Access to Justice: A Tale of Two Taxis (Message from HKU Law’s Clinical Legal Education Team)
Ten years ago, the Clinical Legal Education (“CLE”) programme was still in its infancy with under 40 volunteer lawyers on its Free Legal Advice Scheme (“FLAS”) panel and less than 250 clients served and 100 students trained. One of our early clients was Madam Lee, a taxi driver with a clear record. She was summonsed before the Magistrate for a regulatory offence of behaving other than in a civil and orderly manner without reasonable excuse. The case against her was that after she had made a wrong turn at the road junction despite her passenger’s instructions, she uttered foul language at the passenger when he expressed his dissatisfaction. She vehemently denied the allegation and felt aggrieved by the false accusation. Her case, however, was that it was the disgruntled passenger who repeatedly scolded her after she had made the wrong turn despite her apology. She did not speak any foul language and her former colleague who had been in regular contact with her for over 30 years testified that she was a good and caring mother and that he had never heard her speak any foul language.
A decade later, another taxi driver, Mr Chau, was summonsed for refusing hire. He had no traffic convictions in over 30 years of experience as a taxi driver. The case against him was that upon being told to drive to a destination across the harbour, he refused to do so and likewise uttered obscenities before ejecting the passenger from his taxi. His case, however, was that he had diabetes and at the material time he felt the need to eat. So he drove away from the taxi rank, even though he was finally first in the queue. Just as he was leaving, the complainant knocked on the door and stopped his taxi but Mr Chau politely declined him.
With CLE’s assistance, both taxi drivers ultimately saw their names cleared.
Mind the gap
The traffic regulatory offences the two taxi drivers faced are not covered by the Duty Lawyer Scheme (“DLS”) in the Magistrates’ Courts. This means that even though they could pass the DLS financial means test, they still found themselves at dead ends with seemingly no choice but to defend their case as laypersons before a magistrate. It is understandable that an efficient allocation of public resources may require that certain relatively minor traffic summonses and regulatory offences be excluded from the DLS Standard List of Offences as they normally only result in fines and other non-custodial sentences upon conviction. But it also means that grassroots citizens with meritorious defence may feel helpless when they fall into a gap in the system for neither having sufficient means to instruct lawyers from the private sector, nor qualifying for legal assistance from the public schemes. The realisation of not having the benefit of counsel to appear for them and advocate in their best interests at trial adds an extra toll on defendants who have already been subjected to multiple mention hearings since they were summonsed.
With no legal representation arranged for their trials, these two taxi drivers sought preliminary legal advice from our scheme on how to handle their trials as unrepresented defendants. We observed that they were very much stuck in traffic when they first approached our clinic. They were desperate for the proceedings against them to conclude so that they could return to their daily routines, but they were also determined to proceed with trial, defend their case and clear their names as they felt aggrieved that they had been falsely accused.
Access to justice
The roads cleared for Madam Lee and Mr Chau when, upon being satisfied with the merits in their defences and considering the extenuating circumstances that left them without legal representation, we took exceptions to extend our assistance beyond providing legal advice by arranging pro bono legal representation so that their rights could be safeguarded and their defences fully examined at trial.
Alas, Madam Lee was convicted and fined upon trial. We duly assessed the merits of her intended appeal and arranged further pro bono legal representation for her to pursue an appeal against her conviction.
Madam Lee’s appeal was allowed and her conviction was quashed.
Mr Chau’s journey through the courts was shorter as he was acquitted at trial. We are indebted to the Bar Association’s Free Legal Service Scheme for welcoming our referral and lending its platform to assign Mr Gordon Chan of counsel to act for Mr Chau on a pro bono basis.
Both cases are classic “one-on-one” scenarios where the only evidence against the drivers was the uncorroborated testimonies of the complainants such that the sole issue rested on the magistrate’s finding on the credibility and reliability of a complainant against a defendant. They are stark reminders of the burden and standard of proof in criminal cases that it is for the prosecution to prove the defendant’s guilt beyond reasonable doubt for there to be a safe and satisfactory conviction.
