LEGAL AID AND THE PROVISION OF LEGAL SERVICES IN HONG KONG by ANDREW RAFFELL Senior Lecturer, Department of Law, City Polytechnic of Hong Kong; Barrister ' "LAW!" said Bunce, with all the scorn he knew how to command—"law! Did ye ever know a poor man yet was the better for law, or for a lawyer?" ' Anthony Trollope, The Warden. I WHY SHOULD THE STATE PAY A CITIZEN'S LEGAL COSTS? In a society like Hong Kong, based as it is on the doctrine of free enterprise, of people earning and paying their own way in life, it may well be that the idea of legal aid and the provision of free or state subsidised legal services is anthema to the majority of the population and is regarded as an alien socialist doctrine. But there are solid arguments for saying that in any society, irrespective of the prevailing political ideology, some assistance should be given to those of its citizens who may find themselves involved in legal disputes. These arguments are concerned with questions of farness, justice and above all with questions of equality before the law. Can there be any practising lawyer in the world or any intelligent layman who doubts that the litigant who cannot afford representation is going to be at a distinct disadvantage compared to the litigant who can afford the services of the most experienced and able lawyers? It may be an argument to say that equality exists if all citizens are allowed to employ whatever qualified representation they desire and require, but at the workface of the law, unless that licence is given meaning by the provision of the means to provide oneself with such representation, such equality is an empty idea. 78 Law Lectures for Practitioners A Injustice and Unfairness Two pieces of interesting empirical research into the difficul- ties faced by unrepresented litigants in courts were conducted in the early and mid-1970's, the first by Susanne Dell, Silent in Court (Bell, 1971), the second by Pat Garlen, Magistrates' Justice (Martin Robertson, 1976). Both works concerned unrepresented defendants in Magistrates Courts in England. The researchers found the following major problems for unrepresented de- fendants, (i) The language of the court. Many defendants, especially people appearing for the first time in court, but 'old lags' as well, simply were unable to understand many of the expressions used in court. The words 'remand' and 'bail' gave particular difficulty to the defendants. In Hong Kong, where in most courts the language used is completely foreign to the vast majority of litigants, this problem must be compounded. (ii) The procedure of the court. Defendants did not know how to behave. In particular, they were confused and worried over such matters as when to speak and when to remain silent. Many a tyro practitioner will sympathise with them in this regard. (iii) Hearing and comprehension. The buildings in which courts are held are at least partly responsible for the problems faced by defendants. They are old, badly designed, uncomfortable, badly lit and, most importantly, the acoustics are often very bad. This means that the unrepresented defendant who has enough difficulty in understanding what is happening anyway, has that difficulty compounded by the physical layout of the court itself. Anyone who has appeared in most of the magistracies in Hong Kong would be hard pressed to disagree with the picture painted here. (iv) The courts' treatment of defendants. The problems of lack of communication and subsequent lack of understanding men- tioned above tend to lead courts to treat defendants as if they were 'stupid or awkward or both'. Legal Aid & Provision of Legal Services 79 (v) The courts' attempts to explain matters to defendants. Tragically it was felt that when the court tried to explain to the defendant what was happening, very often this increased the defendants' bewilderment and made tilings worse for them. As Carlen states: 'Indeed defendants often manifest a sense of mounting absurdity as they learn that, situationally, the logic of the law is opposed to a commonsense interpretation of formal rules. This was particularly noticeable in cases where magistrates made it plain that they wanted to help defendants.' The conclusion drawn by Susanne Dell was this: 'An inexperienced defendant is at a disadvantage in court even if well educated and articulate, but for those who have little education, who are scared, nervous and unable to express themselves in the kind of language they believe is expected in court, the handicap can be crippling, particu- larly if they wish to deny the offence or to plead mitigating circumstances.' So, the first argument for some sort of legal aid scheme is that unrepresented defendants are likely to suffer injustice and unfairness and are likely to be treated less favourably in court than represented defendants. If the lack of representation is the exercise of freedom of choice by the individual, then that is a situation which society cannot and should not do anything about. On the other hand, if the lack of representation is because the individual cannot afford to pay for it, then that is unjust and destroys the whole concept of equality before the law. B Law and Order The second argument I wish to put forward in support of state