Audit Commission should check on legal aid abuses to put end to them
Since 2015, I have written several articles in this column expressing my concern over the blatant abuse of the government’s legal aid and judicial review system in Hong Kong, and called for a review of it. The first case that triggered my alarm was a judicial review on the Hong Kong-Zhuhai-Macao Bridge, in which an elderly recipient of social welfare was used as a front by the Civic Party to obtain legal aid for her representing counsel appointed by the litigant said to be politically aligned with the party, charging the Legal Aid Department a hefty sum for his service. Despite winning the court case, the government suffered a loss of at least HK$8.8 billion ($1.13 billion) in additional construction costs due to inflation and a one-year delay of the project. I struggle to understand how we suffer such a needless, monumental and senseless loss with the lawyer being the sole winner from a substantial windfall. And I was counting on the government to institute precautionary measures to ensure that this does not happen again. The government’s inaction all these years proved me dead wrong!
Another case concerns an assistant for the Labour Party in his application for legal aid to halt the funding application for the cross-border high-speed rail link. We all know the motive of this judicial review was to damage the Hong Kong Special Administrative Region’s relationship with the Chinese mainland and to provoke anti-China sentiment in Hong Kong, which surely is an abuse of the intended purpose of judicial review and the legal aid system.
Apparently, the powers that be were not particularly worried by the massive financial loss and the inimical communitywide impact caused by such abuses as they showed no sign of abatement. Neither the LAD nor the judiciary had taken any measures to forestall such abuse and the abusers merrily carry on with their antics at our expense! For example, the “Cheung Chau Judicial Review King” continued to be granted legal aid for his judicial reviews on frivolous grounds over political issues — over 30 cases in 10 years at the last count. Adding insult to injury, he was able to secure the services of leading lights in the legal profession, including Martin Lee Chuming QC, to represent him, all paid for by legal aid — or you and me as taxpayers!
The concern over the abuse of judicial review and the related legal aid triggered vociferous condemnation from various quarters, including a distinguished retired Court of Final Appeal judge, Henry Litton, who in December 2015 said that many judicial review cases were groundless and clearly an abuse of procedure, and they caused substantial economic losses to society. Despite such severe criticism coming from a respected and authoritative figure, the government refused to act.
Recently, two public scandals provoked public anger over the granting of legal aid on questionable grounds. The first case concerns the Falun Gong, labeled a subversive group by the central government. It was to challenge the seizure of their street exhibits by the Food and Environmental Hygiene Department in 2013. The court case dragged on for eight years and was finally dismissed by the Court of Final Appeal in May. Representing them was a top lawyer, Paul Harris, the chairman of the Hong Kong Bar Association, who was recently embroiled in controversy over his anti-China political stance. It is said that the legal fee paid by the LAD in this case amounts to HK$921,050; most of it will likely go to Harris.
The other case concerns the “one eye blinded girl”, who was alleged to have been shot in one eye by the police during a street riot; but based on available evidence, she
was more likely to have been shot by a fellow rioter with a slingshot firing a metal projectile. She applied for and was granted legal aid to seek a judicial review to stop the police from obtaining her medical record — a strange move if she had nothing to hide! Her application was dismissed by the court as groundless. What is even more suspicious is that while her judicial review was being processed, she absconded to Taiwan to avoid police investigation. Yet legal aid was granted for her to pursue the litigation in her absence. She was also represented by Harris. The legal fee paid by the LAD for this minor litigation totaled HK$399,975, most of which, again, will likely be pocketed by the same lawyer.
Then there were thousands of youngsters prosecuted for riot-related offenses in the past two years. Since many are either students or unemployed, they would likely succeed in obtaining legal aid for their defense. Since they are allowed to choose their own counsel, the benefactors once again are likely to be lawyer members of the Civic Party and their associates. There is bound to be a gross abuse of legal aid in the process.
With the vociferous public outcry, the government eventually succumbed to public pressure and announced that the LAD would conduct a review under the supervision of the chief secretary. However, after all these years of inaction, many are questioning the sincerity and effectiveness of the review. To overcome this requires an outside entity to conduct a thorough review. I believe the one best equipped to handle this delicate job is the Audit Commission in view of its independence, the respect it commands, and its track record of examining the performance of public bodies.
