Providing Justice for Low-Income Youths
| Date | 01 December 2015 |
| Author | Wing Hong Chui,Kevin Kwok-yin Cheng,Rebecca Ong |
| DOI | 10.1177/0964663914559867 |
| Published date | 01 December 2015 |
| Subject Matter | Articles |
Article
Providing Justice for
Low-Income Youths:
Publicly Funded Lawyers
and Youth Clients in
Hong Kong
Kevin Kwok-yin Cheng
The Chinese University of Hong Kong, Hong Kong Special Administrative Region
Wing Hong Chui and Rebecca Ong
City University of Hong Kong, Hong Kong Special Administrative Region
Abstract
Despite the undercurrents of rights protection in Hong Kong’s juvenile justice pro-
cedure, the ultimate goal remains punishment based on welfare needs. Drawing on
in-depth interviews with 40 youth defendants and defence lawyers, this article will exam-
ine 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 mitiga-
tors, 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 sys-
tem 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
Corresponding author:
Kevin Kwok-yin Cheng, Faculty of Law, The Chinese University of Hong Kong, Shatin, New Territories, Hong
Kong Special Administrative Region.
Email: kevincheng@cuhk.edu.hk
Social & Legal Studies
2015, Vol. 24(4) 577–593
ªThe Author(s) 2014
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DOI: 10.1177/0964663914559867
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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 understand-
ing 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 dif-
ferentiates from adult court in the area of sentencing where Hong Kong continues to fol-
low 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 commit-
ting 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; Pur-
itz 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 undercur-
rents 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 law-
yers, 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 rea-
sons. First, the few studies on this topic have found that positive experiences and satis-
faction 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 main-
tained 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.
578 Social & Legal Studies 24(4)
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