- The rule of law requires that there be equality before the law. Equality before the law is meaningless without access to the law. True access to the law not only means formal access to the legal system and formal rights, it also means knowledge of legal rights and obligations, and the ability to represent one's interests effectively.1 Without effective provision of legal aid services to financially disadvantaged persons, they are unable to enforce rights that are theirs under our legal system.
- That a person accused of a crime generally has a right to legal representation is an internationally recognized human right.2 So too is the right to challenge the lawfulness of one's detention, which is applicable in habeas corpus and judicial review proceedings.3 The right to bring actions against any entity including government authorities which has caused a person loss or acted unlawfully is fundamental to the rule of law.
- If a person is prevented from enforcing their legal and human rights through lack of financial resources, the rule of law is seriously undermined. Hence the need for a system of legal aid which provides persons of low to medium income -- who wish to but cannot afford to instruct lawyers on his/her own resources -- with access to competent legal representation. Hence also the rationale for governments to fund legal aid schemes.
- If a government structures legal aid schemes so that it maintains more than arms-length control over the provision of legal aid services, or if it acts to influence the provision of legal aid in informal ways, it has the effect of diminishing the rule of law. It limits people's access to the courts of justice, and their ability to present their cases properly in court, for the reason that they have insufficient resources to instruct lawyers privately.
Legal Aid Schemes Operated in Hong Kong and Criticisms of their Lack of Independence from Government
- There are two main government-funded bodies which provide legal aid services to persons in Hong Kong; the Duty Lawyer Scheme and the Legal Aid Department.
- The Duty Lawyer Scheme ("DLS") is a limited company that is operated by the legal profession.4 Generally speaking, it funds legal representation in Magistrate's courts to persons who have been charged with a criminal offence which may result in their being sentenced to a prison term, however it does not fund legal representation in respect of all such offences. Executive control is formally exercised over the DLS by the limits the Administration Wing places on the level of its funding. In practice, this has resulted in DLS lawyers often being assigned a large case load, resulting in their having very little time in which to prepare each of their clients' cases.
- The Executive also exercises control over the DLS by "approving", on what appears to be an informal and non-transparent basis, DLS' schedule of offences for which the Executive will fund legal representation of defendants in the Magistrate's court.5 Of particular concern is that the Executive has "disapproved" of general funding of DLS representation of defendants charged with many Immigration Ordinance offences in respect of which Magistrates routinely sentence persons convicted to a term of imprisonment. The way in which the Executive has exercised control over the DLS in these ways raise serious concerns about DLS' independence, which are dealt with in greater detail later in this report.
- The Legal Aid Department ("LAD") funds representation of low to medium income defendants in the higher courts6 who have been charged with criminal offences, provided that the defendant satisfies the LAD that s/he has an arguable case for defending a charge or appealing a conviction or sentence. The LAD also funds legal representation for persons with a low to medium income who wish to bring or defend civil suits in the higher courts, again only if the LAD is satisfied they have an arguable case.7 The Government formally exercises control over the LAD in numerous ways, including by appointing the Director of Legal Aid, controlling LAD's budget,8 reviewing its operations, formulating legal aid services policy, appraising the Director's performance, setting personnel management procedures and co-ordinating staffing arrangements.9
- There is evidence that in sensitive civil cases involving applicants for legal aid who wish to take cases against the Government which may cause it administrative problems or embarrassment, the Executive has also exercised informal control over the LAD.10 This has been achieved in several ways. First, by the Executive reaching an understanding or agreement with senior civil servants in charge of LAD that legal aid should not be granted in sensitive cases without first consulting the Executive.11 Second, by the Executive indicating its opposition to the funding of some types of cases and the senior civil servants who run the LAD devising policies or making decisions which accord with the Executive's wishes.12 Third, by the Executive fostering a culture among LAD staff (who are all civil servants) that operates against them always thinking and acting independently, with LAD staff sometimes being more concerned with protecting the perceived interests of Government, rather than LAD's applicant clients.13
- It is significant that 17% of the LAD's own law clerks expressed their view, in a survey, that the LAD does not always act independently of Government.14
Question of Independence to be Considered by Chief Executive with a View to Institutional Changes Being Made
- It is against this background, and in particular concern about the independence of the LAD from Government expressed by the Law Society, Bar Association and some legislators, that the Legal Aid Services Council ("LASC") was established in September 1996.15 One of the LASC's primary statutory functions is to investigate whether it is feasible and desirable for the LAD to be made independent of Government.16 It contracted with Coopers & Lybrand, a consulting firm, to produce a report on the issue which was completed on 31 March 1998, "the C&L Report".17
- The LASC released the C&L Report for public comment in late May 1998. Much of this report is a response to the C&L Report. The LASC intends to consider the C&L Report in light of public comment and make recommendations to the Chief Executive as to whether the LAD and DLS should be made more independent of Government. This presents an historic opportunity for the Government to demonstrate its commitment to the rule of law by taking the steps necessary to make the LAD and DLS more independent of Government, and the Executive in particular.