If the AC is chosen to take up the challenge, it can firstly compare the legal aid expenses in Hong Kong with similar bodies of other Western common law jurisdictions. It will likely conclude that we pay a lot more than them! In Hong Kong, the annual budget for legal aid is HK$1.59 billion, which means every citizen is paying HK$210 for legal aid, most of which goes into lawyers’ pockets, whereas the average in most common law jurisdictions was HK$75 per head. That speaks for the poor value for money of our legal aid system. With HK$1.59 billion in public money at stake, the AC should have no excuse not to dig into the source of this abuse and recommend ways to put an end to it.
Secondly, the audit check should focus on the LAD’s internal procedure of granting legal aid. For judicial review, the threshold for granting legal aid was set by the Court of Final Appeal in 2007 that it should be “a reasonably arguable case with a realistic prospect of success”. According to judiciary records, only 30 percent of the applications for judicial review were given permission by the High Court to proceed to a hearing. The AC can find out how many of these rejected cases were funded by legal aid and how much has been wasted by cases that would hardly qualify under the yardstick of a “realistic prospect of success”! Such audit results should reflect on the LAD’s abject failure in gatekeeping its resources.
The AC should also take note from the UK legal aid review in 2014. That review was triggered by serious concerns over the rising number of legal aid cases and the associated expenses, and the review aimed to discourage unnecessary litigation at public expense. One recommended remedial measure that was adopted requires legal aid applicants to prove that they are a real victim of a government decision which causes “life or liberty to be at stake”. Based on this criterion, the social welfare recipient could hardly qualify to seek judicial review on the Hong Kong-Zhuhai-Macao Bridge case, let alone the legal aid.
Thirdly, the AC should look into the LAD system of allotting cases to private lawyers. The current system of allowing the litigant getting legal aid to choose his/her own counsel is clearly illogical. No citizen attending a public hospital can expect to have the right to choose the most expensive private medical doctor for his treatment and be paid from the public purse! The AC should be able to work out a list of those lawyers receiving the most income from legal aid cases to ascertain if there is any impropriety. It is likely that the list will consist of largely anti-government lawyers. The solution is simple. There should be one standard fee based on the hourly rate for all legal aid cases, and the allotment should be on a fair rotation basis according to the list of qualified lawyers in different fields. If the lawyers are so civic-minded to take up legal aid cases, they should not mind doing it as their public duty and not be too concerned with their fees!
The audit check might comment on the fact that there is no deterrence for legal aid applicants who abuse the system. Even if the court dismissed their cases and ordered court costs as a penalty, they do not need to pay a single cent, although many of them may have assets exceeding HK$420,000, which is the ceiling for legal aid qualification. As the UK legal aid review pointed out, the question that should be asked when approving legal aid is whether the applicant would lodge the litigation if he/she can afford to pay from his/her own purse. If the answer is “unlikely”, the application should be refused. Hence, the LAD can require all judicial review litigants to bear the legal cost and possible penalty as their lifelong liability if their cases are dismissed by the court. A system can be worked out, similar to bankruptcy cases, for the litigant to repay the legal cost and penalty in installments based on a percentage of future earnings. Such a measure should deter most unjustifiable and frivolous litigation from being paid from the public purse, and save valuable court time.
One of the best remedies in the UK legal aid review is that legal aid will not settle the professional legal fees if the court subsequently refuses to grant permission for the judicial review. This would ensure lawyers examine the merit of the cases carefully before taking them up and only when they believe there is a “realistic prospect of success”, otherwise they would not get paid! Hence for the two above cases handled by Harris, which the courts have dismissed as groundless, he would not be paid for his legal service if this occurred in the UK!
With the introduction of the National Security Law for Hong Kong, it would be quite proper for the LAD to reject any legal aid applications for judicial review on highly political cases instigated by activists or political parties, when there is reason to suspect that their motive is to endanger the prosperity and stability of the HKSAR. This should apply to all judicial review cases where clearly a front is put up by the political parties to apply for legal aid to undermine the performance of the SAR government.