The silk purse
Viewed cursorily, the casual observer might conclude that despite the absence of democracy in Hong Kong, we do have that prerequisite of a civilised society, namely equality before the law. Sadly, in certain important respects, any such conclusion would be a serious misapprehension. True, we have a judiciary untainted by corruption and a legal infrastructure grounded in the English common law. However, peep under the panoply of wigs and robes and the reality is that justice, like the Peninsula Hotel, is open to everyone - at a price.
Whether the litigant is involved in civil or criminal proceedings, whenever he or she is opposed by a large company or an organ of government, there is a fundamental inequality of arms. The construction worker rendered quadriplegic by the negligence of a contractor building another of Hong Kong's great property developer showpieces will have to fight an insurer hell-bent on contesting the claim every millimetre of the way. Similarly, the delivery worker charged with murder must go into battle against the overwhelming resources of the Department of Justice. Manifestly, the opposing parties are not evenly matched. It is precisely to meet this disparity that we have legal aid.
Unquestionably, history shows that in past times the Legal Aid Department shouldered this burden magnificently. But where is the magnificence of yesteryear? Sadly, the poor moth-eaten creature staggers along on spindly, malnourished legs, coughing and spluttering as it bends under the weight of its responsibilities. The fault, dear Brutus, is not in our stars but in the Albert Road Treasury that has put the squeeze on legal aid funds.
One of the most treasured of conventions in England is that anyone prosecuted for murder is automatically entitled to be represented by a Queen's Counsel, and it is right and just that this is so. Murder trials are often not simply a whodunnit but involve complex issues, including whether there was self-defence, provocation or diminished responsibility, with consequences for a conviction. As such, they call for representation by leaders of the criminal bar.
The dubiously titled Department of Justice considered it necessary to instruct an English QC to prosecute an expatriate woman charged with murder and the defendant had sufficient resources to engage an English QC to defend her. But does a Mong Kok man get the same quality of representation as a Michigan woman? Only if he has the means to do so.
Hong Kong's failure to provide quality representation for such trials is a disturbing indictment on our society. It is many years since a silk was even approached to conduct a murder trial (sometimes they are instructed on appeal, by which time the damage has already been done). The Court of Appeal has complained openly about the disturbing consequences of inadequate representation but the judges' words fall on cloth ears.
Sadly, since Hong Kong's government is manifestly not impoverished, this situation must reflect the low esteem in which the average Hongkonger is held by the bureaucracy. Nor is it a sufficient response to say that our citizens are better treated than those over the border; one cannot compare apples with turnips. The irresistible inference is that there is one law for the well-heeled and another for the rump of the population. There is more than a hint of imperial China about the attitude of the tycoons and their mandarin friends in Lower Albert Road.
The issue is one of matching the quality of counsel instructed to represent the civil claimant or criminal defendant to the complexity and gravity of the case. By way of analogy, would we accept complex brain surgery being carried out by a junior doctor rather than a consultant neurosurgeon?
How does this impact on the paraplegic or quadriplegic victims of road traffic or construction site accidents, people whose lives are shattered beyond repair? Solicitors assigned to handle these cases will tell you that they have to fight tooth and nail with the Legal Aid Department, often for months, if they wish to instruct senior counsel. Often the solicitor gives up in disgust, finding it one too many battles.
Of course, there are very able junior barristers who give of their best but these cases, by definition, call for counsel at the top of their game if the injured claimant is to hope to prove liability and recover the optimum in damages. Injuries causing serious brain damage is a field which well illustrates the point. A preponderance of these cases are the consequence of medical negligence. Time and effort is saved because the specialist silk can make an early characterisation of the claim and knows to whom the medical issues can be referred for an expert opinion. Instructing a specialist silk at the very outset of such potential claims is cost-efficient because, having instructed the appropriate experts, he can advise on whether or not there is a valid claim at all.
In this day and age, when the medical profession divides itself into ever greater areas of sub-specialisation, it is essential to identify the appropriate consultant, which often means going overseas. If the specialist silk is engaged long after the case has developed, it may be too late to change the expert, especially under the inhibitory demands of the civil justice reform.
The nuts and bolts of the claim can be left in the hands of suitable junior counsel working under the overall guidance of the leader, but this is not what is happening. Instead, under Treasury pressure, the Legal Aid Department will insist that there be no junior counsel if a silk is to be instructed. This fails to take into account the pragmatic rationale for instructing two counsel, that is, to ensure top-flight oversight whilst leaving the more mundane work to junior counsel.
Doubtless I shall be accused of special pleading on behalf of the Bar, but if you had a Rottweiler guard dog would you send the chihuahua out to bark?
Neville Sarony is a silk practising in both civil and criminal work in Hong Kong