Law Society認為現在的Legal Aid要reform!
Monday, October 30, 2006
Lawyers press for legal aid reformPOLLY HUI
The Law Society is to step up its lobbying for the government to put more resources into the criminal legal aid system, which its says does not pay lawyers enough and, in many cases, leads to injustice and a waste of court resources.
Discontent in the legal sector is simmering after a series of failed attempts by lawyer's groups to get the government to allocate more funding to the legal aid system.
A committee member of the Law Society said suggestions of a judicial review and a boycott had been raised. Some lawyers had also resigned from the scheme recently.
The remuneration system, introduced in the 1970s, does not pay criminal lawyers in legal aid cases for their pre-trial preparation work. A lawyer could spend three months preparing for a complex commercial case in the Court of First Instance, reading thousands of documents and visiting a detained client.
But if the client pleaded guilty on the first day of the trial, the lawyer would only be paid HK$6,790 - the fee set for a first day in court.
That is a far cry from an hourly rate of between HK$3,000 and HK$4,000 charged by criminal solicitors with more than 10 years' experience. The system also does not remunerate solicitors for attending meetings with counsels and their clients during the trial.
The debate on legal aid reform has been brewing for years.
It was the subject of the speech by Philip Dykes SC, chairman of the Bar Association, for the opening of the 2005 legal year. He pointed out that the resource imbalance between prosecution and defence had failed to achieve equality.
Stephen Hung Wan-shun, chairman of the Law Society's criminal law and procedure committee, said the unfair pay scheme had deterred many veteran lawyers from taking legal aid cases. This left legal aid defendants in the hands of inexperienced lawyers or lawyers who only skimmed through the case to save time for paying clients.
"Article 11 of the Hong Kong Bill of Rights guarantees a level playing field between the prosecution and the defence. But it is certainly not the case right now," said Mr Hung.
While defence lawyers had to handle all tasks themselves in a legal aid case, prosecuting lawyers were supported by staff from the Department of Justice, the police and the Independent Commission Against Corruption, he said.
Since March, four meetings have been held between legal representatives and the departments of Legal Aid and Justice and the Judiciary to review the system. Mr Hung said officials acknowledged the need to improve it but had not made a commitment for more resources. "We will not let the issue go quietly or allow for any more delay. We will escalate our campaign when necessary."
Michael Vidler, another solicitor on the criminal law and procedure committee, said the debate is getting to a "breaking point". He said there had already been suggestions among lawyers about a boycott and seeking a judicial review.
In one of the worst cases he had come across, an established firm received an average hourly fee of HK$50 in a legal aid case.
A spokeswoman for the Legal Aid Department said the government was committed to improving the system. The review, she said, was partly focused on achieving "reasonable and effective remuneration for legal aid lawyers".
The spokeswoman argued there was a level playing field in legal aid cases because the scale of fees used for counsels on both sides was the same.
Long hours
Responsibilities of a defence solicitor in a legal aid case in the Court of First Instance and fees paid
PRE-TRIAL PREPARATION WORK
Read documents, interview client and witnesses, visit crime scene and take photographs, solicit experts' reports, liaise with Department of Justice
Fee None, except reimbursement of transport costs
FIRST DAY OF TRIAL
Fee HK$6,790 (according to Legal Aid in Criminal Cases Rules)
SECOND AND SUBSEQUENT DAYS OF TRIAL
Fee Between HK$830 and HK$4,420 a day
CONFERENCE WITH CLIENTS DURING THE TRIAL
Fee None
Hourly rate of a solicitor with more than 10 years' experience: HK$3,000 to HK$4,000
Monday, October 30, 2006
Society wants immediate help for arrested
POLLY HUI
The Law Society wants people to be able to access money to pay for a lawyer as soon as they are arrested.
Under the Legal Aid Scheme and Duty Lawyer Scheme, advice and assistance is given only when people have been charged and arrive at court.
The society said the government had failed to fulfil its responsibilities under Article 35 of the Basic Law, which guarantees Hong Kong residents the right to a "choice of lawyers for timely protection of their lawful rights".
Lawyers argue that legal advice is often most needed at the time of arrest, when someone under caution might confess or say something that might be used later in court.
"At the moment, there is still a heavy reliance in court by the police on confessions made in the police station," said Michael Vidler, of the society's criminal law and procedure committee.
Fermi Wong Wai-fun, director of Hong Kong Unison, a group dedicated to removing discrimination against ethnic minorities, said minority teenagers were unfairly treated by police without the presence of a lawyer.
"In some cases, officers refuse to let teenagers phone me or a lawyer. They tell them they do not believe they have money for a lawyer.
"I met an interpreter who was so hostile that I insisted that officers called me before they started questioning the kids whenever that interpreter was used," she said.
"Sometimes interpreters will convince them to confess right away by saying the charge is only a minor one."
