Since 2015, I have written several articles for this column expressing my concerns over the blatant abuse of the Hong Kong Special Administrative Region government’s legal aid and judicial review system and called for their review. The latest piece, “Audit Commission should check on legal aid abuses to put end to them”, was published on June 21, 2021, China Daily Hong Kong Edition. Hence it is most gratifying to see that the government has eventually conducted such a review and proposed a range of improvements similar to my recommendations.
The statistics as published in the government review revealed certain anomalies in the existing system. According to figures released by the Legal Aid Department, in 2020, out of 177 solicitors on the competency qualifying panel of the department, 10 solicitors had taken up 94 percent of all legal aid cases. In the case of the barristers, out of 225 on the competency panel, 10 barristers had taken up 62 percent of all cases. Such overconcentration of cases within such a small number of lawyers should have long raised suspicion. It would be interesting to find out the political affiliations of these top 20 lawyers who monopolized the LA cases, as it would not be surprising to discover that most of them may well be closely tied to the opposition bloc such as the Civic Party and their associates! If this is the case, the government legal aid fund is being used to champion the politics of the political opposition, and this, ipso facto, becomes a national security issue!
The most concerning point is that this situation did not happen overnight, and was clearly in existence in plain sight for a considerable period. Accountability must now be established as to how the LAD could be turning a blind eye to such an abnormality without taking any remedial measures. It calls into question the political neutrality expected of all civil servants. If not for the iron-fisted approach of the current chief secretary in conducting this review, the resultant recommendations would probably be significantly more lukewarm, if not a whitewash of the previous negligence!
Perhaps the next major step is for the government to work together with the judiciary to carry out a comprehensive review of the judicial review system and procedure, which has long been criticized for its prevalent abuse, not just by the ordinary public, but also by legal heavyweights
The key proposed improvements include terminating the practice of allowing LA applicants in criminal cases to choose their own counsel and putting a limit on the number of LA cases any lawyer can take up. These are commonsense proposals and when presented before the Panel on Administration of Justice and Legal Services of the Legislative Council, they were endorsed by all members.
Yet when the director of the LAD attended an interview at Radio Television Hong Kong, the government broadcast station, on Oct 30, he was rigorously grilled by the two RTHK interviewers on the need and justification for the changes. Throughout the interview, which I listened to in astonishment, the interviewers seem to have only one goal through their grilling, to suggest that the proposed changes have deprived the “right” of LA applicants in choosing their counsel and the “right” of any particular counsel to take up an unlimited number of LA cases. The interviewers seemed to be toeing the line of the Hong Kong Bar Association on the review and acting as its proxies. Questions on the same line were repeated and elicited the same explanation from the director, that the supposed “right” of LA applicants in criminal cases to choose their counsel was never provided for under the Legal Aid in Criminal Cases Rules (Cap. 221D) and the current proposal that LAD should allocate criminal defense lawyers is in line with the practice of the Duty Lawyers Scheme run by the Law Society; that the new program merely ensures a fairer distribution of LA cases among competent lawyers, thus enabling more of them to gain specialized litigation experience, thereby contributing to the career development of legal professionals.
The interviewers made a big issue in alleging that the proposal is in breach of Article 35 of the Basic Law, which stipulates that “Hong Kong residents shall have the right to confidential legal advice, access to the courts, choice of lawyers for timely protection of their lawful rights and interests.” Surely, this article applies only to the right of residents to appoint their private lawyer to deal with their private affairs. But when it comes to legal aid, where a public fund is involved, it would be absurd to suggest LA applicants would be entitled to employ even the most highly paid counsel in Hong Kong to represent them against a minor criminal charge! The absurdity can be compared to suggesting that every patient in public hospitals is entitled to insist on having the hospital’s top doctor to treat them!
