me ☐ Others:______

information about the case ☐ Contacted Legal Aid Department ☐ Took too long to help ☐ They asked for too much financial proof ☐ They didn’t help, because: ______☐ They asked for too much ☐ They did not spend enough time to help me ☐ Others:______

information about the case ☐ Hired a Lawyer ☐ Took too long to help ☐ They asked for too much financial proof ☐ They didn’t help, because: ______☐ They asked for too much ☐ They did not spend enough time to help me ☐ Others: ______

information about the case

(Optional) If you would like to discuss further about your legal issues, please leave your name and contact number: ______2

82 | This Way – Finding Community Legal Assistance in Hong Kong APPENDIX 4B: SoCO COMMUNITY SURVEY (TRADITIONAL CHINESE)

親愛的社區成員，

作爲香港社區組織協會（「社協」）與公益法研究所（“PILnet”）合作項目的一部分，我們現正進行一系列的 問卷調查用以瞭解現時社區內可能未被滿足的法律服務需求。您的回答對我們的工作至關重要，感謝您的時 間。

請在適用的方框內打勾（√）。

第一部分：個人資料

1. 性別： ☐男 ☐女

2. 年齡： ☐ 18-24 ☐ 25-34 ☐ 35-44 ☐ 45-54 ☐ 55-64 ☐ 65 或以上

3. 您認爲自己屬下列哪個（些）社群？（可選多項）: ☐長者 ☐新移民 ☐婦女 ☐露宿者 ☐劏房、板房或其他分隔房間 ☐其它 租戶 ______

4. 住戶人數: 成人(包括自己) – ☐1 ☐2 ☐3 ☐4 ☐5 ☐6 ☐7 ☐8 ☐8+ 兒童 (18 歲以下) – ☐1 ☐2 ☐3 ☐4 ☐5 ☐6 ☐7 ☐8 ☐8+

5. 您現時的居所為？ ☐ 宿舍 ☐ 露宿 ☐ 私人樓宇、居屋或出售公屋（整個單位） ☐ 劏房、板間房或其他分隔房間 ☐ 公屋 ☐ 其它 ______☐ 收容所

6. 每月家庭收入： ☐ $4,000 以下 ☐ $10,000 - $14,999 ☐ $30,000 - $34,999 ☐ $4,000 - $5,999 ☐ $15,000 - $19,999 ☐ $35,000 - $39,999 ☐ $6,000 - $7,999 ☐ $20,000 - $24,999 ☐ $40,000 - $44,999 ☐ $8,000 - $9,999 ☐ $25,000 - $29,999 ☐ $45,000 +

7. 主要收入來源： ☐工作 ☐朋友 ☐ 自僱 ☐親屬 ☐慈善機構 ☐ 社會福利 ☐ 其它 ______

8. 請問你是否有法律方面的需求？ ☐有 （請翻去下一頁繼續作答） ☐沒有 （問卷完成，請交給工作人員）

1

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第二部分（法律需求）

從 2015 年 5 月至今您遇過以下哪個法律問題？（可選多項）： ☐ 行政法問題 ☐ 刑事案件 ☐ 家庭暴力 ☐住房(政府) ☐ 人身傷害 ☐ 紀律部隊行爲 法律問題 法律問題 法律問題 法律問題 ☐ 中國法律問題 ☐ 民事案件 ☐ 家庭法 ☐住房(私人) ☐ 私隠法律 ☐ 民事訴訟法 法律問題 問題 ☐ 歧視法律問題 ☐ 社會福利或醫療 ☐ 入境法 ☐ 金融與破産 ☐ 其它法律問題 法律問題 法律問題 （請明確說明）: ______

就以上的法律問題您曾經採取了什麽措施，以及你獲得了什麼幫助？（如適用，可選多項）： ☐ 尋求社協幫助 ☐ 幫助填寫表格 ☐ 陪同出席法庭聆訊 ☐ 提供簡單法律資訊（如講座、宣傳冊） ☐ 轉介去其他機構或服務 ☐ 陪同前往警署 ☐ 其他：______☐ 沒有提供幫助，因為： ______☐ 聯絡另一間慈善機構 ☐ 幫助填寫表格 ☐ 陪同出席法庭聆訊 ☐ 提供簡單法律資訊（如講座、宣傳冊） ☐ 轉介去其他機構或服務 ☐ 陪同前往警署 ☐ 其他：______☐ 沒有提供幫助，因為：______

☐ 聯絡區議員或立法會議員辦事處 ☐ 幫助填寫表格 ☐ 陪同出席法庭聆訊 ☐ 提供簡單法律資訊（如講座、宣傳冊） ☐ 轉介去其他機構或服務 ☐ 陪同前往警署 ☐ 其他：______☐ 沒有提供幫助，因為：______

☐ 聯絡民政署的當值律師服務 ☐ 提供專業法律意見 ☐ 提供律師代表 ☐ 沒有提供幫助，因為：______

☐ 聯絡法律援助署 ☐ 提供律師代表 ☐ 沒有提供幫助，因為： ______☐ 聘請律師 ☐ 提供專業法律意見 ☐ 提供律師代表 ☐ 沒有提供幫助，因為：______

☐ 什麼也沒有做，因為： ☐ 沒人可以幫忙 ☐ 無力聘請律師 ☐ 其他： ______

你對上述所提供的幫助滿意嗎？ ☐ 滿意 ☐ 不滿意

如不滿意，請選擇你對以上條問題所選中不滿意的服務以及原因（如適用，可選多項）： ☐ 社協 ☐ 取得幫助需時太長 ☐ 需要過多資產證明 ☐ 機構未能提供幫助：______☐ 需要過多案件的資料 ☐ 對個案投放時間過少 ☐ 其他： ______☐ 另一間慈善機構 ☐ 取得幫助需時太長 ☐ 需要過多資產證明 ☐ 機構未能提供幫助：______☐ 需要過多案件的資料 ☐ 對個案投放時間過少 ☐ 其他： ______☐ 聯絡區議員或立法會議員辦事處 ☐ 取得幫助需時太長 ☐ 需要過多資產證明 ☐ 機構未能提供幫助：______☐ 需要過多案件的資料 ☐ 對個案投放時間過少 ☐ 其他： ______☐ 民政署的當值律師服務 ☐ 取得幫助需時太長 ☐ 需要過多資產證明 ☐ 機構未能提供幫助：______☐ 需要過多案件的資料 ☐ 對個案投放時間過少 ☐ 其他： ______☐ 法律援助署 ☐ 取得幫助需時太長 ☐ 需要過多資產證明 ☐ 機構未能提供幫助：______☐ 需要過多案件的資料 ☐ 對個案投放時間過少 ☐ 其他： ______☐ 聘請律師 ☐ 取得幫助需時太長 ☐ 需要過多資產證明 ☐ 機構未能提供幫助：______☐ 需要過多案件的資料 ☐ 對個案投放時間過少 ☐ 其他： ______

（可選）如您想進一步詳細討論您的法律問題，請提供您的姓名和聯絡電話：______

2

84 | This Way – Finding Community Legal Assistance in Hong Kong APPENDIX 5A: ADDITIONAL INFORMATION FROM NGO SURVEY

Communities Served By NGOs

1. Women 2. Low income 3. Children (under 18) 3. Domestic violence victims 3. Elderly (60+) 3. Ethnic minorities 3. Migrant workers 3. New arrivals 9. Youth (18 to 25) 10. Sex workers 11. Homeless 12. People with physical disabilities 12. Refugees 13. People with developmental and intellectual disabilities 13. People with mental disabilities 13. Sexual minorities

Areas of Legal Problems Encountered by NGOs’ Clients

1. Criminal 2. Discrimination 3. Housing 4. Labour/Employment 5. Immigration 6. Social welfare 6. Consumer 6. Family 9. Domestic violence 10. Personal injury 11. Wills and probate 12. Others

| 85 APPENDIX 5B: ADDITIONAL INFORMATION FROM SOCO STAFF SURVEY

Gender Distribution

Male Female 49% 51%

86 | This Way – Finding Community Legal Assistance in Hong Kong APPENDIX 5C: ADDITIONAL INFORMATION FROM SOCO COMMUNITY SURVEY

Age Distribution

No answer provided 18-24 4% 3%

65+ 25-34 10% 14% 55-64 9%

45-54 35-44 24% 36%

Self-Identified Community Type of Housing

Self-identified as women 180 56% Public housing 138 44% Self-identified as new arrival 128 40% Sub-divided housing 115 35% Self-identified as sub-divided 83 26% or boarding house tenant Private housing 49 15% Self-identified as elderly 33 10% Other 8 3% Self-identified as other 27 8% No answer provided 7 2% No answer provided 13 4% Boarding house 2 1% Self-identified as homeless 0 0% Street/homeless 1 0% Shelter 0 0%

Household Income

Under $4,000 28 9% $4,000 – $5,999 28 9% $6,000 – $7,999 36 11% $8,000 – $9,999 39 12% $10,000 – $14,999 103 32% $15,000 – $19,999 50 16% $20,000 – $24,999 4 1% $25,000 – $29,999 3 1% $30,000 – $34,999 2 1% $35,000 – $39,999 0 0% $40,000 – $44,999 0 0% $45,000+ 1 0.0 03115265 No answer provided 20 6%

| 87 Source of Income

Other No answer provided 2% 2%

Social Welfare Employment 36% 46%

Self-Employed Family 3% 9%

NGO Friends 1% 1%

Number of Issues Per Household

30

25

20

15 # Households# 10

5

0 1 2 3 4 5 6 7 8 9 10 11 12 13 14

# Legal Issues

88 | This Way – Finding Community Legal Assistance in Hong Kong APPENDIX 5D: SOCO INTERVIEWEES’ BACKGROUND AND ISSUES

Interviewee Gender Background Issue(s) A M Young adult Hired pending criminal background check. Once the criminal background check came back, he was fired via What’s App with no formal notice. Not provided due process. B F New arrival CSSA prosecution for alleged fraud because she did not report she was working. While investigated, CSSA made Sub-divided housing tenant her sign documents and enter into a payment plan, with which she complied. But criminal charges were still going to be filed against her. C F New arrival Applicant needed legal papers to show legal guardianship to apply for CSSA. Legal Aid application was too complicated so she withdrew it and forfeited her CSSA application. D M Elderly Undocumented elder was arrested due to theft. He was facing criminal charges and deportation. Eventually served time but did receive his recognizance papers and HKID. E F Non-permanent resident Needed legal guardianship papers before grandchild could apply for public housing. F M Youth Criminal defence for alleged assault. Assistance provided by Duty Lawyer Scheme. G F New arrival Criminal defence for alleged illegal bookmaking. Plead guilty but was unrepresented. H M Homelessness Applied for public housing but was and is still waitlisted because he is single. Believes that singles are being discriminated against. While homeless, he got into a altercation and provided a statement to the police without legal representation. I M Elderly Landlord was negotiating with tenant after lease expired and retroactively applied the increase without tenant’s Sub-divided housing tenant consent. Tenant settled for half of his security deposit after suing in small claims court without legal advice or representation. J M Disabled Tenant was told to leave by the marshal without any prior notice. Tenant found out he was a sub-tenant. While Sub-divided housing tenant dealing with his physical disability he filed papers for a stay and paid the filing fee even though he would starve. Due to a technical mistake by the landlord, the case was dismissed. However, he lost his security deposit and did not pursue it after being told that small claims court would not hear these cases. K F New arrival Wants to file for divorce from husband and had to complete the paperwork herself with no legal assistance. Needs assistance with obtaining guardianship of her two grandchildren to include them in the public housing application.

| 89 APPENDIX 6: THE LAW SOCIETY OF HONG KONG’S PRACTISING CERTIFICATE APPLICATION FORM

90 | This Way – Finding Community Legal Assistance in Hong Kong | 91 92 | This Way – Finding Community Legal Assistance in Hong Kong | 93 APPENDIXThe 7: Law THE Society LAW of SOCIETY Hong Kong OF HONG KONG’S CIRCULAR 16-609 Page 1 of 2 (DATED 1 AUGUST 2016) PLUS GUIDELINES, APPLICATION AND DECLARATION.

