It seems that no venerable Hong Kong institution is safe now that the forces of obsequious pro-government enthusiasm have shed all pretence of tolerating opposition.
The latest in line to have its reputation shredded is Legal Aid. This is a service which has been operating for many years without serious complaint. It pays for the services of lawyers for people who cannot afford them.
This is a potentially tricky area in that many of the people who seek legal aid are engaged in proceedings in which the government is on the other side. The most obvious example of this is criminal cases but there are others, like applications for judicial review.
Over the years the Legal Aid Department has done a good job of convincing most observers that it is sincerely neutral in considering the needs of applicants for its help, even though it is a part of the government, taxpayer-funded, etc. But that will not do, these days.
Coming soon to a rubber stamp near you is a reform which will deprive Legal Aid recipients in criminal cases of the right to choose the lawyer who will represent them in court. Why would anyone want to do that? Well the cue is in the word “criminal.” Nobody is complaining about the choice of lawyers in civil cases.
Oddly enough, defenders of the proposal have not felt it necessary to explain this. Poor Ronny Tong is expected, as usual, to defend any government policy with a whiff of law in it and came up with some curious arguments.
“It is unheard of, or rare, to hear … complaints in years about the imposition of useless or incompetent lawyers on applicants,” he said. Could that be, one has to wonder, because applicants have had a choice, so that lawyers, incompetent or otherwise, are not imposed?
He went on to say that some legal aid applicants tend to choose only a few barristers since the social unrest in 2019, which is not a “healthy” situation for the industry. “The legal aid system should distribute cases fairly, this is the most appropriate practice,” he said.
He also offered the stimulating thought that the new arrangement would allow lawyers who were not experienced in a particular kind of work to accept cases of a kind they were not used to. This would expand their skill sets or, as Mr Tong put it, “allow more of them to gain specialised litigation experience.”
Both of these arguments are entirely irrelevant. It is not the purpose of the Legal Aid system to enhance the “fairness” of the distribution of work among lawyers. In fact the distribution of work among lawyers is chronically uneven, something which is baked into the structure of the profession. There is no reason why Legal Aid applicants should be sacrificed to provide a sort of social security for inexperienced or less competent professionals.
Similarly it is not the function of the Legal Aid system to provide supplementary legal education for lawyers by providing them with a stream of captive clients who are no position to refuse the services of the inexperienced.
The purpose of the Legal Aid system is to ensure that indigent litigants and defendants are not at a disadvantage in court compared with antagonists who can afford their own lawyers. Rich people can choose their own lawyers so the “fair” thing to do, if fairness is really what we are after, would be to allow them to do the same.
Actually the Basic Law (Article 35) stipulates that defendants in criminal cases have the right to a lawyer of their choice. Mr Tong’s answer to this point is that you still have a choice -between the lawyer offered by the government and one you pay for yourself. This does not work very well for poor people, for whom the second choice is imaginary.
The fact is that people make choices about who they consult, who they do business with and who they employ for a variety of reasons. Some of them may not be very good reasons, but freedom to choose is like that. I remember the days when many chemists’ shops had two queues: one of men who did not wish to discuss their purchase with a lady assistant and one of ladies who did not wish to discuss their requirements with men. That now seems very dated.
No doubt there is a tendency in legal matters for business to accrue to the experienced and willing, at the expense of the inexperienced and those merely waiting in the taxi rank. But the right to choose your lawyer is an important right. And this is particularly the case if your antagonist is the government, with its inexhaustible supply of money and manpower.
Mr Tong may be right in supposing that “60 per cent of barristers in Hong Kong handle criminal cases and they all have similar experience,” though that sounds a bit optimistic. But the individual defendant in a criminal case is not concerned with the statistics of the legal profession, he is concerned with whether the individual lawyer representing him is experienced, sympathetic and willing to take risks.
Lawyers may be willing to ignore the threat of a torrent of abuse from the People’s poodle press if they beat off a much-wanted prosecution. But will the individual defendant feel confident of that happening in his case if his lawyer was chosen by a government department?
Or to put it another way, who, if they were accused of criticising the government – or subversion as we are supposed to call it these days – would wish to find that his legal team comprised Junius Ho instructing Ronny Tong?
What is going on here has, as usual, nothing to do with fairness, the well-being of the legal profession or indeed the needs of indigent people in legal trouble. The proposals are a sop to the wing of the DAB which wishes Hong Kong not only to be a police state but a nasty police state. Their purpose is to increase the likelihood that anyone accused of a public order or national security offence will end up in prison, and to reduce the income of human rights enthusiasts in the legal profession.
The nasty view is that it is objectionable that there should be an organisation dedicated to helping people accused of crimes, or an organisation dedicated to providing help and encouragement to those remanded in custody, or indeed organisations dedicated to helping those convicted with gifts, visits or letters. We have sorted that out. It is also objectionable that people who are accused of public order offences should be able to patronise a set of lawyers who, nasty people rightly suspect, are probably not warm admirers of the government in general or of them in particular.
So they will put a stop to that. Hong Kong is now effectively a one-party state. And not a very nice party either.
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