LEGAL AID (ASSESSMENT OF RESOURCES AND CONTRIBUTIONS) REGULATIONS

LEGAL AID (ASSESSMENT OF RESOURCES AND CONTRIBUTIONS) REGULATIONS

LEGAL AID (ASSESSMENT OF RESOURCES AND
CONTRIBUTIONS) REGULATIONS

(Cap. 91, section 28)

[1 October 1984]

L.N. 327 of 1984 - R. Ed. 1984, L.N. 105 of 1988, L.N. 186 of 1989 -

PART 1

INTRODUCTORY

1. Citation

These regulations may be cited as the Legal Aid (Assessment of Resources

and Contributions) Regulations.

2. Interpretation

(1) In these regulations, unless the context otherwise requires

'application' means application for a legal aid certificate;

'child' means any unmarried person under the age of 21 years;

'dependant' means any person wholly maintained by the person concerned; (L.N.
105 of 1988)

'Director' includes any public officer acting under the authority of regulation 3(2);

'disposable capital' or 'disposable income' means disposable capital or disposable
income as determined or to be determined by the Director under these
regulations;

'income' means income as determined or to be determined by the Director and
includes benefits and privileges;

'period of computation' means the period of 12 months next ensuing from the date
of the application for a certificate, or such other period of 12 months as in the
particular circumstances of any case the Director may consider to be
appropriate;

'person concerned' means the person whose income, disposable income or
disposable capital is to be determined or redetermined or the person whose
resources are to be treated as the resources of any other person, under these
regulations..

(2) For the purposes of these regulations, the income of the person concemed
includes any sums payable to that person for the purpose of the

maintenance of a child and any sum so payable under an order of a court or

under any instrument.





(3) Where a person resides in more than one dwelling in which he has an
interest his main dwelling shall, for the purposes of these regulations, be that
determined by the Director.

3. Director to determine capital and income

(1) The income, disposable income or disposable capital of a person and the
extent of his liability to contribute in respect of any proceedings shall be determined
by the Director.

(2) Any public officer may act on behalf of the Director under this regulation.

PART 11

DETERMINATION OF INCOME, DISPOSABLE INCOME AND DISPOSABLE
CAPITAL

4. Determination of income, disposable

income and disposable capital

Save as otherwise provided by these regulations

(a)the income of the person concerned shall be determined in
accordance with Part 1 of Schedule 1 and his disposable income in
accordance with Parts 1 and 11 of Schedule 1; and

(b)the disposable capital of the person concerned shall be determined in
accordance with Schedule 2.

5. Subject matter of dispute

(1) In computing the income, disposable income or disposable capital of the
person concerned there shall be excluded the value of the subject matter of the
dispute in respect of which application has been made.

(2) Periodical payments of maintenance made under an order of a court shall not
be treated as the subject matter of the dispute for the purposes of subregulation (1).

6. Application in representative or fiduciary capacity

Where an application is made by a person who is concemed in the proceedings
only in a representative or fiduciary capacity, then for the purpose of determining
the income or disposable income and disposable capital of that person and, where
appropriate, the amount of any contribution under section 18(1)(b) of the Ordinance,
the Director--





(a)shall determine the value of any property or estate or the amount
of any fund out of which that person is entitled to be indemnified
and the income or disposable income and disposable capital and
maximum contribution of any persons (including that person if
appropriate) who might benefit from the outcome of the
proceedings; but
(b) shall otherwise disregard the personal resources of that person.

7. Resources of a spouse
(1) Except as otherwise provided in subregulation (2), in computing the
income or disposable income and disposable capital of the person concemed the
resources of his or her spouse shall be treated as that person's resources.
(L.N. 105 of 1988)
(2) The resources of the spouse of the person concemed shall not be
treated as his or her resources if-
(a)the spouse has a contrary interest in the dispute in respect of
which application is made; or
(b) the person concemed and the spouse are living separate and apart.
(3) A spouse, whose resources are to be treated under this regulation as
the resources of the person concemed, shall, for the purposes of rule 8 of
Schedule 1 and rule 11 of Schedule 2, be deemed to be a dependant of the
person concerned. (L.N. 105 of 1988)

8. Resources of an applicant who is a child
(1) Where an application is made on behalf of a child for the grant of
legal aid, there shall, in addition to the child's resources, be determined and
taken into account for the purposes of determining the income or disposable
income and disposable capital of the person concerned the resources of-
(a) any person liable to maintain the child; and
(b)any person having the care and control of the child, not being a
person having such care and control by reason of any contract or
for some temporary purpose,
except where that person has a contrary interest in the dispute in respect of
which the application is made, or in other exceptional circumstances.
(2) When an application is made on behalf of a child, the resources of the
child shall, for the purposes of these regulations, include any sum payable under
an order of a court or under any instrument to any person for the maintenance
of the child.

