In a milestone judgment handed down in a legally aided case in March 2009, the Court of Final Appeal (CFA), Hong Kong's top court, declared that the blanket prohibition of legal representation in police disciplinary proceedings was unlawful.

The case concerned a former police constable Mr X who lost heavily in the stock market and found himself in debt.  He petitioned for his own bankruptcy and was adjudicated bankrupt in September 2000.  Consequently he was charged in December that year with financial imprudence which was a disciplinary offence in contravention of Police General Order 6-018.

Mr X pleaded not guilty and although he asked to be represented by a solicitor, his request was refused under the operation of Regulation 9 of the Police (Discipline) Regulations ("Reg. 9") which stated that a police officer charged with a disciplinary offence may be represented only by an inspector or an officer who is qualified as a barrister or solicitor but no solicitor or barrister may appear on his behalf.

Mr X was subsequently convicted by the disciplinary tribunal of financial imprudence.  He was compulsorily retired from the Police Force in October 2002 with deferred benefits.

From January 2003, Mr X took out applications for leave to bring judicial review proceedings in the Court of First Instance and the Court of Appeal to quash the decisions by which he was convicted and compulsorily retired, on the ground that Reg. 9 was inconsistent with Article 10 of the Hong Kong Bill of Rights Ordinance.

Mr X's applications were dismissed by the lower courts.  He was granted leave to appeal to CFA by the Court of Appeal.  The five judges of the CFA ruled unanimously that Reg. 9 breached Article 10 of the Hong Kong Bill of Rights Ordinance and quashed the decision of the police commissioner to sanction and compulsorily retire Mr X. 

The CFA ruled that the disciplinary tribunal should have the discretion to allow an officer to be legally represented and since the tribunal failed to consider this, Mr X was deprived of a fair hearing in accordance with Article 10 so that the disciplinary proceedings were unlawful and the resulting convictions and sentences must be quashed.

Although the court did not find that there is an absolute right to legal representation, the principle of fairness meant that certain factors such as the seriousness of the charge and potential penalty, the points of law which were likely to arise and the capacity of the individual to present his own case should be taken into account to decide whether such representation is permitted.  In Mr X's case, an outright bar under Reg. 9 paragraphs (11) & (12) for any legal representation prevented the tribunal from complying with its duty of fairness.  The court also overruled the presumption under Police Regulations that unmanageable debt will lead to impairment of an officer's operational efficiency.

This milestone judgment is expected to affect other police officers who have been forced to retire for financial imprudence.  In the months following this judgment, the Department received numerous applications from former police officers wishing to mount similar legal challenges to that of Mr X.

April 20 Director of Legal Aid, Mr Benjamin Cheung (forth from left), Deputy Director of Legal Aid/Application and Processing, Mr Thomas Kwong (third from left), Assistant Director of Legal Aid/Application and Processing, Mrs Annie Williams (second from left) and Assistant Director of Legal Aid/Policy and Development, Ms Alice Chung (first from left) received a delegation of three officers from the Legal Aid Bureau, Singapore, to share the experience and views of Hong Kong's legal aid services and operation of our Department.

The Prisoners' Right to Vote

Ever since the 1950s when the first electoral law (the Urban Council Ordinance) was enacted, it was always the law that prisoners were disqualified from registering as an elector to vote at elections.  This was in spite of the enactment of the Hong Kong Bill of Rights Ordinance and the promulgation of the Basic Law in the 90s, both of which were geared to guarantee the voting rights of permanent residents. As at the last Legislative Council election (7 September 2008), there were over 6　500 prisoners (including remanded unconvicted persons) eligible to vote were it not for their incarceration.  The issue only came to a head when two prisoners Mr S and Mr C, who were unhappy to find that Section 53(5)(a) and (b) of the Legislative Council Ordinance prevented them from voting in the 2008 Legislative Council election for the fact that they would be serving their sentences on the date of the election, sought to challenge the disqualification by way of judicial review with the help of legal aid.

