Providing Justice for Low-Income Youths

Abstract

Despite the undercurrents of rights protection in Hong Kong’s juvenile justice procedure, the ultimate goal remains punishment based on welfare needs. Drawing on in-depth interviews with 40 youth defendants and defence lawyers, this article will examine the ways in which youth defendants and defence lawyers negotiate the welfare and justice imperatives of the Hong Kong juvenile justice system and end up accepting the disciplinary welfare model. Publicly funded lawyers have become primarily plea mitigators, assisting the state in seeing to the welfare and ‘the best interests of the child’. A study of Hong Kong will lead to a broader understanding of how a welfare-oriented system can work in a time when juvenile justice systems around the world emphasize human rights, due process and children’s rights.

Keywords

Disciplinary welfare model juvenile justice legal representation low-income youths publicly funded lawyers

Introduction

Like many jurisdictions around the world, the right to legal counsel is a fundamental right in Hong Kong. This right is arguably more salient for young people because they are disproportionately arrested and brought into the criminal justice system. They are also more likely to waive their rights as doubts have been raised about their understanding of the criminal justice process (Barnes and Wilson, 2008; Grisso, 1981; Peterson-Badali and Abramovitch, 1992). The Hong Kong juvenile justice system stresses the importance of ensuring that youths understand the legal procedures and that their rights are protected (Cap 226 Juvenile Offenders Ordinance). Proceedings in the juvenile court are similar to those in adult court except that the adversarial trial for juveniles may be more relaxed and informal (Upham, 2008). The Hong Kong juvenile justice system differentiates from adult court in the area of sentencing where Hong Kong continues to follow a welfare-oriented approach based on ‘the best interests of the child’. This means that juvenile and youth offenders can be held in custody for ‘rehabilitation’ for committing minor offences. This approach has been criticized for masking state control over delinquent youths (Chui, 1999, 2005a; Gray, 1994, 1997).

The right to legal counsel correctly extends to all youths regardless of socio-economic status. However, the quality of services provided by publicly funded lawyers for low-income youths has been questioned in Western jurisdictions (Majd and Puritz, 2009; Puritz et al., 1995). This article extends the appraisal of publicly funded lawyers (called duty lawyers) and their representation of youth clients to Hong Kong. Despite the undercurrents of rights protection in Hong Kong’s juvenile justice procedure, the ultimate goal appears to still be punishment based on welfare needs of the youth. What then is the role of publicly funded youth lawyers in Hong Kong? How do they negotiate their roles in a primarily welfare model with justice elements? How do youth defendants perceive this apparent conflict?

Drawing on in-depth interviews with a sample of 40 youth defendants and duty lawyers, this article examines the ways in which youth defendants and defence lawyers negotiate the welfare and justice imperatives of the Hong Kong juvenile justice system and end up accepting a disciplinary welfare model. This study is important for three reasons. First, the few studies on this topic have found that positive experiences and satisfaction with their legal counsel enhance youths’ views of the legitimacy of the criminal justice system as a whole and, in turn, increase the likelihood of future compliance with the law (Greene et al., 2010; Peterson-Badali et al., 2007; Pierce and Brodsky, 2002). Second, in spite of the movement away from the welfare model towards the justice model in dealing with youths in the West in the 1970s and 1980s, Hong Kong has maintained a welfare-oriented approach and the rigorous pursuit of rehabilitation for young offenders (Adorjan and Chui, 2014; Jones and Vagg, 2007). Duty lawyers, in contrast, represent due process protections that theoretically stand in contrast to the welfare model. An examination of Hong Kong will lead to a broader understanding of how a welfare-oriented system can work at a time when juvenile justice systems around the world emphasize human rights, due process and children’s rights. Third, eliciting views of participants allows for differentiation between the law in the books and the law in practice and how low-income youth perceive and comprehend the right to legal counsel.

This article begins with an overview of the Hong Kong juvenile justice system. It is followed by a review of the literature on legal representation for youth defendants. The methodology will then be outlined, followed by a presentation of the findings from the interviews. The themes that emerge from the data analysis will reveal how duty lawyers assist the state in the disciplining of young offenders by providing the court with information about the youths’ background in mitigation. As explained by McConville and Mirsky (1988: 356), ‘the [public defender’s] focus of interest moved away from the client to the state, and the lawyer’s mission was redefined from the avoidance of punishment of the defendant to its amelioration’. Concerns are raised in the concluding section.

Juvenile Justice in Hong Kong

Driven by the child-saving movement in the late 19th and early 20th century, many Western jurisdictions such as England, the United States (US) and Canada established juvenile courts for juvenile and young offenders. Following the 1908 Children Act in England, a separate juvenile court was founded in colonial Hong Kong under the 1932 Juvenile Offenders Ordinance. The rationale for separate courts for children and youths was based on the parens patriae orientations of the welfare model, where the state is responsible for shielding youths from social deprivation and poor parenting (Travers, 2012). The age of criminal responsibility in Hong Kong started at 7 years and was raised to 10 in 2003 (Adorjan and Chui, 2014; Chui, 2006; Law Reform Commission, 2003). Young people aged 10–15 who are convicted of a crime are called ‘juvenile offenders’, those convicted at the age from 16 to 20 years are referred to as ‘young offenders’ and convicts from age 21 to 25 years are termed as ‘young adult offenders’ (Lee, 2011).