9. Deprivation or conversion of resources
If it appears to the Director that the person concerned has with intent to
reduce the amount of his income, disposable income or disposable capital-
(a) directly or indirectly deprived himself of any resources; or





(b)converted any part of his resources into resources which under
these regulations are to be wholly or partly disregarded (including
the repayment of money borrowed on the security of a dwelling), or
in respect of which nothing is to be included in determining the
resources of that person,

the resources of which he has so deprived himself or which he has so converted
shall be treated as part of his resources or as not so converted as the case may be.

10. Duty of the person concerned to report

change in financial circumstances

The person concerned shall inform the Director of any change in the financial
circumstances in reference to which the original determination was made where that
person has reason to believe that such change may affect the terms or continuation
of his certificate.

11. Re-determination on change of circumstances

(1) Where it appears to a Director that the circumstances in reference to which
he has determined the income, disposable income or disposable capital of the person
concemed have altered so that

(a)his income or disposable income may have increased or decreased by
an amount greater than $100; or

(b)his disposable capital may have increased by an amount greater than
$1,000,

the Director may re-determine that person's income, disposable income or
disposable capital.

(2) If the Director does not after exercising his powers under subregulation (1)
discharge or revoke that person's legal aid certificate, he may, except in the case of a
certificate granted under the Supplementary Legal Aid Scheme, re-determine that
person's maximum contribution.

12. Amendment of determination

because of error or mistake

Where it appears to the Director that there has been an error or mistake in the
determination of a person's income, disposable income, disposable capital or
maximum contribution or in any computation or estimate upon which such
determination is based and that it would be just and equitable to correct the error or
mistake, the Director may make an amended determination, which shall for all
purposes be substituted for the original determination and shall have effect in all
respects as if it were the original determination.





PART 111

CONTRIBUTIONS

13. Contributions from legally aided persons

The maximum contribution of an aided person under section 18(1)(b) of the
Ordinance shall be

(a)a contribution in respect of disposable capital in accordance with Part
1 of Schedule 3; and

(b)a contribution in respect of disposable income in accordance with Part
11 of Schedule 3.

(L.N. 105 of 1988)

14. Contributions under the Supplementary
Legal Aid Scheme

The percentage contribution prescribed for the purposes of section 32 of the
Ordinance shall be in accordance with Part 111 of Schedule 3 and there shall be
deducted from that contribution fees paid under regulations 3(3) and 5(7) of the
Legal Aid Regulations (Cap. 91 sub. leg.).

SCHEDULE1 [regs. 4(a) &
7(1)]

PART I

RULES FOR COMPUTING INCOME

1. The income of the person concerned from any source shall be taken to be the income
which that person may reasonably expect to receive (in cash or in kind) during the period of
computation, that income in the absence of other means of ascertaining it being taken to be the
income received during the preceding year.

2. The income in respect of any emolument, benefit or privilege receivable otherwise than
in cash shall be estimated at such a sum as in all the circumstances is just and equitable.

3. (1) The income from a trade, business or gainful occupation other than an employment at
a wage or salary shall be deemed to be the profits therefrom which have accrued or will accrue to
the person concerned in respect of the period of computation, and, in computing such profits,
the Director may have regard to the profits of the last accounting period of such trade, business
or gainful occupation for which accounts have been made up.

(2) In ascertaining the profits for the purpose of paragraph (1) there shall be deducted all
sums necessarily expended to earn those profits, provided that no deduction shall be made in
respect of the living expenses of that person or any member of his family or household, except
in so far as such member of his family or household shall be wholly or mainly employed in such
trade or business and such living expenses form part of his remuneration.





4. In computing the income from any source there shall be disregarded such amount, if any,
as the Director considers to be reasonable having regard to the nature of the income or to any
other circumstances of the case.

PART II

DEDUCTIONS IN COMPUTING DISPOSABLE INCOME

5. Where the income of the person concemed consists, wholly or in part, of a wage or salary
from employment there shall be deducted, if it is reasonable to do so, an amount to provide for
the care of any dependant child living with the person concerned during the time that that person
is absent from the home by reason of employment.

6. (1) Where the person concerned is a householder, there shall be a deduction in respect of
rent of his main or only dwelling of the amount of the net rent payable, or such part thereof as is
reasonable in the circumstances:

Provided that-

(a)the deduction shall not exceed one half of the income of the person concerned
unless the Director is satisfied that in the circumstances of the case it is reasonable
to deduct a greater sum;

(b)where any person or persons other than the person concerned, his or her spouse or
any dependant of his or hers is accommodated, otherwise than as a sub-tenant, in the
premises for which the rent is paid, the Director may deem the rent to be reduced by
an amount reasonably attributable to such other person.