Key Findings of the C&L Report Regarding the LAD: Model 2 Recommended by C&L Report; Model 3 Recommended by the Monitor
- The C&L Report indicates that it is feasible to establish a legal aid authority (LAA) that is independent of government other than in respect of funding. The C&L Report also finds that it is desirable for the provision of legal aid to be made more independent of Government.18 It proposes 5 possible models for the LAD, which range from no substantive changes to the present system, to complete independence from Government other than in respect of funding, with the LAD becoming a non-statutory body.19
- The C&L Report recommends what it calls Model 2,20 a half-way house between independence from Government and the present system (called Model 0) which involves a significant lack of independence from Government. The key features of Model 2 are:
(1) The LAD would essentially remain a Government department employing primarily civil servants.
(2) A new statutory body called the Legal Aid Authority ("LAA") would be established which would have full authority and responsibility for overseeing the policies and operation of the LAD. The LAA would be a board of directors which is representative of key interests in the community concerned with legal aid, but appointed by the Chief Executive.
(3) The LAA would employ the senior management of the LAD; i.e., the Director and Deputy Directors of the LAD.
(4) The Government would remain the employer of all other staff of the LAD.
- The Monitor favours a variation of what the C&L Report refers to as Model 3, with the following key features:
(1) The LAD would be disestablished as a Government department and made a statutory body.
(2) Staff of the old LAD would be retained on the same employment terms they had under the LAD, with the possible exception of the Director and Deputy Directors of the LAD who may be laid off.
(3) The new statutory body, called the LAA, would have full responsibility for the provision of legal aid services formerly performed by the LAD. The LAA would be a board of directors which is appointed by the Legislature on the basis of recommendations of key representative interests in the community concerned with the provision of legal aid.
(4) The LAA would be required by statute to establish a Community Consultative Committee which has broad community representation and meets regularly to discuss problems with, or improvements that could be made to, the provision of legal aid.21
(5) The LAA would be appointed by and answerable to the Legislature, not the Chief Executive. The reason for this is that the Chief Executive, who is in charge of an Executive-led Government, would have a serious conflict of interest in appointing members of the LAA and ultimately being responsible for the conduct of the LAA.22
(6) The LAA would become the employer of all staff of the LAD, providing staff with an institutional independence from Government and providing the LAA with much greater flexibility to employ staff from outside the civil service when new positions become available.
Costs Involved in Models 2 and 3
- The C&L Report's reason for recommending Model 2 rather than Model 3 is primarily the one-off cost to Government involved. The Report projects that Model 2 would cost up to $35 million to implement because it might involve laying off (and compensating) the current Director and Deputy Directors of the LAD, who were appointed by the Executive.23
- The cost of Model 3 is estimated to be between $40 million and $427 million, again because it may involve laying off and compensating staff.24 The reason why the upper-end cost projection for Model 3 is $427 million is that this assumes that no LAD Departmental grade staff would join the newly established LAA, none would join other parts of the civil service, and they would all receive an enhanced pension or a short service gratuity plus an ex gratia payment.25 Pension payments under this scenario would be made up to normal retirement age of 55 or 60 costing $218 million; pension "enhancements" would cost $118 million; ex gratia payments in addition would cost $51 million; and $40 million would be spent in recruitment and induction costs.
