Exploration trip may turn out to be minefield

PUBLISHED : Thursday, 09 September, 1993, 12:00am
UPDATED : Thursday, 09 September, 1993, 12:00am

MR Justice Duffy's remarks regarding the incompetence of certain counsel made in a trial he stopped on Friday, August 27, were disturbing.

According to media reports, what he allegedly had said was that although there were competent counsel who could adequately appear for the Crown and the Defence in criminal trials, they were too expensive and were beyond the reach of the Crown or the Legal Aid Department, in terms of the fees that such counsel charged, while those who took on prosecution work or legal aid work were professionally inadequate.

These comments were not, when made, supported by any empirical evidence. At the same time, they could be construed as entailing the following conclusions: Firstly, all, or at least most, competent criminal counsel charge high fees and do not do legal aid work or prosecute for the Crown.

Secondly, there is a core of competent criminal counsel, but they are expensive. Thirdly, inexpensive criminal counsel are all incompetent. Fourthly, although most members of the public cannot afford the present level of fees charged by competent criminal counsel, they would have no alternative but to resort to the Legal Aid Department which, however, cannot be trusted to provide them adequate legal services.

Although one may be as judgemental as one likes to be when it comes to making comments about professional competence or the lack of it, the question is often a complex one, involving asking if the one being criticised does possess sufficient knowledge ofthe law and how sound are his professional judgements made often in difficult circumstances.

A particular move condemned at the trial level may well be vindicated on appeal.

In May last year, Mr Justice Duffy fell into the legal error of not realising when sentencing in a case (The Attorney General v Yan Chun Fong) then before him, that robbery and possession of a firearm at the time of the robbery were offences for which a suspended sentence could not be passed and that a suspended sentence could not be passed at the same time when a probation order was made.

Quite apart from the fact that a suspended sentence was not authorised by law in that case, the unresolvable legal problems engendered by the simultaneous operation of the orders would have alerted one to the implausibility of their combination being legally permissible.

Yet no one would be justified to think that the sentencing judge's competence should be called into question, even though his decision was reversed on appeal.

It is indeed perilous to take an exploration trip to the field of professional competence, which may turn out to be a minefield, without a good enough reason, for allegations may soon be provoked covering so wide a scope as to cover instances of judicialcompetence.

In that event, no good can come out of it and public confidence in the legal system would be wrecked. So what was Justice Duffy advocating? Quick and effective remedial action, yes, but what? The expensive fees charged by competent criminal counsel should come down, but that would not happen despite moral exhortation.

The suggestion seemed to be that fees paid by Government should go up drastically to attract them. But would that happen? Assuming there is still a core, however small, of counsel who are taking on legal aid work or prosecution work, can one identify them and ask the rest to drop out? What about the right to choose one's counsel? In the meantime, perhaps many members of the public would, if what Justice Duffy said was true, have to be satisfied with allegedly second-rate legal representation which they should not really have confidence in, while the next allegedly incompetent counsel shudders at the thought of being ''identified''.

D. WONG Central