Index Reference: Solicitors

CIRCULAR 16-609 (COM) 1 August 2016

APPLICATIONS FOR EXEMPTION UNDER RULE 7 OF THE SOLICITORS (PROFESSIONAL INDEMNITY) RULES PRO BONO LEGAL SERVICES

1. Rule 6(1) of the Solicitors (Professional Indemnity) Rules (Cap 159 sub leg) ("the Rules") provides that: "(1) Subject to rule 7, every solicitor who is, or is held out to the public as, a solicitor in Practice in Hong Kong shall be required to have and maintain Indemnity." Rule 7 of the Rules provides that: "(1) Rule 6 shall not apply to a solicitor or a class of solicitors for the time being exempted by the Council from compliance with these rules or to a solicitor or a class of solicitors engaged only in a category or categories of professional business specified by the Council. (2) The Council may- a. exempt from compliance with these rules any solicitor or any class of solicitors specified by the Council; b. exempt from compliance with these rules any solicitor or any class of solicitors engaged only in a category or categories of professional business specified by the Council; c. grant such exemption either indefinitely or for a specified period or subject to such other conditions as the Council may from time to time determine; and d. revoke any exemption granted." 2. The Council has adopted the view that if a solicitor is held out to the public as providing pro bono services and does so with some degree of formality and regularity, as opposed to an informal one-off basis, the solicitor will be carrying on a Practice falling within the scope of rule 6 of the Rules. Further, if the pro bono legal services are offered in the solicitor's personal capacity and not as part of the practice of his or her law firm, the pro bono services will not be covered by the Indemnity to which the firm is entitled under the Rules. In such circumstances, in order not to breach rule 6(1) of the Rules, an exemption must be obtained pursuant to rule 7 of the Rules before taking on such pro bono services.

http://www.hklawsoc.org.hk/mem/circular/eCircular.asp?id=918900&fileno=16517 28/10/2016

94 | This Way – Finding Community Legal Assistance in Hong Kong The Law Society of Hong Kong Page 2 of 2

3. The Council has approved the guidelines and the forms for applications under rule 7 of the Rules for exemption from the requirements of rule 6(1) of the Rules in relation to pro bono legal services. Please click the below links for a. Guidelines for Applications for Exemption from the Requirements to have and maintain Professional Indemnity under the Solicitors (Professional Indemnity) Rules in relation to Pro Bono Legal Services; b. Application form; and c. Declaration of Applicant. 4. Applications should be made to the Chairman of the Consents Committee. 5. Any inquiries relating to the application procedure can be directed at the Assistant Director, Registration at [email protected]. Any inquiries relating to the Rules can be directed at the Assistant Director, Professional Indemnity Scheme at [email protected].

Printed on : 28/10/2016 16:36:42 Copyright © 2016 The Law Society of Hong Kong. All Rights Reserved. Powered by Peernet Company Limited.

http://www.hklawsoc.org.hk/mem/circular/eCircular.asp?id=918900&fileno=16517 28/10/2016

| 95 GUIDELINES FOR APPLICATIONS FOR EXEMPTION FROM THE REQUIREMENTS TO HAVE AND MAINTAIN PROFESSIONAL INDEMNITY UNDER THE SOLICITORS (PROFESSIONAL INDEMNITY) RULES IN RELATION TO PRO BONO LEGAL SERVICES

I. Relevant statutory provisions

1. Section 7 of the Legal Practitioners Ordinance (Cap 159) provides that

“No person shall be qualified to act as a solicitor unless- (a) his name is for the time being on the roll of solicitors;

(b) he is not suspended from practice;

(c) he has in force a current practising certificate; and

(d) he is complying with any indemnity rules made by the Council under section 73A that apply to him or is exempt from them.”

2. Solicitors (Professional Indemnity) Rules (Cap 159 sub leg)(“Professional Indemnity Rules”)

Rule 6(1):

“Subject to rule 7, every solicitor who is, or is held out to the public as, a solicitor in Practice in Hong Kong shall be required to have and maintain Indemnity.”

Rule 7

“(1) Rule 6 shall not apply to a solicitor or a class of solicitors for the time being exempted by the Council from compliance with these rules or to a solicitor or a class of solicitors engaged only in a category or categories of professional business specified by the Council.

(2) The Council may- (a) exempt from compliance with these rules any solicitor or any class

Waiver guidelines under R7 20160801

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96 | This Way – Finding Community Legal Assistance in Hong Kong of solicitors specified by the Council;

(b) exempt from compliance with these rules any solicitor or any class of solicitors engaged only in a category or categories of professional business specified by the Council;

(c) grant such exemption either indefinitely or for a specified period or subject to such other conditions as the Council may from time to time determine; and

(d) revoke any exemption granted.”

II. Scope of the guidelines

3. These guidelines apply to the situation where a solicitor wishes to provide pro bono legal services to the public in his professional capacity in a way that amounts to the carrying on of a Practice as defined in the Professional Indemnity Rules, but does not have Indemnity as required under those Rules.

4. The Law Society adopts the view that if a solicitor is held out to the public as providing pro bono services and does so with some degree of formality and regularity, as opposed to an informal one-off basis, the solicitor will be carrying on a Practice falling within the scope of rule 6 of the Professional Indemnity Rules.

5. Typically, if a solicitor provides pro bono legal services as part of the practice of his or her law firm which is entitled to Indemnity in accordance with the Professional Indemnity Rules, no application for exemption is required.

6. However, if the pro bono legal services are offered in the solicitor’s personal capacity and not as part of the practice of his or her law firm, the pro bono services will not be covered by the Indemnity to which the firm is entitled under the Professional Indemnity Rules. In such circumstances, in order not to breach rule 6(1) of the Professional Indemnity Rules, an exemption must be obtained pursuant to rule 7 of those Rules before taking on such pro bono services.

Waiver guidelines under R7 20160801

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| 97

III. Pre requisite conditions

7. An applicant must satisfy the Law Society that in addition to being exempted pursuant to rule 7 of the Professional Indemnity Rules from the requirements of rule 6, he or she is also qualified to provide the pro bono legal services as a solicitor; i.e. he or she complies with section 7(a) to (c) of the Legal Practitioners Ordinance.

IV. Factors to consider in an application for exemption

8. All applications are considered on a case-by-case basis on the particular circumstances.

9. In considering an application, the Law Society will consider the following factors:

(a) In performing the pro bono work, whether the applicant will be in breach of any laws, rules and regulations applicable to him or her;

(b) whether the organization on behalf of which or to which the applicant provides pro bono services has a system in place which is acceptable to the Society. When considering whether or not an acceptable system is in place for the purposes of granting an exemption, the Law Society may take into account any relevant factors including, but not limited to:

(i) whether the organization has professional indemnity insurance that protects the applicant in a manner and to an extent similar to that provided in the Solicitors (Professional Indemnity) Rules;

(ii) whether the organization has the necessary mechanisms in place to assist the applicant to comply with all applicable professional ethical standards and requirements, including but not limited to polices on confidentiality, record keeping and conflict of interests*;

(iii) whether the organization charges the public a fee for the pro bono services and whether the applicant provides the pro bono services

Waiver guidelines under R7 20160801

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98 | This Way – Finding Community Legal Assistance in Hong Kong for free to the public taking into account the prohibition against profit sharing between solicitors and unqualified persons.

*Conflicts to consider include but are not limited to: a) two or more clients who have conflicting interests to each other. b) one or more clients where the other party to the legal problem is a former client of the organization. c) Acting against the organization itself. d) Acting against an agency, charity or university which is hosting the organization. e) Acting against a law firm which a solicitor volunteer works for.

V. Procedure

10. The Council has delegated to the Consents Committee its power to consider exemption applications under these guidelines.

11. Exemptions, if granted, are on a yearly basis in view of the possible changes in the visions of organizations and the annual renewal of the professional indemnity insurance of the organizations.

12. Applicants are required to show evidence of their entitlement to indemnity by providing a certified copy of the full set of the professional indemnity insurance policy of the organization on behalf of which or to which they provide pro bono services.

13. If applicable, an applicant is required, in addition to paragraph 12, to provide a Statutory Declaration declaring that the professional indemnity insurance of the organization is in a manner and to an extent similar to that provided in the Professional Indemnity Rules.

14. A cheque for HK$1,000 being the application fee should be made payable to “The Law Society of Hong Kong” with the application.

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| 99 The Law Society of Hong Kong Form: Rule 7 PIS Rules

APPLICATION UNDER RULE 7 OF THE SOLICITORS (PROFESSIONAL INDMENITY) RULES FOR EXEMPTION FROM THE REQUIREMENTS OF RULE 6(1) IN RELATION TO PRO BONO LEGAL SERVICES

Name: HKID no: Address:

Tel. No.: E-mail: 1. I apply for an exemption pursuant to Rule 7 of the Solicitors (Professional Indemnity) Rules, Cap. 159M (“the Rules”) from the requirements of Rule 6(1) of the Rules. 2. I provide pro bono services (i) to ______(name of organization) and/or (ii) to the public on behalf of ______(name of organization). 3. The organization to which and/or on behalf of which I provide pro bono services has a policy of insurance under which I am entitled to be indemnified in respect of the pro bono services that I provide. 4. The policy of insurance referred to in 3. above, q is*# / q is not# in a manner and to an extent similar to the indemnity provided by the Professional Indemnity Scheme set out in the Rules. (*I attach a signed Declaration of Applicant) (# I attach a certified copy of the complete policy) 5. The organization to which and/or on behalf of which I provide pro bono services, q has / q has not the system in place to assist me to comply with all applicable professional ethical standards and requirements, including but not limited to polices on confidentiality, record keeping and conflict of interests. q charges / q does not charge the public for a fee for the pro bono services I provide. 6. My name is on the roll of solicitorsØ. 7. I am not suspended from practice as a solicitor. 8. I have in force a current practising certificate issued by the Law Society. 9. To the best of my knowledge, information and belief in performing the pro bono work, I will not be in breach of any laws, rules and regulations applicable to me. 10.A cheque for HK$1,000 as application fee payable to “The Law Society of Hong Kong” is enclosed.

I confirm that I am the applicant described in this Application and that the above information is true and accurate.

Signature of Applicant:______Date:______

Ø The roll of solicitors is a document kept by the Registrar of the High Court. In the event the Law Society cannot verify your name on its records, you will need to apply for a Registrar Certificate and submit it to the Law Society.

(nn2606537)

100 | This Way – Finding Community Legal Assistance in Hong Kong Personal Information Collection Statement

The personal data collected in this Application (“the data”) will be used by the Law Society of Hong Kong (“the Society”) for the following purposes:

(i) The processing of this Application and related matters; (ii) The exercise of the powers of the Society conferred upon it under the Legal Practitioners Ordinance (Chapter 159) and its subsidiary legislation; and (iii) The performance of the functions of the Society in accordance with its Memorandum and Articles of Association and the attainment of the objects for which the Society is established.

In making this Application, it is obligatory for you to supply the Society with the data requested in this application form except as otherwise indicated. The consequence for you if you fail to supply such data is that the Society will not be able to process this Application.

The data may be provided to such persons within the Society whose proper business it is to carry out the purposes above mentioned. The data may also be provided to other persons who may help the Society in attaining the purposes above mentioned.

Any data that is provided to anyone outside of the Society will be restricted to what is necessary and not excessive to achieve any intended purpose.

You have the right to request access to and correction of the data. Any such request should be addressed to the Secretary General, the Law Society of Hong Kong, 3/F, Wing On House, 71 Des Voeux Road Central, Hong Kong.

The Privacy Policy Statement of the Society is available on its website at www.hklawsoc.org.hk.

| 101 DECLARATION OF APPLICANT

PROFESSIONAL INDEMNITY INSURANCE

I, ______, of ______(full name as stated in Hong Kong ID card ) (address)

______DO

SOLEMNLY AND SINCERELY DECLARE THAT:

The professional indemnity insurance for (Name of Organization) under which I am entitled to be indemnified in respect of the pro bono services I provide is in a manner and to an extent similar to the indemnity provided by the Professional Indemnity Scheme set out in the Solicitors (Professional Indemnity) Rules, Cap. 159M, namely,

i) I am entitled to be indemnified for not less than HK$10 million in respect of each and every claim (inclusive of costs) with no aggregate limit; and

ii) indemnity is provided against loss brought about by the fraud or dishonesty of the employees of the organization or the indemnified other than that occurring as a result of recklessness or dishonesty or a fraudulent act or fraudulent omission on the part of the officer in charge in the conduct or management of the organization.

AND I MAKE THIS SOLEMN DECLARATION CONSCIENTIOUSLY BELIEVING THE SAME TO BE TRUE AND BY VIRTUE OF THE OATHS AND DECLARATIONS ORDINANCE.

______Signature of the Applicant

Declared before me at______(detailed address) ______, this ______day of ______20_____.

______Signature of the Notary Public, Commissioner for Oaths, or other person authorised by the Oaths and Declarations Ordinance to take declarations.

