Cheap law may be bad law
MR Justice Duffy's action yesterday in ordering a re-trial of an incest case, for unprecedented reasons, raises serious questions about the criminal justice system and the maintenance of the rule of law in Hong Kong. The judge ordered the new trial because he thought the defence lawyer might not be sufficiently competent to protect his client.
In this case, the criticism was levelled at a privately-briefed lawyer. But Mr Justice Duffy pointed out that similar concerns have arisen in the past about defence barristers briefed by the Legal Aid Department, as well as counsel appearing for the prosecution.
The judge's remarks boiled down to the observation that you get what you pay for. He advised the defendant - a bus driver - to apply for legal aid. But he also made clear that the Director of Legal Aid and the Attorney-General's Chambers were paying peanuts.
The danger of employing the inexperienced or incompetent lawyers prepared to accept low fees is clear. If a legal system run on the cheap risks producing miscarriages of justice as a result, then action needs to be taken, and quickly. The Government would argue that the fees paid by the Attorney-General's Chambers and the Legal Aid Department are fixed by the Legal Department budget and the Legal Aid rules, respectively. But this would miss the point that an urgent reassessment of the system may be necessary. If the poor are to be defended by second-rate lawyers, they may get worse-than-second-rate justice and will lose faith in the law and the values it represents.
This problem is not confined to Hong Kong. But Hong Kong would do well to examine what solutions, if any, have been found in other jurisdictions. Maintenance of faith in the law (and, therefore, the rule of law) is too important an issue for it to be shoved into the background.