Getting serious about a suspect's right to timely protection
Access to immediate legal protection must be provided under Article 35
Everyone in Hong Kong has a constitutional right to a "choice of lawyers for timely protection of their lawful rights and interests" (Basic Law, Article 35). Is the right fully complied with when a police officer hands a suspect the Law Society's list of solicitors and says, "Choose!" If the suspect asks "Who can I call for free legal advice?", the answer will be "Try your luck with the list", whatever the hour or day.
The Law Society has a free legal helpline but it works on the basis that a lawyer "will contact you within three working days"; not much use for someone who needs legal advice immediately. It only takes a few minutes for an officer to embark on an interview that leads the suspect to making ill-informed statements damaging to his interests at his trial. This is known as self-incrimination.
Had there been timely access to a lawyer, the suspect would be told to remain silent or to provide a statement favourable enough to be used at trial without having to face cross-examination by the prosecutor.
Whether to remain silent or to give a statement will all depend on the circumstances but the lawyer will know best. If the suspect asks, "Will the judge think I am trying to hide something if I keep silent?", the lawyer will advise that in Hong Kong the right of silence is well protected, and his silence cannot be used against him in any way. The role of the lawyer at this stage is crucial.
In a media interview about a man arrested for the murder of two sex workers, I was asked when we would expect to see the hooded suspect performing a reconstruction of the offences. This surprised me as it suggested people had grown used to seeing the creation of highly damaging self-incriminatory evidence, even in murder cases. Surely if the man had proper legal advice we would not be seeing any "reconstruction", a term which in itself suggests guilt.
It was commendable that about 50 legal practitioners formed a pro bono team providing free legal advice to those arrested during the Occupy movement in more than 700 cases. But why should such a fundamental right depend on the charity of a few and not on the contribution of all?
Perhaps there needs to be a court case that actualises the right for suspects detained in police stations, like we have had with Convention against Torture screening and police disciplinary hearings. Even better would be proactive action from the government and legal profession working out a system of funded legal assistance.
If the right in Article 35 is to be taken seriously, its content must include at least three norms: (a) Suspects must be informed of their right to legal assistance in a timely manner and given a fair chance to access legal assistance of their choice; (b) Police must hold off all questioning and extraction of evidence from the suspect until he has had a fair chance to access legal assistance; (c) If the suspect does not have financial means and requests legal assistance, he should be provided with such assistance whether by phone or in person.
Professor Simon Young Ngai-man is Associate Dean (Research) in the Faculty of Law, University of Hong Kong