- 1 -

102 | This Way – Finding Community Legal Assistance in Hong Kong ENDNOTES

| 103 ENDNOTES

1 Poverty rate for 2015 is 19.7%, the highest since 2009; bringing the total poor population to 1.34 million. See Jeffie Lam, “Hong Kong government slammed as poverty figure hits six-year high”, South China Morning Post, 16 October, 2016, http://www.scmp.com/news/hong-kong/politics/article/2028422/hong-kong-government-slammed-poverty-figure-hits-six- year. 2 Gini Coefficient released by Hong Kong Government is 0.533 for 2006, and 0.537 for 2011, with the next data for 2016 due to be released in mid-2017. See Fact Sheet, Hong Kong in Figures (data as at 31 March, 2016), Research Office of the Legislative Council Secretariat, http://www.legco.gov.hk/research-publications/english/1516fs01-hong-kong-in-figures- 20160406-e.pdf. Compare the Gini Coefficient for OECD countries. See “Income Distribution and Poverty”, table, OECD Income Distribution Database (IDD): Gini, Poverty, Income, Methods and Concepts, 2016, http://www.oecd. org/social/income-distribution-database.htm. In comparison, the figure for China is 0.469 for 2014, and note the World Bank considers a Gini Coefficient above 0.4 to represent severe inequality. See Gabriel Wildau and Tom Mitchell, “China Income Inequality Among World’s Worst”, Financial Times, 14 January, 2016, https://www.ft.com/content/3c521faa-baa6- 11e5-a7cc-280dfe875e28. 3 Jeffie Lam and Raymond Yeung, “Hong Kong’s Richest Earn 29 Times of What Poorest Get Paid Despite Government Efforts to Fight Poverty: Report”, South China Morning Post, 11 October, 2016, http://www.scmp.com/news/hong-kong/ economy/article/2027090/hong-kongs-richest-earn-29-times-more-poorest-despite. 4 Jennifer Ngo, “Working Poor Households Increase Alarmingly despite Hong Kong Government’s Attempts to Reduce Poverty since 2013”, South China Morning Post, 30 September, 2015, http://www.scmp.com/news/hong-kong/economy/ article/1862580/working-poor-households-increase-alarmingly-despite-hong-kong. 5 Carrie Lam, “Analysis of the 2015 Poverty Situation”, PowerPoint presentation, Commission on Poverty, 15 October, 2016, http://www.povertyrelief.gov.hk/pdf/2015poverty_pp_e.pdf. 6 See “People Living in Sub-Divided Units by Age and Sex”, table, Trapped - Photo Exhibition on Grassroots Housing in Hong Kong 2016, Society for Community, http://www.soco.org.hk/trapped/; see also “Thematic Household Survey Report No. 60: Housing Conditions of sub-divided units in Hong Kong”, March 2016, 17, http://www.statistics.gov.hk/pub/ B11302602016XXXXB0100.pdf. 7 Rent index has risen 88.6% in the past 10 years, according to SoCO. Trapped, Ibid. See also “Number of Applications and Average Waiting Time for Public Rental Housing”, Hong Kong Housing Authority, https://www.housingauthority.gov. hk/en/about-us/publications-and-statistics/prh-applications-average-waiting-time/. 8 Peggy Sito and Sandy Li Ngo, “Hong Kong the World’s Priciest Home Market for the Seventh Year”, South China Morning Post, 23 January, 2017, http://www.scmp.com/business/article/2064554/hong-kong-named-most-expensive- housing-market-world-seventh-straight-year. 9 For literature on importance of early legal advice and how it can help prevent the “cascading” of legal problems, see, for example, work by Hazel Genn, T. Goriely and A. Paterson. 10 For more information on the relationship between legal empowerment and poverty alleviation, see United Nations General Assembly, Legal Empowerment of the Poor and Eradication of Poverty — Report of the Secretary-General, July 2009, http://www.un.org/esa/socdev/documents/reports/Legal%20empowerment%20of%20the%20poor.pdf. See also Paul Prettitore, ‘Does Legal Aid Reduce Poverty?’ Brookings Institute, 23 June, 2015, https://www.brookings.edu/blog/future- development/2015/06/23/does-legal-aid-reduce-poverty/

104 | This Way – Finding Community Legal Assistance in Hong Kong 11 The same commitment has been included in the annual Policy Agenda since at least 2014: Policy Agenda 2014, 138, http://www.policyaddress.gov.hk/2014/eng/pdf/Agenda_Ch8.pdf; Policy Agenda 2015, 181, http://www.policyaddress.gov. hk/2015/eng/pdf/Agenda_Ch8.pdf; Policy Agenda 2016, 199, http://www.policyaddress.gov.hk/2016/eng/pdf/Agenda_Ch8. pdf; and Policy Agenda 2017, 199, http://www.policyaddress.gov.hk/2017/eng/pdf/Agenda_Ch8.pdf. 12 See reports under “Legal aid”, The Guardian, https://www.theguardian.com/law/legal-aid. 13 National Legal Needs & Strategic Planning Project (Feb 2012, Australia); Listening to Ontarians: Report of the Ontario Civil Legal Needs Project (2010); Online survey of individuals’ handling of legal issues in England and Wales 2015; Report of the Legal Aid Review Committee of the Law Society of Singapore, October 2006. 14 There will be more in Part 1 of this Report on the “Paths to Justice” methodology, as this was the legal needs assessment tradition adopted by Dr Margaret Ng in her 2001 Paths to Justice report in Hong Kong. The 2008 DOJ Report also appears to be influenced by this methodology. For more information on this methodology see the “Paths to Justice: A Past, Present and Future Roadmap” project, http://www.nuffieldfoundation.org/paths-justice-past-present-and- future-roadmap. For an example of other methodologies see also The Hague Institute for the Internationalisation of Law, which has a “Measuring Justice” team: http://www.hiil.org/audiences/justice-needs-satisfaction-tool. 15 Alan Schiffman, interview by Tze-wei Ng and Jennifer Yi Man Cheung, 26 September 2016. 16 Margaret Ng, Paths to Justice: A preliminary study on the channels of free legal advice available in Hong Kong, (July 2001). 17 Genn and Pleasance have conducted much research on how law as experienced by disadvantaged and socially excluded groups display unique characteristics: certain groups are particularly vulnerable to the experience of “justiciable problems” as compared to the general public (e.g. people with disability or long-term illness, those on a very low income, lone parents); they have lower level of awareness of the availability of services or more prone to misconceptions of how services operate; they are more likely not to act on their claims and face a stronger sense of powerlessness. In addition, one justiciable problem often increases the likelihood of experiencing further problems; and there are particular “problem clusters” i.e. problems that tend to happen together, e.g. domestic violence and divorce, homelessness and unfair police treatment, welfare benefits and mental health, employment and debt. Therefore, in order to truly assess the needs of the community, a specific study is required and we need to take into consideration of “this complexity of legal need and advice-seeking behavior.” See, for example, Pascoe Pleasence, Alexy Buck, Marisol Smith, Nigel Balmer & Ashish Patel, “Needs assessment and the Community Legal Service in England and Wales”, International Journal of the Legal Profession, Vol.11, No.3, November 2004. 18 62.7% of unrepresented litigants interviewed cannot afford to engage lawyers, according to The Report of the Steering Committee on the Resource Centre for Unrepresented Litigants, December 2003, http://rcul.judiciary.hk/rc/eng/screport/ RC%20Report.pdf. For more on background of Report: Legislative Council Panel on Administration of Justice and Legal Services, Resource Centre or Unrepresented Litigants, For Discussion on 18 December 2003, para 5, http://www.legco. gov.hk/yr03-04/english/panels/ajls/papers/aj1218cb2-731-4e.pdf. 19 Legal Aid in Hong Kong, Legal Aid Services Council, 2006, http://www.lasc.hk/eng/publications/legal-aid.html. 20 Asia Consulting Group and Policy 21, Consultancy Study on the Demand for and Supply of Legal and Related Services, Department of Justice, 2008, available at http://www.doj.gov.hk/eng/public/consultancy.html. 21 Ibid. 290, http://www.doj.gov.hk/eng/public/pdf/2008/reports/combined.pdf. 22 Ibid. 262, http://www.doj.gov.hk/eng/public/pdf/2008/reports/combined.pdf. 23 Ibid. 270, http://www.doj.gov.hk/eng/public/pdf/2008/reports/combined.pdf. 24 Ibid. 260 and 270, http://www.doj.gov.hk/eng/public/pdf/2008/reports/combined.pdf.

| 105 25 Paths to Justice: e.g. Law week: landlord and tenant, personal injury, employment, criminal, matrimonial, probate, property; Unrepresented Litigants Report: “Other civil action/unspecified civil case,” bankruptcy, family; 2008 DOJ Study: e.g. for legislative and district councillors – debts and bankruptcy, wills and probate, matrimonial and family, employment, landlord and tenant, land and property, building management; 2008 DOJ Study: e.g. for NGOs – matrimonial and employment. 26 There is a chance of repeat as the forms were filled anonymously, and some community members said they did not remember whether they filled out the form at previous events. 27 See note 17. 28 Both Professor Simon Young at the Faculty of Law at The University of Hong Kong and Legislative Council Member Dennis Kwok are strong proponents of advocating for legal representation at police stations when one is detained. Currently the issue is proposed to be discussed in the second quarter of 2017. Simon NM Young, “A Lack of Access to Lawyers in Hong Kong Is Endangering Suspect’s Right to a Fair Trial”, HKU Legal Scholarship Blog, entry posted April 9, 2015, http://researchblog.law.hku.hk/2015/04/simon-young-on-right-to-counsel-gap-in.html; Legislative Council Panel on Administration of Justice and Legal Services, List of Outstanding Items for Discussion, 11, 19 January, 2017, http://www. legco.gov.hk/yr16-17/english/panels/ajls/papers/ajls20170123cb4-426-1-e.pdf. 29 Legal Aid in Hong Kong, 185, http://www.lasc.hk/download/legalaid/08.pdf. 30 Geoffrey Robertson, “Pam Baker”, The Guardian, 27 April 2002, https://www.theguardian.com/news/2002/apr/27/ guardianobituaries. 31 Cliff Buddle and Genn Schloss, “Spirit of Crusader Pam Baker Celebrated”, South China Morning Post, 22 May, 2002, http://www.scmp.com/article/380305/spirit-crusader-pam-baker-celebrated. 32 Paths to Justice Report, 13. 33 Website of CLIC: http://www.clic.org.hk/en/aboutus.shtml. For more background information on CLIC: “One CLIC to Knowing the Law”, The University of Hong Kong Knowledge Exchange, http://www.ke.hku.hk/newsletter/issue7/clic. 34 “Assign - out,” Legal Aid Department, http://www.lad.gov.hk/eng/lap/assign.html. 35 2016 Policy Address: Policy Initiatives of the Home Affairs Bureau, Legislative Council Panel on Administration of Justice and Legal Services, 3, http://www.legco.gov.hk/yr15-16/english/panels/ajls/papers/ajls20160125cb4-485-4-e.pdf. See also “Vision, Mission & Values”, Legal Aid Department, http://www.lad.gov.hk/eng/ginfo/vmv.html. 36 Legal Aid in Hong Kong, 12-13, http://www.lasc.hk/download/legalaid/02.pdf. 37 “Sandwich class” is the class stuck between the very poor and very rich. Chris Hogg, “Hong Kong’s ‘Sandwich Class’ Face Housing Woes,” BBC News (Hong Kong), 15 May, 2011, http://www.bbc.com/news/business-13385794. 38 Legal Aid in Hong Kong, 16. 39 Committal proceedings are proceedings before a Magistrate for determining whether or not there is enough evidence against a defendant for a criminal case to be transferred to the High Court for trial or sentence, http://www.hkclic.org/ glossary.html#c. 40 Scope, For Criminal Cases, Legal Aid Department, http://www.lad.gov.hk/eng/las/criminal/scope.html. 41 Types of cases covered by OLAS include matrimonial cases, traffic accident claims, landlord and tenant disputes, claims in respect of industrial accidents, employees’ compensation, immigration matters, breach of contract, professional negligence, seamen’s wage claims, employee’s wages and related employment benefits, Mental Health Review Tribunal Cases and Coroners inquests involving interests of public justice. Since 30 November 2012, OLAS has been

