Lecture 9 – Other Aspects of Legal System

TRAN A803BF Hong Kong Legal System and Legal English Lecture 9 – Other Aspects of Legal System

1 9.1 Jury

9.1.1 Introduction • Jury system is governed by the Jury Ordinance (J.O.). • It was first introduced in Hong Kong in 1845. • It as been modified in several respects since then E.g. abolished Property qualification, disqualification of women, etc. • Jury trial is now mainly used in criminal trials in the Court of First Instance or some death inquests held by the Coroner’s Court. In some civil cases e.g. defamation, a party may elect to have issues of fact tried by a jury.

2 9.1 Jury

• In Hong Kong the jury consists of 7 jurors, (maybe up to 9 jurors if the trial is likely to be lengthy.) (s.3 J.O.) • In criminal cases, a decision is made by a majority at least 5 jurors agreeing, except for offences when unanimity was required (s.24(3) J.O.). • In civil cases, at least a simple majority of jurors (4 out of 7) is required (s.24(2) J.O.).

3 9.1 Jury

• Whenever the jury in any case have withdrawn and been kept apart for the purpose of considering their verdict, and cannot agree upon a verdict, and that there is not such a majority as aforesaid agreeing, • the court shall discharge such jury, and shall cause a new jury to be empanelled and sworn and charged with any person accused, and the action, suit, information, or indictment shall be tried as if such first jury had not been empanelled (s.27 J.O.).

4 9.1 Jury

9.1.2 Eligibility A person is obliged to serve as a juror if he/she satisfies the following qualification stipulated in s.4 of the J.O.: --A Hong Kong resident; --Between 21 and 65; --Sound mind and not afflicted by blindness deafness or other disability preventing the person from serving as a juror; --Sufficiently knowledge of the language of the court proceedings (Chinese or English as the case may be); --Good character.

5 9.1 Jury

9.1.3 Exemption • S.5 of J.O. states that a person is exempted if he is: a. A members of Executive and Legislative Councils b. Lawyer c. Spouses of judges d. Justice of Peace e. Medical Petitioner f. Priests g. Pilots h. Members of the Hong Kong Auxiliary Police Force i. Chemists

6 9.1 Jury

j. Public officer who is --judge; --police; --legal officer; --presiding officer of a Tribunal, officer serving in the Department of Justice, Legal Aid Department, or Intellectual Property Department; --officer of Correctional Services Department; --probation officer; --member of the Government Flying Service

7 9.1 Jury

• If a person is summoned for jury service, he/she should check whether he/she belong to the categories of persons who are exempted from jury service. If he/she wishes to seek exemption from jury service, he/she should write to the Registrar, High Court, setting out the reasons in full as soon as possible after:

8 9.1 Jury

--the person receives a notice from the Registrar that his/her name will be added to the list of jurors; --copies of the provisional list or the additional list of jurors are available for inspection; or --the person receives the summons to appear as a juror.

9 9.1 Jury

• The Registrar will consider the application for exemption. Business commitments are not normally considered to be a sufficient reason for exemption from jury service. • If the Registrar refuses the application for exemption, the person may still put the request to the trial judge if he/she is selected by ballot as a juror.

10 9.1 Jury

9.1.4 Duties • In a criminal trial, jurors decide, based on the facts, whether the defendant is guilty or not guilty. In a death inquest, jurors decide the cause of and the circumstances connected with a death. • Although the trial judge decides which evidence the jury may hear, it is for the jury to decide the weight to attach to such evidence when considering their verdict.

11 9.1 Jury

• The jury’s deliberations are confidential. Members of the jury should take great care never to discuss the case with anyone other than their fellow members.

12 9.1 Jury

9.1.5 Rationale • Trial in court by peers of the community of the person on trial provides a measure of security against possible oppression by the government. Thus an individual’s right can have the best protection.

13 9.1 Jury

9.1.6 Selection • The Commissioner of Registration will include a person’s name in the list of jurors if he/she is considered eligible. • The Registrar, High Court, will serve a notice on the person, notifying that his/her name is about to be added to the list of jurors.