Not much has changed in Hong Kong’s juvenile justice system since its inception. Whilst the state does not explicitly stipulate whether or not the focus of the juvenile justice system should be welfare or punishment, section 8(8) of the Juvenile Offenders Ordinance states:

Before deciding how to deal with the child or young person the court shall obtain such information as may be readily available as to his general conduct, home surroundings, school record, and medical history, in order to enable it to deal with the case in the best interests of the child or young person, and may put to him any question arising out of such information. (Emphasis added)

As the Ordinance instructs, the court should take into account the youth’s background when considering sentence and do what is deemed best in his/her interest, underscoring a preference for welfare-based sentencing. Under the welfare model, the juvenile justice process is informal and focused on individualized sentencing where defence lawyers have a minimal role, if any at all. Rather, the main courtroom actors are social workers and child experts who advise the court on best treatments and interventions for the child (Pratt, 1989). Juvenile crime is attributed to social problems and not individual responsibility, and responses are geared towards individual needs and not deeds (Muncie, 2009).

For most of Hong Kong’s colonial era (1841–1997), youth delinquency was never considered a serious problem. It was not until the late 1960s, when two riots, influenced by the Cultural Revolution in China, forced the colonial government to concern itself with instilling a stronger identification with Hong Kong, especially among youths (Adorjan and Chui, 2013, 2014). The problem of youth delinquency and crime escalated in Hong Kong in the early 1980s, with widespread public concern over ‘detached’ youths engaged in petty theft, being recruited into triads and acting as runners for drug traffickers (Jones and Vagg, 2007: 513–514). There was fear that disenfranchised low-income youths would disrupt the social order and the economic prosperity of the British colony. The causes of delinquency were attributed to the weakening of ties with family and school and the increased influence of deviant peers (Gray, 1997). Gray (1997) argues that the Chinese inhabitants of Hong Kong retained deep cultural ties to Confucian ethics that stressed obedience to parents and respect for the authority of the state. Therefore, the response to delinquency was accompanied by the prevention of youths’ participation in undesirable activities and a reinforcement of the youths’ more socially desirable ties with family and school.

As a result, an increasing number of youths entered the criminal justice system (Wong, 2000). According to the Hong Kong Police Force, from 2002 to 2012, the arrest rates for juveniles (aged 10–15 years) and youths (aged 16–20 years) were on average 566 per 100,000 and 758 per 100,000, respectively. This is compared with the average arrest rate of 393 per 100,000 for persons aged 21 years and above in the same time span (Census and Statistics Department, 2013). Whilst the Police Superintendent’s Discretion Scheme, which has been in effect since 1963, allows a police superintendent or above to caution a juvenile or young offender under 18 and divert him/her from prosecution, it has been criticized for its infrequent use. For instance, Vagg et al. (1995) found that of the first-time youth offenders aged from 12 to 21 who were eligible to be cautioned, only one-third were ever cautioned, and the remaining two-thirds were still prosecuted. As such, youths were, and are still, often charged and brought into the criminal justice system for trivial offences (Gray, 1994; Vagg, 1998; Wong, 2000).

In contrast to the reforms of the Western justice model, Hong Kong has retained a welfare-oriented approach to juvenile justice. Starting from the 1970s, through landmark cases in the US, such as In re Gault and the international community’s adoption of the Beijing Rules for the administration of juvenile justice in 1985, there was a greater emphasis on procedural safeguards in the adjudication of youth cases in Western jurisdictions. The justice model is critical of the effectiveness of rehabilitation-based treatment programmes that dominated juvenile justice, the status of child experts in driving sentences and the overall coerciveness and disparity of individualized sentencing of the welfare model (Muncie, 2009; Pratt, 1989). Instead of assessing the background of the juvenile offender, the justice model focuses on the ‘just deserts’ that reflects the culpability of accused youths and seeks to ensure that the punishment fits the crime (Lee, 2011; Muncie, 2009; Travers, 2012). In other words, the focus is on the act committed and the juvenile is to be held accountable for the act itself. Hence, there is a greater emphasis on due process and the presence of defence lawyers to ensure that procedures become more formalized and sentences are based on blameworthiness and the seriousness of the crime.

This is not to say that procedural safeguards and the right to legal counsel have been ignored in Hong Kong. With the establishment of the 1991 Hong Kong Bill of Rights Ordinance, which incorporated the International Covenant on Civil and Political Rights into Hong Kong law, free legal services were expanded. Article 11(2d) of the Bill of Rights Ordinance provides that ‘everyone’, both adults and juveniles, when faced with a criminal prosecution, is:

[To] be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it.

The only difference for youth defendants are that ‘the procedure shall be such as will take account of their age and the desirability of promoting their rehabilitation’ (emphasis added, Article 11(3)). It can be seen that the welfare model has been retained for youths even with the incorporation of due process.

Beginning in 1978, the publicly funded Duty Lawyer Scheme, run jointly by the Law Society of Hong Kong and the Hong Kong Bar Association, has provided free legal service to defendants that appear in the Magistrates’ Courts, including the Juvenile Courts. In the past, duty lawyers only represented defendants charged with nine statutory offences including possession of dangerous drugs or an offensive weapon (Lo, 2009). But since 1991, the Duty Lawyer Scheme has expanded to cover more than 300 offences, meaning that most defendants are represented by duty lawyers (Cheng, 2013).

