Hong Kong Ordinances

LEGAL AID ORDINANCE - SECT 18A

Charge on property recovered

Caution: This is a past version. See the current version here.

(1) Subject to this section-

   (a)  the amount of a contribution to the extent that it is unpaid; and

   (b)  except where legal aid has been granted under the Supplementary 
        Legal Aid Scheme, if the total contribution is less than the net
        liability of the Director on the aided person's account, a sum equal
        to the deficiency, shall be a first charge for the benefit of the
        Director on any property, whether situated in Hong Kong or otherwise,
        which is recovered or preserved for the aided person in the
        proceedings or in any other proceedings in respect of which the person
        was aided and which, in the opinion of the Director, were
        substantially related to or connected with the proceedings in which
        property was recovered or preserved. (Replaced 27 of 1991 s. 11)

(2) The references in section 18 and in subsection (1) to the net liability of
the Director on any person's account in relation to any proceedings refer to
the aggregate amount of the following-

   (a)  sums paid or payable by the Director on his account in respect of the
        proceedings to any solicitor or counsel (or, where the Director acts
        for a person, sums which would have been so payable if the Director
        had not so acted) and not recouped by the Director from sums recovered
        under an order or agreement for costs made in favour of that person
        with respect to the proceedings;

   (b)  any amount paid or payable by the Director under section 16C on behalf
        of that person; and (Amended 54 of 1984 s.17)

   (c)  the amount of any expenses defrayed by the Director under section 9(f)
        in respect of the grant of legal aid to that person.

(3) The reference in subsection (1) to property recovered or preserved for an
aided person in any proceedings shall include-

   (a)  his rights under any compromise arrived at to avoid or bring to an end
        the proceedings and any sums recovered under an order or agreement for
        costs made in his favour with respect to the proceedings; and

   (b)  where the legal aid certificate granted to him in respect of the
        proceedings is revoked or discharged, any property subsequently
        recovered or preserved by or for him in the proceedings or by virtue
        of any compromise arrived at to avoid or bring to an end the
        proceedings; and (Amended 54 of 1984 s. 17)

   (c)  any property recovered for the benefit of any person on whose behalf
        the aided person is acting or for the benefit of any estate or fund
        out of which that aided person is entitled to be indemnified. (Added
        54 of 1984 s. 17)

(3A) Where the property recovered or preserved is land or an interest in land,
a charge under subsection (1) shall vest in the Director who may enforce the
charge in any manner which would be available to a chargee in respect of a
charge given inter partes including registration under the
Land Registration Ordinance ( Cap 128). (Added 27 of 1991 s. 11)

(3B) Where in any proceedings, there is recovered or preserved for the
aided person property which by order of the court or the Court of Final Appeal
or, under the terms of any agreement reached, is to be used as a home for the
aided person or his dependants the following shall apply- (Amended 79 of 1995
s. 50)

   (a)  Where the aided person wishes to use the property as a home for
        himself or his dependants and he agrees in writing to comply with the
        condition set out in paragraph (b) the Director may, if he is
        satisfied that the property will provide adequate security for any sum
        referred to in paragraph (b), agree to defer enforcing the charge over
        that property.

   (b)  The condition referred to in paragraph (a) is that from the date on
        which the charge is first registered, simple interest payable by the
        aided person shall accrue for the benefit of the Director at the rate
        of 10% per annum or at the prescribed rate on such sum as, but for the
        provisions of this subsection, the Director would have retained in
        respect of property so recovered or preserved.

   (c)  Interest payable by the aided person under paragraph (b) shall
        continue to accrue until the sum referred to is paid and the Director
        shall not seek to recover interest until such payment is made. Nothing
        shall prevent an aided person from making interim payments of interest
        or capital in respect of any sum referred to whether such payments are
        made at regular intervals or not and any such payment of capital shall
        reduce the sum accordingly except that no interim payment shall be
        used to reduce any sum while interest remains outstanding. (Added 27
        of 1991 s. 11)

(4) The charge created by subsection (1) on any damages or costs shall not
prevent a court or the Court of Final Appeal allowing them to be set off
against other damages or costs in any case where a solicitor's lien for costs
would not prevent it. (Amended 79 of 1995 s. 50)

(5) The charge on property under subsection (1) does not apply to-

   (a)  any interim payment under an order or an agreement having the same
        effect as an order;

   (b)  maintenance pending suit or a periodical payment under an order made
        in domestic proceedings, or under an agreement having the same effect
        as an order, for the maintenance of a child, spouse or former spouse
        unless the payments are for the maintenance of a spouse or former
        spouse and are at a rate exceeding $4800 (or its equivalent) each
        month; (Amended 8 of 1997 s. 4)

   (c)  where the payment of maintenance for a spouse or former spouse is
        payable at a rate exceeding $4800 (or its equivalent) each month, the
        first $4800 (or its equivalent) of each payment; (Amended 8 of 1997 s.
        4)

   (d)  the payment of arrears of maintenance except to the extent that
        paragraph (b) would otherwise apply; and

   (e)  an amount recovered by way of employee's compensation to the extent
        that the charge would apply the deficiency attributable to a common
        law claim by the aided person arising out of the same circumstances.
        (Replaced 43 of 1995 s. 8) (Added 60 of 1981 s. 2)