provision of legal services is that such provision is part and parcel of law and order. My contention is that if we say we believe in the concept of law and order and that we believe all Law Lectures for Practitioners citizens of a state should obey the laws of that state, It Is a matter of simple fairness and justice that we provide all of those citizens with genuine access to the machinery which exists for the implementation of those laws, and to ensure that they arc properly represented when they do come into contact with that machinery. An editorial in the Hong Kong Law Journal from 1972 expresses this idea very eloquently: 'We ban self-help because it leads to violence and chaos and provide the legal process as an alternative means of dispute settlement. Yet, despite this, the idea persists that to call in aid the machinery of the law to clarify, protect or enforce legal rights is a luxury or privilege which the litigant ought himself to afford or go without. Access to the courts is made one of the good tilings of life: make It too easily available and everybody will want It, and then where should we be? Instead of formulating schemes for comprehensive legal services from which bad causes are excluded by efficient preliminary investigation and. determinations, we prefer the economic free-for-all in which the very poorest receive aid in the style of a social welfare handout, with means tests and. all the other paraphernalia of charity,' ( (1972) 2 HKLJ 2). Put In simple terms, we say to the citizen: 'You cannot chop your extremely noisy and troublesome neighbour with a beef knife; if you wish to change that person's behaviour, and to try to force that person to comply with reasonable community standards, you must do so in the proper way. The proper way is to go to the courts and try to obtain a court order.' In all fairness, we cannot say this to the distraught citizen unless we also allow the citizen to go to court properly represented in order to put the case. Justice and equality will not be served unless we also provide the means whereby both citizen and neighbour can be similarly represented, II MONEY Despite the fact that we are In Hong Kong, I do not Intend talking at any great length about money. I realise that some Legal Aid & Provision of Legal Services people might think that there are real problems with the means test for legal aid and the limits of disposable Income and whether those limits are too high. I also realise that some people might wish to discuss the related problem of the 'sandwich-class' of people who just fail to qualify for legal aid because they possess disposable income or capital slightly above the qualifying limit. But I have decided in this lecture to concentrate on what I think are other Important problems and areas of reform. 1 do however wish to talk very briefly about the Government's attitude to the provision of legal aid, and in particular the provision of a fixed pool of money to finance the Duty Lawyer Scheme. I realise that the amount of money provided for legal aid and other legal services cannot be unlimited and realistically there can never be a perfect system whereby everybody with a legal problem can receive some sort of legal assistance. But, as lawyers, I feel that Government's present attitude should leave us with some feeling of disquiet, whilst at the same time acknowledging that the schemes provided are reasonably good and are certainly superior to what is provided by most governments in this region. What then is Government's attitude. I think the answer is provided by three former Attorneys-General: 'It is, I believe, generally agreed that an extension of legal aid to cover criminal cases in the District Court is desirable. However, this can clearly only be done within the amount of public money which can properly be made available for legal aid, in competition with the many other pressing claims upon public revenues.' (Mr DTE Roberts, Hong Kong Hansard1969/70,479). 'The Government agrees that the limits in civil cases ought to be raised. . , , However, this desirable objective has to be considered against conflicting claims on the resources of the Government.' (Mr G G Thornton, Hong Kong Hansard 1975/76,857). Tor rny part I can say unequivocally that the scheme [the scheme that became the Duty Lawyer Scheme is being discussed] has my full support, and that I sincerely hope 82 Law Lectures for Practitioners that expansion will not be long delayed. But, It must be remembered that this scheme, good and socially useful though it is, must of course compete with other socially desirable schemes for available funds.' (Mr J G Griffiths, QC, Hong Kong Hansard1979/80,336). A further indication of the Government's attitude to legal aid is that it provides a fixed amount of money for the Duty Lawyer Scheme. The scheme has to be administered within the limits of this fixed pool. The Lord Chancellor's department and the Law Society's Legal Aid Secretary in England were 'incredulous' that the scheme could be run within such limits. Of course it is highly artificial and unrealistic to expect any scheme of legal assistance to be run strictly within previously defined monetary boundaries, and one wonders if there is a fixed pool of charges