葉
錫恩
(MRS.) K. ELLIOTT.
TEL. 0-422414
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YOUR
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Redacted under FOI exemption 40(2)
55. Kung Lok Road, Kwun Tong,
KOWLOON.
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prosecuted for murder and robbery in a cinema on his own confession, gave a detailed account of the murder running into several pages; then it was discovered just before the trial was due to start that at the relevant time that the offences had been committed he was in fact in custody in one of the prisons. Yet again quite recently the Crown had to pay a
the sum of about HK$80,000 in respect of a brutal assault on him by two member.of the C.I.D. which resulted in serious injuries to his spinal chord. His companion, a
also received compensation. Mr. 0. Cheung, Q.C., and Mr. A. Sanguinetti conducted their defences in the Lower Court in 1971, when they were both found guilty of "possession of dangerous drugs" and "having an offensive weapon for an unlawful purpose." The appeal was not contested by the Crown, and therefore allowed.
In the final analysis, the proposition of frame-ups is beyond doubt, since different people, completely unknown to each other, all averred to identical or similar techniques being used in their alleged frame-ups. Indeed the truth of this proposition as Your Excellency is well aware has been acknowledged in the setting up of a monitoring body of complaints against the police within UMELCO. From information supplied to me, however, and from my own observations of the working of the UMELCO group, there is not much point in a group monitoring complaints against the police, when the door is quite open to the police to supply wrong and misleading information to UMELCO,.
as in one recent instance, a case was reopened for this reason. (Copy of my letter dated 16th April, 1978 to Your Excellency refers.)
In fact, the charge was dismissed on appeal. (2nd May, 1978.)
II. (a) The Legal System
Your Excellency will recollect that I wrote to you the first of my letters on the 20th March, 1976 in connection with the state of the Judiciary, with particular emphasis on the Magisterial Courts; and needless to say I hasten to add that not all Magistrates' Courts come under the criticism then and now made, as there are many conscientious men, both Chinese and ex-patriates on the Bench at all levels, who are attempting to perform well a very difficult task indeed. Our visits to the penal institutions have only confirmed the views expressed at that time, and in fact, in my opinion, the situation is getting worse and out of control. One does not want to be personal, particularly when the Head of the Judiciary is supposed to be retiring soon, but in fact a "laissez-faire" attitude operates throughout the whole of the Judiciary except in the cases of consciencious magistrates and Judges whom I have referred to. One of the main criticisms levelled at the Judiciary is that persons brought before the courts, whether on frame- up charges or otherwise, are in quite a number of cases bullied by some
Cont./ Magistrates
葉錫恩
(MRS.) E. ELLIOTT.
TEL. 3-422414
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YOUR
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55. Kung Lok Road, Kwun Tong,
KOWLOON,
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Magistrates into pleading guilty. The pressure is reinforced by police personnel (usually the C.I.D..), prior to the case appearing in court, not to mention pressures exerted by their legal represent- atives (mainly solicitors), as time is a great asset to them, when mere renumeration is sought from other cases under their briefing.
It is unfortunate that legal aid does not extend to the Magistrates' Courts, as this could remedy some at least of these shortcomings, though even then pressure has been put on legal representatives by some magistrates to bring pleas of guilty to save the time of the Court.
Another complaint against the Judiciary is that in some cases, persons found guilty of non-violent crimes are being sent to detention centres intended for violent offenders. As a result of our recent visits, Mr. Sanguinetti was instrumental in removing through the courts one such cases from the detention centre. We were also horrified at some of the draconian sentences imposed on first offenders for non-violent crimes, a view shared by some parliamentarians and members of the Upper House in the U.K. Another matter which struck us was the length of time condemned persons have to wait to have their appeals heard persons who might well be set free or have their capital
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sentences commuted on appeal. The latter have to spend most of their time in solitary cells before commutation takes place, and this in turn cannot be done until their appeals are determined.
Your Excellency will recall what I pointed out to you about a Magistrate being "non corpus mentis" in the aforesaid letter; this view was seen justified when he was removed from the bench soon after- wards. One does not deride the unfortunate magistrate in a case like this, but justice to the public is of overriding importance and must be protected.
In a number of cases, especially from San Po Kong Magistrates' Court, cases of abuses and injustices have been referred to the Attorney-General's Chambers, but nothing has been done by that Department to remedy such blatant injustices. A reasonable inference could therefore be drawn that part of the prosecution section depend- ing who heads the section for the time being is generally concerned partly due to Social Contacts, with the police, mainly to cover up their misdeeds. I should reiterate with the greatest respect that the whole legal system should be overhauled when the present incumbent Head of the Judiciary retires or maybe earlier. The extent of dis- content is such that it has reached even to High Court Judges them- selves.
Cont./ 17
葉 錫恩
(MRS.) E. ELLIOTT.
TEL. 3-422414
OUR
REF:
YOUR
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55. Kung Lok Road, Kwun Tong,
KOWLOON.
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To highlight the whole position, please refer to the present Mongkok Police syndicate trial in which the prosecution alleges that the courts quite unwittingly have been used to further the interests of corruption, a claim I made many years ago and was strongly denounced in Government circles for so doing. What is most extraordinary is that years ago, when a Magistrate complained under statutory declaration that he had been approached by a police superintendent offering to pay him money into an overseas banking account if he would close his eyes as to whether the persons appearing before him were the real culprits, the Attorney-General took no action whatever,
II. (b) The Legal Profession
Again, I have with regret to say that it is not only found wanting, but that it is in a scandalous situation. From people interviewed during our prison visits, we were alarmed to hear of the enormous fees the litigants have to pay, sometimes for totally ineffective services. As I have earlier said I doubt whether legal aid, even if extended to the Magistrates' Courts, would be a panacea for all evils, but it might well help in a number of cases. The main problem lies in the fact that the vast majority of members of the profession, (usually but not always confined to solicitors), are concerned only about how much money they can make in a single day, rushing from court to court and pressuring their clients to plead guilty to save time, avoiding defending cases because of the time factor which is of utmost importance to those in pursuit of . money. There were a number of complaints from those interviewed about the way in which their cases were conducted by their legal representatives. Some said they had to approach their lawyers only through interpreters, and that they had not met them until they had appeared in court for the first time. As an illustration of the incompetence of some lawyers, I was told by a Magistrate (who shall remain nameless), and his view is shared by a number of his colleagues, that it would even be better not to have legal aid at all, because of the incompetence of some of the lawyers appearing before them. The trouble here is that well established-members of both branches of the profession are rarely if ever engaged in the legal aid scheme, or in fact concerned in any way about poor people, thus leaving it to the less experienced, or laying too heavy a burden on the few good lawyers willing to accept legal aid cases.
III. Prisons
This brings me to my final point, concerning the prisons themselves, which was the original purpose of our visits to penal institutions.
Cont./ 20.