Legal Aid (Assessment of Resources and Contributions) Regulations
[1 October 1984]
(Format changes—E.R. 3 of 2015)
These regulations may be cited as the Legal Aid (Assessment of Resources and Contributions) Regulations.
In these regulations, unless the context otherwise requires—
application (申請) means application for a legal aid certificate; dependant (受養人) means any person wholly maintained by the person concerned; (L.N. 105 of 1988) Director (署長) includes any public officer acting under the authority of regulation 3(2); disposable capital (可動用資產) or disposable income (可動用收入) means disposable capital or disposable income as determined or to be determined by the Director under these regulations; financial eligibility limit (財務資格限額) means the amount of financial resources specified in section 5(1) of the Ordinance; (L.N. 78 of 2015) income (收入) means income as determined or to be determined by the Director and includes benefits and privileges; period of computation (計算期間) 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 (有關人士) means the person whose financial resources, 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. (L.N. 195 of 1992)For the purposes of these regulations, the income of the person concerned includes any sums payable to that person for the purpose of the maintenance of an infant and any sum so payable under an order of a court or under any instrument. (L.N. 195 of 1992)
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.
For the purpose of the definition financial resources (財務資源) in section 2 of the Ordinance, the financial resources of an aided person shall be assessed by multiplying that person’s monthly disposable income by 12 and adding his disposable capital to that sum.
The financial resources, 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. (L.N. 195 of 1992)
Any public officer may act on behalf of the Director under this regulation.
Save as otherwise provided by these regulations—
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 2 of Schedule 1; and
the disposable capital of the person concerned shall be determined in accordance with Schedule 2.
In computing the financial resources, 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. (L.N. 195 of 1992)
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).
Where an application is made by a person who is concerned in the proceedings only in a representative or fiduciary capacity, then for the purpose of determining the financial resources, 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—
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 financial resources, 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
shall otherwise disregard the financial resources of that person.
Except as otherwise provided in subregulation (2), in computing the financial resources, income or disposable income and disposable capital of the person concerned the resources of his or her spouse shall be treated as that person’s resources. (L.N. 105 of 1988; L.N. 195 of 1992)
The resources of the spouse of the person concerned shall not be treated as his or her resources if—
the spouse has a contrary interest in the dispute in respect of which application is made; or
the person concerned and the spouse are living separate and apart.
A spouse, whose resources are to be treated under this regulation as the resources of the person concerned, shall, for the purposes of rule 8 of Schedule 1, be deemed to be a dependant of the person concerned. (L.N. 105 of 1988; L.N. 148 of 2000)
Where an application is made on behalf of an infant for the grant of legal aid, the infant’s resources shall include any sum payable under an order of the court or under any instrument to any person for the maintenance of the infant.
For the purposes of determining the financial resources of a person receiving assistance under the Comprehensive Social Security Assistance Scheme administered by the Director of Social Welfare, it shall be presumed that the financial resources of that person do not exceed 12.5% of the financial eligibility limit unless there are reasonable grounds to believe or suspect that the financial resources of that person may be such as to render him ineligible for legal aid or liable to pay a contribution by virtue of section 18(1) of the Ordinance.
If it appears to the Director that the person concerned has with intent to reduce the amount of his financial resources, income, disposable income or disposable capital— (L.N. 195 of 1992)
directly or indirectly deprived himself of any resources; or
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.
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.
Where it appears to a Director that the circumstances in reference to which he has determined the financial resources of the person concerned have altered, the Director may re-determine that person’s financial resources, income, disposable income or disposable capital. (L.N. 195 of 1992)
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.
Where it appears to the Director that there has been an error or mistake in the determination of a person’s financial resources, 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.
(Format changes—E.R. 1 of 2013)
The maximum contribution of an aided person under section 18(1)(b) of the Ordinance shall be a contribution in respect of his financial resources assessed in accordance with Part 1 of Schedule 3.
