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Newsletter - May 2008
2008-05-19 Dear Colleague As I write, national mourning has just been declared for the victims of the Sichuan earthquake. May we unite in comparison and do all we can to render relief and assistance. Review of Criminal Legal Aid Fees I would like to bring you up-to-date on the review of criminal legal aid fees. As you know, the payment of criminal legal aid fees to assigned solicitors and counsel is governed by the Legal Aid in Criminal Cases Rules, Cap.221 (“the Rules”) passed many years ago. Change would require legislative amendment. The Administration’s attention had been repeatedly drawn to its unreasonableness both in fee structure and fee level. In 2003, the Law society and the Bar called for a comprehensive review. This was supported by LegCo’s AJLS Panel, the Legal Aid Services Council, and the Chief Justice. In May 2005, in response to my question in LegCo, the then Chief Secretary Donald Tsang promised to conduct a review as soon as opinion was received from both branches of the profession. The opinions were submitted soon afterwards. Since March 2006, the matter had been discussed in a working group of stakeholders organized by the Administration. Progress was reported to the AJLS Panel in May and September 2006, and February and June 2007. In its meeting in February 2008, the Panel was informed that while the Bar, the Law Society and the Administration were all agreed on the fee structure, the Administration did not agree to increase the hourly rate of fees for solicitors which currently works out to be about $425 for the High Court and $300 for the District Court. There is no dispute that such hourly rates are unrealistic and unfair to solicitors. However, the Administration took the view that the original purpose of the review was fee restructuring, not revision of the fee level, which it considers should be taken up at the next stage, after the amendment to the Rules has been made. By its reckoning, the funding implication for the restructuring is 30% increase in the total expenditure on criminal legal aid fees. Increasing fee level would need further funding approval and cause delay. The Law Society took the view that mere restructuring without revision of fee rates is meaningless for solicitors, and proposed that hourly rate in criminal legal aid should be at a par with civil taxation rates on a party-to-party basis. A survey among its members showed that there is a great gap between the current rates and expectation. The Bar took the view that restructuring for counsel’s fees should not be further delayed, since agreement has already been reached many months ago. The details of the fee restructure and Law Society survey cannot be summarized in a few sentences here. You are urged to consult the Panel’s papers, particularly CB(2)1176/07-08(02), CB(2)1143/07-08(01) and CB(2)1203/07-08(03) at LegCo’s website. It would be a great shame not to reach a solution because of red tape. This is the first controversy over legal aid after its transfer to the Home Affairs Bureau. Competition for resources is clearly a key factor. I have met with officials of the Home Affairs Bureau with representatives of the Law Society and seen the Secretary for Home Affairs and the Financial Secretary on my own to explore ways to solve the problem. Given that the total expenditure on criminal legal aid fees averages at about $101 million per annum, the financial provision involved is not huge. On the other hand, time is running out if the matter is to be resolved before term end. The Administration has indicated that restructuring for Counsel’s fees cannot proceed on its own without restructuring for fees of solicitors. Mainland Judgments (Reciprocal Enforcement) Ordinance Statue Law (Miscellaneous Provisions) Ordinance 2007 The above Ordinances were enacted on 23 and 30 April 2008. The Mainland judgment one will come into effect on a date to be appointed by the Secretary for Justice, which will not be before the Supreme People’s Court in the Mainland publishes its judicial directions to give effect to the Arrangement with the HKSAR. Only commercial contracts with “choice of court” agreements entered into after that date can benefit from the reciprocal enforcement under the Ordinance. The Statute Law Ordinance is effective upon gazettal except for Part 13, Division 3 (relating to “use by” labeling). This means the provision on “wasted costs” in criminal proceedings is now in force. What worth functional constituencies? The Legislative Council (Amendment) Bill was passed on 30 April 2008, strictly confined to technical amendments of specific corporate voters of certain FCs, so that the question of broadening the electoral base could not even be broached. Nevertheless, we took the opportunity to clarify with the Administration the recent statement of the Deputy Director of the Hong Kong Macau Affairs Office that the FCs deserve special seats in LegCo because together they contribute 90% of Hong Kong’s GDP. We asked for a breakdown of the respective contribution of each FC. In a highly amusing table the following facts, among others, turn out: FCs Contribution to GDP Agriculture and Fisheries 0.17% Import and Export 22.7% Finance together with Financial Services and Insurance 12.8% Legal together with 8 other FCs 23.0% Heung Yee Kuk; District Council N/A So why is it equitable to allocate one seat to Agriculture and Fisheries and one to Import and Export? How are seats for the Kuk and for the DCs justified? In any event, why are only 200,000 voters allowed to vote for FCs? Are they supposed to be responsible for 90% of the GDP? What about the remaining 3 million of Hong Kong’s adult voters? Are they supposed to contribute nothing? Only 10%? Or just deprived? In the LegCo Q & A meeting on 15 May, CE Donald Tsang blatantly declared that the election of LegCo by universal suffrage does not mean FC seats have to be abolished. He also suggested that this would be as achievable as getting turkeys to vote for Christmas since the proposal will have to be supported by two-thirds of LegCo, and half are returned by FCs! So much for the “promise” of election of the CE by universal suffrage in 2017 and of election of LegCo by universal suffrage in 2020. All dates are illusory unless “equal and universal suffrage” is given its plain meaning. Making the wider public realize how unfair FCs are is a mission for all democrats. Domestic Violence and Sexual Discrimination The Government has finally agreed on 15 May that the protection of the Domestic Violence Ordinance should be extended to same sex co-habitees – but only in a future exercise to amend the Ordinance. For this time, only a promise to do so will be made when the DO (Amendment) Bill currently before LegCo resumes its second reading debate. I wonder if Hartmann J’s judgment of 8 May upholding RTHK’s television “Gay Lovers” against the Broadcasting Authority’s censure has anything to do with this. The Government’s blinkered view of homosexuality is simply out of place in the modern world, and even more so when the one purpose of the legislation concerned is to prevent domestic violence. But slow change is better than no change. In the same connection, I participated in a joint conference of HKU’s Comparative Law Centre and the International Commission of Jurists on discrimination on grounds of sexual orientation. Sadly, Hong Kong still has a long way to go, it seems. Civil Justice Reform The LegCo Sub-Committee’s work to examine the draft new High Court Rules is nearly complete. The Judiciary’s plan is to gazette the new rules on 6 June 2008, with a view to their coming into effect on 2 April 2009. Friday Tea Gathering I am proud to announce that Wesley Wong, Senior Assistant Law Officer(Civil Law), who has been helping members to go through the draft new HCR, has agreed to give an introduction on some of the major changes in a Friday tea gathering on 27 June. So sign up! More urgently, there will be a talk by Paul Harris S.C. on 23 May 2008 on the law of sovereignty and self-determination and the case of Tibet. I am sorry about the short notice which was unavoidable because of Paul’s imminent absence from Hong Kong. An email announcement had been circulated earlier. Please just join us if you can. Yours sincerely Margaret Ng |
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