(2) In this rule-

'net rent means the rent less any proceeds of sub-letting any part of the dwelling in respect of
which the said rent is paid or the outgoings incurred;

'rent' means-

(a) the rent payable in respect of a year; and

(b)a sum in respect of the yearly outgoings borne by the person concerned including, in
particular, rates, insurance and any annual instalment (whether of interest or capital)
payable in respect of a mortgage debt charged on the dwelling or on any interest
therein.

7. If the person concerned is not a householder, there shall be a deduction in respect of the
cost of his living accommodation of such amount as is reasonable in the circumstances.

8. (1) There shall not be taken into account the following amounts in respect of the person
concemed and each dependant

Person and dependants Amounts
(if any) per month

(i) if he has no dependants .. $620
(ii) if he has 1 dependant ... $465 for himself and
S465 for the dependant

(iii) if he he has 2 or 3 dependants....... in addition to (ii), $455
for each of the second and third dependants

(iv) if he h more than 3 dependant........ in addition to (ii) and
(iii), $455 for each
additional dependant
(L.N. 186 of 1989)





(2) In ascertaining whether a person is a dependant regard shall be had to his income and
other resources.
(L.N. 105 of 1988)

SCHEDULE 2 [regs. 4(b) & 7(1)]

RULES FOR COMPUTING DISPOSABLE CAPITAL

1 . Subject to the provisions of these regulations or rules, there shall be included in the
computation of the amount of the capital of the person concerned the amount or value of every
resource of a capital nature ascertained as on the date of the application:
Provided that, where it is brought to the notice of the Director that, between the date of
application and his determination there has been a substantial fluctuation in the value of a resource
or there has been a substantial variation in the nature of a resource affecting the basis of
computation of its value, or any resource has ceased to exist or a new resource has come into the
possession of the person concerned, the Director shall compute the capital resources of that person
in the light of such facts and the resources as so computed shall be taken into account in the
Director's determination.

2. So far as any resource does not consist of money, the amount or value thereof shall be
taken to be the amount which that resource would realize if sold in the open market or, if there is
only a restricted market for that resource, the amount which it would realize in that market, or shall
be taken to be the amount or value thereof assessed in such manner as appears to the Director to be
just and equitable.

3. Where money is due to the person concerned, whether immediately payable or otherwise
and whether the payment thereof is secured or not, the value shall be taken to be the present value
thereof.

4. If the person concerned stands in relation to a company in a position analogous to that of
a sole owner or partner in the business of that company, the Director may, in lieu of ascertaining
the value of his stocks, shares, bonds or debentures in that company, treat that person as if he were
such sole owner or partner and compute the amount of his capital in respect of that resource in
accordance with rule 5.

5. Where the person concerned is or is to be treated as the sole owner of or a partner in any
business, the value of such business or his share therein to that person shall be taken to be either-
(a)such sum, or his share of such sum, as the case may be, as could be withdrawn from
the assets of such business without substantially impairing the profits of such business
or the normal development thereof., or
(b)such sum as that person could borrow on the security of his interest in such business
without injuring the commercial credit of that business,
whichever is the greater.

6. The value of any interest in reversion or remainder on the termination of a prior estate,
whether legal or equitable, in any real or personal property or in a trust or other fund, whether the
person concerned has the sole interest or an interest jointly or in common with other persons or
whether his interest is vested or contingent, shall be computed in such manner as is both equitable
and practicable.





7. Save in exceptional circumstances, nothing shall be included in the amount of capital of
the person concerned in respect of

(a) the household furniture and effects of main or any dwelling house occupied by him;

(b) articles of personal clothing; and

(c)the personal tools and equipment of his trade, not being part of the plant or
equipment of a business to which the provisions of rule 5 of this Schedule apply.

8. (1) In computing the amount of capital of the person concemed

(a)in the case of legal aid under the Supplementary Legal Aid Scheme, the value of any
interest in the only or main dwelling in which he resides shall be disregarded; and

(b)in any other case, the first $300,000 of the value of his interest in such dwelling,
after deduction of encumbrances, shall be disregarded.

(2) Where the person concerned resides in more than one dwelling in which he has an
interest, the Director shall take into account in respect of the value to him of any interest in a
dwelling which is not the main dwelling any sum which might be obtained by borrowing money on
the security thereof.

9. Where the person concemed has received or is entitled to receive from a body of which
he is a member a sum of money by way of financial assistance towards the cost of the
proceedings in respect of which a certificate is applied for, such sum shall be disregarded.