to be laid by the police within a year. In my submission, the attitude of the Government to legal aid and the provision of free legal services is this: 'We will provide a good legal aid scheme, if we can afford it.' As practising and academic lawyers, my contention is that we should try to persuade the Government that its attitude should be this : 'We will provide a good legal aid scheme and we will ensure, as far as possible that we will provide whatever money is needed.' In my view there is a subtle, but highly significant practical difference flowing from the different attitudes. If the second attitude were to prevail, the professions and the public would be confident that the Government intends to provide the best possible system of free representation. I think that Government has good intentions, but I do not think that that is always evident from what it does and what Government spokesmen say. III MAIN SCHEMES OF FREE LEGAL ADVICE AND ASSISTANCE IN HONG KONG I wish very briefly to discuss the three main schemes of free legal advice and assistance in operation in Hong Kong. I do not propose to deal with Tel-Law. Legal Aid & Provision of Legal Services 83 A Duty Lawyer Scheme In my opinion, this scheme is excellent, both in conception and operation. Lawyers are assigned to represent defendants in Magistrates Courts who are charged with one or more of the following nine scheduled offences: (1) Offences connected with membership of unlawful societies, section 20 of the Societies Ordinance (cap 151, LHK 1982 ed). (2) Loitering, section 160 of the Crimes Ordinance (cap 200, LHK 1984 ed). (3) Unlawful possession, section 30 of the Summary Offences Ordinance (cap 228, LHK 1981 ed). (4) Going equipped for stealing, section 27 of the Theft Ordinance (cap 210, LHK 1086 ed). (5) Obstructing or assaulting a police officer etc, section 36 (b) of the Offences Against the Person Ordinance (cap 212, LHK 1981 ed). (The only scheduled offence with a 'victim'.) (6) Possession of an offensive weapon, section 33 of the Public Order Ordinance (cap 245, LHK 1987 ed). (7) Possession of dangerous drugs, section 8 of the Dangerous Drugs Ordinance (cap 134, LHK 1982 ed). (8) Possession of dangerous drugs for the purpose of unlawful trafficking, section 7 of the Dangerous Drugs Ordinance. (9) Possession of apparatus for consumption of dangerous drugs, section 36 of the Dangerous Drugs Ordinance. The scheme also represents those facing extradition proceed- ings, and juveniles 'charged with offences where conviction might have implications on the subsequent life of the defendant'. The work is assigned centrally by the scheme's administration and the representing lawyer is assisted/instructed by court liaison officers. I have only two slight criticisms, which are probably not even criticisms but which cause me some puzzle- ment : Law Lectures for Practitioners (1) Why should the scheme only represent those charged with the nine scheduled offences? Despite the philosophy that the scheme should only represent those charged with crimes without victims, it does seem anomalous that someone charged with, eg possession of dangerous drugs for the purpose of unlawful trafficking, is entitled to representation under the scheme, whilst someone charged with the most petty shoplifting offence is not. This anomaly is compounded for the following reasons: (a) The scheme has a discretion to represent defendants charged with offences outside the nine scheduled offences, and quite often such clients are referred to the scheme, particularly by magistrates. (b) Defendants charged with a scheduled offence and a non- scheduled offence can nevertheless be represented under the scheme. (c) Juveniles can be represented under the scheme irrespective of the charges they face. (2) The other question which puzzles me is this. Why can't the court liaison officers represent clients, particularly on fairly straightforward matters such as bail applications etc? The court liaison officers have built up a great deal of expertise in these cases and I see no reason why, given extra training in forensic skills and ethics, they could not perfectly adequately represent clients. (I am grateful to Professor Derek Roebuck, Head of the Department of Law, City Polytechnic, for the observation that in Hong Kong there are lay prosecutors in the Magistrates Courts—so why not have lay defenders in certain cases?) In my view, irrespective of whether the extension of legal aid to the magistracies which I propose below comes about, because of the expertise gained by the scheme's personnel and because of the goodwill felt toward the scheme by lawyers and magistrates alike and because of the efficient and equitable way that it is run, it is vital that it is retained in some form or another. Legal Aid & Provision of Legal Services B Legal Advice and Assistance Scheme This, in my view, Is another extremely worthwhile scheme. Like the Duty Lawyer Scheme it is administered by the Law Society's Legal Advice and Duty Lawyer Scheme, Lawyers in this scheme, including academics in addition to practising lawyers, voluntarily give advice and assistance to members of the public. This service is free. The advice and assistance is usually given at night in a District