- This scenario is of course highly unlikely, and extravagant in terms of the proposed payments to be made to LAD staff. If the new LAA offered employment to the LAD staff on the same terms and conditions as they had been receiving -- which is cost neutral -- it is unlikely that many would leave to take up non-civil service positions, or that there would be any need to compensate staff who chose to go into the private sector.26 Making the LAA an independent statutory body employing its own staff would also provide the LAA with much greater flexibility than the LAD, because newly recruited staff could be employed on contract terms, if that was considered desirable.27
- The Monitor's position is that there is no evidence that the one-off cost of implementing Model 3 would be significantly higher than the one-off cost of implementing Model 2, nor should it be. A small cost difference may exist if any Departmental grade staff do not join the LAA, choosing instead to move to another Government Department and remain a civil servant or to go to the private sector, thereby leading to the LAA incurring recruitment and training costs of new staff. This cost difference would be relatively insignificant, and in any event it would be a small price to pay for an LAA that is independent of the Government, other than in respect of funding.
No Serious Disruptions to LAD Services Under Models 2 or 3
- Model 2 does not involve any major disruption to the services provided by the LAD. In the Monitor's view, Model 3 would likewise not involve any disruption to the LAD's provision of legal aid. While disestablishment of the LAD sounds like a major undertaking, the only way in which services would be disrupted significantly is if a large proportion of the Departmental grade staff of the LAD declined to transfer their employment to the new LAA. For the reasons given above, the Monitor believes that this is a most unlikely scenario.
- The Monitor sees no need for a new LAA, which would be a statutory body, to move from the Government offices in which they are presently located. While any such move would have a symbolic benefit in showing that the LAA was and intended to operate independently of the Executive, the cost and disruption to services it would entail cannot be justified. Publicity would presumably be given to the substantive changes involved in the transition of the LAD to an independent LAA, so there is no need for a symbolic gesture of this nature.
Need for an Effective Complaints Mechanism in New LAA
- The C&L Report notes that the LAD already has a complaints mechanism, but does not comment on its effectiveness. The experience of members of the Monitor is that in practice, the current complaints mechanism is unknown to most applicants for legal aid and often ineffective when a complaint is made. Complaints routinely go unanswered, or are not answered satisfactorily. The Monitor recommends that a formal complaint mechanism be provided for in the legislation necessary to establish the LAA.
Appointment and Composition of the New LAA
- The Monitor agrees with the C&L Report that the method of appointment to, and composition of, the new LAA is "crucial" in safeguarding the independence of the legal aid administration.28 It is therefore surprising that the C&L Report recommends that the Chairman of the LAA should be appointed by the Chief Executive, and the other members of the LAA should be appointed by the Chief Executive after "consulting" with bodies with an interest in the provision of legal aid.29 The Monitor takes the view that the Chief Executive has a plain conflict of interest in appointing the LAA. Moreover, to provide the Chief Executive with the power to appoint the LAA, which is supposed to be independent of the Executive, is contradictory.
- If, for example, some members of the LAA were considered to be creating administrative difficulties by their insistence on certain policies resulting in more frequent challenges to the Executive, and if the Chief Executive chose not to reappoint those members at the end of their terms, the public would be left with the impression that the Chief Executive's decisions were based on considerations which undermine the independence of the LAA.30
Method of Appointment in Other Countries Where Executive is Elected:
Monitor Recommends that Legislature Make Appointments to LAA
- It is noted at p 69 of the C&L Report that in British Columbia, a two-thirds majority of directors of the LAA there are appointed by non-government agencies. In New South Wales and Queensland, however, the situation is different. There the Attorney General and the Governor in Council respectively make appointments to their LAAs, although in NSW some members are appointed on the recommendation of the Bar, Law Society and Labour Council.
- The situation in Australia can be distinguished from that of Hong Kong because in Hong Kong we have a non-elected Executive leading the Government. In Australia, electors can vote the Executive out of power. In Hong Kong, the community has no institutional recourse against appointments to the LAA by the Executive which are less than ideal.
