LEGAL AID AND THE PROVISION OF LEGAL SERVICES IN HONG KONG by yaofenji

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									 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
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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.
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(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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