Office. Often, clients are referred to the Legal Aid Department or to private lawyers. This scheme does not, in my view, work quite as well as the Duty Lawyer Scheme. This is for the following reasons: (1) The range of problems and areas of law dealt with are vastly greater than the comparatively narrow range of the Duty Lawyer Scheme. This means that it is more difficult to establish a routine method of operation and to develop the necessary expertise. (2) There is no pool of permanent skill available to assist the lawyer similar to the Duty Lawyer Scheme's court liaison officers. It is this latter point where my main proposal for reform of this scheme is aimed. Why should this scheme not be expanded to employ full-time advice workers? I do not think that there Is the scope or necessarily the need for law centres on similar lines to those in the United Kingdom and other countries. But there may well be a need for neighbourhood offices staffed by full-time or part-time officers trained to deal with certain civil legal problems. They could represent clients at, for example, the Small Claims Tribunal and could refer any difficult or major matters to the Legal Aid Department or to private lawyers. G Legal Aid Scheme The structure of the Legal Aid Scheme in Hong Kong has the benefit of simplicity. The scheme is administered by the Legal Aid Department. This department represents qualifying Law Lectures for Practitioners clients and instructs private lawyers where necessary or desirable. The Legal Aid Department is, however, a government depart- ment. This close connection has been criticised by Legislative Council member, Mr Martin Lee, and the Joint Professional Working Party on Legal Aid Reform which has proposed a major reform of the structure of legal aid and of the creation of a new legal aid body. Mr Lee has given four reasons for separating the administra- tion of legal aid from a government department (see Hong Kong Hansard 1985/86,897; Mr Peter Wong also made a speech in support during the same debate, see p 891). These reasons are set out below. (i) Administration of legal aid will then not only be indepen- dent but will be perceived to be so. (2) This separation will also eliminate the possibility of an unscrupulous government stopping access to the courts by citizens who have a legitimate grievance against the government or using the distribution of legal aid work as a leverage on the profession. (3) Administration outside government will lead to a more efficient use of public funds. (4) There is disquiet in the professions that distribution of work is not equitable. An independent administration will be able to tackle this matter more satisfactorily. It appears to me that reasons (3) and (4) are simply not valid. Mr Lee did not produce any evidence in support of either contention and it is hard to see how he could have done so. Why should a quango or a completely independent administrative body necessarily be more efficient than the present structure? What evidence is there to suggest that the present structure is not efficient? Why is it likely that an independent body will lead to a quelling of jealousy amongst the professions? Is it not the position that the personnel responsible for the distribution of work of an independent body are more likely to be corruptly approached or accused of corrupt practices than such staff working under the present structure? Legal Aid & Provision of Legal Services 87 Reasons (i) and (2) do, however, have some validity. It is obviously desirable in any free, democratic or quasi-democratic society that any citizen should be able to take legal action against the government and other organs of state Furthermore, if legal aid is available for other legal actions, it should be available for such legal action against the government. The granting or refusal of legal aid in such circumstances (and in all other circumstances) should be a decision made independently of government and should be seen to be independent of govern- ment. But for reasons discussed below, I am not convinced that these comments alone provide justification for drastically altering the present structure Again, what evidence is there that the general public has any real doubts about the indepen- dence of the Legal Aid Department or that the department is not acting independently in its granting or refusal of legal aid? IV JOINT PROFESSIONS WORKING PARTY ON LEGAL AID REFORM The Joint Professions Working Party on Legal Aid Reform, published in 1987, proposed the establishment of a Legal Services Authority (LSA). This authority would be under the joint management of the legal professions. It would be indepen- dent from the Government The LSA would be split into three separate bodies with distinct functions. These three bodies would be: (i) A Council for Legal Services This body would be respon- sible for 'overall policy and financial control' and for advising the Government on the development of government funded legal services, to seek funds as necessary, to control expenditure, and to consult with the Board of Management. The council would be appointed by the Governor and would consist of more non-lawyers than lawyers, and include a representative of the Chief Secretary and the