Access to Justice: Pro Bono Legal Assistance by HKU Law’s Clinical Legal Education Team

The Clinical Legal Education (“CLE”) team is delighted to share news of another case of offering pro bono assistance to a participant of the Free Legal Advice Scheme on HKU Campus (“FLAS”) and successfully helping her to obtain leave to appeal to the Court of Appeal despite the lower court’s earlier refusal to grant leave. History and details of the legal saga and our pro bono assistance can be seen in the recent decision given by the Court of Appeal on 1 March 2024 in Chu Hoi (International) Limited v Chow Kwok Fong [2024] HKCA 202 (“the CA Decision”); by the CA Decision, the client was granted leave to adduce as new evidence on appeal her affirmation made on 5 February 2021 (“the Affirmation”) which was prepared with our pro bono assistance.

As can be seen from the CA Decision, Madam Chow is an elderly lady with little education and very limited financial means. The registered owner of the property where she resided filed a Notice of Application in the Lands Tribunal to recover vacant possession on the basis that Madam Chow was only a tenant under a tenancy at will. A default judgment was granted against Madam Chow upon her failing to file a Notice of Opposition. Madam Chow, acting in person, applied to set aside the default judgment. She subsequently engaged a solicitors’ firm (“the Firm”) and counsel to represent her. The hearing of the application for setting aside the default judgment on 14 December 2020 was adjourned by consent with directions for the filing of further evidence. While the Firm remained on record as her solicitors, Madam Chow in fact did not have legal assistance or advice after the 14 December 2020 hearing as she had exhausted her legal fund. As a result, Madam Chow failed to comply with the directions for filing her supplemental affirmation within 14 days and her application for setting aside the default judgment was dismissed by the Lands Tribunal on 11 January 2021.

It was on 28 January 2021 that Madam Chow first visited our CLE Office and she retrieved her case papers from the Firm the following day. Given the special circumstances of her case, we have  assisted her on a pro bono basis to prepare the Affirmation in support of her application to the Lands Tribunal for leave to appeal to the Court of Appeal against the dismissal order on 11 January 2021 out of time. Although the leave application was dismissed by the Lands Tribunal, with our pro bono assistance, Cheung JA granted her leave to appeal out of time upon her renewed application. She then obtained legal aid for her appeal to the Court of Appeal.  In the CA Decision, our pro bono assistance is mentioned:

“5. (11)  On 5 February 2021, the respondent, acting in person, applied to the Tribunal for leave to appeal the dismissal of the Setting Aside Application out of time.  Her application was supported by the 5 Feb 2021 Affirmation, which was prepared with the assistance of the free legal advice scheme of the Faculty of Law of The University of Hong Kong.” (emphasis added)

“8.  As to the 5 Feb 2021 Affirmation, it essentially sets out the respondent’s personal background, including her age and education level, and the circumstances leading to the Default Judgment and her failure to file a supplemental affirmation to support the Setting Aside. Notably, as summarised by Mr But, who represents the respondent in the present application, it is said that the respondent had neither the knowledge nor ability to make and file a supplemental affirmation until she received pro bono legal assistance from the Faculty of Law of The University of Hong Kong in February 2021.  The 5 Feb 2021 also details the facts and basis underlying the respondent’s case of adverse possession, and her contention that the applicant had misled the Tribunal.” (emphasis added)

“14.  In the present case, we have regard to the circumstances and difficulties encountered by the respondent before she received pro bono legal assistance as deposed to in her affirmation.  She is an elderly lady with little education and has very limited financial means. … …” (emphasis added)

“21.  … … In her affirmation in support of the present application, the respondent explained that after visiting the Faculty of Law of The University of Hong Kong on 28 January 2021, she went to [the Firm] on the following day (i.e. 29 January 2021)  to retrieve her case papers.  It was on that occasion that she signed a Notice to Act in Person, and it was in those circumstances that the Notice to Act to Person came to be filed on 29 January 2021.” (emphasis added)

The Court of Appeal has further made observations on a solicitor’s duty to promptly come off the record when it becomes clear that it can no longer represent the client in proceedings that are ongoing :

“23. … … We wish, however, to remind practitioners that as soon as solicitors become aware that they are no longer in a position to represent a client (due to, for example, the client’s failure or inability to put them in funds) in court proceedings, they should apply to the court for an order to cease to act at the earliest opportunity, or see to it that a Notice to Act in Person is promptly filed.  Solicitors should not allow themselves to remain on record as the legal representative when it is clear that they no longer have instruction to act in the proceedings.  This is particularly important when proceedings are ongoing and their client is required to take step(s) under an extant order.”

About Clinical Legal Education at HKU

The CLE Programme was launched in January 2010 as the first live-client clinical legal education programme in Hong Kong. We run FLAS under the Duty Lawyer Service, offering free preliminary legal advice to members of the public facing legal problems involving the laws of Hong Kong. Our CLE team also assists clients in their applications for legal aid to pursue their civil and criminal appeals, and assists in arranging pro bono legal representation.

As of April 2024, we have handled over 2,800 cases and trained over 1,000 students, with over 200 volunteer lawyers on our panel.

Despite the high operating costs of the CLE Programme, the Faculty remains committed to providing quality experiential learning for its law students across all years. We offer law students opportunities to gain exposure through court attendance at civil and criminal appeal hearings, as well as develop practical lawyering skills through interviewing real clients and conducting legal research, all under the guidance and supervision of CLE teachers and qualified lawyers.

For more information about our efforts in serving the public and providing quality education to our students, please visit our website and follow us on Facebook.