Does justice depend on your lawyer?

PUBLISHED : Sunday, 19 September, 2010, 12:00am
UPDATED : Sunday, 19 September, 2010, 12:00am

The controversy provoked by the decision not to jail Amina Mariam Bokhary, a judge's niece, for assaulting a police officer focused on what the public perceived as preferential treatment due to her high-level connections and social status.

But could the performance of her legal team, and the influence that had on magistrate Anthony Yuen Wai-ming, have been the bigger factor in his decision to hand down a non-custodial sentence in the case?

In other words, and given the quality of legal advice varies so widely: would the outcome have been different if Bokhary had had different lawyers?

Most people facing criminal charges find the court system daunting even if they are lucky enough to have a good lawyer. So it was appropriate that Andrew Li Kwok-nang made a call for access to justice on the eve of his retirement as chief justice. He said unrepresented litigants should get appropriate legal assistance, and encouraged lawyers to work for no fee.

For the majority of people, the first point of access to the court system is the Duty Lawyer Scheme.

The scheme, which began in 1978, is generally regarded as a training ground for budding lawyers. It also helps the courts dispose of cases quickly, which is particularly important when people are in custody.

But community workers who assist the underprivileged say the quality of service is inconsistent.

They have also questioned duty lawyers' cultural sensitivity in dealing with ethnic minorities.

Last year, with a government subsidy of HK$96,416,000, the scheme provided free or cheap representation for 36,991 defendants in 33,053 cases - more than 78 per cent of the total heard by magistrates. Duty lawyers in a first court appearance are free. In subsequent appearances, defendants who earn less than HK$131,860 a year are eligible and pay a fixed charge of HK$436, no matter how long the trial lasts.

The scheme covers about 300 criminal offences, but not summonses. Government departments issued over 180,000 summonses last year.

Even though the scheme's fees are less attractive than those in private practice, more than a quarter of the barristers participating in the Duty Lawyer Scheme have at least 16 years' experience.

However, Wong Chi-yuen, community organiser at Society for Community Organisation, a church-backed group helping the underprivileged, said the rota system by which lawyers took on a case was not ideal. Defendants could be represented by a junior or a senior lawyer. It depended on who was on duty that day.

'It's a bit like a lucky draw: the standard varies,' he said.

Duty lawyers represent clients during trials and at hearings where a defendant either pleads guilty and the lawyer offers mitigation or pleads not guilty and a trial date is set.

Johnson Hau Kwan-kin, chief court-liaison officer, said a duty lawyer handling plea hearings had an average of eight clients a day. The maximum in any given day was 12.

Last year, 1,584 barristers and solicitors participated in the scheme. They receive HK$5,880 for a day's work and HK$2,930 for half a day.

In private practice, junior barristers with three to five years' experience charged about HK$3,000 for a brief court appearance, Huen Wong, president of the Law Society, said.

They typically charged less than HK$10,000 to cover the first day of a trial and preparation, and half of the first day's fees for each further day.

Asked whether senior lawyers contributed less to the scheme than their junior counterparts, Hau said that was not the case.

However, lawmaker and barrister Margaret Ng Ngoi-yee said a vicious circle existed in that junior barristers, who needed experience in order to improve, might not be getting enough work.