Financial Secretary. Independence and the appearance of independence would be secured by excluding any representative of tne Legal Department from membership. Law Lectures for Practitioners (z) A Board of Management. This body would be responsible for 'general control, including the appointment of staff' and for the provision of a comprehensive annual report to be tabled in LegCo, 'which would form the basis of the policy recommenda- tions made by the GLS to the Governor'. The Board would consist of the President of the Law Society and the Chairman of the Bar (who would alternate as chairmen of the Board), equal numbers of representatives of the Law Society and the Bar Association, and the Controller of Legal Services. (3) An Administrative Office. This body would be responsible for day to day administration and would take over the functions of the present Legal Aid Department, except that there will be no Legal Aid Counsel and all work will be assigned to lawyers in private practice. It would be headed by the Controller of Legal Services and there would be two deputies, the Director of Criminal Legal Services and the Director of Civil Legal Services. This is by no means the first or only proposal for reform of the legal aid scheme structure. As long ago as 1969 Mr P C Woo proposed in LegCo that, if and when the Law Society of Hong Kong had the personnel to do so, it should take over administra- tion of the scheme (Hong Kong Hansard1969/70,415). The Scott Report on Legal Aid (Hong Kong: 1986), which was prepared for the Government, proposed that the structure should be reformed by transforming the Legal Aid Department into a commission enjoying a position outside the main civil service. (This seems to me to be a harmless reform, but nonethless a cosmetic and fairly pointless one.) V DOES THE STRUCTURE OF LEGAL AID AND THE PROVISION OF OTHER LEGAL SERVICES MATTER? In principle, and for the reasons (i) and (2) above given by Mr Martin Lee, yes it does. But I am not convinced that the structure of legal aid is as important as the extent of the provision of legal aid (see below), and I am not convinced that Legal Aid & Provision of Legal Services the proposed reforms suggested by the Joint Professions Working Party are practicable, necessary or are improvements in any tangible way on the present structure. My doubts arc for the following reasons: (i) If the money to finance the provision of legal services is to come through the Government then, whatever the structure, the system is not going to be completely independent; nor is it going to appear to be so, (2) The structure suggested by the Working Party is certainly not totally independent of the Government, The Governor will appoint the Council, the Government will be represented by representatives of the Financial and Chief Secretaries and the LSA will have to report to the Financial Secretary and to LegCo on expenditure incurred, (3) Although it is true that the structure proposed would offer some protection against interference by the Government in the granting or not of legal aid in an individual case, it is no protection at all in the situation where an unscrupulous government feared by Mr Lee thinks that too many people are being granted legal aid in order for them to take action against that government. In such a situation, there is no protection and such a government could quite easily sever the financial lifeline, remove or threaten to remove LSA personnel perceived to be troublesome or simply bring pressure to bear on the authority. Such events are not unknown in the United Kingdom so far as certain law centres are concerned. (4) Will the public necessarily be happier that lawyers are controlling the provision of publically financed legal services rather than the Government? Despite the undoubted high regard in which the legal professions are held in Hong Kong and the confidence in the integrity of lawyers which the public holds, I am sceptical that the public is necessarily going to be reassured by this new structure. Despite the proposal that the Council for Legal Services will consist of a majority of non- lawyers, I am sure that the perception and the reality will be that it will be run by lawyers for lawyers or that it will be run 90 Law Lectures for Practitioners by the Government and lawyers together. Either of these situations will leave us in a position not much better than we are today. VI LEGAL AID IN THE MAGISTRATES COURTS While researching and thinking about the topic for this lecture, one issue finally resolved itself as the most important one for me to discuss. I felt that lawyers should be far more concerned about the extent to which legal aid is provided in the courts in Hong Kong rather than the structure of the provision of legal services. It became apparent to me that the case for an extension of legal aid to the Magistrates Courts is overwhelming. As long ago as 1969, Mr P C Woo in LegCo suggested that criminal legal aid be extended to: 'every accused person not only in the Supreme Court and the District Court but also in the Magistrates Courts.' (Hong Kong Hansard 1969/70, 416) and in 1979, Mr Peter Wong also in LegCo said: 'All offences of dishonesty and all offences against the person tried in