Each Magistrate’s Court (Juvenile Courts are in the Magistrates’ Courts) has a Court Liaison Office that runs the scheme. Duty lawyers are lawyers in private practise who are assigned to a court on a particular day.¹ They are remunerated based on a full or half day of service (about HK$5400 or HK$2700, respectively, which is comparable to US$770 or US$386) (Lo, 2009). The court liaison officers, acting as law clerks, assist the duty lawyers by taking statements from potential clients. Each duty lawyer is usually tasked with representing 10 to 15 cases per day. Clients meet with their lawyers in the morning, right before their court appearances. Legal representation for first appearance is free, and subsequent representation is subjected to a flat fee of HK$500 (US$73), provided that the applicant passes a means test.

The retaining of welfare-oriented goals in sentencing has led Gray (1994, 1997) to term Hong Kong’s juvenile justice system a disciplinary welfare model. Youths who entered the criminal justice system were seen as needing discipline and treatment. The variety of sentences available for convicted youths stresses the need for rehabilitation, but many options are custodial and emphasize discipline. The Detention Centre in Hong Kong is akin to a US-style boot camp that instils discipline through physical labour and drills (Chui, 2001, 2005b); its motto is ‘short, sharp and shock’ (Lo, 2008). Youths not physically fit enough to be sent to the detention centre may be placed in rehabilitation or training centres (similar to borstals in England). Inmates are required to undergo daily educational and vocational training and even counselling (Lo, 2008). Probation in Hong Kong, in a departure from that in England, continued to maintain an ‘advise, assist and befriend’ approach geared towards reforming offenders. Most probationers are subjected to work and reside as directed by their probation officers, with many young probationers having to stay in a probation home and others being ordered to undergo psychological treatment and group treatment (Chui, 2004, 2008; Chui and Chan, 2011, 2012, 2013). This model has been accused of being a mask for state control over youth delinquency (Gray, 1997). As Gray (1997: 193–194) summarized:

[T]he distinguishing feature of the disciplinary welfare sanction is that all sentencing disposals used by the juvenile court…are viewed by juvenile justice professionals as providing an ascending tariff of tutelary measures which offer the exact dose of disciplinary regulation that they see as justified by the extent of deviation from, and potential return to, what is regarded as a ‘normal’ lifestyle.

Against the backdrop of the disciplinary welfare model of juvenile justice, where do defence lawyers fit in?

Legal Representation for Youth Defendants

Past studies, mainly from Western jurisdictions, examined youth legal representation in the post-justice model shift and the proliferation of publicly funded lawyers for youth defendants. Assessments of legal representations for youth defendants have been generally negative. Paradoxically, numerous empirical studies have pointed to the adverse effects of appearing with counsel. Youth defendants who were represented by legal counsel were more likely to be committed to a custodial institution than self-represented youths (Armstrong and Kim, 2011; Burruss and Kempf-Leonard, 2002; Feld, 1988, 1989; Guevara et al., 2004). Burruss and Kemppf-Leonard (2002), for instance, using samples of three juvenile courts in the US found that regardless of the type of lawyer (public or private), having legal representation increased the chances of a youth defendant receiving an out-of-home placement compared with youth defendants who had no legal counsel. Similarly, a study conducted by Armstrong and Kim (2011) of a juvenile court in a North Eastern state of the US concluded that there was a ‘counsel penalty’ regardless of whether the defendant had a private or public lawyer. The authors found that youths with legal representation were sentenced more harshly than their self-represented counterparts even when controlling for offence types and demographic characteristics.

Conversely, a Canadian study by Carrington and Moyer (1990) found that youth defendants who have legal counsel were less likely to be convicted. The authors, however, cautioned that this was because legally represented defendants were more disposed to challenge the state’s case. Since most cases were resolved through guilty pleas, the effects of legal representation were considered to be small. On the one hand, Clarke and Koch’s (1980) study of two North Carolina courts found no differences between types of legal representation with respect to committal rates for youths; on the other hand, Sanborn (1996) discovered that courtroom workers, including prosecutors and probation officers, held the impression that judges would sentence privately represented youths more lightly because they perceived the family of the accused as already having been penalized by having to pay for private counsel.

Other studies have pointed to the importance of court orientation. For example, Stapleton and Teitelbaum (1972), in comparing two juvenile courts in the US, discovered that lawyers were better able to assist youth clients in the due process-oriented court. But the presence of legal counsel adversely increased the likelihood of a custodial sentence in the traditional parens patriae-oriented court.

For publicly funded lawyers, the greatest obstacle to effective representation of youth clients has been heavy caseloads. Public lawyers burdened with numerous cases were thought to be unable to meet with their clients to explain proceedings, thoroughly review the evidence, learn about the youths’ relationship with family and ties with the community and write up individualized motions (Puritz et al., 1995).

Another reason for the paradoxical results of legal representation has been ascribed to the conflicting roles of lawyers representing young offenders. Dootjes et al. (1972) noted that youth defence lawyers regarded themselves as performing a variety of roles. Whilst a majority of lawyers agreed that duty lawyers should intervene in cases where the guilt of a youth defendant is contested, they also believed that their intervention was often not necessary because the judge would act ‘in the best interests’ of the child. Lawyers expected duty lawyers to act more as intermediaries between the court and youth, and advise on court procedures whereas private lawyers were expected to perform an advocacy role and ‘get the child off’.

Similar conflicting expectations were expressed by judges and social workers assigned to youth offending cases (Erickson, 1975). Another study underscored judges’ reservations of having publicly funded lawyers appearing on behalf of youth defendants. Judges saw public lawyers as impeding the justice system’s aim of providing treatment and rehabilitation for deviant youths. An ideal role for lawyers, according to the judges, is to assist the court in advancing therapeutic aims and encourage youth defendants to cooperate with the proceedings (Borowski and Ajzenstadt, 2005). Prosecutors also saw the public defender as performing conflicting roles. On the one hand, prosecutors viewed public lawyers as employees of the very same state that is bringing a prosecution against their clients. On the other hand, they were regarded as crucial to ensure that the rights of youth defendants were protected (Borowski and Ajzenstadt, 2007).