106 | This Way – Finding Community Legal Assistance in Hong Kong expanded to cover monetary claims in derivatives of securities, current futures or other futures contracts when fraud, misrepresentation or deception is involved in respect of the sale. See Ordinary Legal Aid Scheme – Scope, For Civil Cases, Legal Aid Department, http://www.lad.gov.hk/eng/las/civil/olas.html. 42 Since 30 November 2012, SLAS has been expanded to cover new types of cases where the claim is likely to exceed $60,000: professional negligence claims against certified public accountants (practising), registered architects, registered professional engineers, registered professional surveyors, registered professional planners, authorised land surveyors, registered landscape architects and estate agents; negligence claims against insurers or their intermediaries in respect of the taking out personal insurance products; and monetary claims against vendors in the sale of completed and uncompleted first-hand residential properties. See Supplementary Legal Aid Scheme – Scope, For Civil Cases, Legal Aid Department, http://www.lad.gov.hk/eng/las/civil/slas.html. 43 Eligibility Criteria, For Criminal Cases, Legal Aid Department, http://www.lad.gov.hk/eng/las/criminal/ec.html. 44 Ordinary Legal Aid Scheme, For Civil Cases, Legal Aid Department, http://www.lad.gov.hk/eng/las/civil/olas.html. 45 Supplementary Legal Aid Scheme, For Civil Cases, Legal Aid Department, http://www.lad.gov.hk/eng/las/civil/slas.html. 46 Ordinary Legal Aid Scheme, For Civil Cases, Legal Aid Department, http://www.lad.gov.hk/eng/las/civil/olas.html; Eligibility Criteria, For Criminal Cases, Legal Aid Department, http://www.lad.gov.hk/eng/las/criminal/ec.html; Financial Eligibility, Legal Aid Department, http://www.lad.gov.hk/eng/las/fe.html. 47 “Sandwich class” is the class stuck between the very poor and very rich. See note 37. 48 Supplementary Legal Aid Scheme, For Civil Cases, Legal Aid Department, http://www.lad.gov.hk/eng/las/civil/slas.html 49 Legal Aid Department, Financial Information and New Financial Eligibility, Note 1, 27 February 2017, http://www.lad.gov. hk/eng/documents/wnew/FinInfoSheet_e.pdf. Ordinary Legal Aid Scheme – Eligibility Criteria, For Civil Cases, Legal Aid Department, http://www.lad.gov.hk/eng/las/civil/olas.html 50 Legal Aid Department, Financial Information and New Financial Eligibility, Note 1, 27 February 2017, page 2, http:// www.lad.gov.hk/eng/documents/wnew/FinInfoSheet_e.pdf. See also Eligibility Criteria, For Criminal Cases, Legal Aid Department, http://www.lad.gov.hk/eng/las/criminal/ec.html. 51 Contribution towards Costs of Legal Aid Case and Director of Legal Aid’s First Charge, Legal Aid Department, http:// www.lad.gov.hk/eng/documents/ppr/publication/contribution.pdf . 52 Channel of Appeal against Refusal, Legal Aid Department, http://www.lad.gov.hk/eng/las/criminal/caar.html. 53 Ibid. 54 Appeals Against Decisions, Legal Aid Department, http://www.lad.gov.hk/eng/las/civil/aad.html. Channel of Appeal against Refusal, Legal Aid Department, http://www.lad.gov.hk/eng/las/criminal/caar.html. 55 Application Procedure, For Criminal Cases, Legal Aid Department, http://www.lad.gov.hk/eng/las/criminal/ap.html. 56 Performance Pledge on Processing Time, Legal Aid Department, http://www.lad.gov.hk/eng/ginfo/op.html. 57 Ibid. 58 Application Procedure, For Civil Cases, Legal Aid Department, http://www.lad.gov.hk/eng/las/civil/ap.html. 59 How to Apply – Legal Aid in Civil Cases, Legal Aid Department, http://www.lad.gov.hk/eng/documents/ppr/publication/ leaflet(e1).pdf. 60 Performance Pledge on Processing Time, Legal Aid Department, http://www.lad.gov.hk/eng/ginfo/op.html.

| 107 61 Application Procedure, For Civil Cases, Legal Aid Department, http://www.lad.gov.hk/eng/las/civil/ap.html. 62 Legal Aid Contributions - Supplementary Legal Aid Scheme, Legal Aid Department, http://www.lad.gov.hk/eng/las/lac/ slas.html. 63 Ibid. 64 Contribution towards Costs of Legal Aid Cases and Director of Legal Aid’s First Charge, Legal Aid Department, http:// www.lad.gov.hk/eng/documents/ppr/publication/contribution.pdf; Financial Information and New Financial Eligibility, Legal Aid Department, 27 February 2017, http://www.lad.gov.hk/eng/documents/wnew/FinInfoSheet_e.pdf. 65 Contribution towards Costs of Legal Aid Cases and Director of Legal Aid’s First Charge, Legal Aid Department, 2-3, http://www.lad.gov.hk/eng/documents/ppr/publication/contribution.pdf. 66 Legal Aid Contributions – Ordinary Legal Aid Scheme in Civil Cases, Legal Aid Department, http://www.lad.gov.hk/eng/ las/lac/olascc.html; Legal Aid Contributions - Ordinary Legal Aid Scheme in Criminal Cases, Legal Aid Department, http:// www.lad.gov.hk/eng/las/lac/lacc.html. 67 Information Paper – Replies to Questions Raised by Legislative Council Members in Connection with the Examination of Estimates of Expenditures 2016-2017, Legal Aid Service Council, 21, www.lasc.hk/download/cm/IP%2016-13.pdf. 68 Legal Aid Contributions - Supplementary Legal Aid Scheme, Legal Aid Department, http://www.lad.gov.hk/eng/las/lac/ slas.html. 69 For (i) medical, dental and legal professional negligence claims, (ii) professional negligence claims against certified public accountants (practising), registered architects, registered professional engineers, registered professional surveyors, registered professional planners, authorised land surveyors, registered landscape architects and estate agents, (iii) negligence claims against insurers or their intermediaries in respect of the taking out of personal insurance products, and (iv) monetary claims against vendors in the sale of completed or uncompleted first-hand residential properties, the contribution is 10% of the assessed financial resources or $72,595 depending on which one is higher. Ibid. 70 Ibid. 71 Director of Legal Aid’s First Charge, Legal Aid Department, http://www.lad.gov.hk/eng/las/dla.html 72 Ibid. An example on point is a case where a client received $500,000 for maintenance, but Legal Aid took away $300,000 for the representation. Ada Wong, interview by Tze-wei Ng and Jennifer Yi Man Cheung, 3 October, 2016. 73 The 2017-2018 Budget, Head 94 — Legal Aid Department, http://www.budget.gov.hk/2017/eng/pdf/head094.pdf 74 Ibid. 75 Ibid. 76 Ibid. 77 Legal Aid Statistical Highlights, Research Office of the Legislative Council Secretariat, 1, 15 December 15, 2016, http:// www.legco.gov.hk/research-publications/english/1617issh14-legal-aid-20161215-e.pdf. See also table compiled by PILnet from Annual Reports, Legal Aid Department, Chapter 2, 2005 to 2015:

108 | This Way – Finding Community Legal Assistance in Hong Kong 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 Matrimonial Cases – Applications received 10,031 10,188 9,069 8,430 9,171 8,366 7,856 7,749 7,353 7,152 6,564 – Certificates issued 5,986 6,069 5,141 4,536 5,213 4,580 4,137 4,046 3,775 3,457 N/A Personal Injuries – Applications received 3,802 4,013 3,768 4,110 5,040 5,098 5,868 5,798 5,555 5,752 5,491 – Certificates issued 1,887 2,458 2,100 2,245 2,856 2,905 3,471 3,445 3,502 3,333 N/A Land & Tenacy Disputes – Applications received 381 430 366 333 334 354 386 516 507 533 551 – Certificates issued 31 68 55 44 41 83 82 92 107 115 N/A Employment Disputes – Applications received 145 148 85 86 76 89 87 176 80 43 166 – Certificates issued 29 46 22 21 8 39 24 82 35 4 Not available Immigration Matters – Applications received 151 429 317 249 135 118 231 313 225 141 136 – Certificates issued 18 53 41 45 17 34 35 55 30 57 N/A Wage Claims – Applications received 762 506 372 327 358 171 106 98 81 75 68 – Certificates issued 574 374 260 247 279 159 98 78 56 61 N/A Others – Applications received 1,692 1,708 1,621 1779 2,243 1,928 1,946 1,883 1,890 2,592 2,189 – Certificates issued 216 288 318 375 617 463 450 373 358 499 N/A

78 Number of Applications and Certificates under the Supplementary Legal Aid Scheme, Legal Aid Department, http:// www.lad.gov.hk/eng/statistics/app_cert_slas.html. 79 Various interviewees mentioned this, e.g. Richard Tsoi, phone interview by Tze-wei Ng, 10 May 2017. 80 The lack of Legal Aid for judgment summons has recently been challenged in YBL v. LWC [2016] HKCA 629. The Court said that there is an urgent need to review the procedures of judgments summons in line with “right to fair trial” under Articles 10 and 11 of The Bill of Rights, and therefore the “Director of Legal Aid would also have to review the current policy of not providing representation in judgement summons”. See http://www.hklii.hk/eng/hk/cases/hkca/2016/629.html. 81 Michael Vidler, phone interview by Tze-wei Ng, 5 May 2017. 82 Legal Aid in Hong Kong, 190, http://www.lasc.hk/download/legalaid/08.pdf.

| 109 83 Ibid. 186. 84 Ibid. 191 - 193. 85 There is now an exception available for applicants who have reached the age of 60: they can have up to $290,380 of capital, assumed including cash, not be counted as capital (see Financial Eligibility, Legal Aid Department, http://www.lad. gov.hk/eng/las/fe.html). Whether this will sufficiently address the skewed treatment of those with erratic income or living on past savings is unclear. 86 Legal Aid in Hong Kong, 196, http://www.lasc.hk/download/legalaid/08.pdf. 87 Sze Kin of the Bar Free Legal Services Scheme, interview by Tze-wei Ng, 11 October 2016. 88 Information Paper – Replies to Questions Raised by Legislative Council Members in Connection with the Examination of Estimates of Expenditures 2016-2017, Legal Aid Service Council, 25, www.lasc.hk/download/cm/IP%2016-13.pdf. 89 Legal Aid Contributions, Supplementary Legal Aid Scheme, Legal Aid Department, http://www.lad.gov.hk/eng/las/lac/ slas.html. 90 The total of 18,795 legal aid applications consist of 15,165 civil legal aid applications and 3,630 criminal legal aid applications. Statistical Highlights, Research Office of the Legislative Council Secretariat, 1, 15 December, 2016, http:// www.legco.gov.hk/research-publications/english/1617issh14-legal-aid-20161215-e.pdf. 91 Ibid. 92 See discussions at the Legislative Council Panel on Administration of Justice and Legal Services Meeting held on 19 December, 2016, http://www.legco.gov.hk/yr16-17/english/panels/ajls/minutes/ajls20161219.pdf 93 According to legislator Jimmy Ng, ibid. 9. 94 Michael Vidler, phone interview by Tze-wei Ng, 5 May 2017. He gave the example that preparation for a rape case may be estimated to take 4 hours, which is grossly underestimated, given the amount of time and efforts required to collect evidence for defence. And unlike in civil cases where there is a tax master to ascertain legal costs at the end of proceedings, the final assessment of criminal legal fees is a decision made solely by the Legal Aid Department. 95 Legislative Council Panel on Administration of Justice and Legal Services Meeting held on 19 December, 2016, http:// www.legco.gov.hk/yr16-17/english/panels/ajls/minutes/ajls20161219.pdf. 96 According to legislator Dennis Kwok, ibid. 97 According to legislator Alvin Yeung, ibid. 98 Ibid. 99 Annual Report 2016: Administration, The Duty Lawyer Service, http://www.dutylawyer.org.hk/en/annual_16/admin.asp. 100 About Us: Our Aim, The Duty Lawyer Service, http://www.dutylawyer.org.hk/en/about/aim.asp. 101 See e.g. Report of the Steering Committee on Resource Centre for Unrepresented Litigants, para 3.11, http://www. judiciary.gov.hk/en/other_info/press_rel/rc_report.pdf. 102 The Standard List of Offences, Duty Lawyer Scheme, The Duty Lawyer Service, http://www.dutylawyer.org.hk/en/doc/ Standard_List_of_Offences.pdf.