- For this reason, the Monitor believes that the Legislature should have the responsibility of making appointments to the LAA. The C&L Report does not consider this proposal, but makes the observation at p 71 that it would be unusual for a statutory authority in Hong Kong to include members not appointed by the Chief Executive. This observation is presumably made by the C&L Report on the basis that appointment to other statutory bodies in Hong Kong are made by the Chief Executive, including the Hospital Authority, Housing Authority, Consumer Council and Independent Commission Against Corruption.31 The C&L Report fails to take into account, however, that an independent LAA is one of the foundation stones of the rule of law in Hong Kong, which consideration does not apply in respect of these other statutory authorities cited in the C&L Report (other than the ICAC).
Composition of the LAA
- The Monitor does not believe that barristers and solicitors should be automatically disqualified from serving as Chairman of the LAA, as recommended in the C&L Report.32 There are lawyers who would be capable of exercising independence from the profession in making decisions and legal expertise is likely to be an advantage to the Chairman. At the same time, the Monitor agrees with the C&L Report that practising solicitors and barristers should make up only a minority of appointments to the LAA,33 both to avoid any conflict of interest they may have as a group with a professional interest in the outcome of LAA policies and because the LAA should be more broadly representative.
- The C&L Report recommends that there be only about 10 persons appointed to the LAA, because many more appointments than that may impede effective leadership and management.34 It also recommends that some appointments to the LAA be of persons with a specific remit to provide insights into the needs of legally assisted people, provided qualified and motivated persons can be found to perform this role.35
- The Monitor basically agrees with the C&L Report in this regard and proposes that the composition of the LAA36 and method of appointment be as follows:
(1) Chairman (appointed by Chief Justice of the Court of Final Appeal)
(2 & 3) Two members of the Legislative Council (appointed by LegCo)37
(4) Administration's Representative (appointed by LegCo on recommendation of the Chief Executive)38
(5) A barrister (appointed by LegCo on recommendation of Bar Association)
(6) A solicitor (appointed by LegCo on recommendation of Law Society)
(7 & 8) Two non-lawyers with insights into the needs of legally assisted
persons (appointed by LegCo after consulting one or more relevant bodies)39
(9) A non-lawyer with management expertise (appointed by LegCo after consulting one or more relevant bodies)
(10) A non-lawyer with expertise or knowledge in the purchase of legal services (appointed by LegCo after consulting one or more relevant bodies)
- The Monitor also recommends that the following persons be ex officio members of the LAA, but without voting rights:
(1) Director of Legal Aid and both Deputy Directors of Legal Aid.
(2) A Legal Aid officer, (appointed by LegCo on recommendation of legal aid officers casting ballots)
Make Chairman of LAA a Full-time Paid Position
- Given the work involved for the LAA under Model 3 as proposed above, it will probably be necessary to make the Chairmanship a full-time paid position. The relatively small additional cost involved would be compensated for by the greater level of community consultation and participation in legal aid operations, and the improvements that would be generated therefrom.40 It would also be compensated for by the savings in the Administration Wing of Government, which presently formulates legal aid services policy for the LAD and appraises its performance, being made redundant in that role.41 To leave all reporting tasks to the Director of Legal Aid would place undue strain on him/her, and leave less time for effective management of delivery of legal aid services provided by the statutory authority.
Disparity in Government Funding of Legal Representation to the Prosecution and Defence in Legally Aided Criminal Cases
- The C&L Report does not deal with the issue of the lack of independence of the LAD from the Government in the funding of criminal cases. The Government provides the Director of Public Prosecutions ("DPP") with considerably greater resources for legal representation than it provides to the LAD to fund the legal representation of defendants.
- The Legal Aid in Criminal Cases Rules42 stipulate how much solicitors and junior barristers will be paid if they are assigned by the LAD to represent a defendant in a criminal matter. The rates stipulated in the Rules are approximately half, or less than half, the "market rate" charged in civil cases or for private representation.43
- There are no such rules, however, that apply to the DPP. The DPP routinely briefs out its prosecution work to the private Bar at rates which the Monitor understands are at, or much closer to, the "market rate".44 Accordingly, the LAD lawyer representing a defendant may be paid far less than the lawyer appearing for the DPP in the same case. This is one of the reasons why some experienced lawyers decline LAD criminal work. They can be paid considerably higher rates doing private criminal cases or prosecution work, or practising in the area of civil law.