For the purposes of section 32 of the Ordinance and a grant of legal aid to any person under the Supplementary Legal Aid Scheme, for proceedings mentioned in paragraph 1, 2, 3 or 8 of Part 1 of Schedule 3 to the Ordinance— (L.N. 146 of 2012)
the amount of the interim contribution payable by the aided person is an amount equivalent to the maximum contribution payable by an aided person under section 18(1) of the Ordinance whose financial resources are equal to the financial eligibility limit; and
the amount of any final contribution payable by the aided person is an amount equivalent to the aggregate of the following— (L.N. 146 of 2012)
the sums paid or payable on that person’s account out of the Fund;
the costs incurred on behalf of that person;
the percentage calculated in accordance with Part 3 of Schedule 3 of the value of any property, wherever situated, recovered or preserved for the aided person in the proceedings (whether on behalf of that person or on behalf of any other person), less any application fee paid under regulation 3(3) of the Legal Aid Regulations (Cap. 91 sub. leg. A). (L.N. 148 of 2000; L.N. 146 of 2012)
For the purposes of section 32 of the Ordinance and a grant of legal aid to any person under the Supplementary Legal Aid Scheme, for proceedings mentioned in paragraph 4, 5, 6, 7 or 9 of Part 1 of Schedule 3 to the Ordinance— (L.N. 171 of 2019)
the amount of the interim contribution payable by the aided person is an amount equivalent to 10% of the financial resources of that person or an amount equivalent to the maximum contribution payable by an aided person under section 18(1) of the Ordinance whose financial resources are equal to the financial eligibility limit, whichever is the higher; and
the amount of any final contribution payable by the aided person is an amount equivalent to the aggregate of the following—
the sums paid or payable on that person’s account out of the Fund;
the costs incurred on behalf of that person;
the percentage calculated in accordance with Part 3 of Schedule 3 of the value of any property, wherever situated, recovered or preserved for the aided person in the proceedings (whether on behalf of that person or on behalf of any other person), less any application fee paid under regulation 3(3) of the Legal Aid Regulations (Cap. 91 sub. leg. A). (L.N. 146 of 2012)
A person who is issued with 2 legal aid certificates, one for employee’s compensation and the other for common law damages arising out of the same circumstances, is liable to pay only one amount of contributions for the 2 certificates.
Despite sections 3 and 5(16) of the Legal Aid (Assessment of Resources and Contributions) (Amendment) Regulation 2012 (L.N. 146 of 2012) (Amendment Regulation), regulation 14 and Part 3 of Schedule 3 as in force before the date of commencement* of the Amendment Regulation continue to apply to a person in relation to legal aid granted under the Supplementary Legal Aid Scheme on an application made before that date by that person.
(L.N. 146 of 2012; E.R. 1 of 2013)
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.
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.
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.
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.
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.
Where the income of the person concerned 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 expenses for the care of a dependant who is—
an infant; or
unable to take care of himself by reason of his mental or physical condition,
during the time that that person is at work (whether that person is absent from home or not); (L.N. 224 of 2005)
any payment made by that person by way of contribution to a pension or retirement scheme; and (L.N. 224 of 2005)
any payment made by that person for salaries tax.
Where the income of the person concerned consists, wholly or in part, of profits from a trade, business or gainful occupation other than an employment at a wage or salary, there shall be deducted, if it is reasonable to do so, the expenses to provide for the care of a dependant who is—
an infant; or
unable to take care of himself by reason of his mental or physical condition,
during the time that that person is at work (whether that person is absent from home or not).
Income arising from any capital asset which has been included in the computation of the disposable capital of the person concerned, shall not be taken into account in the computation of the disposable income of the person concerned.
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.
In this rule—
net rent (租金淨額) 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 (租金) 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.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.
An amount equivalent to the 50-percentile household expenditure shall not be taken into account in relation to the person concerned and his dependants, if any.
For the purposes of this rule—
(Repealed L.N. 35 of 2011)
the amount that, in any particular year, shall not be taken into account for a particular household size shall be calculated in February of that particular year according to the following formula rounded to the nearest $10 amount—
| Ei | × | CPI(A) excluding rent component, j-l |
| 100 |
Where—
(i)“Ei” is the 50-percentile household expenditure (excluding expenditure for rent) for a particular household size “i” based on the results of the latest round of the Household Expenditure Survey conducted by the Census and Statistics Department; (ii)“CPI(A) ” is the average monthly Consumer Price Index (A) which excludes the result derived from the item for “rent, including rates and government rents” in year “j-l”, with the base period of the Index being the same as the survey period of the Household Expenditure Survey mentioned in sub-subparagraph (i); (iii)“j” represents that particular year;
only the person concerned and his dependants, if any, are to be taken into account in determining the size of household; and
in ascertaining whether a person is a dependant, regard shall be had to his income and other resources. (L.N. 148 of 2000)
Subject to paragraphs (2) and (3), where the person concerned makes regular payments for the maintenance of—
a spouse living separate and apart or a former spouse; or
a child,
there shall be a deduction in respect of those payments.
