Reflections on recent events, plus the occasional fact
free rant unfiltered by rational argument.
“The failure of judges to stand firm and apply the law strictly has grievously impaired the rule of law.”
In my earlier blog, I touched on Justice Henry Litton’s new book ‘Is the Hong Kong Judiciary Sleepwalking to 2047?’. I've now had time to digest this important treatise. Let me jump right in by saying it’s a must-read for anyone concerned about Hong Kong’s future. Politicians, lawyers, administrators, law enforcement and the judiciary, need to take note.
There is not enough space here to discuss all the crucial points that Litton raises. Thus, only a full reading of his book does justice to this work.
Doubts lingered in my mind for some time about the conduct and decisions of our esteemed magistrates and judges. As a former police officer, I had some insight into the workings of the courts. Nonetheless, I found a curtain of mystery clouding their actions. Many judgments, even after several readings, alluded my comprehension. Litton’s book rips that curtain aside to reveal things of profound concern.
It would be easy to dismiss the observations of an ex-police officer, ranting as a biased observer. The same charge won't work with a former judge of the Court of Final Appeal. This man served seven terms as Chairman of the Hong Kong Bar. Litton is an insider. He’s filled the gaps in my suspicions that something has gone wrong in the courts. He provides context for things I saw.
His main thrust is to ask are the judiciary giving away Hong Kong's autonomy. A fundamental question. Why? Because as Litton points out, we are up against a deadline in 2047. Unless Hong Kong’s judiciary exercises proper restraint, things may go wrong for our legal system. There goes Hong Kong’s unique status.
I should stress that he blames local antics not Beijing for the situation we face. I must concur. In my view, Beijing has acted with considerable restraint, something that’s not always acknowledged in this town. Opinions, coloured by anti-Beijing sentiment, make some people blind and obstinate.
Litton makes a convincing case that some magistrates and judges have lost their way. They allow lawyers to dictate the course of events in court. This indulgence leads to discussing esoteric points of law unrelated to the issue at hand. Often this is pandering to political causes, which undermines law enforcement for no good reason.
Litton clinically runs us through several cases that illustrate his position. Let me try to summarise. First, he asserts discipline in the conduct of the courts has lapsed. He feels that lawyers are de-facto taking charge, leading to undue delays and outrageous behaviour.
Top of the offensive conduct category sits barrister Mark Sutherland. He's allowed to badger, bully and cause indignities to a victim of an alleged sexual assault. He even asked her to sit on a ruler to measure her bottom in court. The magistrate failed to control Sutherland. The only saving grace is that Sutherland later faced a fine. He remains a barrister. Go figure.
Litton’s second point relates to the first. The lack of discipline allows counsel to import or bring up points unrelated to Hong Kong. Then Hong Kong law evolves into a hybrid that doesn’t meet local needs. As a result people’s trust in the rule of law erodes.
He points out that the Basic Law governs Hong Kong. Thus importing irrelevant overseas judgments distorts reality. Especially when foreign cases take no heed of local conditions. He cites examples, including the case of a UK caravan, raised in a property developer action.
The third point and perhaps the most troubling is that Beijing is compelled to intervene. It's interpretations then erode Hong Kong’s autonomy. In short, matters that can be handled locally, in a pragmatic manner, get blown out of proportion. Sometimes these develop into constitutional issues. Even the simple question of removing a poster from government land took up years of court deliberations.
Litton cites lawyers raising phantom issues in court. While at the same time, magistrates pander to pointless arguments that push cases into a higher arena. In the end, many of these cases amount to nothing more than academic exercises. Lawyers argue back and forth on the meaning of words without any real solutions as the end product.
He affirms my view about certain judgments being ‘unintelligible’ to even educated people. He makes the telling point that no layperson could understand them. None of this adds to the transparency of the courts.
Litton reminds us that the judiciary does not sit separate or above anybody. It’s supposed to work in conjunction with the government and other institutions. Further, the common law is an accumulation of individual cases from which principles of law evolve. Common law should focus on remedies, finding practical solutions. He laments this is not happening. Theorising, polemics and grandstanding by lawyers bury the real issue under a mountain of words. In turn, the use of clever but futile arguments has destroyed sensible and workable systems.
Litton makes the case that on occasions judgements take no heed of practicalities. He notes the courts shouldn’t sit with 'sovereign detachment' in a bubble. He cites a case involving the police and public order. A simple instance of law enforcement inflated into major legal arguments. Litton affirms that the law cannot get involved in matters properly dealt with by the legislature.
Like many police officers engaged in public order duties, I struggled from the 1990s onwards. At times it was difficult to understand my responsibilities and powers. Litton throws some light on this. He mentions judgments taken without consideration to the practicalities of policing. The confusion that arose from regular drawn-out judicial reviews had undesirable operational impacts. Tried and tested procedures held in abeyance pending legal decisions.
Sometimes nothing filled the void, leading to a lack of action or reluctance to act. Thus, the police ended up marshalling illegal demonstrations while reading out repeat warnings that went unheeded. We threatened action and then did nothing. This encouraged protesters to test our bottom lines.
These bottom lines shifted to such an extent that by the time of Occupy, the police facilitated illegal road occupations. This absurd situation did immense damage to the perception of the rule of law. The interests of the wider community willfully ignored to indulge a few. How is this right?
Lawyers, of course, will retort that they are doing their job by raising inconsistencies in the law. They seek remedy for their clients. Yet Litton is firm that any system of governance cannot function if we allow every allegation of ‘unconstitutionality' to interrupt business. Otherwise, thousands of laws could falter. He’s clear that each statute should stand unless a court of competent jurisdiction declares otherwise.
Litton sees an unhealthy trend. The good governance of Hong Kong hampered by having a judge sitting over the shoulder of the administration. When the judiciary has lost focus chasing false rabbits down holes, he concludes "The result is a legal system divorced from the community it is supposed to serve?".
Litton has produced a stinging rebuke to the judiciary. I’ve yet to see a response from within. I suspect Justice Litton has hit a raw nerve with the pain still causing spasms. In the meantime, I’d encourage you to read his book to understand how we could throw away Hong Kong’s autonomy.
“Common law; a rational system, focussed on remedies, based largely on common sense, readily understood.”
Walter De Havilland was one of the last of the colonial coppers. He served 35 years in the Royal Hong Kong Police and Hong Kong Police Force. He's long retired.