110 | This Way – Finding Community Legal Assistance in Hong Kong 103 Duty Lawyer Scheme, The Duty Lawyer Service, http://www.dutylawyer.org.hk/en/duty/duty.asp. Note: interpreters will also be “available as necessary” for the Free Legal Advice Scheme, but it is unclear if this applies to the CAT and Non-Refoulement Claims Scheme as it is not mentioned on the Duty Lawyer Service’s website under the CAT and Non- Refoulement scheme. 104 Public-Funded Legal Assistance Scheme for Convention against Torture and Non-Refoulement Claims (CAT and Non- Refoulement Claims Scheme), The Duty Lawyer Service, http://www.dutylawyer.org.hk/en/torture/torture.asp. 105 Tel-Law Scheme, The Duty Lawyer Service, http://www.dutylawyer.org.hk/en/tellaw/tel_law.asp. In 2016, there were 24,383 calls made. Annual Report 2016: Tel-Law Scheme, The Duty Lawyer Service, http://www.dutylawyer.org.hk/en/ annual_16/tel-law.asp. Since 2002, the recordings were digitalized and is made available on the website; in 2016 it received 427,445 hits. Ibid. 106 Duty Lawyer Scheme, The Duty Lawyer Service, http://www.dutylawyer.org.hk/pdf/ar_16/e-1.pdf. See also The 2016- 2017 Budget, Head 53 — Government Secretariat: Home Affairs Bureau, 444, http://www.budget.gov.hk/2016/eng/pdf/ head053.pdf. 107 But it excludes committal proceedings (which are covered by Legal Aid), hawking offences, traffic summonses and other regulatory offences such as departmental summonses issued by Environmental Protection Department, Inland Revenue Department and the Fire Department. Duty Lawyer Scheme – Our Services in Magistrates Courts, The Duty Lawyer Service, http://www.dutylawyer.org.hk/en/duty/magistrates.asp. 108 Duty Lawyer Scheme – Juvenile Courts, The Duty Lawyer Service, http://www.dutylawyer.org.hk/en/duty/juvenile.asp. 109 Duty Lawyer Scheme – Coroners Courts, The Duty Lawyer Service, http://www.dutylawyer.org.hk/en/duty/coroners. asp. 110 Duty Lawyer Scheme – Hawkers Appeals, The Duty Lawyer Service, http://www.dutylawyer.org.hk/en/duty/2f.asp. 111 Duty Lawyer Scheme – Extradition Proceedings, The Duty Lawyer Service, http://www.dutylawyer.org.hk/en/duty/2g. asp. 112 Duty Lawyer Scheme - Our Services in Magistrates Courts, The Duty Lawyer Service, http://www.dutylawyer.org.hk/ en/duty/magistrates.asp; Duty Lawyer Scheme - Juvenile Courts, The Duty Lawyer Service, http://www.dutylawyer.org.hk/ en/duty/juvenile.asp. 113 Duty Lawyer Scheme - Means Test, The Duty Lawyer Service, http://www.dutylawyer.org.hk/en/duty/2h.asp; Duty Lawyer Scheme - Coroners Courts, The Duty Lawyer Service, http://www.dutylawyer.org.hk/en/duty/coroners.asp; Duty Lawyer Scheme - Hawkers Appeal, The Duty Lawyer Service, http://www.dutylawyer.org.hk/en/duty/2f.asp; Duty Lawyer Scheme - Extradition Proceedings, The Duty Lawyer Service, http://www.dutylawyer.org.hk/en/duty/2g.asp. 114 The Duty Lawyer Scheme has adopted the Widgery Committee of UK’s merits test which 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”. This merits test is not apparent on the Duty Lawyer Scheme’s website, but can be found in Annual Report 2016, The Duty Lawyer Services, para 3.4, http://www.dutylawyer.org.hk/en/annual_16/scheme.asp. 115 Duty Lawyer Scheme, The Duty Lawyer Service, http://www.dutylawyer.org.hk/en/duty/duty.asp. 116 Ibid. 117 Duty Lawyer Scheme – Means Test, The Duty Lawyer Service, http://www.dutylawyer.org.hk/en/duty/2h.asp. 118 Ibid.

| 111 119 Annual Report 2016, The Duty Lawyer Service, para 3.10, http://www.dutylawyer.org.hk/en/annual_16/scheme.asp. 120 Various NGO interviewees. 121 Michael Vidler, phone interview by Tze-wei Ng, 5 May 2017. 122 Richard Tsoi, phone interview by Tze-wei Ng, 6 May 2017. 123 These figures were provided by interviewees. 124 Annual Report 2016: Free Legal Advice Scheme, The Duty Lawyer Service, http://www.dutylawyer.org.hk/en/ annual_16/advice.asp. 125 Ibid. 126 Free Legal Advice Scheme, The Duty Lawyer Service, http://www.dutylawyer.org.hk/en/free/free.asp. 127. Ibid. A complete list is available on the website at http://www.dutylawyer.org.hk/en/free/free.asp. 128 The 28 referral agencies, with 153 branches, are listed on the Duty Lawyer Service website at http://www.dutylawyer. org.hk/en/free/referral.htm. 129 Free Legal Advice Scheme, The Duty Lawyer Service, http://www.dutylawyer.org.hk/en/free/free.asp. 130 Ibid. 131 Ibid. 132 Ibid. 133 Annual Report 2016: Free Legal Advice Scheme, The Duty Lawyer Service, http://www.dutylawyer.org.hk/en/annual_16/ advice.asp. 134 Annual Report 2016: Free Legal Advice Scheme - Case Statistics 2016, http://www.dutylawyer.org.hk/pdf/ar_16/c-4.pdf. The categories of problems recorded by FLAS: matrimonial (14.59%), landlord & tenant (4.42%), employment (10.16%), estate administration (7.11%), commercial and property disputes (including simple contract matters and loans) (19.49%), criminal (6.82%), personal injuries (6.30%), bankruptcy (1.26%), debts (1.92%), and miscellaneous (27.93%). 135 Ibid. 136 Annual Report 2016: Free Legal Advice Scheme, The Duty Lawyer Service, http://www.dutylawyer.org.hk/en/ annual_16/advice.asp. In addition to the volunteer lawyers, there are two extra schemes involving law students: 1) In early 2002, a pilot scheme was introduced to allow law students to participate in FLAS at two District Offices. The law students’ primary duty is to conduct interviews with the applicants and prepare instructions for the volunteer lawyers. During 2016, 44 students participated. 2) In 1998, at the request of the Faculty of Law of the University of Hong Kong, law students would attend the advice sessions with the volunteer lawyers at the District Offices. Law student’s attendance is subject to the consent volunteer lawyers and applicants. For 2016, 217 students participated as observers. 137 Ibid. 138 Lester Huang, interview by Tze-wei Ng and Jennifer Yi Man Cheung, 28 September 2016 139 Margaret Ng, “Community Legal Services Centre – A Proposal”, February 2002. 140 Lester Huang, interview by Tze-wei Ng and Jennifer Yi Man Cheung, 28 September 2016. 141 Ibid. 142 Various interviewees.

112 | This Way – Finding Community Legal Assistance in Hong Kong 143 Public-funded Legal Assistance Scheme for Convention Against Torture & Non-Refoulement Claims (CAT and Non- Refoulement Claims Scheme), The Duty Lawyer Service, http://www.dutylawyer.org.hk/en/torture/torture.asp. See also “The Practice and Procedural Guide of the Administrative Non-Refoulement Claims Petition Scheme”, Security Bureau, Fourth Edition, 12 September 2016, http://www.sb.gov.hk/eng/links/tcab/Petition%20Guide.pdf. 144 Ibid. 145 According to a training video, the CAT Scheme’s services can be divided into four stages: review, screening, advice and decision, and appeal. See Training Programme for Lawyers on Convention against Torture Claims and Refugee Law, Hong Kong Academy of Law, January 2013, http://www.hklawacademy.org/videos_cat_1.php#1c. 146 Annual Report 2016: The CAT & Non-refoulement Claims Scheme, The Duty Lawyer Service, http://www.dutylawyer. org.hk/en/annual_16/torture.asp. 147. Ibid. 148 Victoria Wisniewski Otero, former Advocacy and Campaigns Manager at Justice Centre Hong Kong. 149 Eric Tat Ming Cheung, “Setting Up a Legal Clinic in Hong Kong: Progress and Challenges”, PowerPoint presentation, Faculty of Law, University of Hong Kong, 9 May 2013. 150 Eric Tat Ming Cheung, Edmond King Fung Lam, and Edward Man Han Chan, “Free Legal Advice Scheme on HKU Campus”, PowerPoint presentation, Faculty of Law, University of Hong Kong, 2 March 2015. 151 Free Legal Advice Scheme on HKU Campus: Meeting Arrangements, Faculty of Law, University of Hong Kong, http:// www.law.hku.hk/cle/?page_id=21. 152 Eric Tat Ming Cheung, Edmond King Fung Lam, and Edward Man Han Chan, “Free Legal Advice Scheme on HKU Campus”, PowerPoint presentation, Faculty of Law, University of Hong Kong, 2 March 2015. 153 Eric Tat Ming Cheung, interview by Tze-wei Ng and Jennifer Yi Man Cheung, 12 October 2016. 154 For more information on the challenges faced by Clinical Legal Education in Hong Kong, please refer to Stacy Caplow, Clinical Legal Education in Hong Kong: A Time to Move Forward, 36 Hong Kong L. J. 229 (2006). 155 Legislative Council Panel on Administration of Justice and Legal Services, Two-year Pilot Scheme to Provide Legal Advice for Litigants in Person, http://www.legco.gov.hk/yr11-12/english/panels/ajls/papers/aj0227cb4-477-1-e.pdf. 156 2016 Policy Address Policy Initiatives of the Home Affairs Bureau, Legislative Council Panel on Administration of Justice and Legal Services, http://www.legco.gov.hk/yr15-16/english/panels/ajls/papers/ajls20160125cb4-485-4-e.pdf. 157 Legal Advice Scheme for Unrepresented Litigants on Civil Procedures (Procedural Advice Scheme), Home Affairs Bureau, http://www.hab.gov.hk/en/policy_responsibilities/District_Community_and_Public_Relations/t_paso.htm. 158 Ibid. 159 2017 Policy Address Policy Initiative of the Home Affairs Bureau, Legislative Council Panel on the Administration of Justice and Legal Services, http://www.legco.gov.hk/yr16-17/english/panels/ajls/papers/ajls20170123cb4-426-4-e.pdf. 160 Legal Advice Scheme for Unrepresented Litigants on Civil Procedures (Procedural Advice Scheme), Home Affairs Bureau, http://www.hab.gov.hk/en/policy_responsibilities/District_Community_and_Public_Relations/t_paso.htm. 161 Ibid. There are other areas of law that PAS does not cover. For more information please refer to http://www.hab.gov. hk/en/policy_responsibilities/District_Community_and_Public_Relations/t_paso.htm. 162 Ibid. 163 Ibid.

| 113 164 Ibid. 165 Ibid. 166 2017 Policy Address: Policy Initiatives of the Home Affairs Bureau, Legislative Council Panel on Administration of Justice and Legal Services, http://www.legco.gov.hk/yr16-17/english/panels/ajls/papers/ajls20170123cb4-426-4-e.pdf. 167 Law Society of Hong Kong and Hong Kong Bar Association’s letters dated 17 January 2012, available at http://www. legco.gov.hk/yr11-12/chinese/panels/ajls/papers/aj0227cb2-1163-6-ec.pdf and http://www.legco.gov.hk/yr11-12/chinese/ panels/ajls/papers/aj0227cb2-1181-1-ec.pdf. 168 Services and Facilities Provided, Resource Centre for Unrepresented Litigants, http://rcul.judiciary.hk/rc/eng/servicePro. jsp. 169 Visit by Tze-wei Ng on 16 March 2017. 170 Legal Aid in Hong Kong, Legal Aid Services Council, 2006, 93; The Service – General Information, Bar Free Legal Services Scheme, http://www.hkba.org/content/bar-free-legal-services-scheme. 171 Sze Kin, interview by Tze-wei Ng, 11 October 2016. 172 The Service – General Information, Bar Free Legal Services Scheme, http://www.hkba.org/content/bar-free-legal- services-scheme. 173 Ibid. 174 Sze Kin, interview by Tze-wei Ng, 11 October 2016. 175 Ibid. 176 Ibid. 177 The Service – General Information, Bar Free Legal Services Scheme, http://www.hkba.org/content/bar-free-legal- services-scheme. 178 Types of Cases with which the BFLSS can help, Bar Free Legal Services Scheme, http://www.hkba.org/content/bar-free- legal-services-scheme. 179 The Bar Free Legal Service Scheme, Circular No. 089/09, Hong Kong Bar Association, 3 August 2009. 180 Ibid. 181 Ibid. 182 Annual Report on Bar Free Legal Service Scheme 2014/2015, http://www.hkba.org/sites/default/files/Bar%20Free%20 Legal%20Services%20Scheme%202015%20...dd%2023%20Dec%202015%20%28e%29.pdf. 183 Types of Cases with which the BFLSS can help, Bar Free Legal Services Scheme, http://www.hkba.org/content/bar-free- legal-services-scheme. 184 Sze Kin, interview by Tze-wei Ng, 11 October 2016. 185 The Service – General Information, Bar Free Legal Services Scheme, http://www.hkba.org/content/bar-free-legal- services-scheme. 186 Types of Cases with which the BFLSS can help, Bar Free Legal Services Scheme, http://www.hkba.org/content/bar-free- legal-services-scheme. 187 Sze Kin, interview by Tze-wei Ng, 11 October 2016.

