Legal aid aside, judges play key role in ensuring fairness of trial

PUBLISHED : Friday, 13 May, 2011, 12:00am
UPDATED : Friday, 13 May, 2011, 12:00am

Neville Sarony offers laypeople a glimpse through the looking glass into a London silk's view of the administration of justice in Hong Kong ('The silk purse', April 29).

He holds that justice requires 'equality of arms' and not 'equality before the law', which, though generally perceived as the foundation of a fair trial, is in fact a cause of judicial unfairness. Using a metaphor for the common law's adversarial process, he discerns that equality before the law could legitimise a contest between a Rottweiler and a chihuahua. He lays the burden of justice on society and urges the public to increase legal aid funding to ensure that legal contestants are equally armed.

These observations, while seemingly realistic in Hong Kong's legal environment, could be viewed as chicanery by people who disapprove of the city's outdated legal arrangement whereby lawyers are always the first and often the only beneficiaries of legal aid; even those who lose their clients' cases get paid. In Britain, the trend is to remove civil cases from legal aid to a privatised 'no win, no pay' arrangement. Mr Sarony's medical analogy that complex cases should be performed by specialists is extraneous. Winning a case in a trial is materially different from saving a life in surgery.

We may never be sure if Johnnie Cochran and F. Lee Bailey contributed to social justice when they won O. J. Simpson's criminal trial. But the benefit of a successful surgery is objectively recognisable. Also, whereas only trained doctors have the know-how and authority to perform operations, court trials are open to public review, and the court needs jury participation to legitimise rulings in important cases.

Lawyers, doctors, the Legal Aid Department and the Department of Justice feature prominently in Mr Sarony's article, while judges are almost invisible. He refers to the cases of a construction worker rendered quadriplegic by the negligence of a contractor and an impecunious murder suspect pursued by the Department of Justice to plead for more legal aid to employ experienced counsel.

But instead of investing in legal aid counsel, we should invest in improving judicial efficiency and make judges assume some inquisitorial functions. Judges can't shift the entire responsibility of substantive justice to prosecutors and defence counsel. No judiciary will last if the court obstinately rules against public opinion by claiming that objectionable rulings are based on impartial evaluation of the parties' arguments.

Mr Sarony may be right that a Mong Kok man is unlikely to get the [same] 'quality' of representation as Nancy Kissel. But the fact is that hardly any social value can be derived from the material and mental resources spent on Kissel's retrial, for which she shouldn't have been granted leave in the first place. That the retrial was held shows that equality before the law remains a promise and not a fact. This ideal is unlikely to materialise before there is equal representation in judicial composition. More than 50 per cent of the senior judges cannot speak the language of 95 per cent of the population.

Anna Tse, Mid-Levels


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