According to the judgments, the last of which was delivered in March 2009, the provisions disqualifying any prisoner across-the-board from registration as an elector and from voting in Legislative Council elections contravene the right to vote guaranteed under Article 26 of the Basic Law and Article 21 of the Hong Kong Bill of Rights Ordinance.  It further found the existing restrictions unjustifiable in that they operate without regard to the degree of culpability or to the personal circumstances of prisoners in question.  The court was of the view that it would be a matter for the Legislature and the Executive to determine how the voting right of prisoners could be restricted in a reasonable fashion. For those persons on remand, their right to vote was not affected by any law and arrangements should be made to enable those in custody to vote on election days.

After a period of consultation, the government passed the Voting by Imprisoned Persons Bill on 24 June 2009 which removes the relevant disqualification provisions under the Legislative Council Ordinance and other electoral ordinances so that prisoners are now able to register as electors and to vote at Legislative Council and all other elections. 

June 2 Assistant Principal Legal Aid Counsel/Civil Litigation 2, Mrs Christina Hadiwibawa (second from left in the front row) and Senior Legal Aid Counsel/Application and Processing, Mr Francis Chan (third from left in the back row) received twelve Mainland officials under the Training Scheme in Common Law for Mainland Officials 2008-2009.

Disability, fitness to be tried and the jury

In all criminal trials in the Court of First Instance, the guilt or innocence of a person who pleads "not guilty" is determined solely by the jury. 

It is also a fundamental principle of criminal law that whatever the plea, it must not only come from the lips of the accused but that his mind must go with his plea.  In other words, he must be mentally fit to plead.  If the accused cannot understand or participate meaningfully in the proceedings, or give proper instructions due to illness, defective intellect or other disability, he is not fit to plead, and if he cannot plead he cannot stand trial and cannot in law be found guilty of the offence of which he stands accused.

What then of the accused who is unable to plead because of mental illness?  Who decides if he is unfit?   What happens if he is found to be unfit and cannot be tried?  What role a jury plays in these circumstances?

The answer is to be found in sections 75 and 76 of the Criminal Procedure Ordinance Cap. 221.

In our system of criminal justice, the issue of fitness to plead is not one that can be determined by the medical doctors alone.  Once before the Court, it is solely for the jury to determine if a person is or is not fit to be tried.  This is a separate issue to whether the accused is guilty or not.  If found unfit, a jury must determine whether the defendant did the acts for which he is charged, for even persons who are unfit to be tried should not be liable for the consequences if he did not commit the act charged. 

Section 75 of the Criminal Procedure Ordinance provides that in a trial, if a question of the fitness of an accused to be tried arises, a jury must be empanelled to determine this as a preliminary issue.  In practice, psychiatric and medical evidence will be called as to the state of mind of the accused.  If the accused is found unfit, a jury then decides whether the accused did the acts which form the substance of the charge.  If so, a Hospital Order may be made under section 76(2)(a)(1) to detain the accused for treatment.

The question then is whether a separate jury from the jury that found the accused unfit to be tried should be empanelled to decide the second issue of whether the accused did the acts which form the substance of the charge. 

This question and the provisions of sections 75 and 76 of the Criminal Procedure Ordinance were examined by the Court of Appeal in the legally-aided case of HKSAR v NML CACC 148/2009.  

Firemen were called to a burning flat in the early hours of the morning.  The blaze was fierce.  When they put out the flames and broke into the flat they found two women inside.  One woman was saved but the other had died from severe burns.  The surviving woman (the appellant) was the mother of the woman who died.  She told the police she had deliberately set fire to the flat where they both lived.  A neighbour had heard the daughter pleading her mother to open the door of the flat.

The appellant was charged with manslaughter and arson.  She suffered from severe mental illness.  The psychiatrists and doctors all agreed she could not understand the proceedings, that she could not give any coherent instructions to her lawyers and that she was unfit to stand trial. 

The jury empanelled to determine the preliminary issue found the appellant was unfit to be tried.  The same jury was then required to determine the second issue whether or not the acts alleged, namely: killing as regards the manslaughter count and setting fire in the arson count.  The appellant was found to have done the acts concerned relating to both charges and she was ordered to be detained in a psychiatric centre under an indefinite Hospital Order.

It was submitted on appeal that once a jury had found that an accused was unfit to plead, a separate jury should have been empanelled to determine the second issue: whether the accused had done the acts.