The deduction under paragraph (1) may only be made if the spouse or child (as the case may be) is not taken into account as a dependant of the person concerned in calculating the amount equivalent to the 50-percentile household expenditure referred to in rule 8(1). (L.N. 35 of 2011)
The amount to be deducted under paragraph (1) shall be—
where the payment is made under a court order, the amount actually paid; or
in any other case, the amount specified in paragraph (4).
The amount to be deducted under paragraph (3)(b) shall be such amount as the Director considers to be reasonable having regard to the circumstances of the case, but shall not exceed whichever is the lower of the following—
the amount actually paid as maintenance;
the 50-percentile household expenditure differential. (L.N. 35 of 2011)
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.
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.
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.
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.
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—
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
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.
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.
Save in exceptional circumstances, nothing shall be included in the amount of capital of the person concerned in respect of—
the household furniture and effects of main or any dwelling house occupied by him;
articles of personal clothing; and
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.
The value of any interest in the only or main dwelling in which the person concerned resides shall be disregarded in computing the amount of his capital. (L.N. 195 of 1992)
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.
Where the person concerned 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.
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.
(Repealed L.N. 195 of 1992)
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 concerned under—
the Employees’ Compensation Ordinance (Cap. 282);
the Pneumoconiosis and Mesothelioma (Compensation) Ordinance (Cap. 360); or (6 of 2008 s. 40)
the Occupational Deafness (Compensation) Ordinance (Cap. 469).
Where an application relates to a claim for damages arising from personal injury to a person, and monies have been received by the person concerned under an insurance policy in respect of the injury, there shall be disregarded such amount as the Director considers to be reasonable to provide for the care and medical treatment and appliance which are likely to be required by the injured person as a result of the injury over the 3-year period commencing on the date of application.
In determining the amount to be disregarded under subsection (1), the Director shall have regard to the circumstances of the case, including but not limited to—
the amount, if any, actually incurred to provide for the care and medical treatment and appliance required by the injured person as a result of the injury during the 12-month period immediately preceding the date of application; and
the medical evidence, if any, as to the care and medical treatment and appliance which are likely to be required by the injured person as a result of the injury.
In computing the amount of the disposable capital of the person concerned, there shall be disregarded—
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);
the amount of any interim payment made to him in accordance with an order made under the Rules of the High Court (Cap. 4 sub. leg. A), or in accordance with an agreement having the same effect as such an order; and (25 of 1998 s. 2)
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.
If the person concerned is of or over 60 years of age, in computing the amount of the disposable capital of the person, an amount equivalent to the financial eligibility limit in respect of financial resources is to be disregarded.
