Noble talk, but little change in the air

PUBLISHED : Thursday, 21 November, 2002, 12:00am
UPDATED : Thursday, 21 November, 2002, 12:00am


THIS BEING a penultimate column and the week that the well-meaning but waffling accountants came to town, it seemed appropriate to devote this space to rhetoric.

The World Congress of Accountants ends today at the convention centre. It seemed a mix bag of definite action (expensing options is one example) and a lot of noble hot air.

In one speech, we counted the words 'transparency', 'integrity', and 'accountability' about 17 times. The presentation was, however, woefully lacking in substance.

Is this the lot of the professionals? Good intentions, a recognition that the system is flawed and a desire to change - but in our lifetime? Forget it.

Having dipped into the obvious areas screaming for reform in the legal profession over the past year or so, I can only conclude that, yes, change will come. We will just be too busy being spoon-fed in nursing homes to appreciate it.

For example, it became achingly apparent that lawyer-less litigants were on the rise some time around 1999. By 2000, nearly half of all civil litigants were representing themselves in court.

Nearly three years on, not a lot has changed. Concerns have been raised in all the right quarters. Proposals to ease the problem have been mooted.

But all the will in the world has not effected change, even on an interim scale. In Hong Kong, the legal wheels of change are deplorably slow.

At least another nudge in the right direction emerged last week. The Bar Association released a more comprehensive prod of the legal aid system.

It may not be a panacea, but a fresh look at the system of granting legal aid is one way of arming the financially challenged litigants forced to go it alone.

And the association took the gloves off.

The perception from practitioners is that 'budgetary considerations marginalise legal rights'.

Add to this a growing perception that the director of Legal Aid is apprehensive of litigation against the government.

The suggestion is that litigants are being turned down or denied sufficient counsel where their case steps on the government's toes.

According to the Bar: 'A substantial number of applicants are being refused legal aid in circumstances where the practitioners take the view that the case has merit or at least deserves to be investigated further.'

It also points out that challenges to the director of Legal Aid's decision to veto an applicant are heavily skewed. The rate of success for an unrepresented appeal against a decision to refuse legal aid is a paltry 9 per cent.

Another example of 'undeniable' denial of legal aid, the Bar continues, is where, despite the legal merits of a case, the potential cost becomes an overriding factor.

You can imagine the scenario. The Legal Aid Department gives the nod to a litigant, but assigns a more junior counsel. The litigant takes on the government, with a very senior team of counsel.

Alas, the prospect of cutting Legal Aid becoming a fully independent body is remote.

What could be less distant is the prospect of expanding the Supplementary Legal Aid Scheme (SLAS), a proposal that has been vehemently supported in these pages and a large chunk of the profession.

The fund has grown from a HK$1 million donation from the Lottery Fund to over HK$75 million. It was set up in 1984.

The means limit is higher than the ordinary Legal Aid Scheme, and SLAS works on a semi-conditional fee basis: if you win, it gets a cut.

There is a proposal to expand the SLAS scheme to take on a broader range of cases - including shareholder disputes. Barrister and legislator Margaret Ng Ngoi-yee has included this in a Legco committee scrutiny of legal aid and potential changes.

Still, we wait.

We also wait to hear the government's views on introducing conditional or contingency fees in Hong Kong. The good news is that there are mumblings of a proposal to initially introduce the system for personal injury cases.

That is perhaps a predictable start (if and when it actually happens), but it could take time to widen the net.

The business sector may not be the neediest bunch, but commercial disputes are regularly swaying in favour of the company with the deepest pockets, rather than the one with the moral high ground. Disputes involving minority shareholders are a case in point.

Is no one remotely embarrassed when regulators boast about the non-litigious nature of Hong Kong? It is not that a minority shareholder does not want to seek recourse through the courts, he just realises it is financial suicide.

Hardly something to brag about - especially when the crusade is not being picked up by the regulators themselves.

Conditional fees could also equal more work for an increasingly struggling profession. The response, however, has been tepid - the Law Society has set up a working party to look into it - but the mood is not one of frenetic enthusiasm.

In these lean times, perhaps it should be. Given the profession's historic pace of change, however, you might not want to bet your pension on it.

Graphic: room21gbz