Is lack of legal aid inhibiting delivery of effective justice?

What are we doing in Hong Kong to address the problem of defendants being unrepresented in their criminal appeals? Maybe you did not know there was a problem. Perhaps you have not heard the distress signals in recent decisions.

Take the November 2012 judgment of Mr Justice Andrew Macrae (sitting with Mr Justice Michael Lunn and Mr Justice Ian McWalters) in which he wrote, after allowing an appeal on a robbery conviction: "We would like to register our concern that legal aid was refused on the merits not once, but twice in this appeal." He went on: "Anyone making an objective assessment of the papers in this case ought to have realised immediately that it was such an extraordinary set of facts that the appellant cried out for legal representation."

In a case in May, where the defendant again won his appeal, although he was refused legal aid, Court of Appeal of the High Court vice-president Mr Justice Frank Stock wrote: "One cannot but be dismayed that legal aid was refused for this application". Not only was the case "clearly arguable", but the error in the summing up, in his view, "stood out like the proverbial sore thumb".

Consider another angle. How many of our criminal appellants are unrepresented compared with those in other countries such as Canada and England and Wales? Based on available decisions in the first seven months of 2013, the proportions of unrepresented appellants in the province of Ontario and in England and Wales were similar, a rate of about 3 per cent.

In Hong Kong, 38 per cent of all judgments rendered in the same period had at least one unrepresented defendant. In 12 per cent of these cases, the appellant succeeded. More might have succeeded had there been legal representation.

What are the reasons for the problem and what are the answers? The problem is multi-faceted and challenging.

Naturally we look first for answers in our system of government-funded legal aid. On average more than 70 per cent of all criminal legal aid applications for Court of Appeal cases are refused. Irrespective of whether that system is independent, there is a need for a thorough review of the quality of decision-making and the system by which advice on appeal merits is obtained.

The government needs to go further to address the needs of the growing class of litigants whose financial status exceeds the low cutoffs for legal aid, but who cannot reasonably afford private lawyers.

Besides the Bar Association's free legal service scheme, there are few other options for these appellants. The judiciary also needs to work with the profession to find novel ideas to tackle the problem.

Ontario's proportion of unrepresented appellants might have been as high as 15 per cent in the absence of its innovative system of duty lawyers and amicus curiae (appointed lawyers who assist the court as a friend).

In October 2012, in Hong Kong an unrepresented defendant won his sentence appeal, but our Court of Appeal needed five months to deliver its reasons, as it did not have assistance from counsel.

The Prosecutions Division's 2012 report drew attention to the increasing workload of appellate judges, which was exacerbated by the problem of unrepresented appellants. Borrowing words from that report, this is a situation "not conducive to effective justice and needs to be addressed".

Professor Simon Young Ngai-man is a practising barrister who teaches criminal law and evidence in the University of Hong Kong's law faculty