Perceptions of youth defendants themselves are paramount in appraising publicly funded lawyers. The way that youths thought that they were treated by their lawyers affects their attitudes towards the justice system and has implications for future compliance with the law (Peterson-Badali et al., 2007). Youths’ assessments of their lawyers’ responsiveness, competence and their trust in their lawyers have a strong effect on their view of and trust in the criminal justice process (Sprott and Greene, 2010).

Methodology

This study examines the role and functions of duty lawyers in Hong Kong with respect to their representation of youth defendants. Unlike previous studies that relied on quantitative methods to measure youths’ experiences with and opinions about their lawyers, this study utilized a qualitative approach. It was assumed that participants would be more open and candid in a conversational setting through qualitative interviewing and would not respond well to prescribed questionnaires (Chui, 2003). The interviews enabled us to elicit participants’ experiences of the duty lawyer–youth client relationship and their assessment of the roles and functions of duty lawyers.

Forty participants were recruited for in-depth interviews. Of the sample, 30 were youth defendants (21 males and 9 females) who had recently been caught up in criminal justice process. The mean age of the youths was about 17 years. The vast majority had been convicted of a crime that had brought them into the justice system, all by pleading guilty (n = 28). The crimes committed included wounding/assault (n = 13), criminal damage (n = 3), claiming to be a triad member (n = 5), theft (n = 3), drug possession (n = 2), loitering (n = 1), possessing an identity card of another person (n = 1) and selling illicit cigarettes (n = 1). (One defendant was convicted of both wounding and criminal damage.) Of the sample, 21 participants had utilized the services of duty lawyers, whereas only three hired a private lawyer. Six participants had experience of instructing both duty and private lawyers. In addition, 10 participants are criminal defence lawyers in Hong Kong and have represented youth defendants as private and as duty lawyers. The combination of both participant groups allowed us to investigate the lawyer–youth client relationship from both sides.

A purposive sampling technique was used to target individuals who were knowledgeable of juvenile justice. This was particularly important for the lawyers’ group because in Hong Kong no defence lawyers practice exclusively as public defenders and no lawyers serve exclusively youth clients. The lawyers interviewed were recruited through personal networks and the youth defendants were referred to us by non-governmental organizations. Both verbal and written consent was obtained before each interview. Each interview was conducted in a private location, such as a room in the non-governmental organizations or in the lawyers’ offices. Each semi-structured in-depth interview lasted for approximately 1 hour. Interviews with youths were conducted in Cantonese, the primary dialect of the population in Hong Kong, and subsequently translated into English. Quotes translated were corrected for grammar. All interviews with the lawyers were conducted in English.

Every interview was audio recorded and transcribed verbatim for thematic analysis. Open coding was used to capture broad themes that emerged from the transcripts (Berg, 2004). Interviews with the youths and lawyers were compared to identify common themes. The themes identified represent the findings of this study. To protect the identities of the participants, cases with youths will be referred to in the order in which they were interviewed such as Y1, Y2 etc. and cases with lawyers as L1, L2 etc.

Findings

The analysis generated three themes: (1) the mistrust between youth clients and duty lawyers, (2) the welfare approach of duty lawyers and (3) the role of duty lawyers as plea mitigators. Where appropriate, the differences between private and duty lawyers are contrasted.

Mistrust from Both Sides

The data revealed a degree of mistrust between duty lawyers and youth defendants where youth defendants are deemed as deviants by duty lawyers and duty lawyers are regarded by youths as government employees. Lawyer–client interviews were often a guilt-presumptive exercise. The lawyers often believed that youth clients did not tell them the truth. Even before appearing on behalf of their clients, the lawyers assume that they are guilty. L8, a female barrister, said this about her youth clients:

They would only cooperate to the extent that they will try to find out what they need to say so that they won’t be removed from their status quo. They will have made up a story by the time they see the lawyer…They will come up with stories which are seemingly believable but it’s quite clear that it’s been made up sometimes; they will cooperate so that they can stay out of [custody].

If the defendant is eventually given a custodial sentence, L8 asserted that the youths ‘would blame the lawyer for not helping them’. The attitudes that the lawyers have is reminiscent of past studies that found solicitors and barristers in England to have a crime control mentality (Packer, 1968), where they presume that their clients, particularly those on legal aid, to be factually guilty and morally culpable (McConville et al., 1994; Mulcahy, 1994).

Why might youth defendants withhold information from legal counsel? The data suggest that youths do not regard duty lawyers as independent legal advocates who are on their side, but as employees of the government. This is the same government that pays the police and prosecutors – the ones that arrested and charged them. Duty lawyers base their interviews with youths on police reports and statements. Indeed, the youths reported that the way that duty lawyers interacted with them reminded them of being questioned by the police. As Y3 described:

The lawyer treated me as a criminal and examined me harshly, and also interrogated me about some facts that was already there [written in the police report]…For example, reading that my boss said I didn’t show up to work a lot, she would interrogate me by saying ‘Why do you always not show up for work?’ I didn’t know how to answer her questions. It seemed that she was helping others to scold me…I felt like she was acting like a policewoman in examining a criminal.

