Hong Kong Human Rights Monitor

The Hong Kong Human Rights Monitor has completed and submitted a 24-page response to the Legal Aid Services Council on the proposal to establish an independent legal aid authority.

It is obvious that the rule of law requires equality before court, which in turn requires that financially disadvantaged persons be provided with legal representation to enable them to enforce their legal and human rights.

There are two main government-funded bodies providing legal aid services in Hong Kong: the Duty Lawyer Scheme (DLS) and the Legal Aid Department (LAD). The primary role of the DLS is to provide legal representation to defendants in the magistrate courts. Although operated by the legal profession, there are two ways in which the executive’s control over the DLS funding seriously compromises the independence of the DLS. First, the executive’s tight funding controls result in DLS lawyers being assigned a large case load, resulting in DLS lawyers having little time to prepare each of their clients’ cases. Secondly, the executive generally only funds the DLS representation of defendants who are accused of crimes on a schedule of offences that is first approved by the executive. This schedule excludes many Immigration Ordinance offences, in respect of which convicted persons are routinely given a prison sentence.

The LAD funds representation of low-middle income persons in the higher courts. As a government department, the LAD is subject to a variety of institutional controls by the executive over its policies and operation. Moreover, the LAD has been subject to informal executive control over its policies and decisions, particularly in cases where government decisions or actions are being challenged.

The Monitor expresses its deep concern over the lack of independence from the executive of both the DLS and the LAD. In respect of the DLS, the Monitor recommends that it be the legislature, not the non-elected executive, to control the DLS funding. The present situation of not funding legal representation to defendants charged with immigration offences arguably constitutes racial discrimination by the Hong Kong government.

In respect of the LAD, the Monitor recommends that it be disestablished as a government department under the control of the executive and made a statutory authority under the control of a newly established independent Legal Aid Authority (LAA). The legislature, rather than the executive, would appoint the LAA and oversee its funding. The Monitor also recommends that the disparity in government funding of legal representation for the prosecution and the LAD legal representation for the defendants cease. The present system results in unequal battles in the courts of justice, where the prosecution often has access to greater resources than the defence does.

The Monitor also recommends that the Official Solicitors Office be made independent of the LAD or the proposed LAA.