(L.N. 148 of 2000; 18 of 2014 s. 154; L.N. 78 of 2015)
(Format changes—E.R. 1 of 2013)
For the purposes of regulation 13— (L.N. 146 of 2012)
if the financial resources of an aided person do not exceed 12.5% of the financial eligibility limit, the maximum contribution of the person is $0; (L.N. 146 of 2012)
except as provided in subparagraph (c), if the financial resources of an aided person, when expressed as a percentage of the financial eligibility limit, fall within a range of percentages specified in column 1 of Table 1, then the maximum contribution of the person is the percentage of the person’s financial resources specified in column 2 of that Table opposite the range; and (L.N. 146 of 2012)
| Table 1 | ||||
| Column 1 | Column 2 | |||
| Financial resources of an aided person (percentage of the financial eligibility limit) | Maximum contribution (percentage of the financial resources of the aided person) | |||
| 1. | Exceed 12.5% but do not exceed 25% | 2% | ||
| 2. | Exceed 25% but do not exceed 37.5% | 2.5% | ||
| 3. | Exceed 37.5% but do not exceed 50% | 5% | ||
| 4. | Exceed 50% but do not exceed 62.5% | 10% | ||
| 5. | Exceed 62.5% but do not exceed 75% | 15% | ||
| 6. | Exceed 75% but do not exceed 87.5% | 20% | ||
| 7. | Exceed 87.5% but do not exceed 100% (L.N. 148 of 2000) | 25% | ||
for an aided person whose legal aid certificate is for proceedings in which a breach of the Hong Kong Bill of Rights Ordinance (Cap. 383), or an inconsistency with the International Covenant on Civil and Political Rights as applied to Hong Kong, is an issue—
if the person’s financial resources, when expressed as a percentage of the financial eligibility limit, fall within a range of percentages specified in column 1 of Table 2, then the maximum contribution of the person is the percentage of the person’s financial resources specified in column 2 of that Table opposite the range; or
if the person’s financial resources exceed 500% of the financial eligibility limit, the maximum contribution of the person is 67% of the person’s financial resources.
| Table 2 | |||
| Column 1 | Column 2 | |||
| Financial resources of an aided person (percentage of the financial eligibility limit) | Maximum contribution (percentage of the financial resources of the aided person) | |||
| 1. | Exceed 12.5% but do not exceed 25% | 2% | ||
| 2. | Exceed 25% but do not exceed 37.5% | 2.5% | ||
| 3. | Exceed 37.5% but do not exceed 50% | 5% | ||
| 4. | Exceed 50% but do not exceed 62.5% | 10% | ||
| 5. | Exceed 62.5% but do not exceed 75% | 15% | ||
| 6. | Exceed 75% but do not exceed 87.5% | 20% | ||
| 7. | Exceed 87.5% but do not exceed 100% | 25% | ||
| 8. | Exceed 100% but do not exceed 150% | 30% | ||
| 9. | Exceed 150% but do not exceed 200% | 35% | ||
| 10. | Exceed 200% but do not exceed 250% | 40% | ||
| 11. | Exceed 250% but do not exceed 300% | 45% | ||
| 12. | Exceed 300% but do not exceed 350% | 50% | ||
| 13. | Exceed 350% but do not exceed 400% | 55% | ||
| 14. | Exceed 400% but do not exceed 450% | 60% | ||
| 15. | Exceed 450% but do not exceed 500% (L.N. 78 of 2015) | 65% | ||
(L.N. 85 of 1997; L.N. 148 of 2000; L.N. 83 of 2004; L.N. 141 of 2006; L.N. 114 of 2007; L.N. 146 of 2012; L.N. 78 of 2015)
(Repealed L.N. 195 of 1992)
For proceedings mentioned in paragraph 1, 2 or 3 of Part 1 of Schedule 3 to the Ordinance—
except as otherwise provided in subparagraph (b), if the claim is settled before the date of commencement of the trial, the rate of contribution is 6%;
if the claim is settled before the date of commencement of the trial but after a brief for attendance at trial is delivered to counsel, the rate of contribution is 10%; and
in any other case, the rate of contribution is 10%.
For proceedings mentioned in paragraph 4, 5, 6, 7 or 9 of Part 1 of Schedule 3 to the Ordinance— (L.N. 171 of 2019)
except as otherwise provided in subparagraph (b), if the claim is settled before the date of commencement of the trial, the rate of contribution is 15%;
if the claim is settled before the date of commencement of the trial but after a brief for attendance at trial is delivered to counsel, the rate of contribution is 20%; and
in any other case, the rate of contribution is 20%.
For proceedings mentioned in paragraph 8 of Part 1 of Schedule 3 to the Ordinance—
except as otherwise provided in subparagraph (b), if the claim is settled before the date of commencement of the hearing of the appeal in the Court of First Instance, the rate of contribution is 6%;
if the claim is settled before the date of commencement of the hearing of the appeal in the Court of First Instance but after a brief for attendance at the hearing is delivered to counsel, the rate of contribution is 10%; and
in any other case, the rate of contribution is 10%.
(Part 3 replaced L.N. 146 of 2012)
(Repealed L.N. 489 of 1995)