- The result is that sometimes a relatively inexperienced lawyer is assigned by LAD to represent a defendant, who will be prosecuted by a relatively experienced lawyer.45 This diminishes the rule of law, because the Government's provision of greater resources for the legal representation of the prosecution can result in unequal battles in the courts of justice. It reflects a lack of independence in the funding of the LAD in criminal matters.
- The Monitor recommends that whatever rules the Government applies to LAD funding of legal representation in any criminal case be applied to DPP funding of the same case. There are various ways in which this might be achieved, and there should be wide public consultation on the issue. The Monitor recommends that the LASC look into this important issue.46
Duty Lawyer Scheme's Lack of Independence
No Serious Concerns About DLS' Lack of Independence from the Legal Profession
- Key findings in the C&L Report concerning DLS' lack of independence from the legal profession include:47
(1) DLS lacks independence from the legal profession which governs the scheme, and which has a conflict of interest in doing so because lawyers are paid for most of the work they perform for the DLS.48
(2) There is no serious evidence of DLS' lack of independence from the legal profession being a problem,49 however institutional change could be beneficial in the interests of improving quality of service and value for money if these become issues in the future.
- The C&L Report recommends that there be no changes to the present structure of the DLS. The Monitor basically agrees with this, however recommends that the DLS take it upon itself to strengthen its complaints procedure. The Monitor also recommends that the DLS consider making its Council more representative of the community and potentially more responsive to DLS clients' needs thereby, by appointing members to its council who have knowledge and experience of the needs of persons in need of DLS assistance and who may be non-lawyers.
DLS' Lack of Financial Independence from the Executive
- The C&L Report expresses some concern about the lack of financial independence of the DLS from the Government, noting that its financial independence is less than that of the LAD.50 DLS is subject to cash limits on all its expenditure. As such, the Administration Wing of Government has considerable influence over the scope of DLS' services and its financial management.51 The Executive's control over the DLS manifests itself in two key ways, dealt with below.
Cases in Respect of which the Executive has Not Authorized DLS to Routinely Fund Legal Representation
- As noted earlier in this report, the DLS maintains a schedule of some 200 offences. The Executive has agreed to fund DLS representation of defendants charged with one or more of these schedule offences. Critical omissions from the schedule, however, are many offences under the Immigration Ordinance which routinely result in a prison term being imposed on defendants. Immigration offences are among the most common types of cases to be dealt with in the Magistrate's court. More than 20% of prisoners in Hong Kong have been convicted of one or more Immigration Ordinance offences.52
- In 1992 the DLS suggested to the Executive that Immigration Ordinance offences should be included in the DLS schedule so that persons charged with those offences would be legally represented. The Executive, however, declined to approve the inclusion in the schedule of these offences, resulting in persons convicted of such offences and sentenced to terms of imprisonment generally not having been legally represented. The Executive's control over the DLS in this regard seriously undermines the independence of the DLS in the provision of legal aid to those who need it.
- The Immigration Ordinance offences which are not on the DLS schedule, and with which many persons are charged, include: employment of a person not legally employable (s 17I); landing and remaining without permission (s 38); breach of condition of stay (s 41); and making a false statement to an immigration officer and use or possession of forged documents (s 42). Conviction on any one of these offences routinely results in a prison sentence.53
- The vast majority of persons charged with Immigration Ordinance offences are persons who do not, at the time of the alleged offence, have the right of residence in Hong Kong, including persons from the Philippines, Indonesia and Thailand. They are typically poor, such that they cannot instruct lawyers to represent them privately. They are also typically overwhelmed by the intimidating nature of court proceedings and unable to represent themselves effectively or, in the experience of lawyers who have witnessed such cases, at all.
- The refusal of the Executive to routinely fund the legal representation of mostly foreigners charged with immigration offences constitutes, in the Monitor's view, racial discrimination by the Hong Kong Government. That a sizeable proportion of Hong Kong's prison population is made up of foreigners who were denied legal representation is a situation that must be redressed urgently.54 The DLS Administrator has, of her own motion, taken steps to partially alleviate the problem. Since December 1997 she has exercised her discretion to provide legal representation to some of the persons (only migrant workers) charged with some Immigration Ordinance offences (ss 17I, 41 and 42, but not s 38), even though they are not on the Executive-approved schedule. It remains unsatisfactory however: (1) that defendants to charges for jailable offences have to rely on the exercise of the DLS Administrator's discretion rather than having a right to representation; (2) the exercise of the Administrator's discretion is limited, due to funding constraints, to migrant workers and particular immigration offences; and (3) that the Administrator's exercise of discretion remains vulnerable to a change of policy.
