Legal profession and representation

Abstract

The legal profession of Hong Kong is arguably the oldest continuously functioning one in East Asia, and has been an unquestioned fixture of the former British Crown Colony’s criminal justice system since its inception in the mid19th century. Hong Kong’s common law system predates the current legal systems in force in the East Asian jurisdictions of Mainland China, Japan, the Koreas, Mongolia and Taiwan (Ip, 2014: 3). An organised legal profession emerged in Macau only in 1992 with the establishment of the Lawyer’s Association (Ip, 2013: 821). The British Hong Kong legal system operated on a limited basis even during the Japanese Occupation (Birch, 1973). Notwithstanding the transfer of sovereignty to the People’s Republic of China in 1997, the Hong Kong Bar Association and the Law Society of Hong Kong have both retained their constitutional separation from the government, together with full competences to manage their own affairs in accordance with their own professional codes (Tam, 2013) – in stark contrast to their counterpart in Mainland China, the All-China Lawyers’ Association, which to this day remains a ‘subordinate unit’ of the Ministry of Justice (Wang, 2011: 55). The independence of the legal profession is an important bulwark of constitutionalism. As the then Chief Justice (CJ) Li remarked, it is ‘of crucial importance to the functioning of an independent Judiciary’ (Farewell Sitting for the Honourable Mr Justice Andrew Li CJ (2010) 13 HKCFAR 128, 130). In criminal trials, which invariably involve the state as a party, representationby a qualified lawyer is in many ways prerequisite if an accused person is to obtain objective, unprejudiced legal advice and fearless advocacy, even in the most unpopular cases (Partington, 2014). The ideals of the rule of law will descend to empty promises without competent professional lawyers accessible to the ordinary citizen to serve as pathfinders through the complex maze that is today’s law (Wacks, 2008: 108). Failure to supply defendants with adequate legal representation has led to acquittals upon appeal on the basis of the lack ofa fair trial (e.g. Chan Fat Chu Raymond v HKSAR (2009) 12 HKCFAR 775, 781). Article 35 of the Basic Law of the Hong Kong Special Administrative Region (hereafter the Basic Law) thus guarantees ‘the right to confidential legal advice, access to the courts, choice of lawyers for timely protection of their lawful rights and interests or for representation in the courts, and to judicial remedies’. The right to legal representation even in criminal cases is, however, neither absolute nor illimitable, even if ‘[c]ompelling reasons would generally be required to satisfy an appellate court [that] a defendant had not been prejudiced to some degree’ by the wrongful denial of legal representation (HKSAR v Wong Chi Kwong [2011] 1 HKLRD 843, 855). This chapter introduces the reader to significant aspects of the legal profes-sion and of legal representation in Hong Kong. It is organised as follows. The first section outlines the history, structure and regulation of, and the latest developments in the legal profession. The second section examines four thematic issues in legal representation: criminal legal aid; duty lawyers; free legal advice schemes; and legal professional privilege. The third section sums up the main points of the chapter.