Magistracies should be bought within the ambit of the [duty lawyer] scheme, and only then will the Government be able to claim the provision of an indepen- dent and comprehensive legal assistance service for serious offences in the Magistracies.' (Hong Kong Hansard 1979/80, 648). A A Brief History of Criminal Legal Aid The extent of criminal legal aid is set down by the Chief Justice in the Legal Aid in Criminal Cases Rules (cap 221, LHK 1985 ed). (The power to do this is given to the Chief Justice by section 9A of the Criminal Procedure Ordinance.) If he promulgates new rules and extends the courts and/or the cases for which legal aid is available, approval must be given by LegCo, and Legal Aid & Provision of Legal Services 91 LegCo has to vote to provide the necessary funds (see also section gA of the Criminal Procedure Ordinance). My research has failed to uncover when this scheme first came Into being, but up until 1962 legal aid was only available for criminal cases in the Supreme Court and only in the following three types of cases: (i) capital cases; (2) cases where a question of law had been reserved by the trial judge for consideration by the Full Court; and (3) appeal cases where the Full Court or the judge considered that the appellant should have legal aid. In 1962, new Legal Aid in Criminal Cases Rules were promulgated by the Chief Justice and approved by LegCo. These extended legal aid to all criminal cases in the Supreme Court and to all criminal appeals before the Full Court. In 1969, the Chief Justice promulgated new rules which made two major changes to the provision of criminal legal aid : (1) the Director of Legal Aid became the granting authority, (previously it had been the judges themselves); and (2) criminal legal aid was extended to criminal cases in the District Court. This is basically the situation which prevails today. It appears that there has never been a deliberate policy of not providing legal aid in the magistracies, but only that no decision has ever been taken to extend the provision to those courts. B Why Should Legal Aid be Extended to the Magistracies ? The reasons are as follows: (i) A magistrate has the power to sentence someone to a total of three years imprisonment where consecutive sentences of Imprisonment are imposed (section 57 of the Magistrates 92 Law Lectures for Practitioners Ordinance [cap 227, LHK 1984 ed]), and, in any event, has the power to sentence someone to two years Imprisonment (section 92). That, in my view, speaks for itself. But this raises an important issue concerning representation of those charged with criminal offences. It is often misunderstood or simply not comprehended at all by lay-people that those charged with criminal offences need to be properly represented when they plead or are found guilty; representation should not be confined to when they are denying a charge. A lawyer's job is not over when a verdict is announced. Very often the most difficult part of the lawyer's job is only just beginning at that stage. Mitigation is not simply a question of begging the court for mercy or putting forward spurious tales of dependent elderly parents who need to be looked after by the misguided and now remorseful miscreant. Very often there are relevant and genuine facts to be put forward which can and should be properly considered by the court when deciding on what is the appropriate sentence. More often than not, the defendants themselves will not know what is good mitigation and what is not. The following three cases I have come across in the Magistrates Courts support my contention concerning the extension of legal aid to these courts. Case A. This concerns an accused whom I will call the Pigeon Boy. He pleaded guilty with three other young men to the theft of a pigeon. He was not represented, but I have no doubt that he would have pleaded guilty in any event. He was 18 years of age and had a clear record. He was put on probation, but with a supervision order that for six months he spend his nights in a hostel. In the hostel he was bullied by young men more crimin- ally experienced than he. The inevitable happened and he ran away. He was now in far more serious trouble than he ever was when he took part in the theft of the pigeon. He was represented when he returned to court to be sentenced for his breach of probation. He was finally and sensibly dealt with by the magistrate by way of a continuation of the probation order with supervision. I have no doubt that, had he been represented on Legal Aid & Provision of Legal Services 93 the occasion when the original sentence was imposed, it would have been unlikely, even if he was put on probation, that this would have been accompanied by a supervision order of the sort imposed on him. He and his mother were asked why he had not been repre- sented in the first place. They replied that they could not really afford a lawyer, and as they had thought that the matter was only trivial, they had not wanted to go to their family for help. They had thought that the young man would only be fined. (2) Let us now recall the findings of Susannc Dell and Pat Carlen. with which this lecture started. I would submit that Case A is confirmation, and an extension, of their findings particularly