• 法援即法治|戴啟思
  • 2020-10-17    

  • 法援即法治|戴啟思

 

Subsidized Dining at the Ritz-Legal Aid and the Rule of Law


What are the defining characteristics of a society governed by the Rule of Law? An independent judiciary that can tell the executive that it has acted unlawfully would be top of most people’s lists.

A close second would be a range of laws that are compatible with internationally recognized human rights standards.

Third would be an independent legal profession whose members are not afraid to take on powerful adversaries, be they government officials or mighty commercial concerns.

However, although the law is a learned profession, for most lawyers, it must also be a means of livelihood. Even though a conscientious solicitor or barrister will undertake some work for free when a deserving case arises, lawyers in private practice need to pay office rent and the salaries of their staff at the end of the month.

This is where the other pillar of the society governed by the Rule of Law comes in: Legal Aid.

Legal Aid makes real what would otherwise be theoretical, namely access to the courts on terms more or less equal to an opponent who retains lawyers privately or, in the case of Government, has access to public funds.

A British Labour minister, Arthur Skeffington, remarked on the profound change the Legal Aid and Advice Act 1949 made to post-war Britain by comparing access to the courts in pre-war years.

He said that the law at that time was like the famously expensive Ritz Hotel in the West End of London, in that those who could afford to pay had access to it, while those who could not, did not.

Although the 1949 Act covered legal Aid in civil cases, the main focus of the effect of the Act was on prisoners’ legal representation. The motivation for the change was elementary fairness. The Act meant that a poor prisoner was in no worse position to defend his or her innocence than a rich prisoner.

A modern version of Legal Aid made its way to Hong Kong in the 1960s. There had been a kind ad hoc legal assistance in serious criminal cases-mainly homicides-since the 19th century. It was not until about 1970, after the establishment of a Legal Aid Department, that the schemes for providing legal aid-civil and criminal- that are in use today came into existence.

People are sometimes confused about the basis on which legal Aid is granted. It is not given to people who have sufficient means to provide for their legal representation. There are means tests for both civil and criminal legal Aid. Even if granted, a person might have to contribute towards the cost of his legal assistance.

The big difference between criminal legal Aid and civil legal Aid are the tests applied to each category of case.

In looking at civil cases-say, a damages action for a motor accident-the Director of Legal Aid will want to be satisfied that the would-be plaintiff has a decent case and that he or she was not at fault in the accident. If the other side admits liability for the accident, the Director will want to be satisfied that the plaintiff is not asking for an unreasonable amount of damages.

In criminal cases, different considerations apply. If the case is one bound for the District Court or Court of First Instance, the starting point is that the Secretary of Justice has charged the accused with an offence which carries a substantial term of imprisonment. (District Judges may sentence a person to a maximum of seven years’ imprisonment. In the Court of First instance cases are tried with a jury, and the judge can sentence the statutory maximum for an offence.)

The criminal charge triggers protection in the Basic Law. It is in Article 87. It says that persons lawfully arrested have the right to a fair trial and the right to be presumed innocent until proven guilty by a judge or magistrate.

The presumption of innocence is a right that an accused can assert against the world. If a newspaper report claims that an accused is guilty of a crime before a trial, the editor will find that he has to answer a contempt charge in court.

So it is with the Director of Legal Aid. He cannot refuse an application for criminal legal Aid because he thinks the applicant is guilty of the offence. That is not his function. It is a job for the judge. And then only after having considered all the evidence and the representations of lawyers.

There are other good reasons for providing Legal Aid as well. A good lawyer can cut through thickets of evidence and narrow the issues, turning what may have been a seven day trial into two or three days. The financial savings can be enormous. Some of the evidence can be of a technical nature-DNA or fingerprint evidence-and it would be unfair to expect an unrepresented defendant to deal with it.

Slightly different considerations apply if a criminal case is destined for the Magistrates’ Court. Some offences that are tried there do not carry terms of imprisonment so possible incarceration is not a concern. Even if they do carry a term of imprisonment, the offences may be fairly straightforward-such as driving offences- and imprisonment only imposed in rare cases.

In these cases, free legal representation may not be necessary. However, unusual features of a particular case, such as the person who has a disability or the case possibly warranting a term of imprisonment as an exception, may call for assistance. (In Magistrates’ Courts, subsidized legal assistance is provided by the Duty Lawyer Service which is a scheme managed by the Law Society and the Bar Association.

Most people do not give much thought to subsidized legal assistance or, if they do, may think it a waste of money when they see ‘obvious criminals’ sentenced to terms of imprisonment by judges and magistrates.

These people would do well to reflect that one day they might be called upon to dine at the judicial Ritz Hotel facing a skilled Government prosecutor across the table and find they cannot afford the bill.



About the author

Philip Dykes is a Senior Counsel. He has lived in Hong Kong for over thirty years. His interests are in literature, language, history, fine art and photography. He worked as government lawyer until 1992 and he is now in private practice.

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