This interview reflects the lack of professionalism, if not the political bias of the RTHK interviewers. If they had done their homework properly and were keen to ask pertinent questions on behalf of the public, they could easily have referred to several widely publicized LA abuse cases, such as how the “Cheung Chau Judicial Review King” could succeed in being granted legal aid for his 30 cases of JR, mostly on political issues over a 10-year period, which had nothing to do with him personally. Why was an elderly female recipient of social welfare, clearly being used as a front by the opposition, granted legal aid on JR over the Hong Kong-Zhuhai-Macao Bridge, causing a one-year delay in the construction and financial losses due to inflation to the tune of HK$8.8 billion ($1.13 billion)? Why was Falun Gong, labeled a subversive group by the central government, granted legal aid to pursue an eight-year legal battle with the government over the seizure of its street exhibits by the Food and Environmental Hygiene Department in 2013? In this case, LAD had to pay nearly HK$1 million to the counsel, including Paul Harris, the controversial chairman of the Hong Kong Bar Association. Why was the “one-eyed blinded girl” granted legal aid to seek a judicial review to stop the police from obtaining her medical records, while she absconded to Taiwan? All these are obvious questions that have long perplexed the minds of many citizens, which the RTHK interviewers had a duty to raise on their behalf, and the director should be pushed to explain and to come up with whatever future remedial measures should be taken to avoid a repetition of such abuses. The proposed improvements are sound and justified, and should be implemented without delay. However, the LA review should continue on several areas of concern, such as implementing a fixed pay scale for LA cases. The LAD should draw on the experience of the Hospital Authority’s Public-Private Partnership Programme, where cases referred by the HA to private doctors, such as for colonoscopy checkups and cataract operations, are all based on set standard fees, irrespective of the qualifications of the private doctors or the serious nature of the operations. On the Chinese mainland, private lawyers are obliged to take up free legal aid cases for the poor as a community service. Hong Kong lawyers, who are mostly very wealthy, should also adopt this community spirit by taking up legal aid cases for free or at least on standard fees, rather than charging the LAD exorbitant fees, giving the impression of rip-offs from the public purse.
Second, the internal procedures for granting legal aid, particularly for JR cases, should be tightened to ensure only those who are real victims of questionable government decisions which cause “their personal lives or liberty to be at stake” be granted legal aid. That would stop all the frivolous JR cases of the “Cheung Chau Judicial Review King”!
Finally, there should be measures taken to deter would-be LA applicants from abusing the system. At present, if the LA cases are dismissed by the court and legal costs and other penalties imposed, LAD has to bear the cost and penalty from the public fund and the applicant has no liability at all. In the future, a system could be devised so that the LA applicant has to bear a certain percentage of the court cost and penalty which can be paid through an affordable monthly installment, similar to bankruptcy cases. The question that should be asked when approving legal aid is whether the applicant would lodge the litigation if he/she can afford to pay from their own purse. If that is unlikely, clearly the applicant has no merit to seek LA and the application should be refused. All these proposals are in line with legal aid vetting processes in many other countries, such as the United States, Britain and Australia. Indeed, a United Nations study on legal aid reported that 40 percent of surveyed countries had reformed their legal aid system within the past nine years, indicating that legal aid abuses are not uncommon in many countries.
Perhaps the next major step is for the government to work together with the judiciary to carry out a comprehensive review of the JR system and procedure, which has long been criticized for its prevalent abuse, not just by the ordinary public, but also by legal heavyweights such as Henry Litton, the distinguished retired Court of Final Appeal judge who opined that many judicial review cases were groundless and clearly an abuse of procedure, and that they caused substantial economic losses to society and were a huge waste of judges’ valuable time. The current chief justice has impressed us with his reform of the judiciary public complaint system, and it is now time for him to reform the JR as well.
It should be pointed out that Hong Kong spent a hefty HK$953 million on legal aid in the latest financial year, or HK$127 per person. This is higher than comparable expenditures in France, Germany and the European average. Hence every component of the legal aid system should be meticulously examined to ensure value for money. Though the proposed improvements are a step in the right direction, more reviews should be carried out while active monitoring of the existing system should continue.
The author is adjunct professor of HKU Space and a council member of the Chinese Association of Hong Kong and Macao Studies. He is a former deputy commissioner of the ICAC.
The views do not necessarily reflect those of China Daily.