in so far as it relates to an unrepresented defendant having a perception of the seriousness of the offence completely at odds with the view taken by the court. This is often com- pounded in Hong Kong where a defendant may be asked whether a summary of facts which may well have not been properly heard, or understood, or the significance thereof understood, is agreed. The defendant may simply agree in order not to cause too much trouble in court. To shorten the proceedings, the defendant will then be sentenced on the basis of those 'facts', because so far as the court is concerned, culpability is explained in the brief facts. (3) There are often long delays and many adjournments in the Magistrates Courts. This is the fault of no-one but is the result of a shortage of manpower and the length of the court lists. A former Chief Secretary commented on this problem in LegCo in 1979 and said they were unavoidable and that little could be done to prevent this (Sir Denys Roberts, Hong Kong Hansard 1977/78, 788-789). My second and third case examples are illustrations of this problem. Case B. In February 1988, defendant was arrested, charged, brought before the court and remanded in custody until March. A co-suspect had not been arrested. In March, the defendant was represented for the first time. He was bailed to stand trial in May. In May, the defendant arrives at court for trial. He is 94 Law Lectures for Practitioners represented. The case is adjourned because the co-accused had now been arrested and the Grown wished to join the two accused in one trial. In June, the defendant again attends for trial, represented. Again adjourned, this time at the request of co-accused who is not ready for the trial and because, in any event, there was no court available. In August, he again attends for trial, again represented. Adjourned, again because of lack of available court time. Finally, in November, he again attends for trial, again represented. The charges against the co-accused are dropped. The trial begins and lasts for two days. The defen- dant is acquitted, but the magistrate refuses to grant costs against the Grown, This innocent defendant had to pay for at least five appear- ances by his lawyers. Not one of the delays or adjournments was caused by him, Case C. This case concerns four young men, all of them delivery workers. A brief Chronology of relevant focts is as follows: December 13, 1988. Defendants appear in court unrepresented. All four plead guilty to common assault. Remanded in custody, (Defendants state privately that they could not really afford to be presented; that they had pleaded guilty as they thought that this was a comparatively trivial matter; that they simply wished to get it out of the way as quickly and cheaply as possible; and that they all felt that they would be dealt with by way of a fine.) December 29, 1988. Defendants, who are now represented, applied to reverse plea. Matter adjourned for a hearing into the reasons for the original plea. January 1989. Defendants represented. Two hearings on the issue of whether they would be allowed to reverse their plea. Nothing decided at either hearing due to lack of court time. February 1989. Defendants represented. Hearing on reversal of plea starts, but cannot be finished due to lack of court time. Case adjourned, part-heard, March 1989. Defendants represented. Application finally heard and dismissed. Legal Aid & Provision of Legal Services 95 Because of the lack of representation on the first occasion, these four young men had to pay for a total of five court appearances by their lawyers, three of which were adjourned through no fault of their own. (4) It must be obvious from the above that many defendants may be pleading guilty without the benefit of representation and may be failing to forward the best proper mitigation on their own behalf simply as a matter of economics. If they think that they are likely to be fined in the region of $1000 and that they are going to have to pay at least $2000 to be represented, then the understandable human reaction would be to accept the fine without spending what, from the defendant's point of view, may appear to be an unecessary extra amount on a lawyer. The pressure to do this must be increased in the situations I have outlined in Case B and Case C above, where defendants cannot, or, just as importantly, may not believe that they can afford to spend money on several wasted appearances by their lawyers, especially when they themselves will probably be losing income as a result of their court appearances. Furthermore, injustice may be compounded because, due to lack of professional advice, defendants may have an unrealistic view of what the likely sentence will be. They may, therefore, well plead guilty and take their chances without representation simply because they wish the matter to be dealt with as quickly and cheaply as possible. It is particularly tragic that this is more likely to be the case with those defendants who are facing criminal charges for the "first time and who are not sophisticated in the ways of the criminal justice system. (5) When I discussed the provision of legal aid in the Magis- trates Courts with a group of students on a course I was running at the