The price of justice?

March 21, 2017 12:46
In the 53 cases listed for hearing in the High Court on March 17th, 27 of the litigants were representing themselves. Photo: HKEJ

Is Hong Kong suffering from restricted access to justice?

On March 17th, in the 53 cases listed for hearing in the High Court, 27 of the litigants were representing themselves. Their opponents ranged from a variety of corporate entities and institutions to government.

Some of the applications were for bail.

According to Article 35 of the Basic Law, Hong Kong residents shall have the right to confidential legal advice, access to the courts, choice of lawyers for timely protection of their lawful rights and interests or for representation in the courts.

Article 11(2)(d) of the Hong Kong Bill of Rights provides that every person tried for a criminal offense shall be informed of his right to have legal assistance of his own choosing and where the interests of justice so require, to have it provided free of charge if he cannot afford it.

Though different considerations apply to criminal and civil cases, it is a matter of degree of importance, a basic tenet of the rule of law is that there should be what lawyers term “an equality of arms” before the court.

In other words, no-one should be denied equal access to justice simply on the basis of unequal representation.

Reasonably interpreted, the Basic Law provides that there shall be both legal advice and representation.

Does this reduce down to a question of money? Is it, as the Irish judge Sir James Mathew put it, “Justice is open to all … like the Ritz Hotel.”

In the civil context, provided that one earns less than an extremely modest wage, Legal Aid is available in relation to quite a wide spectrum of cases.

The excellent Supplementary Legal Aid Scheme – which is self-funding – provides funding for those whose earnings are a little less modest, but for a significant section of the community, the cost of litigation is a powerful deterrent.

The Hong Kong Bar operates a free legal advice and representation service for a limited number of litigants whose cases appear to justify help.

In addition, a number of barristers and solicitors offer their services pro bono where they judge the circumstances deserving.

In the criminal sphere, Legal Aid is much more readily available and less restricted, even though it, too, is means tested.

In the Magistrates’ courts, the Duty Lawyer Scheme provides representation to those unable to afford private representation but I question the efficacy of a system that employs one barrister to handle several cases on the same day.

If counsel is privately instructed on behalf of a defendant to criminal proceedings in the Magistrates' court, he or she would be courting an allegation of professional misconduct if he failed to commit himself fully to that one client’s case.

So, what about all those litigants “in person” in the High Court?

It is conceivable – just – that the applicants for bail could not find a lawyer who would give their applications a snowball’s chance in hell of succeeding.

That notwithstanding, if money was available one would be liable to get killed in the rush for the brief.

Some litigants do insist on pursuing wholly impossible claims or worthless defenses even after having been advised against such a course. But this is a pretty desperate course of action.

I have encountered litigants who think that if they throw themselves on the mercy of the court, their plea of poverty fighting its way through the tears and groans, this will outweigh the manifest lack of merit in their case, obliging the trial judge to try and ensure fairness.

But can these explain over one in every two cases lacking legal representation in the High Court?

I don’t profess to know the answer but I find it deeply disturbing if it is representative of the level of lack of access to justice in this mega-rich jurisdiction where the financial secretary spent sleepless nights trying to devise ways to spend the obscene wealth garnered by government.

Forgive my apparent heresy, but in my opinion, in the order of priorities, equality before the law and proper access to justice are more important to a fair society than universal suffrage.

The late, great Pam Baker, was Hong Kong’s Themis, the personification of the divine rightness of law.

She let nothing and no-one stand in her way in the pursuit of a just cause, even if as one of her great friends observed “all her geese were swans”.

Do we need a phalanx of Pam Bakers or does the whole issue of legal representation for everyone in Hong Kong need a thorough going overhaul.

We have the machinery in the shape of the Legal Aid Department but until the dead hand of the Treasury is shaken free and it is empowered to fulfill the dictates of both the Basic Law and the Bill of Rights, we can expect to see the ratio of litigants “in person” remain or exceed that on the 17th of March.

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Queen's Counsel