The same youth stated that he then refused to answer the lawyer’s questions, saying, ‘I didn’t have any interest in talking to her, what she said is like examining me and this made me have no interest to talk to her again’. It can be seen that the lawyer’s line of questioning may have strayed beyond the crime in question and delved into the youth’s background and character, such as being late for work.

Another reason besides the lawyers’ demeanour and way of questioning is the youths’ belief that because duty lawyers are paid by the government, they must work for the government. Y9 expressed confusion about his relationship with the duty lawyer and the duty lawyer’s relationship with the government:

For duty lawyers…actually I can’t define where they stand…he is working for the government, but he also works for you…He is receiving salary from the government, but he works for you. Actually this is quite a contradictory issue. For us, we have difficulties in seeing clearly which side duty lawyers are at.

However, there is no uncertainly about which side a privately instructed lawyer was on. As Y14 noted, ‘Private lawyers would act according to your will…So like a customer, you will always be the priority. But for duty lawyers…he is paid by the government, he is just doing his job.’ The youths used a customer service provider comparison to define whether a lawyer is on one’s side or has divided loyalties.

Duty lawyers know that their youth clients do not distinguish them from police officers or prosecutors. They are just another party in the criminal justice process, as L7 explained:

Or sometimes they’ll tell you, I already told the police this. And I don’t think they realize that I was representing them, and the police is actually on the opposing side. You know they’re like, why do I have to tell the story again? I already told…in their mind, they’d already told it three times. To the police, to different people, to the court liaison officer, so by the time I get to them, it’s the third time they’ve talked about it. And they get…maybe that’s why they’re not as detailed, because they don’t see why they have to go through the story so many times.

The mistrust between duty lawyers and youth defendants can make representing the defendant more difficult because the youths become uncooperative, undermine the intention of adversarial due process and acquire a jaundiced view of the criminal justice system (Greene et al., 2010; Peterson-Badali et al., 2007; Pierce and Brodsky, 2002).

Welfare Approach

Whilst the lawyers, as discussed above, may consider youth defendants to be factually guilty, they perceive these as actions of wayward youths who need to have their paths set straight by the justice system. L9 referred to youth defendants as going through a ‘rebellious’ stage, ‘Juveniles are a bit different because they are in that stage of rebellion, developing, and they’re quite rebellious, unlike an adult…who are more…I accept whatever I did. But for juveniles, there’s more the attitude problem’. At least for this lawyer, he regards youth defendants more as delinquents, who are at a stage in life where they are testing the limits and challenging authorities (see von Hirsh and Ashworth, 2005: 44–45).

The lawyers believe that the primary role of the justice system is to ‘help’ and rehabilitate young offenders. As L1 said:

Because, if we are saying that we are trying to help the juvenile generally, ok, the system is, if we are trying to portray that the system, the courts, the magistrates, the lawyers, the whole system, they are trying to help you [young offenders]. Alright, so before establishing whether you are guilty or not guilty, like the lawyers, we are here to help you. Alright, just tell us what happened, etc., etc. and the courts are there to help you.

Importantly, the lawyer saw defence lawyers as part of the juvenile justice system, along with the court, to ‘help’ juvenile and youth offenders. Likewise, L4 opined that ‘our legal system is, in relation to the young offenders, its more about helping them to turn a new leaf rather than punishing them…the concern I think is about helping them to rehabilitate actually, the focus is on that’. It can be seen that the rehabilitative ideal (Allen, 1981) remains strong in the Hong Kong juvenile justice system and in the minds of its lawyers.

The interviews uncovered that the lawyers regard themselves as a part of the juvenile justice process in the sense that they further the welfare approach agenda. Lawyers work with social workers, to formulate a plan on assisting the youth (see Travers, 2012). As L1 elaborated:

Inevitably a report will be prepared by the Social Welfare Department, by a probation officer from the Social Welfare Department, and that’s the interview will be with the offender, with the juvenile offender, with the offender’s parents, with the school perhaps if the juvenile is still going to school. Just to find out background information and to come up with perhaps a plan to see how the juvenile can be helped. (emphasis added)

Sometimes duty lawyers will defer to the social workers. As L9 pointed out, ‘[Youth defendants] sometimes have a social welfare officer, so you assume the social welfare officer would be more knowledgeable about the case….’

Through their (brief) interactions with youths and through their representations in courts, lawyers endorse pursue the welfare and rehabilitative approach. As L4 explained, ‘In some cases…I’ll actually try to spend more time to understand from where they are, why they committed the offence, and is there any rehabilitation plan that I can actually tell the court to help them’.

Duty Lawyers as Mitigators

In court procedure, the avenue for lawyers to report to the court about youth defendants’ background is through plea mitigation. The young defendants hoped that their duty lawyers could secure the most lenient sentence possible by highlighting to the court their unfortunate circumstances and the renewed support from family and social workers. Y27 described the role of her duty lawyer this way:

He [the duty lawyer] helped me…how to say, not really get rid of the charge, but to plead for leniency, he kept helping me to plead for leniency [before the court]…He helped me to get out from a correctional institution sentence, and helped me to get an advanced probation officer report. He was happy about the outcome that he helped me to get out from the correctional institution too.

Duty lawyers in turn are content with securing probation for youth defendants since securing a light sentence falls within the responsibility of a legal advocate, and many of the sentences, particularly probation, falls within the welfare model.

