The below article was written by Raymond Li, chairperson of Y Legalities and a practicing solicitor in the HKSAR, who shared his thoughts on city's legal-aid program.
As Hong Kong prides itself for having a solid foundation for the rule of law, not least the constitutional safeguard that “all Hong Kong residents should be equal before the law” as enshrined in Article 25 of the Basic Law, kudos must go to our internationally acclaimed legal-aid system, under which no one is denied access to justice because of lack of means. Nevertheless, in light of a litany of concerns of the potential abuse in the nomination of legal-aid lawyers with a certain political inclination by legally aided people who were approached by the former on a pro bono basis to initiate judicial review cases funded by the public purse against the government, a timely overhaul to the legal-aid system with a view to enhancing the management and transparency of legal-aid applications against any potential politically motivated abuse is long overdue.
Until the enactment of the National Security Law for Hong Kong in June last year, Hong Kong has long been embroiled in increasingly tense political tussles and polarization. As part of the melodramatic antics staged by the opposition to impede the region’s governance, there has been a spate of judicial review applications funded by the legal-aid program, lodged by a few citizens, including Kwok Cheuk-kin, who was dubbed the “King of Judicial Reviews” for indiscriminately challenging the government policies and decisions. It comes as no surprise that such legal actions with mostly frivolous grounds sugarcoated by “public interests” ended in dismal failure. With a vast number of taxpayers’ coffers being squandered, it is only the few lawyers mostly from the opposition camp — nominated by those legal-aided applicants — who have been laughing all the way to the bank. As reported, 82 out of 87 judicial-review-related legal-aid cases assigned in 2020 were handled by only 15 solicitors, (8.5 percent of all qualified solicitors) and 37 counsels (16 percent of all qualified counsels), suggestive of a high concentration of cases among these solicitors and counsels involved.
In addressing the public’s concern on the possible monopolization of judicial-review-related cases among certain solicitors and counsel, the time is ripe for the proposed overhaul of the legal-aid system, which among other changes includes capping the number of judicial review cases that each solicitor can take to five per year, and three for barristers. It can alleviate the widespread concern on the potential political abuse with the overconcentration of judicial-review-related cases among certain solicitors and counsels who were pecuniarily benefited by inciting their clients to initiate judicial reviews for whatever causes against the government. By imposing new assignment limits on judicial-review-related legal-aid cases, more qualified solicitors and barristers can have the opportunity to accumulate experience handling such cases, which will in the long run be beneficial to both the legally aided people and the legal-aid system, striking a fine balance between distributing cases more evenly to equally qualified lawyers and allowing legally aided people to nominate their lawyers.
Similarly, with only 20 barristers and solicitors each taking up about 20 percent of nearly 2,700 criminal legal-aid cases in 2020, it is apparent that such cases were highly concentrated within only a handful of lawyers and counsels, posing an unfair entry barrier to other qualified legal practitioners, a situation unfavorable to the buildup of a larger pool of qualified lawyers with experience, which in turn would benefit the legally aided people in the long run. Under the proposed reform, legal representatives will be directly assigned by the Legal Aid Department to the legally aided people, and the director of legal aid should accept nomination of lawyers only under exceptional circumstances, such as the nominated lawyer having represented the legally aided people in lower courts. In brushing off critics’ concern of the denial of the legally aided people’ right to choose their criminal lawyers, one must recognize that unlike civil legal-aided cases whereby Section 13(1) of Legal Aid Ordinance (Cap 91) provides for legal-aided people’ right to select counsel or lawyers for their legal representation, such a right is not provided for in criminal legal-aid cases under the Legal Aid in Criminal Cases Rules (Cap. 221D). Therefore, the nomination of lawyers for criminal cases is never a statutory “right” of the legally aided people, nor does the assignment of criminal lawyers by the Legal Aid Department run afoul of any established arrangement.
In allaying the concern of whether the direct assignment of criminal lawyers by the Legal Aid Department may be at odds with Hong Kong residents’ constitutional right to choose lawyers in Article 35 of the Basic Law, first, one can still have the choice of qualified lawyers and counsel if eligible under the legal-aid program or any lawyers of ones’ choice; second, the general constitutional rights of residents’ choice of lawyers cannot be analogously compared with the qualified rights of legal-aid people on criminal cases under the legal-aid program. As the saying goes, “You can’t have your cake and eat it” — one cannot expect to enjoy the full subsidy of a lawyer’s fee under the legal-aid program while refusing to subscribe to other legally established arrangements as part of the program. Moreover, from the perspective of effective allocation of the limited legal-aid resources, the Legal Aid Department should enjoy unfettered discretionary power in ensuring the effective operation of the legal-aid program as well as safeguarding the legal-aided people’ legal rights to be represented by qualified lawyers on the merit basis of each case.
More importantly, in ensuring the prudent use of legal-aid resources against possible political abuse, the Legal Aid Department must strengthen its gatekeeping role to apply stringent merits test and grant legal aid only to judicial-review-related applications with reasonable grounds, and timely discharge those that cease to have reasonable grounds to proceed. For those applicants who abuse legal-aid services through numerous applications made without sufficient grounds and repeated refusals, the Legal Aid Department must never be hesitant to issue statutory orders to disallow such applications to be proceeded for up to a period of three years. As “Justice should not only be done, but should be manifestly seen to be done”, the Legal Aid Department should regularly disclose to the general public the result and the reason for granting or refusing the legal-aid applications if appropriate as well as the criteria and factors taken into account in its conduct of the merits test and the criteria adopted in the assignment of legal-aid cases. In this case, the transparency and public confidence in the Legal Aid Department’s work in the administration of legal-aid resources can further be reinforced.
Owing to the professionalism and excellent work accomplished by the Legal Aid Department over the past 50 years, Hong Kong now has an internationally acclaimed and comprehensive legal-aid system. In Designing Hong Kong Limited vs The Town Planning Board and Secretary for Justice, the Court of Final Appeal expressed its endorsement that “Hong Kong’s relative generous system of legal-aid (compared with many other jurisdictions) has ensured that most cases of public importance have over the years been determined by the courts”. Nevertheless, we must never be complacent and take it for granted. In view of the potential political abuse to the legal-aid system, we must never shy away from any enhancement measures to plug its loophole lest it lapses into a “playground of politics” by the politically ambitious few.
［2021-12-02 ］