14 9.1 Jury

• The Registrar, High Court, complies a provisional list of jurors in or before October in each alternate year. This list is confirmed during or before the following February. The Registrar may compile additional lists from time to time. A notice is then published in the Government Gazette and in newspapers stating that copies of the provisional list or the additional list of jurors are available for inspection.

15 9.1 Jury

• The Registrar, High Court, each week draws at random a number of jurors from the list. If a person is selected, a summons will be sent to him/her by registered post requesting his/her presence in the High Court/Coroner’s Court on a certain date. A person is given at least 14 days’ notice of a call for jury service. 16 9.1 Jury

• The jury for each High Court trial is selected by ballot in open court from a pool of persons summoned. In criminal trials, this allows for objections from the lawyers for the defence and the prosecution. • Members of the panel not selected on the first occasion in the court may be required to attend another court for the selection of another jury on that day or a later date.

17 9.1 Jury

9.1.7 Penalties • Failure to attend in response to a jury summons is criminal contempt of court and shall be punishable. (s.32 J.O.) • An employer discriminating against an employee by reason of jury service commits an offence and is liable upon conviction. (s.33 J.O.)

18 9.1 Jury

9.1.8 Payment • Once selected to serve as a member of the jury in a case, the juror will receive an allowance each day in accordance with s.31(1) J.O.

19 9.2 Legal Aid

9.2.1 Introduction • It would be unjust if a person is denied professional assistance because of purely financial considerations. This would violate the rule of law. Thus the Legal Aid Department is established to offer legal aid and various schemes are launched to help those who cannot afford lawyers.

20 9.2 Legal Aid

• Legal aid is available for proceedings in: --District Court --Court of First Instance and the Court of Appeal --Court of Final Appeal --Magistrate’s Court (committal proceedings only) -- Mental Health Review Tribunal --Coroner’s Court (in cases where the Director of Legal Aid (the Director) is of the opinion that the interests of public justice require that legal aid be given

21 9.2 Legal Aid

9.2.2 Legal Aid Department • The Legal Aid Department is a government department. • It provides legal representation in both civil and criminal cases to any person who has reasonable grounds for pursuing or defending a legal action but who would otherwise be prevented from doing so by lack of means. • It offers the following legal aid schemes: --Ordinary Legal Aid --Criminal Legal Aid --Supplementary Legal Aid

22 9.2 Legal Aid

• The provision of legal aid services is funded by the government. Eligible persons are provided with legal representation either free or, depending on their financial circumstances, upon payment of a graduated contribution. Depending on the amount of damages successfully recovered, an aided person may be required to reimburse all or part of the legal costs incurred or expenses paid by the Director on his/her behalf.

23 9.2 Legal Aid

• Applications for legal aid are determined by the department's lawyers. If legal aid is granted, the Director may assign the department's own lawyers or solicitors in private practice to act for the aided persons. Barristers are also assigned whenever it is necessary or desirable to instruct them.

24 9.2 Legal Aid

• The Director maintains panels of counsel and solicitors who are willing to undertake legal aid work. Except where the case is assigned in-house, the aided person can nominate a lawyer on the legal aid panel to represent him. • Where cases are assigned out, the Department will monitor their progress and costs.

25 9.2 Legal Aid

9.2.3 Legal aid in civil cases • The major types of cases covered by the Ordinary Legal Aid Scheme are: --family and matrimonial disputes --personal injury claims --employment disputes --contractual disputes --immigration matters --professional negligence claims

26 9.2 Legal Aid

• Legal aid is not available for certain proceedings, including: --defamation (other than defending a counter-claim alleging defamation) --Small Claims Tribunal matters --Labour Tribunal matters --money claims in derivatives of securities, currency futures or other futures contracts --election petitions except involving a possible breach of the Hong Kong Bill of Rights Ordinance or an inconsistency with the International Covenant on Civil and Political Rights as applied to Hong Kong

27 9.2 Legal Aid

• To be eligible for legal aid an applicant must satisfy: (1) Means test --The financial resources of the applicant must not exceed a prescribed limit (HK$165,700). --The financial resources of an applicant are the sum total of his/her annual disposal income and disposal capital. --In calculating an applicant’s financial resources, a spouse’s income and assets will also be taken into account except when:

28 9.2 Legal Aid

--the applicant is separated from his or her spouse --the spouse has an opposing interest in the dispute for which the legal aid application is being made --When calculating the annual disposal income, an applicant is entitled to certain deductions, e.g. personal allowances (i.e. having dependent).

