Shortfall in pretrial resources an injustice for legal aid clients

PUBLISHED : Tuesday, 26 January, 2010, 12:00am
UPDATED : Tuesday, 26 January, 2010, 12:00am

The rule of law requires that the criminal justice system is equitable, which means defendants can defend themselves effectively in criminal trials. Otherwise, the cardinal common law principle of 'innocence before proven guilty' will ring hollow. In Hong Kong, as in many other places, only the rich are able to hire private lawyers in criminal cases. Most other defendants depend on legal aid.

The lack of adequate criminal legal aid resources in Hong Kong is seriously limiting defendants' ability to defend themselves against a much more resourceful prosecution, creating a serious 'inequality of arms'. Our legal aid system does not provide resources for defendants to hire lawyers to do pretrial preparation. It only funds lawyers' appearances in court and the fee level is so low that lawyers are effectively doing pro bono work most of the time. Not surprisingly, many experienced lawyers have given up criminal legal aid work and young lawyers are not inclined to practise criminal law - a worrying trend that must be arrested.

After drawn-out negotiations over the years, the government has finally agreed to change the fee structure to provide resources for lawyers to do pre-trial work for defendants. But the improvement is not coupled with an adequate allocation of resources.

It is a shame officials never seem to be interested in examining the issue from a human rights and rule-of-law angle. We were told time and again that the government was constrained by a lack of resources. There was never any discussion at a policy-objective level about the importance of protecting defendants' interests.

It is also deeply disturbing that the amount of resources for civil legal aid cases far exceeds that for criminal cases. But the government kept stonewalling and our appeal for putting criminal and civil legal aid on a par fell on deaf ears.

To highlight this long-standing problem, a group of senior criminal law practitioners staged a month-long boycott of criminal legal aid cases in October. Our campaign has won support from legislators and social groups working for grass-roots interests, such as Society for Community Organisation. But the government remained indifferent.

Many in the legal community are deeply disappointed with the government's inaction. But the Law Society has decided not to escalate its protest further at this stage, considering the disruption such action might cause to the criminal justice system. As responsible officers of the court, this is a step we do not take lightly.

The Law Society believes the government should proceed with the legislative procedures for changing the fee structure as the first step, so that defendants will at least have some resources to engage lawyers for pretrial preparation.

Meanwhile, the Home Affairs Bureau should commit to undertaking a review in a reasonable period. We have suggested that a review should be conducted within two years. It is only through this commitment that the public can be assured that the government is dedicated to providing adequate legal aid to empower less-privileged members of society to exercise their basic civil and legal rights in criminal trials.

Huen Wong, president, the Law Society of Hong Kong