Opinion | Legal aid: Reforms promote fairness and benefit taxpayers

By Grenville Cross

On Oct. 26, the government told the Legislative Council's Panel on the Administration of Justice and Legal Services of its "proposed enhancement measures" for the legal aid system, which it hopes to have implemented by year's end. These reforms have become necessary because of systemic weaknesses, highlighted by recent protest-related litigation.

Much concern has focused on the nomination of lawyers by legally aided persons ("APs") in judicial review cases. Between 2015-20, 386 applicants were granted legal aid certificates in these cases, and the success rate was only 8 percent. The government points out that "some lawyers with certain political inclination" may, by offering them assistance on a "pro bono" basis, be encouraging the APs to bring judicial review cases, with the APs then asking the Legal Aid Department ("LAD") to assign them as legal aid counsel. Such cases, moreover, are concentrated in the hands of particular lawyers or firms, with many practitioners barely getting a look-in.

By virtue of the Legal Aid Ordinance (Cap.91), the LAD operates two panels, one for barristers and the other for solicitors, and they comprise lawyers willing "to act for aided persons" (Sect.4). By the end of 2020, there were 1,161 barristers and 2,474 solicitors on the panels, specializing in different areas. Whereas 218 barristers (19 percent) and 932 solicitors (38 percent) undertook civil work, 312 barristers (27 percent) and 408 solicitors (16 percent) did criminal cases.

Although, in 2020, there were 225 barristers and 177 solicitors on the panels qualified to conduct judicial reviews, the work was not equitably distributed among them. Indeed, 82 of the 87 legally aided judicial review cases were handled by 37 barristers (16 percent of all qualified counsel), and 15 solicitors (8.5 percent of all qualified solicitors). In other words, the few were excluding the many, with too many cases ending up in the hands of a privileged minority.

To provide the LAD's panel lawyers with their fair share of cases, therefore, the overhaul will limit barristers and solicitors to, respectively, three and five judicial review cases a year, as opposed to 20 and 35 at present. Once in place, this arrangement, extrapolating from last year's figures, would result in an additional 27 cases becoming available to other qualified barristers, and 37 for other qualified solicitors. Also envisaged is a parallel shakeup of civil case allocation more generally, with a similar emphasis on the fairer distribution of work.

There have, of course, been a series of unmeritorious judicial reviews that have seen taxpayers' money wasted. One litigious individual, Kwok Cheuk-kin, often at public expense, spends his time bringing challenges to government policy, and has been dubbed "the king of judicial review". A particularly notorious case this year involved a female known only as "K", who claimed to have been shot in the eye by the police during a protest in 2019, but who refused to allow investigators access to her medical records, which suggested she was a phony.

She had, it seems, been struck in the eye by a stray projectile fired by a protester, and, when the police obtained search warrants to access her records, she was granted legal aid to challenge them. Although she had fled the jurisdiction before the case finally concluded, this was not before a senior counsel had been instructed to lead her legal team. According to reports, the taxpayer had to fork out HK$399,975 (US$51,353) on this farce, and this was clearly repugnant to the public interest.

Quite how cases like K's ever saw the light of day has yet to be fully explained, although it seems that some lawyers are generating work for themselves by advising the director of legal aid that they are meritorious. If, therefore, better case management techniques can be developed to weed out frivolous applications, it will save time and money and help restore public confidence. The proposal that the LAD will, apart from applying stringent merits tests, also issue limited legal aid certificates by stages, meaning the case is carefully monitored as it progresses, with the legal aid certificate being discharged if the case is no longer viable, is a big step in the right direction.

In criminal cases, moreover, there is a widespread belief that, if defendants are granted legal aid, they can choose their own particular lawyers, with the LAD simply having to comply. If they have money of their own, defendants can obviously instruct whosoever they wish, but, when taxpayers' money is involved, different considerations apply, including quality control. Indeed, the government's proposals stipulate that the director of legal aid "will make the final decision on the assignment".