114 | This Way – Finding Community Legal Assistance in Hong Kong 188 Application and Assessment Procedures, Bar Free Legal Services Scheme, http://www.hkba.org/content/bar-free-legal- services-scheme. 189 Ibid 190 Sze Kin, interview by Tze-wei Ng, 11 October 2016. 191 Annex 20 of the the Bar’s Code of Conduct, Hong Kong Bar Association, available at http://www.hkba.org/content/ code-conduct?section=33. 192 Annual Report on Bar Free Legal Service Scheme 2014/2015, Bar Free Legal Services, http://www.hkba.org/sites/ default/files/Bar%20Free%20Legal%20Services%20Scheme%202015%20...dd%2023%20Dec%202015%20%28e%29.pdf. 193 Ibid. 194 Ibid. 195 Sze Kin, interview by Tze-wei Ng, 11 October 2016. 196 Ibid. 197 Pro Bono Service, Law Society of Hong Kong, http://www.hklawsoc.org.hk/pub_e/probono/public/pbs_ls.asp; Free Legal Helpline, Law Society of Hong Kong, http://www.hklawsoc.org.hk/pub_e/popup/20130515/20150602.pdf. 198 Pro Bono Service, Law Society of Hong Kong, http://www.hklawsoc.org.hk/pub_e/probono/public/pbs_ls.asp; http:// www.choosehklawyer.org/tc/index.asp. 199 Ibid. 200 Ibid. 201 Free Legal Helpline, Law Society of Hong Kong, http://www.hklawsoc.org.hk/pub_e/popup/20130515/20150602.pdf. 202 Ibid. 203 Free Legal Advice Service on Building Management, Home Affairs Department – Building Management, http://www. buildingmgt.gov.hk/en/whats_new/2_13.htm; Pro Bono Service, Law Society of Hong Kong, http://www.hklawsoc.org.hk/ pub_e/probono/public/pbs_ls.asp. 204 Ibid. 205 Ibid. 206 Ibid. 207 We could not find reviews of these services on the website of the Law Society or its annual reports. 208 What is EOC, Equal Opportunities Commission, http://www.eoc.org.hk/eoc/graphicsfolder/showcontent. aspx?content=our%20work-what%20is%20eoc. 209 Legal Assistance, Equal Opportunities Commission, http://www.eoc.org.hk/eoc/graphicsfolder/showcontent. aspx?content=legal%20assistance. 210 Information Notes on Legal Assistance from the EOC, Equal Opportunities Commission, http://www.eoc.org.hk/EOC/ Upload/UserFiles/File/legalAssistance/LegalAssistance2013EF.pdf. Selection of external lawyers is based on (1) expertise in the relevant legal issues or forensic skills required in the case; (2) familiarity with discrimination law and EOC’s procedures, practices, and strategic concerns; (c) external lawyer’s availability of time to provide advice or to conduct the case; and (4) the court level where the case will be heard.

| 115 211 Ibid. 212 Equal Opportunities Commission, Bills Committee on Race Discrimination Bill, Race Discrimination Bill Parts 7, 8 and 9, LC Paper No. CB(2)2175/07-08(01), para 25, http://www.legco.gov.hk/yr06-07/english/bc/bc52/papers/bc520606cb2-2175- 1-e.pdf. 213 What is Conciliation, Equal Opportunities Commission, http://www.eoc.org.hk/eoc/graphicsfolder/showcontent. aspx?content=about%20conciliation. 214 Ibid. 215 Ibid. 216 Equal Opportunities Commission Fact Sheet 2015/16 - Year in Review, Equal Opportunities Commission, http://www. eoc.org.hk/eoc/upload/userfiles/file/fact%20sheet/2015-16factsheet.pdf. 217 Ibid. 218 Legal Aid in Hong Kong, 82. 219 Ibid. 220 Information Notes on Legal Assistance from the EOC, Equal Opportunities Commission, http://www.eoc.org.hk/EOC/ Upload/UserFiles/File/legalAssistance/LegalAssistance2013EF.pdf. 221 What is Conciliation, Equal Opportunities Commission, http://www.eoc.org.hk/eoc/graphicsfolder/showcontent. aspx?content=about%20conciliation. 222 While matters that happen during the reconciliation process are not admissible in court, the EOC would consider if the respondents were cooperative during the investigation and conciliation processes or whether the aggrieved applicant had unreasonably refused a reasonable offer of settlement. Information Notes on Legal Assistance from the EOC, Equal Opportunities Commission, 3, http://www.eoc.org.hk/EOC/Upload/UserFiles/File/legalAssistance/LegalAssistance2013EF. pdf. 223 What is Conciliation, Equal Opportunities Commission, http://www.eoc.org.hk/eoc/graphicsfolder/showcontent. aspx?content=about%20conciliation. 224 Consumer Legal Action Fund, Consumer Council, https://www.consumer.org.hk/ws_en/legal_protection/consumer_ legal_actions_fund/clafinfo.html; Legal Aid in Hong Kong, Chapter 5, 83-85. 225 Its income derives from fixed deposits and bonds by investing the capital sum, applicant fees, recovered costs in successful claims, and contributions from successful claims. Legal Aid in Hong Kong, 83-85. 226 Consumer Legal Action Fund, Consumer Council, https://www.consumer.org.hk/ws_en/legal_protection/consumer_ legal_actions_fund/clafinfo.html. 227 Ibid. 228 Ibid. 229 Ibid. 230 Ibid. 231 Ibid. 232 Ibid.

116 | This Way – Finding Community Legal Assistance in Hong Kong 233 The registration fee is $100 for a claim to be tried in the Small Claims Tribunal, and $1,000 for a case to be tried in the District Court and other higher courts. Ibid. 234 If a matter is successful, the applicant has to make a contribution to CLAF calculated as: (i) the actual legal costs and expenses paid by CLAF in the matter LESS any costs payable by or recovered from the opposite party; (ii) all other sums paid for the matter by CLAF; (iii) 10% of the amount of money (not counting costs recovered) received on an applicant’s behalf, the value of property recovered or preserved for the applicant, the amount by which the applicant’s liability is reduced or discharged, or the value of any benefit gained by the applicant in the matter (“Benefit Value”). This contribution is subject to a cap: 25% for matters in the Small Claims Tribunal and 50% for all other matters, of the Benefit value. “Is there any payment other than the registration fee?”, Consumer Legal Action Fund, Consumer Council, https:// www.consumer.org.hk/ws_en/legal_protection/consumer_legal_actions_fund/clafinfo.html. 235 Half-yearly Report of the Consumer Legal Action Fund (1 April 2016 to 30 September 2016), Consumer Council, https://www.consumer.org.hk/ws_en/legal_protection/consumer_legal_actions_fund/claf-report-2016.html. 236 Ibid. 237 Ibid. 238 Ibid. 239 Consultancy Study on the Demand for and Supply of Legal and Related Services – Supply Study Report (Full), Department of Justice, 72, http://www.doj.gov.hk/eng/public/consultancy.html. 240 The 2008 DOJ Study did not provide detail on what “legal services” entail. From the Questionnaire for Councillors (Appendix E), it seems “legal services” equate “services provided by lawyers”. The other categories of “legal or related services” the Study surveyed are: “community legal education”, “mediation services”, and “other related services like referrals to lawyers and assistance in applying for Legal Aid”. Ibid., 72, 313 to 314. 241 Ibid. 242 Ibid., 73. For specific percentage breakdown for mediation and legal related services, please refer to pages 74 and 75, respectively, of the 2008 DOJ Study. 243 Ibid., 76 244 Paths to Justice report, 24. 245 Ibid. 246 Paths to Justice report, 25 - 28. 247 Paths to Justice report, 29 - 33. 248 Chan Wai Hung, aide to Legislator Dennis Kwok, interview by Tze-wei Ng and Jennifer Yi Man Cheung, 28 September 2016. 249 Paths to Justice Report, 13. 250 Consultancy Study on the Demand for and Supply of Legal and Related Services – Supply Study Report (Full), Department of Justice, 77, http://www.doj.gov.hk/eng/public/consultancy.html. See also Appendix G of the 2008 DOJ Study which lists the legal and related services provided by NGOs, http://www.doj.gov.hk/eng/public/pdf/2008/reports/ appendix_g.pdf.

| 117 251 Consultancy Study on the Demand for and Supply of Legal and Related Services – Supply Study Report (Full), Department of Justice, 77, http://www.doj.gov.hk/eng/public/consultancy.html. According to Appendix F Questionnaire for Non-governmental Organisation, “legal services” refer to “Legal Advice Scheme of the Duty Lawyer Service”, “Free legal advice scheme operated by organisation”, “Non-free legal advice scheme operated by organisation”, and “others”. http:// www.doj.gov.hk/eng/public/pdf/2008/reports/appendix_f.pdf. 252 Consultancy Study on the Demand for and Supply of Legal and Related Services – Supply Study Report (Full), Department of Justice, 77, http://www.doj.gov.hk/eng/public/consultancy.html. 253 Ibid. 254 Ibid. 255 Ibid. 256 Consultancy Study on the Demand for and Supply of Legal and Related Services – Combined Analysis Report (Full), Department of Justice, 266, http://www.doj.gov.hk/eng/public/consultancy.html. 257 Ibid., 290. 258 For example, as of March 2017, PILnet’s Hong Kong Pro Bono Clearinghouse has matched pro bono support for nearly 100 NGOs and social enterprises with more than 150 requests since April 2014. Lawyers from over 70 law firms, corporations and chambers have signed up to our monthly mailing list of pro bono requests. 259 DLA Piper won the 2017 IFLR’s award for pro bono team of the year. Asia awards 2017: winners revealed, International Financial Law Review, 2 March 2017, http://www.iflr.com/Article/3666181/Asia-awards-2017-winners-revealed.html 260 The Hong Kong Pro Bono Roundtable (formerly known as the Legal Community Roundtable) was set up in 2008 by several international law firms. The Roundtable meets every second month. 261 President of The Law Society of Hong Kong, Thomas So, recently discussed an aspirational pro bono target of 30 hours per solicitor every year and mandatory reporting of pro bono work, citing the Singapore example, in the March 2017 edition of Hong Kong Lawyer. “President’s Message - Generosity: Pro Bono and Community Services”, Hong Kong Lawyer, page 6-7, March 2017, https://asianlegalbusiness.uberflip.com/i/795522-march-2017/7?m4=. More on pro bono targets: since 2007 Australia has set a National Pro Bono Aspirational Target of 35 hours of pro bono legal services; the New York Bar became the first state to impose a mandatory minimum 50 hours pro bono requirement for all new lawyers seeking to be admitted after January 2015. 262 Pro Bono Service, Law Society, http://www.hklawsoc.org.hk/pub_e/probono/public/pbs_ls.asp. 263 Pro Bono: Lawyers Making a Difference, Hong Kong Lawyer, August 2014, http://www.hk-lawyer.org/content/pro-bono- lawyers-making-difference. See also Pro Bono Service – Photos Gallery, Law Society, http://www.hklawsoc.org.hk/pub_e/ probono/photos.asp. 264 The Law Society 2016 Pro Bono and Community Service Award Presentation Ceremony, Hong Kong Lawyer, February 2017, http://www.hk-lawyer.org/content/law-society-2016-pro-bono-and-community-service-award-presentation- ceremony. For comparison, for 2014, a total of 14 law firms and 99 members received awards. The Law Society 2015 Pro Bono and Community Service Award Presentation Ceremony, Hong Kong Lawyer, January 2016, http://www.hk-lawyer. org/content/law-society-pro-bono-and-community-service-award-presentation-ceremony-0. 265 The Law Society of Hong Kong Pro Bono and Community Work Recognition Programme 2016, Award Announcement – Pro Bono Law Firm Awards, Law Society of Hong Kong, http://www.hklawsoc.org.hk/pub_e/probono/2016_Awards_ announcement_Pro_Bono_Law_Firm_Award.pdf.