29 9.2 Legal Aid

(2) Merits test --The case itself must have merits: it must at least be arguable under the law.

• If both the means and merits tests are satisfied, legal aid will be offered.

30 9.2 Legal Aid

• The Director of Legal Aid has the discretion to waive the upper financial eligibility limit in meritorious cases involving a possible breach of the Hong Kong Bill of Rights Ordinance or an inconsistency with the international Covenant on Civil and Political Rights.

31 9.2 Legal Aid

• An applicant who is aggrieved by the Director of Legal Aid's decision of refusing legal aid may appeal to --the Registrar of the High Court, or --a Committee of Review chaired by the Registrar. • The decision of the Registrar or the Committee is final.

32 9.2 Legal Aid

9.2.4 Legal aid for criminal cases • Legal aid is available in: --committal proceedings in the Magistrate’s Court where the prosecution is seeking committal of an accused to the Court of First Instance --cases tried in the District Court and the Court of First Instance of the High Court --appeals from the Magistrate’s Court to the Court of Appeal or the Court of Final Appeal.

33 9.2 Legal Aid

• To be eligible for legal aid an applicant must satisfy (1) Means Test --Same financial resources criteria as for civil cases. --An applicant charged with murder, treason or piracy with violence can apply to a judge for exemption from the means test and from legal aid contribution. --The Director has discretion to grant legal aid to an applicant whose financial resources exceed the financial eligibility limit if it is desirable in the interests of justice to do so, subject to payment of a contribution on higher rates. 34 9.2 Legal Aid

(2) Merits Test --If it is desirable in the interests of justice, legal representation will be provided as long as the applicant passes the means test. --This is irrespective of whether he/she pleads guilty or not guilty to the charges or the nature of his/her defence.

35 9.2 Legal Aid

--For criminal appeals, legal representation will be provided if it is shown there is meritorious grounds for appeal except for cases involving a charge of murder, treason or piracy with violence.

There is a statutory requirement to grant legal aid in such cases even if there are no meritorious grounds for appeal.

36 9.2 Legal Aid

--There is no provision for appeal against the Director's refusal to grant legal aid in criminal cases on grounds of means or merits, except in relation to appeals to the Court of Final Appeal. --Appeals against refusals of application for legal aid for criminal appeals to the Court of Final Appeal are heard by a special committee appointed by the Registrar of the High Court.

37 9.2 Legal Aid

9.2.5 The Supplementary Legal Aid Scheme • This special scheme provides legal assistance to the so-called "sandwich class" who would otherwise not qualify for legal aid under the Ordinary Legal Aid Scheme because of the means test. • Initiated in 1984, it now covers cases of personal injury and death, medical, dental and legal professional negligence where the claim for damages is likely to exceed $60,000, and employees' compensation claims irrespective of the amount of the claim.

38 9.2 Legal Aid

• The scheme is self-financing and is funded by contributions paid by the aided person out of his/her financial resources and from damages or compensation recovered. When a case is successfully completed, the aided person pays to the scheme: --an amount equivalent to all costs incurred and sums paid on his/her behalf, --12% of the damages he/she is awarded, or 6% if the case is settled before counsel is briefed to attend trial.

39 9.2 Legal Aid

9.2.6 How to application for Legal Aid a. Applications for Civil Legal Aid For civil cases, applications for legal aid can be made in person at --Headquarters of the Department: 24/F Queensway, Government Offices, 66 Queensway, Hong Kong; or --Kowloon Branch Office: G/F Mongkok Government Offices, 30 Luen Wan Street, Mong Kok, Kowloon

40 9.2 Legal Aid

• Applicants are required to supply all documents relating to their case and all documents showing their financial status E.g. bank book, salary slips, rent receipts, mortgage repayment schedule, Salaries Tax assessment, documentary proof of Comprehensive Social Security Assistance, etc. • No application fee is needed except for applications under the Supplementary Legal Aid Scheme.