- The Monitor recommends that the schedule of offences be changed to include Immigration Ordinance offences in respect of which prison sentences are commonly imposed (suspended or not). The Monitor also recommends that the Legislature, rather than the non-elected Executive, be given the role of "approving" the DLS schedule of offences, and that the process of DLS seeking changes to the schedule, and the Legislature's consideration of such applications, be made transparent.
Executive Control over Quality of DLS Representation in Respect of Offences for which the Executive Presently Funds Representation
- The effect of the tight funding constraints imposed on the DLS by the Executive for schedule offences (in respect of which the Executive agrees legal representation should be provided) is that the DLS must operate on a tight budget, maximizing the use it makes of the lawyers it assigns. In practice, this means that DLS lawyers often have very little time in which to prepare each of the cases assigned to them.
Background: Types of Cases Most Commonly Dealt with by DLS Lawyers
- DLS lawyers assigned non-trial cases typically deal with what will usually be short hearings before Magistrates which, despite their brevity, can result in the defendant being sentenced to up to 2 years' imprisonment.55 Examples of the types of cases and the work commonly involved in being a DLS lawyer include, but are by no means limited to, the following examples:
(1) The defendant has pleaded guilty at an earlier hearing, but sentencing has been adjourned in order to obtain a report of various possible kinds. The DLS lawyer will represent the defendant at the sentencing hearing, arguing any matters in mitigation and the applicability of relevant law relating to sentencing for that type of offence.56
(2) Cases which have been adjourned for any other reason at a previous hearing. The defendant may or may not have been granted bail at the previous hearing, and if it was the prosecution who had sought and been granted the adjournment -- perhaps to obtain legal advice on whether the alleged offence is serious enough for the case to be remitted to the District Court for determination -- another application for an adjournment might be made. In that case, the DLS lawyer will have to take instructions on whether there are any bail conditions which might be altered in light of the further adjournment and the arguments in favour of any such alteration, and argue those points before the Magistrate. Alternatively, for example, if the prosecution has decided to proceed in the Magistrate's court and is ready, the DLS lawyer will generally have to take instructions on whether the defendant wants to plead guilty or not guilty, and take the necessary instructions and give advice about this.
(3) DLS lawyers are also assigned the cases of persons who were arrested within the last 48 hours, and are being brought before a Magistrate for the first time. They may have been granted police bail and told to appear in court that morning, or they may have been detained by police overnight. The prosecution may be opposing bail. The DLS lawyer's role is to establish the status of the case. If the prosecution is ready as is commonly the case, the defendant will probably be asked to plead guilty or not guilty at that hearing. The DLS lawyer is required to take instructions from the defendant about all matters which are or may be relevant, including making sure the defendant understands the charge, the options available and, if the defendant wishes to plead guilty, any matters in mitigation.
- Accordingly, in all or almost all cases, the DLS lawyer's role is to determine the status of the case, take instructions from and advise the defendant, come to grips with the applicable law that the case raises, and appear before the Magistrate to represent the defendant.
- In respect of cases where the defendant has previously appeared in court, the DLS will courier out to the DLS lawyer some of the documents relating to the case, perhaps a week before the hearing so the DLS lawyer has some time to prepare. For cases where the defendant is appearing in court for the first time, the DLS will generally only be able to provide the documents to the DLS lawyer when s/he appears at the Magistracy at 9 am on the morning that the case is to be heard. DLS lawyers are generally assigned more of the latter types of cases than the former.57
DLS Lawyers Routinely Assigned 10 and Sometimes More Cases to be Dealt with in a Morning
- Each DLS lawyer is generally assigned about 10 client defendants (sometimes more, sometimes less) whose cases they are expected to deal with at the morning session of the Magistracy. There are generally two (but sometimes 1 or 3) DLS lawyers assigned to each Magistracy.58
- The DLS lawyers are usually only assigned for a half-day (the morning session), as Magistrates are often otherwise engaged in the afternoon dealing with such matters as trials of defendants who have pleaded not guilty at an earlier court appearance. There is considerable pressure on each DLS lawyer to "get through" the cases assigned to him/her during the morning session.59 There is also considerable pressure on Magistrates to complete the list of cases before them, with the result that there is constant pressure to deal with each case as quickly as possible. This makes the DLS lawyer's need to have adequate time to prepare each case all the more important, because the lawyer will have to submit whatever facts and matters s/he wants to put before the Magistrate succinctly and with speed.
