2 Hong Kong residents shall have the right to institute legal proceedings in

2 hong kong residents shall have the right to

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(2) Hong Kong residents shall have the right to institute legal proceedings in the courts against the acts of the executive authorities and their personnel. Access to justice Right to access to justice: only through this right can all other rights and liberties can be given legal effect by the judiciary in today’s legal system. Without ordinary citizen access to legal advice and representation by competent professional lawyers, the ideals of the rule of law will descend into empty promises. The legal system is often like a maze to most members of the community. Lawyers must make the impartial administration of justice paramount over their own personal and business interests . 47 48
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25 Why is access to justice important? 1. To give effect to the rule of law “Our law makes access to the Courts dependent on the payment of fees and renders assistance by skilled lawyers in many cases indispensable…. Where there is no legal protection, there is in effect no law . In so far as citizens are precluded from access to the Courts, the rules of the law which they would like to invoke are for them as good as non-existent”. ~ EJ Cohn, Legal Aid for the Poor: A Study in Comparative Law and Reform (1943) 59 LQR 250, 251. Why is access to justice important? 2. To ensure equality before the law (BL Art 25, BOR 1 and 22) Access to justice is underpinned by the principle of equality, i.e. equal justice under law. The just conclusion to a legal problem must be accessed by anyone on an equal basis, and not affected by inequalities in wealth or power. The principle of “ equality of arms ” means that there should be a level playing field in the adversarial process, in order to secure the important goal of fair procedures. 49 50
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26 Why is access to justice important? To ensure the right to a fair hearing (BOR, Arts 10, 11). BOR Art 10: “All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law…” Criminal trial: minimum guarantees BOR Art 11(2): “In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality … (d) … to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of his 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; …” 51 52
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27 Legal representation HKSAR v Wu Wai Fung [2003] 4 HKC 259: No absolute right to legal representation at public expense for every criminal trial.
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