A distinction was drawn that private lawyers are needed when a youth defendant wanted to challenge the case in trial, but if he or she had already decided to plead guilty, then a duty lawyer was enough. In any case, low-income youths do not have the luxury of hiring private legal representation even if they wanted to. Therefore, it is not surprising that most youth defendants interviewed, as with youth and adult defendants in Hong Kong and other jurisdictions, did choose to plead guilty (Cheng, 2013; Sanders et al., 2010). Y26 said, ‘If you plead guilty and only need to plead for a lenient punishment, you only need the duty lawyer, who would help you to plead for leniency’.

The duty lawyers would take the defendant’s background information and through plea mitigations in court seek to persuade the court to impose a lighter penalty, often meaning a noncustodial sentence. Y9 described how his duty lawyer pleaded to the magistrate on his behalf:

The reason that I wanted to plead guilty was that I wanted to give a good impression to the judge, that I really had passion to reform. Eventually, credit to the lawyer telling him [the magistrate] that ‘He really regrets from the bottom of the heart, and has a proper job, participate in volunteer work, and has a regular lifestyle’, and of course the lawyer told the judge the impression towards me, he said ‘I think he committed crime was because of his carelessness and impulsiveness’, he said this kind of things.

Despite the mistrust that youth defendants may harbour towards duty lawyers, they thought that they could at least be counted on to plead for them.

Moreover, the mere presence of a legal representative was considered advantageous. The youths assumed that if they represented themselves in court, they would receive a harsher punishment by the court. Y9 elaborated:

As I am a young kid, the judge may not trust all the truth you told him. I don’t mean that the judge won’t trust you even you told him how wrong you had been, but if the same words came from the mouth of the lawyer, the judge would not trust all of the truth as well, but at least he would trust more of it. So I chose to hire a duty lawyer as he might help me.

Similarly, Y18 expressed the view that ‘if you committed a crime, the judge knew that did not hire a lawyer, how would he see you? You already gave up the opportunity to plead for leniency…the judge might think that you already gave up on yourself.’

Of course, a self-represented defendant has the opportunity to plea mitigate on his own behalf. But the youth defendants, not confident in their own verbal skills before a court, would rather have a lawyer speak for them. Y25 remarked:

I would get a duty lawyer because at least he knows how to speak compared with us…In addition, sometimes the judge might think that our attitude is bad because of our tone of speaking…So the lawyer might be better than us.

It is the fear of the negative perception that might be formed by a judge and the risks of facing more severe penalties that youth defendants employed the services of duty lawyers.

Conclusion

Contrary to the ideals of the justice model, the publicly funded lawyers’ roles in Hong Kong is not primarily that of a traditional advocate where the state’s evidence is rigorously challenged and the main objective is to secure a finding of not guilty. From the state’s discourse, whilst it appears that youths are to be provided with the same due process protections as adults, there is a distinct focus on welfare in youth cases. The duty lawyers of Hong Kong, who work on a part-time basis on behalf of the Duty Lawyer Scheme, further the welfare-oriented goals that continue to define Hong Kong’s juvenile justice system. Past studies pointed to the conflicting roles of publicly funded youth defence lawyers – as a zealous defender, intermediary between the court and child versus that of a social worker (e.g. Dootjes et al., 1972) – exemplifying the tensions between the justice and welfare approaches to juvenile justice. Here, both duty lawyers themselves and youth defendants in Hong Kong negotiated the role of duty lawyers in such ways as to end up accepting the disciplinary welfare model. For duty lawyers, their presumptions that youth defendants are deviants, their alignment with the welfare goals of the juvenile justice system and their roles as plea mitigators help to maintain the disciplinary welfare approach. For youth defendants, their interest is in securing the most lenient sentence, even if it meant not challenging the state’s case against them. Overall, both interests are achieved as the duty lawyer’s primary role is that of a plea mitigator who acts as the defendant’s spokesperson in front of the court, conjuring up mitigating factors such as the unfortunate social circumstances in attempts to secure therapeutic sentences that are more lenient for the youth they are representing.

McConville and Mirsky’s (1988) depiction of institutional lawyers can be used to explain the findings. Writing about the emergence and proliferation of publicly funded lawyers for the poor, McConville and Mirsky (1988) postulated that the interests of the lawyers moved away from that of the client to the state. The lawyers are dependent upon and subservient to the state that pays them and are compelled by the state to shoulder heavy caseloads in a short time frame. Under the guise of access to justice and adversarialness, defending the poor has become a charitable act by the state. As such, publicly funded lawyers reinforce the status quo and support the justice system in the efficient disposal of criminal cases. Therefore, public lawyers’ function are not challenges to the state but ‘they emerge as an essential component of the state’s social control apparatus’ (McConville and Mirsky, 1988: 356). The apparatus in Hong Kong is the continued disciplinary welfare approach of dealing with youths brought into the criminal justice system, and duty lawyers are a part of the system that advances this orientation.

Youth defendants are given legal assistance in accordance with the justice-based approach, yet the welfare sentencing goals of the juvenile justice system are retained. As opposed to the justice model where sentences are expected based on the offence committed, the stress on the mitigation process underscores the salience of individualized sentencing. Importantly, from our findings, the youth defendants accepted such a role of the duty lawyer. Therefore, the disciplinary welfare model of juvenile justice is not challenged. Muncie (2009: 303) noted how ‘the justice/welfare debate continues to play itself out in myriad complex and contradictory ways’, and the ways duty lawyers and youth defendants negotiated their relationship and the role of duty lawyers demonstrate how these two contradictory ideologies coexist in the Hong Kong juvenile justice system.

