Kemal Bokhary on Crime and Punishment – The Birth of Justice? (HKLJ)

"Crime and Punishment – The Birth of Justice?"
Kemal Bokhary
Hong Kong Law Journal, Vol. 54, Part 2 of 2024, pp.307 - 313

Abstract: Even more than they treasure justice, people abhor injustice. There is substance in the proposition that crime and punishment is the birthplace of judicial justice, for historically leaders paid more attention to suppressing offences than to resolving private disputes. The quality of criminal justice was a measure of the leader. Self-help between subjects was not frowned upon. But the taking of revenge by the victims of crime was always prohibited, for the taking of such revenge puts the law out of office. And it would lead to anarchy. The administration of criminal justice stood sorely in need of improvement. Much improvement has been made. But much more remains to be made. Two of the improvements made were surprisingly long in coming. One of these is an accused person’s right to counsel. If defence counsel’s incompetence deprives the accused of a fair trial, that is a ground for quashing a conviction. Prosecutors’ duty is to prosecute but they must do so fairly. Their failure to do so can lead to the quashing of a conviction. The other improvement that was surprisingly late in coming is the conferring of the right of criminal appeal. Exonerating the innocent and calling the guilty to account is the objective of the criminal justice system. Convicting the innocent and letting the guilty go free are both abominations. But the former is the worse. The presumption of innocence and the prosecution’s burden of proving guilt beyond reasonable doubt are directed to avoiding it. Sentencing involves bearing in mind various different interests and sentiments. The reformation of offenders is the main, but no sole, objective of punishment. Comparing Dudley and Stephen’ case with the Conjoined Twins’s case as thought-provoking. Stimulating thought is one of the best ways way of teaching.

Jayantha Jayasuriya (MPhil 1999) Appointed Attorney General of Sri Lanka

Congratulations to our alumnus the Honourable Mr Jayantha Jayasuriya, President's Counsel, who was appointed Attorney General of Sri Lanka on 10 February 2016.  Mr Jayasuriya completed his Master of Philosophy under the supervision of Professor Johannes Chan in the mid to late 1990s.  His dissertation was on the topic of the right to a fair hearing under Article 14 of the International Covenant on Civil and Political Rights.  After graduating from HKU, Mr Jayasuriya continued his stellar career in the Sri Lankan Attorney General (AG)'s Department and swiftly rose through the ranks.  For many years, he served as the head of the Criminal Division of the AG's Department.  In February 2015, he was appointed a judge of the Fiji Court of Appeal.  

New Volume of Asia-Pacific Journal on Human Rights and the Law Published (2015)

ASIA-PACIFIC JOURNAL ON HUMAN RIGHTS AND THE LAW

Editors-in-Chief: Simon NM Young and Kelley Loper

Publisher: Brill, Leiden

Vol. 16, Issues 1 & 2, 2015

Special Section on Lao People’s Democratic Republic
Introduction
Rhona K. M. Smith 1-7

Women’s Rights in Intellectual Property and Traditional Knowledge Protection in Lao PDR
Champathong Phochanthilath 9-25

The Right of Children in Accessing Primary Education: Vientiane Province Case Study
Khonsavanh Vongvannasay, Khamphang Vongphachanh, and Vilay Langkavong 26-41        

The Right to Access a Lawyer in Laotian Criminal Law
Bounmy Ladsamyxay 42-54

Articles

Investment Promotion as Progressive Realization of Economic and Social Rights
Johanna Aleria P. Lorenzo 55-103

The Politics of Domestic Implementation of International Human Rights Law: A Case Study of Sri Lanka
Deepika Udagama 104-149

Equality and Singapore’s First Constitutional Challenges to the Criminalization of Male Homosexual Conduct
Jack Tsen-Ta Lee 150-185

Click here for more information information about the APJHRL and for instructions on article submission.

Simon Young on Right to Counsel Gap in Hong Kong (Fair Trials International)

"A lack of access to lawyers in Hong Kong is endangering suspect's right to a fair trial"

Simon NM Young
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.