41 9.2 Legal Aid

b. Applications for Criminal Legal Aid • Applicants who have been remanded in custody can apply through the Correctional Services Department. • Applicants on bail can apply in person at the Crime Section of the Legal Aid Department at the Headquarters of the Department: 25/F Queensway Government Offices, 66 Queensway, Hong Kong

42 9.2 Legal Aid

9.2.7 Discharge or Revocation of Legal Aid • The Director can discharge (i.e. discontinue) legal aid for the reasons: --the financial circumstances of the aided person change to the extent that his or her financial resources exceed the financial eligibility limit; --the aided person requires the proceedings to be conducted or continued unreasonably; --the aided person fails to give his/her lawyer the assistance necessary or desirable for the proper conduct of the case.

43 9.2 Legal Aid

• The Director must discharge legal aid if: --no longer any merit in continuing the proceedings, or --unreasonable for the aided person to continue to receive legal aid.

44 9.2 Legal Aid

• The Director can revoke legal aid if the aided person: --fails to make a full and true disclosure of his/her financial resources; --fails to provide information or attend an interview as required by the Director; --fails to report change in financial circumstances; --has made a false statement or representation in furnishing information.

45 9.2 Legal Aid

• Upon discharge of legal aid, the person receiving legal aid shall cease to enjoy the benefits and protection accorded to an aided person. • Upon revocation of legal aid, the person receiving legal aid shall be treated as never having received legal aid and shall be liable for all costs incurred or payable by the Director on his/her behalf.

46 9.2 Legal Aid

• Upon discharge or revocation of legal aid, the aided person will be informed of the reasons and made aware of his/her right of appeal. • An aided person whose legal aid has been discharged or revoked and is aggrieved by the Director’s decision can appeal to: --the Registrar of the High Court, or --a Committee of Review chaired by the Registrar. The decision of the Registrar or the Committee is final.

47 9.2 Legal Aid

9.2.8 The Legal Aid Services Council • The Legal Aid Services Council is an independent statutory body established in 1996. • It advises the Chief Executive on legal aid policies. • It also supervises the provision of legal aid services by the Legal Aid Department, without interfering with its day-to-day operation. • The council is chaired by a non-official who is not a member of the legal profession. Its members include lawyers, lay members and the Director of Legal Aid.

48 9.3 Duty Lawyer Service Scheme

• The Duty Lawyer Service was established in 1978. • The Duty Lawyer Service is subvented by the HKSAR Government, but independently administered by the legal profession of Hong Kong. • Council Members: --4 members of the Hong Kong Bar Association; --4 members of the Law Society; --3 lay members. • The Duty Lawyer Service operates 3 schemes: a. Duty Lawyer Scheme, b. Free Legal Advice Scheme, and c. Tel-law Scheme.

49 9.3 Duty Lawyer Service Scheme

9.3.1 Duty Lawyer Scheme • The Duty Lawyer Scheme provides legal representation to defendants who are charged and brought before --Magistrates Courts, --Juvenile Courts, and --Coroners Courts. • Court Liaison Officers offer scheme representation to all eligible defendants which enable them to be represented by a duty lawyer in all court hearings.

50 9.3 Duty Lawyer Service Scheme

• To be eligible for duty lawyer service, a defendant has to pass the means and merit tests. Means Test: Gross annual income: HK$127,330 • Each eligible defendant has to pay a handling charge of $300. The Administrator of the service has the discretion to exempt a defendant from payment of the handling charge.

51 9.3 Duty Lawyer Service Scheme

9.3.2 Free Legal Advice Scheme • The Free Legal Advice Scheme provides members of the public with free legal advice at legal advice centres located in the District Offices of the Home Affaris Department. • It operates 9 evening advice centres. These are situated at Sha Tin, Central & Western, Tsuen Wan, Wan Chai, Kwun Tong, Yau Tsim Mong, Islands, Eastern and Wong Tai Sin. • Anyone wishing to obtain free legal advice has to attend a referral agency (District Offices, Caritas Offices and sub-offices of the Social Welfare Department) to book an appointment.

