Hong Kong government to grant lawyers to criminal defendants

HONG KONG - A proposal by the Hong Kong government to assign lawyers to legal aid applicants in criminal cases is raising concerns over defendants' rights in the territory.

Under the plan presented to the Legislative Council on Tuesday, criminal defendants will no longer be allowed to pick the lawyer of their choice in most cases.

Officials argue that under the current system, a small group of lawyers are getting a disproportionate share of the financial benefit from participating in legal aid.

Pro-Beijing politicians have expressed frustration with the courts over cases where protesters charged in connection with the 2019 anti-government demonstrations have been acquitted or avoided heavy punishment. More than 2,500 people still face prosecution over protest-related charges.

Director of Administration Daniel Cheng told legislators that the freedom to choose a lawyer is not absolute. This right does not include selecting a particular lawyer, Cheng said. I have also emphasized that when the legal aid department considers the assignment of a lawyer, the director will ensure the lawyer is suitable and has the relevant experience and expertise. The Hong Kong Bar Association welcomed the proposal, announced last Friday as a means to distribute legal work more evenly, but said it would need more time to prepare a detailed response.

Critics say the plan could breach Article 35 of the Basic Law, the city constitution, which guarantees the right of the accused to confidential legal advice, access to courts and choice of legal representation in court cases.

Is it not even more important for criminal defendants whose liberty is at stake to have a right to choose their own lawyers? The European Court of Human Rights has stated time and again that the wishes of the defendant must be taken into account and can only be overridden in the interests of justice. The Hong Kong University Students Union Law Association, meanwhile, said: The deprivation of rights and opportunities for applicants in criminal legal aid cases to nominate lawyers appears to be completely against the initial purpose of providing legal aid: The idea that every person shall be equal before the law and that every person shall have access to justice. Carrie Lam, a senior lawyer who is also an adviser to Hong Kong Chief Executive Ronny Tong, dismissed concerns over the constitutionality of the proposed change. You can pick a government-appointed lawyer or your own lawyer, he told a TV interviewer on Sunday. There is no law that prohibits you from hiring your own legal representative. Lam herself said Tuesday that the program changes will improve transparency and were wise, practical and balanced. Defendants in civil cases will still be allowed to choose their legal representative.

Under Hong Kong's British-style legal system, which differentiates between barristers and solicitors, the former will be limited to taking up 15 civil cases a year and the latter 30. Limits on assisting with government challenges to judicial actions will also be lowered.

The U.K. and Australia, among other common law jurisdictions, allow defendants using the legal aid system to choose their own representatives in criminal and civil cases.

The Progressive Lawyers Group, which advocated for civil rights in Hong Kong, was one of dozens of civic groups to disband in recent months amid a crackdown on dissent.

A crowdsourced fund to help pay for legal help for protest-case defendants will shut down by Sunday. The government, meanwhile, has launched a new body made partly of members of the public that will hear complaints against judges.