Fair Trials International
9 April 2015
In this weeks guest post, Professor Simon N.M. Young discusses how a lack of access to lawyers for those arrested in Hong Kong is violating its own constitution, and prohibiting those detained the right to a fair trial.
There is a glaring gap in Hong Kong’s system of criminal legal aid. Public funds pay for solicitors and barristers to represent persons who have already been charged and brought before the courts. Little if any support exists for those who have yet to be charged. The Duty Lawyer Service provides a free legal advice scheme at district offices and a scheme of pre-recorded telephone messages. Neither are helpful to the suspect who has just been arrested, about to be interrogated by the police.
Suspects at police stations are provided with a notice informing them of their “rights” to “make private telephone calls to” a lawyer and to have one “present during any interview with the police” (Form Pol. 153). But if the suspect does not know of any lawyer and asks if free legal advice is available, the police will say no. On request, he will be provided with a list of the more than 8,000 practicing solicitors, who have no duty to provide pro bono legal advice. In practice, unless a suspect or his family or friends know of a lawyer to contact, the suspect will most likely undergo the police interview without the benefit of legal advice. This must surely be a violation of Article 35 of the Basic Law (Hong Kong’s constitution) which provides that persons have the right to “choice of lawyers for timely protection of their lawful rights and interests”. Without access to legal advice at this stage there can be no timely protection.
Criminal practitioners know the importance of
having timely legal advice in order to ensure the fairness of trial for the
suspect who is later prosecuted. Suspects
need to know whether or not they should remain silent in the face of pressing
police questioning. They need to know
that under Hong Kong law no adverse inference can be drawn against the suspect
who has remained silent (Lee
Fuk Hing v HKSAR (2004) 7 HKCFAR 600).
It is not entirely clear why the gap has yet to be filled. Hong Kong is expecting a budget surplus of US$8.2 billion for 2014-2015, so cost cannot be the reason. The Home Affairs Bureau acknowledges that the “provision of legal aid is an integral part of the administration of justice”, and it is striving “to enhance the accessibility of legal aid and free legal advice services to the public which consummates the value of everyone being equal before the law”. Yet its January 2015 statement of policy initiatives says nothing about establishing a scheme for free legal advice at police stations. Indeed the status quo perpetrates a flagrant inequality; that those with means will have legal advice and representation at the police station, while those without will have no assistance before they are charged and brought before a court – which is too late because highly damaging self-incriminating evidence may have already been provided. It is also remarkable that the legal profession has not pushed more strongly for the gap to be filled. Hopefully relevant stakeholders will soon come together to establish a scheme. But if stasis persists then practitioners must seriously consider bringing a constitutional challenge in the courts to realise the full impact and significance of Article 35.
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