80 days' prison for defendants in courts crisis
People locked up awaiting trial are spending an average of 80 days in Hong Kong's prison system before their case is completed - nearly three weeks longer than they were in 2008 - figures obtained by the Sunday Morning Post show.
The statistics, gathered independently and confirmed by the Correctional Services Department, have sparked fresh fears over the city's chronic shortage of judges and raised questions among legal professionals about the granting of bail.
In 2008, the average time an accused person spent in custody before the court delivered a verdict was 60.3 days. In 2010, that figure rose to 80 days, or more than two-and-a-half months. Prison chiefs say they have no such figure for last year.
Human rights advocates also point out the 80 days, being an average figure, masks the fact that many people spend months behind bars before trial, though others are dealt with relatively quickly.
They also question the prison practice of conducting 'body cavity searches' on all remand prisoners every time they return to prison following a court appearance and say a legal challenge to the practice could be mounted.
The figures come a month after the Post reported that almost a quarter of the positions for judges and magistrates have been lying vacant for at least nine months.
The vacancies have caused a backlog of trials that one lawmaker warned 'deals a blow to the very foundation of the rule of law'.
A judiciary spokesman responded to the new remand figures by saying it would 'monitor court waiting times closely'.
However, a senior legal source said: 'These definitely speak to the expression 'justice delayed is justice denied'.
'Not only is there the question of our lack of judges, there needs to be some fresh thinking on how much weight is given to the presumption of innocence.
'Clearly, if someone is a potential threat to society, is violent, has a clear risk of absconding or has the potential to interfere with witnesses, then custody is the best option.
'But in other circumstances, perhaps more thought should be given to the right to bail.'
While judges often take into account when passing sentence the period of time a convicted defendant has been detained on remand, there is no compensation for people who are acquitted at the conclusion of a trial. Lawyer and lawmaker Audrey Eu Yuet-mee said she had been approached in the past by people who had been cleared after spending lengthy periods on remand.
But she said she had to turn them away. 'There is no compensation. They are very aggrieved but proving a malicious prosecution is extremely difficult.
'The shortage of judges is hard to understand when those in charge are well aware, well in advance, of who is retiring and when.
'I know for a fact that when former chief justice Andrew Li Kwok-nang stepped down before his retirement date, he did so very much with replacement and rejuvenation of the ranks of the judiciary in mind.'
Last month, Eu said the shortage of judges dealt 'a blow to the very foundation of the rule of law and quality of the judiciary'.
The judiciary spokesman said they 'did not keep figures' on the proportion of people on remand who were eventually cleared of the charges against them.
The spokesman added: 'The progress of legal proceedings, including the granting of bail and detention of the accused pending trial or appeal, depends on the individual circumstances and complexity of each case.
'It is inappropriate for the judiciary to comment on the length of remand periods or to draw any conclusion based on any one particular factor without having regard to all relevant matters.
'The granting or refusal of bail is a judicial decision to be made by a judge applying established principles and having regard to the facts of each case. The judiciary has set waiting-time targets for various levels of courts.
'These targets are set either in accordance with the recommendation of the court users' committees or are laid down in respective ordinances or court rules.' Last year, on average, 1,436 people were remanded in custody on any given day, compared with 1,248 in 2002.
People on remand are held in the Lai Chi Kok Reception Centre, Pik Uk Correctional Institution, Tai Lam Centre for Women, Lai King Correctional Institution and Siu Lam Psychiatric Centre.
Human rights lawyer Mike Vidler said the problem was particularly acute for people who did not have a permanent address, and suggested the authorities look at the possibility of establishing so-called bail hostels, similar to those in England.
'They are like halfway houses, between custody and living at home, and also help avoid clogging the prisons up further. We mustn't forget the principle of innocence until proven guilty,' he said. Vidler added that he and his legal team were working on a legal challenge to the practice of body cavity searches on all remand prisoners every time they returned to jail after a court appearance.
'Remember, innocent people have to undergo this indignity, too, on top of a harrowing legal process. It can ruin lives in some cases,' he said.
Prison chiefs defend the practice on the grounds that when an accused gets to court, they leave correctional custody and are taken over by the police, thereby necessitating a search on return to jail.
A spokesman for the Correctional Services Department said: 'We do not maintain statistics on the length of the remand period of remanded persons awaiting trial.
'The figures you provide, however, tally with the figures we had once collated for a one-off purpose.'
The spokesman also said the department was dedicated to providing remand prisoners with a 'secure, safe, humane, decent and healthy environment, as well as opportunities for rehabilitation'. He added: 'Our staff members have to exercise high vigilance to maintain security, order and discipline, as well as to take preventive and prompt actions against self-harm behaviour and illicit activities, such as gambling, gang formation and smuggling of contraband.'
The number of jobs for judges and magistrates that were reported last month to have remained vacant since last June, out of a total of 189