This arrangement of the publicly funded lawyers and youth clients’ relationship raises several concerns. Despite the introduction of the Bill of Rights Ordinance and the recognition of the right to legal counsel in the written law, due process rights are not vigorously enforced as duty lawyers often do not contest the state’s evidence because of acceptance of disciplinary welfare. Low-income youth defendants are likely to be more disposed to pleading guilty as they perceive their lawyers not so much as advocates but plea mitigators. Duty lawyers gather information, mainly from police and social workers’ reports, and present the youths’ background for the court in mitigation. Second, the welfare orientation of the juvenile justice system is not questioned. From the net-widening of youths (Wong, 2000) through police arrests to the rehabilitative programmes offered by corrections, welfare for youths is left uncriticized even when it has been in other jurisdictions (e.g. Travers, 2012). Third, the reciprocal mistrust between youth and their duty lawyers may undermine youths’ opinion of the justice system and that may compel them to be less cooperative with authorities in the future (Sprott and Greene, 2010). This is precisely the case when lawyers are seen not as independent actors on the side of the accused youth but as a part of the system that is prosecuting them.

Footnotes

Acknowledgments

This study was fully supported by a General Research Fund offered by the Research Grant Council of the Hong Kong Special Administrative Region (Project No. 743511H). This project has been reviewed by the Human Research Ethics Committee for Non-Clinical Faculties at the University of Hong Kong. Parts of this paper was presented at the 8th Annual Australian and New Zealand Critical Criminology Conference at the Monash Law Chambers in Melbourne, Australia. The authors would also like to thank the Coordinating Editor Professor David Campbell and the anonymous reviewers for their insightful comments to earlier drafts of this article.

Note

References

Adorjan

Chui

(2013) Colonial responses to youth crime in Hong Kong: Penal elitism, legitimacy and citizenship. Theoretical Criminology 17: 159–177.

Adorjan

Chui

(2014) Responding to Youth Crime in Hong Kong: Penal Elitism, Legitimacy and Citizenship. Abingdon: Routledge.

Allen

(1981) The Decline of the Rehabilitative Ideal: Penal Policy and Social Purpose. New Haven, CT: Yale University Press.

Armstrong

Kim

(2011) Juvenile penalties for ‘lawyering up’: The role of counsel and extralegal case characteristics. Crime & Delinquency 57: 827–848.

Barnes

Wilson

(2008) Young people’s knowledge of the UK criminal justice system and their human rights. International Journal of Police Science & Management 10: 214–221.

Berg

(2004) Qualitative Research Methods for the Social Sciences. 5th ed. Long Beach, CA: Pearson.

Borowski

Ajzenstadt

(2005) A solution without a problem: Judges’ perspectives on the impacts of the introduction of public defenders on Israel’s juvenile courts. British Journal of Criminology 45: 183–200.

Borowski

Ajzenstadt

(2007) Achieving justice for children: Public defenders in Israel’s juvenile courts. International Journal of Offender Therapy and Comparative Criminology 51: 191–211.

Burruss

Kempf-Leonard

(2002) The questionable advantage of defense counsel in juvenile court. Justice Quarterly 19: 37–68.

10.

Carrington

Moyer

(1990) The effect of defence counsel on plea and outcome in juvenile court. Canadian Journal of Criminology 32: 621–637.

11.

Census and Statistics Department (2013) Hong Kong annual digest of statistics: 2013 edition. Census and Statistics Department. Available at: http://www.statistics.gov.hk/pub/B10100032013AN13B0100.pdf (accessed 1 April 2014).

12.

Cheng

(2013) Pressures to plead guilty: Factors affecting plea decisions in Hong Kong’s magistrates’ courts. British Journal of Criminology 53: 257–275.

13.

Chui

(1999) Residential treatment programs for young offenders in Hong Kong: A report. International Journal of Offender Therapy and Comparative Criminology 43: 308–321.

14.

Chui

(2001) Theoretical underpinnings of community-based sentences and custody for young offenders in Hong Kong. Hong Kong Law Journal 31: 266–282.

15.

Chui

(2003) Experiences of probation supervision in Hong Kong: Listening to the young adult probationers. Journal of Criminal Justice 31: 567–577.

16.

Chui

(2004) Adult offenders on probation in Hong Kong: An exploratory study. British Journal of Social Work 34: 443–454.

17.

Chui

(2005a) An analysis of the effects of penal custody and community penalties for young offenders. Journal of Youth Studies 8: 128–141.

18.

Chui

(2005b) Detention centre in Hong Kong: A young offender’s narrative. Journal of Offender Rehabilitation 41: 67–84.

19.

Chui

(2006) Avoiding early intrusion in the lives of children: The need for juvenile justice reform in Hong Kong. Journal of Youth Studies 9: 119–128.

20.

Chui

(2008) Community sentences. In: Chui

(eds) Understanding Criminal Justice in Hong Kong. Cullompton: Willan Publishing, pp. 201–223.

21.

Chui

Chan

(2011) Social bonds and male delinquency while on probation: An exploratory test in Hong Kong. Children and Youth Services Review 33: 2329–2334.

22.

Chui

Chan

(2012) Criminal recidivism among Hong Kong male juvenile probationers. Journal of Child and Family Studies 21: 857–868.

23.

Chui

Chan

(2013) Psychological characteristics of male juvenile offenders in a residential home in Hong Kong. Criminal Behaviour and Mental Health 23: 41–55.

24.

Clarke

Koch

(1980) Juvenile court: Therapy or crime control, and do lawyers make a difference? Law & Society Review 14: 263–308.

25.

Dootjes

Erickson

Fox

(1972) Defence counsel in juvenile court: A variety of roles. Canadian Journal of Criminology and Corrections 14: 132–149.