City Polytechnic on the Hong Kong legal system, I asked them if they felt that legal aid should be provided in the Magistrates Courts. Overwhelmingly, the majority said that it should. I then asked them why. One of the answers I received made me smile at the time, but when I considered it further it did not seem as facetious as it had at first. The answer was Law Lectures for Practitioners 'to train lawyers'. For most members of the Bar in England, early practice consists of relatively petty matters in the Magis- trates Courts. Barristers lose count of the number of pleas In mitigation and trials on shop lifting charges undertaken in the first year or two of practice, all paid for by criminal legal aid. Many of these clients can barely stand up or speak, let alone be able to pay for legal representation themselves. But this type of work in the relatively less pressurised surroundings of the Magistrates Courts is excellent experience and is far better forensic training than one ever receives at the CLE. One quickly learns how to present a case, how not to be intimidated when cross-examining an experienced police officer, how to address a court without fainting from fear and many other techniques and abilities which are necessary in order to be a good advocate who is able to present the client's case properly in court. Although, to some extent, young lawyers do handle this type of case in Hong Kong and are privately paid small fees, it must be that many young lawyers miss out on this early intensive training because of the lack of legal aid in the Magistrates Courts. It may well be that the quality of advocacy in Hong Kong suffers because of this. This situation is likely to get more difficult rather than easier in the next few years. A colleague of mine at the City Polytechnic, James Collins, has written a paper called 'The Expansion of Legal Education in Hong Kong'. It is easy to see from this paper that by 1992/93 Hong Kong University and the City Polytechnic between them will be producing more than 230 newly qualified young lawyers. The Government has encouraged this expansion of the numbers of students receiving legal education. In my view, the Government has a duty to ensure, as far as possible, that these new young lawyers are able to receive proper adequate practical training and that there is enough work for them to do in the criminal courts. It would be a shame, and would be dangerous for civil liberties in this territory, if all or most newly- qualified lawyers were only interested in the no doubt more lucrative, but less invigorating and socially desirable, fields of conveyancing and company law rather than the criminal law. Legal Aid & Provision of Legal Services 97 VII CONCLUSION In my view and for ail the reasons I have given, some sort of extension of the provision of legal services in the Magistrates Courts is unanswerably necessary. People should never in a civilised community be sent to prison or punished in any other significant way unless they have had the advantage of being legally represented. People should never be unrepresented in courts simply because they cannot afford such representation. People should never plead guilty in court simply in order to get matters out of the way as quickly and cheaply as possible—and never because they arc ignorant of what exactly is happening to them. People should not have to pay out large sums from not very large incomes for numerous court appearances which are not their fault. It is not right that some innocent people who have to attend the Magistrates Courts on many occasions are paying out more than some guilty people who plead guilty and are dealt with on the first court appearance. Although in this lecture I have only used the phrase 'legal aid', I do not think it matters much whether the provision of legal services in the Magistrates Courts is brought about by the extension of legal aid or by an enlargement of the Duty Lawyer Scheme to cover all offences in the Magistrates Courts, as proposed in the Joint Professions Working Party Report. Obviously there would have to be some reforms of the scheme to enable the representing lawyer more time to prepare cases which will cover a wider spectrum than at present. But for reasons given above, I believe it is important that this scheme be kept in some form or another. What does matter is that within the not too distant future something should be done to ensure that the present unjust situation is not allowed to continue, and that people are able to be properly represented in these courts. I would like to finish with two further quotes, the first from a previous Attorney General of Hong Kong and the second from an editorial in the Hong Kong Law Journal: 'Much has been said in this Council of late of the importance of the rule of law. Equally important is that access to the Law Lectures for Practitioners courts should be available to all.' (Mr Michael Thomas, QC, Hong Kong Hansard 1983/84, 1175). 'Equality before the law, surely the hallmark of a civilised society, is only a phrase if in practice rich and poor do not have equal access to the machinery which protects their legal rights and their liberty.' (1972) 2 HKLJ 2).
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