Time Available to Take Instructions, Give Advice, Etc. is Very Short
- Court starts at 9.30 am, half an hour after the DLS lawyer is required to arrive at the court. The DLS lawyer is assigned his/her full case-load for the morning on arrival, and proceeds to come to grips with the details of each of the cases. The lawyer will then begin taking instructions from and advising each of the clients in turn. For those detained in the cells beneath the court, this involves the DLS lawyer going down to meet them there.
- Cases of defendants who are privately represented or not represented at all are routinely dealt with first by the Magistrate to permit the DLS lawyers as much time as possible to take instructions from their clients. Also, as 2 (and occasionally 3) DLS lawyers are generally assigned to each Magistracy, it is possible for 1 or more of the lawyers to continue the process of engaging in conferences with clients and preparing the cases while the other DLS lawyer is appearing before the Magistrate on the cases assigned to him/her.
- In practice, however, DLS lawyers are usually required to appear in Court to represent their clients by 11 am, and often earlier. This means that if the lawyer has arrived at Court at 9 am, been assigned 10 cases in total, and proceeded directly to come to grips with those cases and have conferences with each of the defendants, s/he can spend only an average of 12 minutes preparation time, in total, on each case.60 In practice, the average time spent on each case routinely falls short of 12 minutes.
- One concern voiced by lawyers to whom the Monitor has spoken is that Correctional Services Department staff regularly seek to place all the defendants held in detention whose cases have been assigned to a particular DLS lawyer, together in the same room for the conference with their lawyer. This means that the defendants each hear the instructions given by each other to the lawyer and the advice that the lawyer provides to each defendant. The benefit of this approach to the DLS lawyer and the defendants is that it maximizes the time available to take instructions. If each defendant is brought out separately to the lawyer for a private conference and then returned to his/her cell while the next defendant is brought to the lawyer, precious time to give instructions and hear and consider advice would be lost.61
- This practice is of great concern to the Monitor for several reasons:
(1) A defendant may not want to have a conference with his/her lawyer in the presence of others, and may be reluctant to ask all the questions s/he has, or provide all the relevant information to enable the lawyer to present the defendant's case in the best possible light.
(2) It is a fundamental right to be able to have a conference with one's lawyer in private, however the defendants would not in reality be able to, or feel able to, insist on this right, assuming they know it exists.
(3) It is possible for confidential information relating to a defendant's case to be leaked by another defendant who hears what is said at the conference.
(4) This practice underlines to the defendant the need or perceived need to rush the process of giving instructions and taking advice, making it less likely that the defendant will be fully forthcoming in discussing his/her case with DLS lawyer and raise all the questions s/he has.
DLS Clients' Criticisms
- The 6 clients of DLS who were interviewed for the C&L Report were critical of the quality of the services provided on the grounds:62
(1) Unlike persons granted legal aid by the LAD, they were unable to choose their own lawyer, and many of the lawyers assigned to represent them appeared inexperienced.
(2) They were provided very little time with their assigned DLS lawyer to explain their case to them prior to the hearing of their cases in the Magistrate's court, so they believed that their DLS lawyers were unable to take proper instructions from them or understand their cases fully.
- As desirable as it would be, the Monitor cannot see how it might be possible to change the DLS system so that lawyers of each client's choice could be assigned in non-trial cases.63 The Government is not prepared to fund more comprehensive legal aid services to defendants in the Magistrate's court, and the most efficient low-cost delivery of legal aid services involves a single lawyer being assigned numerous cases to be heard on the same day.