26.

Erickson

(1975) Legalistic and traditional role expectations for defence counsel in juvenile court. Canadian Journal of Criminology and Corrections 17: 78–93.

27.

Feld

(1988) In re Gault revisited: A cross-state comparison of the right to counsel in juvenile court. Crime & Delinquency 34: 393–424.

28.

Feld

(1989) The right to counsel in juvenile court: An empirical study of when lawyers appear and the difference they make. Journal of Criminal Law and Criminology 79: 1185–1346.

29.

Gray

(1994) Inside the Hong Kong Juvenile Court: The Decision-making Process in Action. Hong Kong: University of Hong Kong.

30.

Gray

(1997) The emergence of the disciplinary welfare sanction in Hong Kong. Howard Journal of Criminal Justice 36: 187–208.

31.

Greene

Sprott

Madon

. (2010) Punishing processes in youth court: Procedural justice, court atmosphere and youths’ views of legitimacy of the justice system. Canadian Journal of Criminology and Criminal Justice 52: 527–554.

32.

Grisso

(1981) Juveniles’ Waiver of Rights: Legal and Psychological Competence. New York, NY: Plenum.

33.

Guevara

Spohn

Herz

(2004) Race, legal representation, and juvenile justice: Issues and concerns. Crime & Delinquency 50: 344–371.

34.

Jones

Vagg

(2007) Criminal Justice in Hong Kong. Abingdon, Oxon: Routledge-Cavendish.

35.

Law Reform Commission (2003) The age of criminal responsibility in Hong Kong. The Law Reform Commission of Hong Kong. Available at: http://www.hkreform.gov.hk/en/publications/rage.htm (accessed 1 April 2014).

36.

Lee

(2011) Nurturing the Pillars of Society: Understanding and Working with the Young Generation in Hong Kong. Hong Kong: Hong Kong University Press.

37.

(2009) Legal assistance. In: Gaylord

Gittings

Traver

(eds) Introduction to Crime, Law and Justice in Hong Kong. Hong Kong: Hong Kong University Press, pp. 131–146.

38.

(2008) Custodial sentences and correctional services. In: Chui

(eds) Understanding Criminal Justice in Hong Kong. Cullompton: Willan Publishing, pp. 224–247.

39.

Majd

Puritz

(2009) The cost of justice: How low-income youth continue to pay the price of failing indigent defense systems. Georgetown Journal on Poverty Law & Policy 16: 543–583.

40.

McConville

Mirsky

(1988) The state, the legal profession, and the defence of the poor. Journal of Law and Society 15: 342–360.

41.

McConville

Hodgson

Bridges

. (1994) Standing Accused: The Organisation and Practices of Criminal Defence Lawyers in Britain. Oxford: Clarendon Press.

42.

Mulcahy

(1994) The justifications of “justice”: Legal practitioners’ accounts of negotiated case settlements in magistrates’ courts. British Journal of Criminology 34: 411–430.

43.

Muncie

(2009) Youth & Crime. London: Sage.

44.

Packer

(1968) The Limits of the Criminal Sanction. Stanford: Stanford University Press.

45.

Peterson-Badali

Abramovitch

(1992) Children’s knowledge of the legal system: Are they competent to instruct legal counsel? Canadian Journal of Criminology 34: 139–160.

46.

Peterson-Badali

Care

Broeking

(2007) Young people’s perceptions and experiences of the lawyer–client relationship. Canadian Journal of Criminology and Criminal Justice 49: 375–402.

47.

Pierce

Brodsky

(2002) Trust and understanding in the attorney–juvenile relationship. Behaviorial Sciences and the Law 20: 89–107.

48.

Pratt

(1989) Corporatism: The third model of juvenile justice. British Journal of Criminology 29: 236–254.

49.

Puritz

Burrell

Schwartz

. (1995) A Call for Justice: An Assessment of Access to Counsel and Quality of Representation in Delinquency Proceedings. Washington, DC: American Bar Association.

50.

Sanborn

Jr (1996) Factors perceived to affect delinquent dispositions in juvenile court: Putting the sentencing decision into context. Crime & Delinquency 42: 99–113.

51.

Sanders

Young

Burton

(2010) Criminal Justice. 4th ed. Oxford: Oxford University Press.

52.

Sprott

Greene

(2010) Trust and confidence in the courts: Does the quality of treatment young offenders receive affect their views of the courts? Crime and Delinquency 56: 269–289.

53.

Stapleton

Teitelbaum

(1972) In Defense of Youth: A Study of the Role of Counsel in American Juvenile Courts. New York: Russell Sage Foundations.

54.

Travers

(2012) The Sentencing of Children: Professional Work and Perspectives. Washington, DC: New Academia.

55.

Upham

(2008) Criminal trial courts. In: Chui

(eds) Understanding Criminal Justice in Hong Kong. Cullompton: Willan Publishing, pp. 131–164.

56.

Vagg

(1998) Delinquency and shame: Data from Hong Kong. British Journal of Criminology 38: 247–264.

57.

Vagg

Bacon-Shone

Gray

. (1995) Research on the Social Causes of Juvenile Crime: Final Report. Hong Kong: Government Printer.

58.

von Hirsh

Ashworth

(2005) Proportionate Sentencing: Exploring the Principles. Oxford: Oxford University Press.

59.

Wong

DSW

(2000) Juvenile crime and responses to delinquency in Hong Kong. International Journal of Offender Therapy and Comparative Criminology 44: 279–292.