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Soliciting the solicitors: Why don't Hong Kong prostitutes have access to legal aid?

Written by
Time Out Hong Kong
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Prostitutes in Hong Kong get a raw deal when it comes to getting legal aid if they’ve been accused of soliciting on the streets, according to some experts. 

If you happen to be a prostitute and you’ve been accused of a crime, then – unless you’re one of our SAR’s high-class hookers – you probably can’t afford to pay the legal bills as you take your battles from the streets and into the courtrooms. It’s one of the reasons we have legal aid in Hong Kong. It’s a method whereby the government can provide eligible applicants who don’t have the dosh with the services of a solicitor or a barrister in court proceedings. It prevents those in the city who have reasonable grounds for pursuing or defending a legal action in the courts being denied access to justice because of a lack of financial means.

But, again, if you’re a lady – or gentleman – of the night you may find it much harder to get legal aid, particularly when your case, more often than not, involves the fact you were arrested for soliciting on the streets, which is forbidden in Hong Kong. And a lot of the problems lie squarely at the doors of certain barristers, judges and legal workers who may ‘look down’ on the sex workers, as well as the fact that when a prostitute is given a duty lawyer under legal aid, they often don’t get enough time to tell them the details that may make the difference between an innocent and a guilty verdict.

The provision of legal aid in Hong Kong is often contingent on applicants fulfilling certain financial and testimonial criteria that are determined by two types of test – a means test and a merits test. While the means test aims to establish a financial threshold needed to qualify for legal aid, the merits test is a more thorough examination of the grounds for the case and often the public interest element that it bears, depending on the severity of the offence. So, with that in mind, legal aid made available to sex workers in Hong Kong can be fraught with complications that only hinder the process of seeking justice. And while there exists a number of legal aid schemes that are made available to financially vulnerable groups in need of said assistance, the duty lawyer scheme is the one that most often takes centre stage – and frequently comes under fire, too.

“The duty lawyer scheme has been the subject of a great deal of contention,” explains Puja Kapai, an associate professor of law at the University of Hong Kong. “You’ve got an indigent community that needs legal representation and needs it urgently, but on the other hand you also have limited resources.” The nature of legal aid schemes entails that the lawyers within them are often operating on a pro-bono to basic fee basis – a fee system that barely compares with the market for legal services. Under these circumstances, private work would seem far more appealing to lawyers than the public equivalent, according to Kapai. And that raises questions, she notes, about the quality of services being provided, plus the experience of the duty lawyer who handles the case.

"Sometimes the judges and lawyers look down on the sex worker. They don’t respect them"

Those lawyers who do have the relevant experience inevitably bear the brunt of all the cases when it comes to sex workers in the SAR. “Because they’re that good, they get saddled with a number of cases,” says Kapai, who also mentions that sex workers who have been arrested in Hong Kong don’t get the chance to speak to a duty solicitor at the police station about their rights before they’re interviewed by the lawmen. In the UK, she says, for example, legal representation would be present.

In fact, it’s only after a sex worker – or anyone in need of legal aid, for that matter – has been told they are to appear in court that they’re informed of the fact that they can have a lawyer represent them irrespective of their financial constraints, according to Kapai. Given these provisions, the accused prostitute is likely to undertake these legal aid services. But the lawyer only has to give 10 to 15 minutes of his or her time to conduct background questions and ascertain the necessary details about the offence from the accused. This is a process that should ideally be conducted over a series of much longer meetings, in order for the legal representative to gain a better understanding of the case. And that’s where the problem lies.

Zi Teng, an NGO that works with sex workers to help them gain access to justice for crimes committed against them, is critical of this approach. “The lawyer is required to meet the client once before the legal proceedings,” a Zi Teng spokesman tells us. “And so, they only meet them that one time.” The organisation believes that the problem could also be systemic to some degree. “Sometimes we think that the judges and lawyers look down on the person,” says the spokesman. “They don’t respect sex workers and they don’t pay attention to them.”

Kapai, however, believes that duty lawyers do their best, given the time constraints. “It’s very hard,” she explains. “Can you imagine that you’re being charged with illegal soliciting? Can you imagine trying to explain how you were trafficked or tricked into something? It’s very hard as a lay person to present all the relevant facts. And that, I think, is the biggest challenge for the lawyer – how do you get a story out of somebody and then suss out what is necessary for you to give proper legal advice?”

Often, there are aspects of the defendant’s background that may emerge later on in the court proceedings which would have altered the verdict. If a lawyer believes that the best advice to provide would be eliciting an admission of guilt from the client accused of soliciting – and that is successfully done – should additional details emerge about the circumstances under which the events happened that were not disclosed during those crucial minutes before the proceedings began, history could have been altered from guilty to innocent. For migrant sex workers, especially, the consequences of recommending that they admit to being guilty are far more dire. “Migrant sex workers,” says the Zi Teng spokesman, “if found guilty, will have to stay in jail for two months at the minimum.”

Migrant sex workers, especially those from the Mainland, have the added burden of being stereotyped for their line of profession – a factor that plays a significant role in the manner in which duty lawyers then proceed to represent their clients. “There is this stereotype surrounding the way in which their arrest is portrayed,” explains Kapai. “And these stereotypes definitely play on the minds of legal representatives. They shouldn’t. But I’d be hard-pressed to say that there isn’t any implicit bias.”

Often, because of these existing stereotypes, sex workers who have found themselves being trafficked or tricked into the profession find themselves being criminalised by the system for their actions. This systemic problem is only compounded by the legal resources made available to begin with – a problem that could be offset through the institution of pro-bono legal firms and services. However, pro-bono practice is not properly established in the region. What further exacerbates the problem is that even when these services are made available to sex workers – especially sex workers from the Mainland, according to the Zi Teng spokesman – there is a reluctance to seek help. “Because the pro-bono firms don’t charge a fee, ironically, the sex workers don’t believe them,” he explains. This lack of awareness is not only confined to their knowledge of the inner workings of the Hong Kong legal system but also extends to their knowledge of their own rights as sex workers in the region.

These problems could partially be attributed to the fact that Hong Kong continues to live with outmoded definitions of prostitution or even offences relating to sexual intercourse or rape, according to Kapai. And not only do these definitions serve to weaken cases for vulnerable communities but they also serve as loopholes for individuals either seeking the services of sex workers or directly responsible for the predicaments of the workers to exploit the system to their own end. Either way, groups like Zi Teng are campaigning for a change in the system to help those sex workers get far more access to legal aid and to change the hearts of minds who may be prejudiced against them. At least someone’s looking out for the prostitutes in Hong Kong.

To find out more on this subject from Zi Teng, head to ziteng.org.hk.

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