Denial of legal aid to convicted refugee unreasonable, judges say

PUBLISHED : Saturday, 16 July, 2011, 12:00am
UPDATED : Saturday, 16 July, 2011, 12:00am


The Legal Aid Department was being unreasonable when it refused support for a refugee to appeal against his conviction for a sexual offence, the Court of First Instance said in a judicial review ruling yesterday.

The refugee, identified only as Z, who is waiting to be resettled in another country, launched the review in October last year.

The previous December, he had been convicted of indecent assault on a 14-year-old girl and sentenced to four weeks in prison, but was granted bail pending appeal.

However, he was refused legal aid for the appeal. He challenged the decision in October, only for it to be upheld by Mr Justice Michael McMahon in the Court of First Instance, prompting the judicial review.

In the reasons for judgment released yesterday - the decision was handed down on July 11 - Mr Justice Anselmo Reyes and Mr Justice Alan Wright said in the Court of First Instance that, as Z was a refugee, the conviction for indecent assault was likely to have a serious impact on him being accepted for resettlement anywhere in the world after serving his jail sentence.

The department 'did not evaluate whether these grave consequences peculiar to Z's circumstances merit the grant of legal aid, irrespective of how slim Z's prospects of success may be'.

The judges said the department should have taken into account factors such as the defendant's potential loss of liberty or livelihood due to the jail term.

'The director's refusal of legal aid should be quashed as unreasonable. The refusal resulted from the apparent failure to take into account factors which ought to have been taken into account,' the ruling said.

Wright noted that the director of legal aid had used a standard form letter to notify Z of the refusal. But the way it was done was insufficient to satisfy the court it had considered the important features of the application.

The court refused to overturn McMahon's decision on the basis that it was not amenable to judicial review.

Hong Kong has long been criticised for its lack of a coherent law regulating refugees and torture claimants. After years of foot-dragging, the administration presented the Immigration (Amendment) bill in the Legislative Council on Wednesday.