The tale may be over, but the journey remains for us to continue our unwavering dedication to offer preliminary legal advice to the general public and assist in arranging pro bono legal representation for those with meritorious cases under exceptional circumstances and where resources permit.
What seem to be minor or trivial cases to the wider public may be important and taxing to the parties involved. We seek to handle all cases that come through our clinic with professional care and commitment and equip our students with a sense of responsibility and, above all, a pro bono ethos that we hope they would remember throughout their professional life. It has indeed been delightful to have welcomed the return of many familiar faces to CLE as former students go on to qualify as practising lawyers and serve the wider community by joining our panel of volunteer lawyers. The experience and wisdom they bring are indispensable to the running of our scheme, the interests of our clients and the next generations of CLE students.
Read the full judgment of Madam Lee’s appeal here: 香港特別行政區 訴 李麗屏 (HCMA 263/2013)
Read also Mr Gordon Chan’s blog post about the intricacies of Mr Chau’s case here: To Arrest a Prosecution Witness
Mr Gordon Chan (former student research assistant and current volunteer lawyer and tutor for CLE):
“I am pleased to have represented Mr Chau. Even though the allegation of refusing hire against him may not be a serious one in the eyes of many, a conviction would have tainted his otherwise impeccable record as a professional driver.
It is unthinkable for the grassroots to engage a private lawyer when faced with the prospect of only a small fine, but at times it would be difficult for them to represent themselves. This is exemplified here as Mr Chau must challenge the credibility of the complainant, who was much younger and well educated. It doesn’t help either when the complainant repeatedly ditches court attendance, protracting the proceedings which should have concluded in half a day. It was difficult for Mr Chau to understand and safeguard his rights in these circumstances.
In the end I am delighted that Mr Chau was vindicated. On the other hand, I am concerned about the lacuna of legal assistance for traffic cases at the magistracies, which could involve far more serious offences such as dangerous driving—on conviction, one could face imprisonment and disqualification from driving. This is something we should all ponder.”
Gordon is a recipient of a Special Award in the 2020-22 Recognition Scheme for Provision of Pro Bono Legal Services, awarded by the Chief Secretary for Administration’s Office of Hong Kong in recognition of his dedication to serving the community.
CLE Student (Year 4, BA & LLB):
“As a CLE student, I know first-hand the professionalism and passion that CLE teachers and volunteer lawyers display and expect from students. Therefore, when I knew that Mr Chau, a close family friend, was troubled by his forthcoming trial, I recommended him to seek professional advice from our scheme. I was pleasantly surprised and very grateful that CLE and Mr Gordon Chan were willing to spend their resources and time to offer legal representation to Mr Chau, who could not afford hiring a private lawyer but whose defence required a skilled lawyer to cross-examine the witness. I am sure that myself and other students learned a lot not just from this case, but also from the other cases that we worked on, which spanned across many legal issues that members of the public face daily. CLE is a meaningful scheme which not only equips law students with essential lawyering skills but also teaches them to give back to society. Learning from my CLE experience, I hope that I will be able to continue serving society as a lawyer in the future.”
About Clinical Legal Education at HKU
The CLE Programme was launched in January 2010 as the first and only live-client clinical legal education programme in Hong Kong. We run a Free Legal Advice Scheme (“FLAS”) on HKU Campus under the Duty Lawyer Service, offering free preliminary legal advice to members of the public facing legal problems involving the laws of Hong Kong. Our CLE team also assists clients in their applications for legal aid to pursue their civil and criminal appeals and, in exceptional cases, assists in arranging pro bono legal representation.
As of August 2023, we have handled over 2,700 cases and trained over 1,000 students, with over 200 volunteer lawyers on our panel.
Despite the high operating costs of the CLE Programme, the Faculty remains committed to providing quality experiential learning for its law students across all years. We offer law students opportunities to gain exposure through court attendance at civil and criminal appeal hearings, as well as develop practical lawyering skills through interviewing real clients and conducting legal research, all under the guidance and supervision of CLE teachers and qualified lawyers.