118 | This Way – Finding Community Legal Assistance in Hong Kong 266 2017 Policy Address Policy Initiatives of the Home Affairs Bureau, Legislative Council Panel on Administration of Justice and Legal Services, http://www.hab.gov.hk/file_manager/en/documents/whats_new/policy_agenda/ajls_eng.pdf. 267 Press Release ¬– Award presentation ceremony of Home Affairs Bureau’s Recognition Scheme for Provision of Pro Bono Legal Services held today (with photo), January 5, 2016, http://www.info.gov.hk/gia/general/201601/05/ P201601050594.htm. 268 Michael Vidler, interview by Tze-wei Ng and Jennifer Yi Man Cheung, 29 September 2016. 269 Azan Marwah, interview by Tze-wei Ng, 6 October 2016. 270 Section 7 of the Legal Practitioners Ordinance (Cap 159), http://www.hklawsoc.org.hk/pub_e/professionalguide/ volume2/default.asp?cap=1.2#7. 271 Section 6 of the Legal Practitioners Ordinance (Cap. 159), http://www.hklawsoc.org.hk/pub_e/professionalguide/ volume2/default.asp?cap=1.2#6. 272 Section 6(5) of the Legal Practitioners Ordinance (Cap 159), http://www.hklawsoc.org.hk/pub_e/professionalguide/ volume2/default.asp?cap=1.2#6. 273 Rule 3 of the Practising Certificate (Solicitors) Rules (Cap 159L), http://www.hklawsoc.org.hk/pub_e/professionalguide/ volume2/default.asp?cap=14#3. 274 Rule 6(1) of the Solicitors (Professional Indemnity) Rules (Cap 159M), http://www.hklawsoc.org.hk/pub_e/ professionalguide/volume2/default.asp?cap=19#6; Rule 7 of the Solicitors (Professional Indemnity) Rules (Cap 159M), http://www.hklawsoc.org.hk/pub_e/professionalguide/volume2/default.asp?cap=19#7. 275 Section 73A of the Legal Practitioners Ordinance (Cap 159), http://www.hklawsoc.org.hk/pub_e/professionalguide/ volume2/default.asp?cap=1.9#73A. 276 “President’s Message - Practice Supervision”, Hong Kong Lawyer, August 2016, http://www.hk-lawyer.org/content/ practice-supervision; see also Schedule 3, Solicitors (Professional Indemnity) Rules (Cap 159M), http://www.hklawsoc.org. hk/pub_e/professionalguide/volume2/default.asp?cap=19#3. 277 Schedule 1, Solicitors (Professional Indemnity) Rules (Cap 159M), http://www.hklawsoc.org.hk/pub_e/professionalguide/ volume2/default.asp?cap=19#20. 278 Authors’ research. See also “President’s Message - Practice Supervision”, Hong Kong Lawyer, August 2016, http://www. hk-lawyer.org/content/practice-supervision. 279 Guidelines for Applications for Exemption from the Requirements to Have and Maintain Professional Indemnity Under the Solicitors (Professional Indemnity) Rules in relation to Pro Bono Legal Services, Part IV, The Law Society of Hong Kong, 1 August 2016. 280 Meeting with AON, 15 February 2017. 281 Davyd Wong, email communication, 5 April 2017. 282 For comparison, in Australia, the National Assoication of Community Legal Centres obtains professional indemnity insurance on behalf of its members of over 200 community legal centres. 283 Rule 12 of the Foreign Lawyers Registration Rules (Cap. 159S), http://www.hklawsoc.org.hk/pub_e/professionalguide/ volume2/default.asp?cap=8#12.

| 119 284 Rules 3 - 6A of the Foreign Lawyers Registration Rules (Cap. 159S), http://www.hklawsoc.org.hk/pub_e/ professionalguide/volume2/default.asp?cap=8#3. See also Section 39A of the Legal Practitioners Ordinance (Cap 159), http://www.hklawsoc.org.hk/pub_e/professionalguide/volume2/default.asp?cap=1.5.; Overseas Lawyers (Qualification for Admission) Rules (Cap 159Q), http://www.hklawsoc.org.hk/pub_e/professionalguide/volume2/default.asp?cap=6. 285 Code of Conduct, Annex 19A-J & Annex 20, Hong Kong Bar Association, http://www.hkba.org/content/code-conduct. 286 Ibid., Annex 20, section 2(c). 287 Code of Conduct, Compulsory Professional Indemnity Insurance, sections 184 -187, Hong Kong Bar Association, http:// www.hkba.org/content/code-conduct. 288 Azan Marwah, phone interview by Jennifer Yi Man Cheung, 11 April 2017. See also Code of Conduct, Annex 19, Para. 5, Hong Kong Bar Association, http://www.hkba.org/content/code-conduct. 289 Practice Direction N - Employed Solicitors, http://www.hklawsoc.org.hk/pub_e/professionalguide/volume2/default. asp?cap=24.15. 290 Ibid., section (2). 291 Ibid., section (3). 292 Annual Report 2016, The Duty Lawyer Service, para 5.11, http://www.dutylawyer.org.hk/en/annual_16/advice.asp. 293 Lindsay Ernst, interview by Jennifer Yi Man Cheung, 7 September 2016. 294 See the “University Court Friends” scheme in Singapore. http://newshub.nus.edu.sg/news/0909/PDF/COURT-st-28Sep- pB5.pdf. 295 Authors’ research. 296 Ibid. 297 Ibid. 298 Ibid. 299 Ibid. 300 Limited Liability Partnership (“LLP”), Department of Justice, http://www.doj.gov.hk/eng/public/llp.html. 301 As of 18 November 2014, the Law Society advised that the Chief Justice had given his approval in principle to the draft Solicitor Corporation Rules and the Drafting Division of the DOJ was vetting these Rules. Law Society said it wished for the draft Rules to take place during the 2015-2016 legislative session, but we have not found updates on this during the 2015-2016 legislative session. List of follow-up actions (position as at 18 November 2014), Legislative Council Panel on Administration of Justice and Legal Services, http://www.legco.gov.hk/yr14-15/english/panels/ajls/papers/ajls20141124cb4- 172-2-e.pdf. The draft Rules can be found at http://www.legco.gov.hk/yr03-04/english/panels/ajls/papers/aj1124cb2-390- 5e-scan.pdf. For more on background: “Incorporation of Solicitors’ Practice”, The Lawyer, February 2014, http://www. hk-lawyer.org/content/incorporation-solicitors%E2%80%99-practice. 302 In Hong Kong, champerty and maintenance are common law offences and torts, and would render an agreement unenforceable. For a general discussion, see e.g. Ludwig Ng, “Maintenance, Champerty and Litigation Funding in Hong Kong,” Hong Kong Lawyer, February 2014, http://www.hk-lawyer.org/content/maintenance-champerty-and-litigation- funding-hong-kong. 303 Law Reform Commission Conditional Fees Sub-committee, The Law Reform Commission of Hong Kong Conditional Fees Sub-Committee Consultation Paper Conditional Fees, 76, para 4.69, September 2005, http://www.hkreform.gov.hk/ en/docs/conditional-e.pdf. 120 | This Way – Finding Community Legal Assistance in Hong Kong 304 Unruh v. Seeberger (2007) 10 HKCFAR 31 , para 92. http://www.hklii.hk/cgi-bin/sinodisp/eng/hk/cases/hkcfa/2007/10. html?stem=&synonyms=&query=%2210%20HKCFAR%2031%22. 305 Ibid., paras 92-93. 306 Ibid., para 95. 307 Ibid., para 97. 308 Ibid., para 79. 309 “Is it Time to Abolish Maintenance and Champerty as a Crime and Tort in Hong Kong?”, Hong Kong Lawyer, August 2015, http://www.hk-lawyer.org/content/it-time-abolish-maintenance-and-champerty-crime-and-tort-hong-kong; List of Outstanding Items for Discussion (position as at 19 January 2017), Legislative Council on the Panel of Administration of Justice and Legal Services, para 15, http://www.legco.gov.hk/yr16-17/english/panels/ajls/papers/ajls20170123cb4-426-1-e.pdf. 310 Complete List of Reports Tabulated According to Implementation Status – (c) Proposals under consideration or in the process of being implemented, Law Reform Commission of Hong Kong, para 59, http://www.hkreform.gov.hk/en/ implementation/index.htm. 311 Consultation Paper: Conditional Fees, The Law Reform Commission of Hong Kong Conditional Fees Sub-committee, September 2005, 2, http://www.hkreform.gov.hk/en/docs/conditional-e.pdf. 312 Ibid., 3. 313 Ibid., 3. 314 Ibid., 157. 315 Ibid., 148. 316 Ibid., 154. 317 Conditional Fees (July 2007), The Law Reform Commission of Hong Kong, http://www.hkreform.gov.hk/en/ implementation/index.htm#42. 318 Section 2 of the Legal Practitioners Ordinance (Cap 159), http://www.hklawsoc.org.hk/pub_e/professionalguide/ volume2/default.asp?cap=1.1#2. 319 Section 67 of the Legal Practitioners Ordinance (Cap 159), http://www.hklawsoc.org.hk/pub_e/professionalguide/ volume2/default.asp?cap=1.8#67; See also “What is taxation of legal costs?”, Community Legal Information Centre, http:// www.clic.org.hk/en/topics/civilCase/recover_legal_costs/q1.shtml. 320 Ibid. 321 The Hong Kong Solicitors’ Guide to Professional Conduct, Vol.1, Chapter 4 – Fees, 4.01 “Inform client about costs”, http://www.hklawsoc.org.hk/pub_e/professionalguide/volume1/default.asp?cap=4.1.1. 322 For latest discussion on public interest litigation and protective costs orders, see Designing Hong Kong Ltd v. The Town Planning Board case at http://legalref.judiciary.hk/lrs/common/ju/ju_frame.jsp?DIS=108194&currpage=T . See also Karen Kong, “Costs in Public Interest Litigation: Whose Pocket Should Be Picked?”, Hong Kong Law Journal, Vol. 39 Part 3 (2009), 778, http://www.law.hku.hk/hrportal-tc/wp-content/uploads/file/Costs-in-Public-Interest-Litigation-Whose-Pocket- Should-Be-Picked.pdf. 323 Letter from Dennis Kwok, Deputy Chairman of the Panel on Administration of Justice and Legal Services (AJLS), to Dr Priscilla Leung JP, Chairman of the AJLS Panel, 30 October, 2014, http://www.legco.gov.hk/yr14-15/english/panels/ajls/ papers/ajls20141124cb4-118-1-e.pdf.

| 121 324 Pro Bono Costs, Access to Justice Foundation, http://www.atjf.org.uk/pro-bono-costs-orders.html. Since 2008, when the pro bono costs order was introduced in England, the courts have made close to £600,000 in about 160 pro bono costs orders, which is not a very big number. John van der Luit-Drummond, “Pro Bono Costs: The Gift Forgotten by Lawyers,” Solicitors Journal, 27 July 2016, https://www.solicitorsjournal.com/news/litigation/costs/27167/pro-bono-costs- gift-forgotten-lawyers. 325 K.C. Vijayan, “Court awards legal costs for work done on pro bono basis”, The Straits Times, 3 May 2016, http://www. straitstimes.com/singapore/courts-crime/court-awards-legal-costs-for-work-done-on-pro-bono-basis. 326 Email with Chan Wai Hung, aid to Legislator Dennis Kwok, 10 April 2017; Legislative Council of the Hong Kong Special Administrative Region Panel on Administration of Justice and Legal Services, List of Outstanding Items for Discussion, para 18, http://www.legco.gov.hk/yr16-17/english/panels/ajls/papers/ajls20161219cb4-303-1-e.pdf. 327 Complete List of Reports Tabulated According to Implementation Status – (c) Proposals under consideration or in the process of being implemented, Law Reform Commission of Hong Kong, para 55, http://www.hkreform.gov.hk/en/ implementation/. 328 Rule 7 of the Solicitors (Professional Indemnity) Rules, http://www.hklawsoc.org.hk/pub_e/professionalguide/volume2/ default.asp?cap=19#7. 329 Anna Wu has suggested creating a separate category of indemnity insurance for law firms or lawyers dedicated to public interest cases, phone interview by Tze-wei Ng, 1 March 2017. Lester Huang has also suggested the consideration of a practising certificate with conditions for lawyers engaging in full time public interest work, phone interview by Tze-wei Ng, 12 May 2017. 330 Australian Government, Legal Aid, http://www.australia.gov.au/information-and-services/public-safety-and-law/legal-aid. 331 Ibid. See also Who we are, Legal Aid New South Wales, http://www.legalaid.nsw.gov.au/about-us/who-we-are; Legal Aid New South Wales, Funding, http://www.legalaid.nsw.gov.au/about-us/who-we-are/funding. 332 Annual Report 2015-2016, Redfern Legal Centre, https://rlc.org.au/sites/default/files/attachments/RLC%20Annual%20 Report%202016_ONLINE.pdf. 333 Our Story, Salvos Legal, https://www.salvoslegal.com.au/our-story/. 334 Ibid. See also Expertise, Salvos Legal, https://www.salvoslegal.com.au/expertise/. 335 Means & Merits Test, Salvos Legal, https://www.salvoslegal.com.au/expertise/humanitarian-free-legal-service/means- merits-test/. 336 Humanitarian – Free Legal Services, Salvos Legal, https://www.salvoslegal.com.au/expertise/humanitarian-free-legal- service/. 337 Ibid. See also Getting Advice, Salvos Legal, https://www.salvoslegal.com.au/expertise/humanitarian-free-legal-service/ getting-advice/. 338 Means & Merits Test, Salvos Legal, https://www.salvoslegal.com.au/expertise/humanitarian-free-legal-service/means- merits-test/. 339 Getting Advice – How we work, Salvos Legal, https://www.salvoslegal.com.au/expertise/humanitarian-free-legal-service/ getting-advice/. 340 Our Story, Salvos Legal, https://www.salvoslegal.com.au/our-story/. 341 Humanitarian – Free Legal Services, Salvos Legal, https://www.salvoslegal.com.au/expertise/humanitarian-free-legal- service/.