- The Monitor is concerned about the complaints of DLS clients' that many of the lawyers representing them appear to be inexperienced. The appearance of inexperience or lack of confidence on the part of DLS lawyers would be at least partly alleviated by DLS lawyers having more time in which to prepare each of their clients' cases. It is little wonder that under the scheme as it presently operates, some DLS lawyers do not appear confident in their advocacy. Prerequisites to confidence as an advocate are often being fully conversant with the facts of each case and being able to present a defendant's case in the best possible light. Neither of these is generally possible where the lawyer has not had time to fully prepare each of the cases assigned to her/him.
Lawyers Confirm DLS Clients' Views that Lack of Time Available to Prepare Each Case Could Result in Rough Justice
- The Monitor has spoken to some lawyers who have been assigned by the DLS. They confirm that they are routinely able to spend only 5 or so minutes in conference with each of the clients they are assigned to represent. Sometimes they have less time than this, and the maximum is usually 15 minutes if a case is complicated. It should be remembered in this context that DLS generally acts only in cases where the defendant may be sentenced to a prison term, and that Magistrates have the power to sentence those convicted by them to up to 2 years' imprisonment.
- The Monitor is very concerned about the lack of time defendants generally have to explain their cases to the lawyer assigned to them, for them to give instructions to their lawyer, for the lawyer to properly advise their defendant clients on the options available to them and the possible outcomes, for the lawyer to obtain facts which might be relevant to a mitigation plea, for the lawyer to give serious consideration to the law which may be applicable in each case, etc. It is unsatisfactory that lawyers routinely have only about 5 or so minutes to prepare each of their clients' cases, including taking instructions from them and advising them. This can only result in the lawyer often not having had sufficient time to properly prepare each case. This means that an element of rough justice exists in the system as it currently operates.
The Monitor's Recommendations
- The primary reason why DLS clients do not instruct private lawyers is their lack of means. While the present system is as good as possible given the number of lawyers DLS is able to assign and who no doubt prevent some of the most glaring miscarriages of justice from occurring, the Monitor strongly recommends that the system be altered to provide DLS lawyers with more time in which to prepare the representation of their clients, including conferences with them.64
- The key problem facing the DLS in providing better quality representation to its clients is its lack of financial independence from the Government. The Government provides the DLS with limited funding which generally permits the DLS to only instruct one or two lawyers for each Magistracy. If additional funding was provided, additional DLS lawyers could be instructed thereby providing each lawyer with more time to prepare each of the cases assigned to her/him. Moreover, if this was done, a "tag-team" system among the DLS lawyers assigned on any one morning could be more readily implemented.65
- Adoption of these recommendations would result in legal representation of DLS clients that remains far short of the representation that defendants who are privately represented would normally obtain, however it is a step, and a very necessary one, in the right direction.66
Legislature, Not Executive, Should Oversee Funding of DLS
- On the question of funding, it is presently the Administration Wing of Government that determines the funding of the DLS. This is a plain conflict of interest, exacerbated by the Executive-led form of government in Hong Kong. The administration of Magistrate's courts is undoubtedly made easier for police and Government generally if lawyers representing the accused have little time to prepare their cases, resulting in cases being dealt with quickly and defendants pleading guilty more often than might otherwise be the case. While expenditure of public funds should properly be guarded by Government, the Monitor believes that it is the Legislative Council -- which is elected in part by universal suffrage and in other part by less democratic forms of election -- which should set the funding level for the DLS, not the Administration Wing.
Official Solicitor's Office Monitor Agrees with C&L Report that it Should be Made Independent of the LAA
- At present the Director of Legal Aid is also the Official Solicitor. The Official Solicitor's duties are essentially to protect the legal interests of persons who are incapable of protecting, or unwilling to protect, their own interests. The case load of the Official Solicitor's Office is small but growing, with 139 cases on its books at 27 March 1998. Quite often the Official Solicitor's intervention may be warranted, or is engaged, in cases which involve another party whose legal representation is provided by the LAD. This results in potential conflicts of interest with the Director of Legal Aid being responsible for the legal representation of the person who is or should be represented by the Official Solicitor's Office, while also being responsible for the legal representation of another party to proceedings whose legal interests may conflict with the party represented by the Official Solicitor.
- The C&L Report recommends that a small independent Official Solicitor's Office be established outside of the LAD (or the new LAA). The Monitor endorses the C&L Report's recommendation.