Hong Kong courts

Offer legal aid to all who face contempt charges in Hong Kong courts, judicial review writ says

Man whose conviction was overturned after he got financial help argues constitutional rights at stake

PUBLISHED : Tuesday, 02 October, 2018, 7:35pm
UPDATED : Tuesday, 02 October, 2018, 10:51pm

A man whose contempt of court conviction was overturned last year has filed a challenge against the Hong Kong government for not offering legal aid to those facing proceedings in tribunals that deal largely with civil disputes.

Mahesh Roy, a locally based Indian national, lodged a judicial review to protest how legal aid is not available at the city’s Competition, Small Claims and Labour tribunals for those facing contempt charges there.

Financial help may be granted to those involved in court proceedings, including at the magistracies, District Court, High Court and Court of Final Appeal.

Litigants can apply for government subsidies to hire lawyers to fight civil suits as well as criminal cases, especially when a conviction would result in a jail term.

Roy, who speaks limited Cantonese and English, and has little formal education, was charged with contempt when he was helping his girlfriend during proceedings in the Labour Tribunal.

In a court writ filed last Friday, Roy claimed that while he was denied legal aid he was found guilty of insulting behaviour by the Labour Tribunal and fined HK$5,000 (US$638) in 2015.

He managed to get the conviction overturned two years later at the Court of Appeal after he successfully secured legal aid at the High Court.

Alarm at drop in legal aid for Hong Kong judicial review applications

His court filing targeted the secretary of justice, and named the director of legal aid, administrator of the duty lawyer service and chief secretary for administration as interested parties.

Roy asked for a declaration from the court to pronounce that those encountering the same problem be entitled to apply for legal aid in the future, and that the secretary for justice pay for his earlier legal fees.

The document drafted by his barrister, Azan Marwah, and solicitor, Michael Vidler, urged the court to rule that the lack of publicly funded legal assistance breached the Hong Kong Bill of Rights as well as the Basic Law, the city’s mini-constitution.

“The applicant submits that the above systemic breach caused a specific breach of his own constitutional rights,” it stated.

Roy’s counsel argued the lack of legal aid went against their client’s right to a fair trial, among his many other legal rights.

In the interest of justice, their client should have received legal aid because the punishment he faced was up to six months in jail and a fine of HK$10,000, they said.

Defending himself would require him to examine witnesses, even though Roy only had limited education.

“The government was obliged to provide him with publicly funded legal assistance but failed to do so,” the document stated.