10. The value of any life assurance or endowment policy shall be taken to be the amount
which the person concerned could readily borrow on the security thereof.

11. (1) In computing the amount of the disposable capital of the person concerned there

shall be disregarded the following amounts in respect of himself and each dependant-
Person and dependants

(if any) Amounts

(i) Person with no dependants ants ..$7,880

(ii) Person with dependants ........
(a) in respect of the person himself ........$5,250
(b) in respect of each dependant ...................$5,250

(L.N. 186 of 1989)

(2) In determining whether a person is a dependant regard shall be had to his income and
other resources.

(L.N. 105 of 1988)

12. Where an application relates to a claim for damages arising from personal injuries to, or
the death of, any person, there shall be disregarded the amount of any compensation received by
the person concemed under the Employees' Compensation Ordinancve (Cap. 28 L.N. 186 of
1989)

13. In computing the amount of the disposable capital of the person concerned, there shall
be disregarded

(a)the amount of any moneys paid to him from the assistance fund established under
section 3 of the Traffic Accident Victims (Assistance Fund) Ordinance (Cap. 229);

(b)the amount of any interim payment made to him in accordance with an order made
under the Rules of the Supreme Court (Cap. 4 sub. leg.), or in accordance with an
agreement having the same effect as such an order; and











(e)such amount or value, if any, of a donation or gift received by him, as the Director
considers to be reasonable having regard to the amount, value and nature of the
donation or gift.

(L.N. 186 of 1989)

SCHEDULE 3 [regs. 13 & 14]

CONTRIBUTIONS

PART 1

CONTRIBUTIONS IN RESPECT OF DISPOSABLE CAPITAL

1. The maximum contribution of an aided person in respect of disposable capital shall be
based on his disposable capital and calculated in the following manner

(a) if his disposable capital does not exceed $5,000, his contribution shall be nil;

(b) if his disposable capital exceeds $5,000 but does not exceed $6,000, his maximum

contribution shall be 10% of his disposable capital;

(c) if his disposable capital exceeds $6,000, his maximum contribution shall be $600

payable in respect of the first $6,000 of his disposable capital, plus-

(i) in respect of the next $1,000 (or part thereof), 15% of the excess over
$6,000;

(ii) in respect of the next $1,000 (or part thereof), if any, 20% of the excess over
$7,000;

(iii) in respect of the next $1,000 (or part thereof), if any, 25% of the excess over
$8,000;

(iv) in respect of the next $1,000 (or part thereof), if any, 30% of the excess over
$9,000;

(y) in respect of the next $1,000 (or part thereof), if any, 35% of the excess over
$10,000;

(vi) in respect of the next $1,000 (or part thereof), if any, 40% of the excess over
$11,000;

(vii) in respect of the next $1,000 (or part thereof), if any, 45% of the excess over
$12,000;

(viii) in respect of the next $1,000 (or part thereof ), if any, 50% of the excess
over $13,000; and

(ix) in respect of the next $1,000 (or part thereof), if any, 55% of the excess over
$14,000.

PART 11

CONTRIBUTIONS IN RESPECT OF DISPOSABLE INCOME

2. The maximum contribution of an aided person in respect of disposable income shall be
based on his monthly disposable income and calculated in the following manner

(a) if his monthly disposable income does not exceed $1,100, his contribution shall be
nil;

(b) if his monthly disposable income exceeds 51,100 but does not exceed $1,200, his







maximum contribution shall be 10% of 12 times his monthly disposable
income;

(C) if his monthly disposable income exceeds $1,200 but does not exceed $1,300, his

maximum contribution shall be 12~% of 12 times his monthly disposable
income;

(d) if his monthly disposable income exceeds $1,300 but does not exceed $2,200, his

maximum contribution shall be 15% of 12 times his monthly disposable
income.

(L.N. 32 of 1986)





PART 111

CONTRIBUTIONS UNDER THE SUPPLEMENTARY LEGAL AID SCHEME

3. Where a claim proceeds to judgment the rate of contribution calculated as follows-
(a) in respect of the first $50,000 (or any part thereof), at the rate of 10%;
(b) in respect of the next $200,000 (or any part thereof), at the rate of 121%; and
(e) in respect of any excess over $250,000, at the rate of 10%.

4. Where a claim is settled prior to judgment the rate of contribution shall be reduced as
follows-
(a) where settlement occurs prior to delivery of a brief to Counsel, by 50%;
(b) where settlement occurs after delivery of a brief but before the trial commences, by
25%; and
(c) where settlement occurs during trial, by 10%.

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