52 9.3 Duty Lawyer Service Scheme

9.3.3 Tel-law Scheme • In 1984, the Tel-law Scheme was introduced to provide public with taped legal information through the telephone. • In 1995, it was fully computerized and upgraded into a 24 hours automatic answering service. • The tapes are in Cantonese, English and Putonghua and cover aspects of the law including matrimonial, landlord and tenant, criminal, financial, employment, environmental and administrative law. • They are constantly updated and new tapes are added when a new subject is identified as being of interest to the public.

53 9.4 Legal Education

9.4.1 Education Paths • Cases: 1.Becoming a solicitor for local law graduates, obtains: a. i. Degree of Bachelor of Laws (LLB); and ii. Postgraduate Certificate in Laws (PCLL) from the HKU, the City University of HK, the CUHK b. 2 years employment as a trainee solicitor.

54 9.4 Legal Education

2. Becoming a solicitor for foreign law graduates, obtains: a. i. Degree of Bachelor of Laws (LLB) from a foreign university; and ii. Postgraduate Certificate in Laws (PCLL) from the University of Hong Kong, the City University of Hong Kong, the CUHK (2008) iii. 2 years employment as a trainee solicitor. b. i. Qualify as a solicitor after passing or being exempted from sitting the Overseas Lawyers Qualification Examination; and ii. Satisfying post-admission practice requirements

55 9.4 Legal Education

3.Becoming a barrister for local law graduates a. obtains: i. Degree of Bachelor of Laws (LLB); and ii. Postgraduate Certificate in Laws (PCLL) from the University of Hong Kong, the City University of Hong Kong, the CUHK (2008) b. serves 1-year pupillage (but after 6-months pupillage, can apply to the court to be admitted as a barrister with certain rights of audience.

56 9.4 Legal Education

4. Becoming a barrister for foreign law graduates, obtains: a. i. Degree of Bachelor of Laws (LLB) from a foreign university; and ii. Postgraduate Certificate in Laws (PCLL) from the HKU, the City University of Hong Kong, the CUHK b. serves 1-year pupillage (but after 6-months pupillage, can apply to the court to be admitted as a barrister with certain rights of audience. c. i. Qualify as a barrister after passing or being exempted from sitting the Barrister Qualification Examination; and ii. Completing pupillage requirements. 57 9.4 Legal Education

9.4.2 Continuing Legal Education • Continuing Legal Education for trainee solicitors and solicitors in their first year of practice was introduced by the Law Society in Hong Kong in 1991. This scheme requires practitioners to attend a combination of accredited mandatory and optional courses. • Developed on the basis of the CLE Scheme, the Continuing Professional Development (CPD) Scheme came into effect on 1 January 1998.

58 9.4 Legal Education

• The CPD Scheme aims to provide means for legal practitioners to chart their own professional development by the broadening of existing knowledge and skills and the development of new skills and areas of work. • The CPD Scheme applies to all trainee solicitors and has been extended to all solicitors with practising certificates since 1 January 2003. CPD activities include attendance at courses, taking distance learning courses, writing articles and books, writing dissertations, as well as preparation and delivery of training courses.

59 9.4 Legal Education

• It requires all solicitors and trainee solicitors to attend CPD scheme and to obtain a total of 15 CPD points each year.

60 9.4 Legal Education

9.4.3 Risk Management Education (RME) Programme • It is governed by the Legal Practitioners (Risk Management Education) Rules. • The solicitors and registered foreign lawyers practising in HK law firms are required to take the RME Programme under the Legal Practitioners (Risk Management Education) Rules since November 2004.

61 9.4 Legal Education

• The trainee solicitor is required to take the RME Programme starting from November 2008. • Aim: The RME Programme will extend one’s understanding of risk management in a law firm environment and provide him/her with the necessary tools and techniques to apply aspects of best practice to the law firm.

62 9.4 Legal Education

9.4.4 Advanced Legal Education Programme (ALE) • ALE Programme came into effect in March 2003. • It requires all pupil barristers to attend ALE courses and to obtain a total of 14 ALE points during their 12 months’ pupillage. • It comprises core component of advocacy, professional conduct and ethics, drafting, case preparation and substantive law.