122 | This Way – Finding Community Legal Assistance in Hong Kong 342 Representation is provided in a range of criminal matters from the trivial to the very serious, and most often involves: offences resulting from poverty (railway infringements, survival crimes such as shoplifting); street offences resulting from interactions with police (for example, the “trifecta” of offensive language, resist police and assault police); apprehended violence order applications and criminal charges arising from family conflict; and offences linked to mental illness or substance abuse problems (for example, property offences committed to fund a drug habit, assaults or property damage committed while intoxicated or suffering from psychosis); and traffic offences (usually unlicensed driving or driving while disqualified, often as a consequence of fine default). Legal advice is provided on a range of criminal law issues including police interviews, rights and obligations of witnesses, traffic and licensing issues, and the effect of criminal records. Questionnaire completed by Shopfront Youth Legal Centre. 343 “Referring clients to the Shopfront Youth Legal Centre: a guide for youth workers” http://www.theshopfront.org/ documents/Referring_clients_to_the_Shopfront_(Oct_2012).pdf. 344 About Us, Justice Connect, https://www.justiceconnect.org.au/who-we-are/about-us. 345 Get Help, Justice Connect, https://www.justiceconnect.org.au/get-help. 346 Homeless Law Policies & Procedures Manual, page 3, Justice Connect, March 2014, http://www.hlp.org.au/Assets/Files/ Homeless%20Law%20Policies%20and%20Procedures%20Manual%20(March%202014).pdf. 347 Ibid at page 45-48. 348 Annual Impact Report 2015/16, Justice Connect, https://www.justiceconnect.org.au/sites/default/files/Annual%20 Report%202016%20FINAL%20Web%20split%20Jan.pdf. 349 Ibid. 350 Ibid. 351 Legal Aid Ontario, Legal Aid Ontario, http://www.legalaid.on.ca/en/about/default.asp. 352 How is Legal Aid Ontario funded?, Legal Aid Ontario, http://www.legalaid.on.ca/en/about/fact_funding.asp. Cy-près awards are proceeds from class action litigation that was not practical to distribute. “Cy-près,” Law Foundation of Ontario, last modified 2017, http://www.lawfoundation.on.ca/our-revenue-sources/cy-pres-2/. 353 Ibid. 354 Legal Aid Ontario, Getting Legal Help: Types of Help, http://www.legalaid.on.ca/en/getting/typesofhelp.asp. 355 Ibid. 356 Ibid. The law students are supervised by full time lawyers. 357 Lenny Abramowicz, Phone interview by Jennifer Yi Man Cheung, 28 July 2016. 358 Ibid. 359 About, Ontario Bar Association, http://www.oba.org/ProBono/About; Pro Bono Ontario, Our Impact, https://www. probonoontario.org/about/our-impact/. 360 LAWPRO Pro Bono Coverage Summary Chart,LAWPRO, http://www.lawpro.ca/insurance/pdf/LAWPRO_PRO_ BONO_COVERAGE_CHART.pdf. 361 About the Citizens Information Board, Citizens Information Board, http://www.citizensinformationboard.ie/en/about/. 362 Ibid.; 2015 Annual Report, Citizens Information Board, http://www.citizensinformationboard.ie/downloads/cib/annual_ report_2015_en.pdf.

| 123 363 About Us, Legal Aid Board, http://www.legalaidboard.ie/en/About-the-Board/; Legal Aid Board, Can I get legal aid and advice?, http://www.legalaidboard.ie/en/Our-Services/Legal-Aid-Services/Do-I-qualify-/; Legal Aid Board, Criminal Legal Aid, http://www.legalaidboard.ie/en/Our-Services/Criminal-Legal-Aid/. 364 Ibid. 365 The History of Independent Law Centres in Ireland, Independent Law Centres Network, http://www. independentlawcentres.ie/history.html. 366 Ibid. 367 FLAC, Need legal help?, https://www.flac.ie/help/. 368 For more information on Legal Advice Centres, please refer to http://www.flac.ie/help/centres/whattoexpect.html. 369 Ibid. 370 FLAC, FLAC Governance & Finances, https://www.flac.ie/about/finances/; Directors’ Report and Financial Statements - Year End 31 December 2015, FLAC, 16 July 2016, https://www.flac.ie/download/pdf/audited_accounts_year_ending_31_ december_2015.pdf. 371 History,Legal Aid Bureau, https://www.mlaw.gov.sg/content/lab/en/about-us/history.html; Do I qualify for legal aid? Legal Aid Bureau, https://www.mlaw.gov.sg/content/lab/en/eligibility/do-i-qualify-for-legal-aid.html. 372 What We Do: What Types of Cases Are Handled by LAB?, Legal Aid Bureau, https://www.mlaw.gov.sg/content/lab/ en/what-we-do/what-types-of-cases-are-handled-by-lab.html; Legal Aid Bureau, What We Do: What services do LAB provide?, https://www.mlaw.gov.sg/content/lab/en/what-we-do/what-services-does-lab-provide.html. 373 What We Do: What types of cases are not handled by LAB?, Legal Aid Bureau, https://www.mlaw.gov.sg/content/lab/ en/what-we-do/what-types-of-cases-are-not-handled-by-lab.html. 374 Report, Legal Aid Review Committee of the Law Society of Singapore. 375 Ibid. 376 Who are we? What do we do?, Pro Bono Service Office, the Law Society of Singapore, http://probono.lawsociety.org. sg/Pages/default.aspx. 377 Statues includes the Arms & Explosives Act (Cap. 13), Arms Offences Act (Cap. 14), Computer Misuse and Cybersecurity Act (Cap. 50A), Corrosive & Explosive Substances & Offensive Weapons Act (Cap. 65), Dangerous Fireworks Act (Cap. 72), Enlistment Act (Cap. 93), Explosive Substances Act (Cap. 100), Films Act (Cap. 107), Miscellaneous Offences (Public Order and Nuisance) Act (Cap. 184), Misuse of Drugs Act (Cap. 185), Moneylenders Act (Cap. 188) [Sections 14 & 28], Penal Code (Cap. 224), Prevention of Corruption Act (Cap. 241), Undesirable Publications Act (Cap. 338), Vandalism Act (Cap. 341), Women’s Charter (Cap. 353) [Sections 65(8) (contravening a protection order) and 140(1)(i) (anyone who has “carnal connection with any girl” below 16 years old. Need Legal Assistance?, Pro Bono Service Office, the Law Society of Singapore, http://probono.lawsociety.org.sg/Documents/CLAS2015_PRINT%20 %28updated%2018jan16%29.pdf#page=2. LSPBS has seven full time lawyers on secondment from the Law Society of Singapore for representation in CLAS cases. 378 Criminal Legal Aid Scheme, Pro Bono Service Office, the Law Society of Singapore, http://probono.lawsociety.org.sg/ Pages/Criminal-Legal-Aid-Scheme.aspx. 379 Community Legal Clinics, Pro Bono Service Office, The Singapore Law Society, http://probono.lawsociety.org.sg/Pages/ Community-Legal-Clinic.aspx.

124 | This Way – Finding Community Legal Assistance in Hong Kong 380 Legal Clinic Directory, Pro Bono Service Office, The Singapore Law Society, http://probono.lawsociety.org.sg/Pages/ Legal-Clinic-Locator.aspx. 381 Lawyers volunteering with LSPBS’ access to justice programmes are insured. These include lawyers volunteering through independent legal clinics which have joined the LSPBS’ Community Legal Clinic Network by signing a memorandum of understanding and adopting the LSPBS’ prescribed standard operating procedures. Email with Tanguy Lim, 15 May 2017. 382 Ministerial Departments, UK Government, https://www.gov.uk/government/organisations. 383 Overview, Legal Aid, https://www.gov.uk/legal-aid/overview; Legal Aid, What You Can Get, https://www.gov.uk/legal- aid/what-you-can-get. 384 About Law Centres, Law Centres Network, http://www.lawcentres.org.uk/about-law-centres; Law Centres Network, LCN’s Work, http://www.lawcentres.org.uk/lcn-s-work/what-we-do. See also Julie Bishop, interview by Jennifer Yi Man Cheung, 4 July 2016. 385 Minimum Criteria for Full Membership of the Law Centres Federation, Law Centres Network, November 20, 2015, http://www.lawcentres.org.uk/asset/download/505. Affiliates cannot take up the “Law Centre” name. Set up a Law Centre, Law Centres Network, http://www.lawcentres.org.uk/about-law-centres/set-up-a-law-centre. See also Julie Bishop, interview by Jennifer Yi Man Cheung, 4 July 2016. However, due to government’s legal aid funding cuts in 2013, Law Centres had to “reinvent themselves to survive.” Catherine Baksi, “Law Centres: Picking up the Pieces,” The Law Society Gazette, September 1, 2014, https://www.lawgazette.co.uk/features/law-centres-picking-up-the-pieces/5042728. article. 386 History of the Citizens Advice service, Citizens Advice, https://www.citizensadvice.org.uk/about-us/how-citizens-advice- works/who-we-are-and-what-we-do/history-of-the-citizens-advice-service/. 387 Annual Report and Accounts 2015/16, Citizens Advice, https://www.citizensadvice.org.uk/Global/CitizensAdvice/ Governance/CAB347_Annual_Report_v9_WEB%20FINAL.pdf. 388 Ibid. 389 Ibid. 390 As explained by David Raeburn of LawWorks (phone interview by Jennifer Yi Man Cheung, 20 October 2016). 391 Report of the Steering Committee on Resource Centre for Unrepresented Litigants, http://www.judiciary.gov.hk/en/ other_info/press_rel/rc_report.pdf. 392 The honorary legal advisers are practising lawyers mainly from large city firms. Ibid. 393 Ibid. 394 Ibid. 395 Research carried out by Deloitte in 2005 found evidence of a need and demand for a dedicated strategic litigation project in Northern Ireland. After the need was identified, the Committee on the Administration of Justice submitted a funding proposal to Atlantic Philanthropies. In 2007, funding was granted for a five-year pilot project. Origin, Mission and Aims, PILS Project, http://www.pilsni.org/origin-mission-and-aims. 396 The Stakeholder Forum convenes NGOs and solicitors together. For more information, please refer to http://www. pilsni.org/about-members-forum and http://www.pilsni.org/about-solicitor-members. See also Become an NGO Member, PILS Project, http://www.pilsni.org/become-ngo-member. 397 Ibid.

| 125 398 Ibid. 399 About Public Interest Litigation, PILS Project, http://www.pilsni.org/about-public-interest-litigation. 400 For example, the PILS Project has supported a case that sought a clarification of the definition of the miscarriage of justice for compensation under a criminal statute to other cases where deportation orders had infringed on the appellants’ rights to move and reside freely under Article 18 of the EC treaty, which is now the Treaty on the Functioning of the European Union. Cases Undertaken by the PILS Project, the PILS Project, http://www.pilsni.org/cases-undertaken- pils-project. 401 Pro Bono, PILS Project, http://www.pilsni.org/pro-bono. 402 Stakeholder Forum, PILS Project, http://www.pilsni.org/about-members-forum; About Solicitor Members, the PILS Project, http://www.pilsni.org/about-solicitor-members. 403 Ibid. 404 Origin, Mission and Aims, PILS Project, http://www.pilsni.org/origin-mission-and-aims. 405 Strategic Litigation, The Atlantic Philanthropies, http://www.atlanticphilanthropies.org/grants/strategic-litigation-2. 406 For example, Canada defines poverty law for purposes of their analysis of poverty law services in Canada as Employment Insurance (EI), the Canada Pension Plan/Quebec Pension Plan (CPP/QPP) and Old Age Security (OAS), income assistance, housing and landlord/tenant, workers’ compensation, and debtor/creditor. An Analysis of Poverty Law Services in Canada, Department of Justice Canada, http://www.justice.gc.ca/eng/rp-pr/csj-sjc/jsp-sjp/rr03_la13-rr03_aj13/ rr 03_la13.pdf. 407 The Scott Report was issued by the Legal Aid Working Party in January 1986. Legal Aid in Hong Kong, 18. 408 Legal Aid in Hong Kong, Chapter 8, note 54. 409 Ibid., Chapter 8, 199-200. 410 Ibid., Chapter 8, note 62. 411 Ibid., Chapter 8, 200-201. 412 Ibid., Chapter 8, 201. Authors noted a few possible concerns such as funding priority, mode of operation of the legally qualified persons, and accessibility on a day-to-day basis of legally trained professionals “may result in a form of social activism unaccustomed before”. 413 Ibid., Chapter 10, 244. Quoting Zemans, who understood a “strategic model” of delivering legal services as one that seeks “to identify the social problems that create particular demands for legal services and to attempt to develop, with prioritization, a long term programme of research, reform and education to deal with these more fundamental issues.” “It does not conceptualize problems in the community merely as a multitude of problems with the law but recognizes the problems for what they are, claims and issues having deeper roots and less susceptible of legal categorization. It is accordingly by nature multi-disciplinary and not lawyer-centric.” 414 Ibid., Chapter 8, 199. 415 Ibid., Chapter 10, 244, 245. 416 Ibid., 244. 417 Legal Aid Services Council, Letter to CY Leung: Community Legal Services, 18 December 2012, http://www.lasc.hk/ download/CE-12-12-18.pdf. 418 Annual Report 2013-2014, Legal Aid Services Council, 36, http://www.lasc.hk/2014ar/pdf/tc/full.pdf.

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