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Percy Lo-Kit Chan
17 September, 2009  
Letter from Honkers

Too many convictions … Not enough legal aid … Shenanigans across the strait


imageJust as rain from Typhoon Koppu was pouring down on the SAR, a minor legal “storm” broke out over Hong Kong conviction rates.

Writing in the editorial of the latest edition of Archbold on Crime (Hong Kong version), Clive Grossman SC asserted that conviction rates at 84 percent were too high and likened the situation to North Korea!

If anything is likely to upset the HK Chief Justice it is drawing a judicial analogy with the militaristic dictatorship a short missile flight to our north.

The allegation, as was to be expected, was roundly denied by both the CJ, Andrew Li, and the DPP, Grenville Cross.

It was pointed out that the “conviction rate” was similar to that in England when pleas of guilty were taken into account.

imageYour correspondent served faithfully many years ago under the ACT Crown Prosecutor (as he then was) and would have longed for a conviction rate of anything like 84 percent from Canberra’s notoriously fickle and unworldly, juries.

All seems to be calm at present but one presumes a certain gene will continue to exist between the criminal defence bar and the bench.

Pic: DPP Grenville Cross.

* * *

In a related complaint, senior criminal lawyers are commencing to boycott criminal legal aid cases for one month because of what was said to be “chronic underfunding” for the system.

The government recently agreed to inject HKD100 million (about A$16 million) to pay for legal aid fees.

Solicitors have rejected this as “insulting” since it does not address the severe disparity between civil and criminal, legal aid.

There was no explanation of the basis for the fees to be covered. In a criminal case in the District Court (where, like Australia, most crime is tried before a judge sitting alone) the rate will increase to the equivalent of a derisory A$100 per hour, hardly enough to make a Scotchman’s mouth water.

Compare that with civil work, where newly admitted solicitors get the equivalent of A$300 an hour and those with some years of experience can claim up to A$500 an hour.

Luckily, most of those committing “white collar” crimes are well able to afford the very large fees charged by the cream of the criminal bar for a private defence.

* * *

Over the strait in Taipei, neutral observers are expressing concern at the recently concluded judicial process that has seen former President Chen Shui-bian (who was very much for independence of the ROC) and his wife both jailed for life for corruption.

Taiwan has a civil system where judges sit in panels of three.

imageVarious legal manoeuvres resulted in a particular panel in charge of the wife’s trial also becoming seized (if that is not too technical a word) of the husband’s trial.

His first panel had ordered Chen (seen here) to be released after indictment, rather that being held in custody.

The political atmosphere of the trial was exacerbated when a skit mocking the former president was performed at an “entertainment” to mark Law Day, hosted by the Prosecutor’s Office and the Ministry of Justice.

This was later described by the Justice Minister as “just a play to help everybody relax”.

Like Justice Minefield, the ex-president is entitled to a stipend for life. However, moves are now afoot to pass retrospective legislation to strip away his money.

Automatic appeals are likely to take many years to resolve.

Whatever one may say about the Hong Kong conviction rate, the system here would not tolerate such shenanigans nor would the government attempt it.

For one thing, foreign capital would take flight if there was any suggestion of governmental interference in the trial process.

In addition, a solid leavening of expats on the bench, who are but a short flight from Sydney or Auckland, and so relatively impervious to any pressure, keeps the system ticking over.

Local appointments at senior levels are invariably highly regarded barristers who owe the government no favours at all and are foregoing considerable piles of money to take the appointments.

Percy Lo-Kit Chan