This notion, however, does not sit well with some lawyers, and they point to the Basic Law which provides that Hong Kong residents have the right to "choice of lawyers" (Article 35). The Civic Party chairman, Alan Leong Kah-kit, for example, said the Legal Aid Scheme exists to "ensure — so far as the public coffers can afford it — that this right guaranteed to Hong Kong people will not be obstructed because of the lack of money, or that financial means is not an obstacle to the exercise of this right guaranteed under Article 35".

Apart from Article 35, the Hong Kong Bill of Rights Ordinance (Cap.383), echoing the International Covenant on Civil and Political Rights, provides that anybody charged with a criminal offense is entitled to "defend himself or through legal assistance of his own choosing" (Art.11).

On one view, these two provisions may suggest that an accused person who is legally aided has an absolute right to choose a particular counsel. This, however, flies in the face of reality, and there will be many situations in which the AP cannot, for one reason or another, select his lawyer. The chosen barrister may, for example, be under investigation by the Bar Council, accused of misconduct by his previous clients, or lack the necessary experience, or be too senior, or be otherwise engaged, or be ill, or be away from Hong Kong on the trial date. In such circumstances, the LAD will advise the AP that a particular barrister cannot be chosen, and explain the alternatives.

There may, of course, be cases where the AP's wish for a particular lawyer can be readily accommodated, as where, for example, the nominated lawyer has represented him in the lower court. Other things being equal, the LAD can try to accommodate the AP's preference, although sight must never be lost of the bigger picture. This requires not only "horses for courses", but also the development of a wider pool of experienced lawyers on the panels and a fair distribution of work.

In any event, there is an overarching duty on the director of legal aid to protect the public purse. He, or she, has to ensure that taxpayers' money is not wasted on a lawyer who is not up to the job, however much the AP may want him. In 2000, when a barrister insisted he should have been instructed as a litigant had asked for him, the Court of Appeal's Justice Brian Keith explained that, as the director was partly funding the litigation, "he has an obvious interest in ensuring that counsel assigned to the legally aided person's case is suitable" (CACV 49/2000). Quite clearly, it would be a dereliction of duty if the director, to gratify the AP, assigned a lawyer to a case when he knew, for whatever reason, that he was not competent to handle it.

Thus, when the director of administration, Daniel Cheng Chung-wai, was asked, at the AJLS Panel, about a defendant's right to choose his own lawyer under the Basic Law, he explained the right was not absolute. The director of legal aid has, he said, "the power and duty to impose reasonable restrictions", and the right to counsel simply gave Hong Kong residents "access to legal representatives, so as to have a fair trial".

In other words, if a defendant decides to be represented by the LAD, he has exercised his choice of legal representation in favor of the public service over the private sector, and that is the extent of his right to choose. Once granted legal aid, he will have access to the LAD's lawyers, one of whom will be selected to represent him, although any preferences he may have will be borne in mind. Cheng's interpretation of Article 35 was, therefore, realistic and grounded in common sense, and clearly preferable to a rigid construction that could produce absurdity.

The Department of Justice itself maintains lists of private lawyers who are willing to prosecute its cases and they are assigned on rotation, and the LAD should be moving in the same direction. As long as the barristers and solicitors on its panels are properly vetted and of the right quality, there is no reason why they should not be assigned cases on a rotational basis once their turn comes around. This not only gives them a fair crack of the whip, but also ensures that the APs are represented by a suitably qualified lawyer, even if not the one he might himself have chosen.

Every year, huge amounts of public money are spent on legal aid, and the system is not working as effectively as it should. In the latest financial year, the government spent HK$953 million on legal aid, which works out at HK$127 per person in Hong Kong. Although nobody should be denied access to justice for lack of means, public finances should always be safeguarded. Whereas there will always be those who fear change, they cannot be allowed to obstruct proposals designed to prevent abuse, promote better case management and enhance transparency.

(Source: China Daily)

The author is a Senior Counsel, Professor of Law and criminal justice analyst, and was previously the Director of Public Prosecutions of the Hong Kong SAR.

The views do not necessarily reflect those of DotDotNews.

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