The Duty Lawyer Service : Annual Report 2007

3.1 The Duty Lawyer Scheme initially only provided free legal representation to defendants charged with 6 scheduled offences in three Magistrates’ Courts. This was subsequently extended to 9 scheduled offences in 1981 and to cover all adult and juvenile Magistrates’ Courts in 1983.

3.2 With the enactment of the Bill of Rights Ordinance in 1991, the Scheme was expanded to offer representation to defendants in the Magistrates’ Courts “where the interests of justice require, and without payment by him in any such case if he does not have sufficient means to pay for it” (Article 11(2)(d)s.8 Bill of Rights Ordinance).

Means & Merit Tests

3.3 Applicants are subject to a simple means test. The financial eligibility limit was initially set at a gross annual income of $50,000 based on the income of the breadwinner of a “conventional family (husband, wife and two children)”. This limit was revised from $118,750 to $121,720 since June 2007.

3.4 The merits test adopted by the Scheme is based on the criteria set out by the Widgery Committee in 1966. The Committee stated that the proper scope of an adequate scheme of legal assistance is “to secure that injustice does not arise through an accused person being prevented by lack of means from bringing effectively before the court matters which may constitute a defence to the charge or mitigate the gravity of the offence” (para.56).

3.5 The Criteria (apart from means) for deciding whether a grant of legal representation for summary trials are “in the interests of justice” were stated by the Widgery Committee as follows:

(a)	that the charge is a grave one in the sense that the accused is in real jeopardy of losing his liberty or suffering serious damage to his reputation;
(b)	that the charge raises a substantial question of law;
(c)	that the accused is unable to follow the proceedings and state his own case because of his inadequate intelligence, mental illness or other mental, physical disability;
(d)	that the nature of the defence involves the tracing and interviewing of witnesses or expert cross-examination of a witness for the prosecution;
(e)	that legal representation is desirable in the interest of someone other than the accused as, for example, in the case of sexual offences against young children where it is undesirable that the accused should cross examine the witness in person.

Handling Charge

3.6 A handling charge of $400 per case is payable by all adult defendants, but can be waived at the Administrator’s discretion in cases of genuine hardship.

3.7 The Scheme covers some 300 statutory and common law offences and represents a vast majority of defendants. The list of offences for which the Scheme is providing representation appears at Appendix B-1.

3.8 The Scheme also assigns lawyers to advise defendants facing extradition, to represent persons who are at risk of criminal prosecution as a result of giving incriminating evidence in Coroners’ inquests and to undertake representation of hawkers upon their appeals to the Municipal Services Appeals Board enabling the appellants to receive licence to continue their trade.

3.9 In the year under review, a total of 38,640 defendants (Appendix B-2, B-3, B-4 and B-5) were represented. Of the cases proceeding to trial with Scheme representation throughout, an overall acquittal rate of 73.71% was achieved.

Juveniles

3.10 Legal representation was also provided for 1,097 defendants appearing in the juvenile courts (Appendix B-3). Juvenile defendants are not subject to the merit or means test, but their families are encouraged to pay the Scheme’s $400 handling charge where possible. Juveniles charged with adults and therefore appearing in the adult courts are also offered Scheme representation.

3.11 Legal representation is also offered to children and juveniles involved in care or protection proceedings under Section 34 of the Protection of Children and Juveniles Ordinance Chapter 213 of the Laws of Hong Kong with parental/guardian consent. With effect from 1st March 2007, the Duty Lawyer Service will be extending its service to offer legal representation, with or without parental/guardian consent, to all children/juveniles in need of care or protection who are detained or likely to be detained thereby being deprived of his/her liberty. The number of clients in this part of the Duty Lawyer Scheme’s service averaged about 211 per month in 2007.

Duty Lawyer

3.12 The list of duty lawyers (Appendix A-5) includes 821 barristers and 728 solicitors participating and 1,159 duty lawyers providing legal representation in the Magistrates’ Courts during the year under review.

Working Relations

3.13 The Service continued to maintain a good working relationship with the Judiciary, Police, Correctional Services, Customs & Excise and Court staff. Useful contact was maintained on an ongoing basis with the Chief Magistrate, the Director of Public Prosecution, the Commissioner of Police, the Commissioner of Correctional Services Department and the Director of Legal Aid.