Hong Kong Judicary - has something gone wrong?
"“Common law; a rational system, focussed on remedies, based largely on common sense, readily understood.”
In an 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 say 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 Litton's crucial points. Thus, only a complete 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 to 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 Court of Final Appeal judge. 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 whether the judiciary is giving away Hong Kong's autonomy—a fundamental question. Why? 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 our situation. I must concur. 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 convincingly argues that some magistrates and judges have lost their way. They allow lawyers to dictate the course of events in court, which indulges in discussing esoteric points of law unrelated to the issue at hand. This pandering to political causes often undermines law enforcement for no good reason.
Litton clinically reviews several cases that illustrate his position. First, he asserts that 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.
According to Litton, Barrister Mark Sutherland sits at the top of the offensive conduct category. 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.
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 disregard local conditions. He cites examples, including the case of a UK caravan raised in a property developer action.
The third and perhaps most troubling point is that Beijing is compelled to intervene. Its interpretations then erode Hong Kong’s autonomy. In short, matters that can be handled locally and pragmatically 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. 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, common law is an accumulation of individual cases from which law principles evolve. Common law should focus on remedies and finding practical solutions. He laments that this is not happening. Lawyers' theorising, polemics, and grandstanding bury the real issue under a mountain of words. Using clever but futile arguments has destroyed sensible and workable systems.
Litton argues that, on occasion, judgements do not consider practicalities. He notes that 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 adequately handled by the legislature.
Like many police officers engaged in public order duties, I struggled from the 1990s. At times, it was challenging to understand my responsibilities and powers. Litton sheds some light on this. He mentions judgments taken without consideration of the practicalities of policing. The confusion 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, encouraging protesters to test our bottom lines.
These bottom lines shifted so that by the time of Occupy, the police facilitated illegal road occupations. This absurd situation significantly damaged the perception of the rule of law. The interests of the wider community were 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 remedies 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 is hampered by having a judge sit over the administration's shoulder. 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, and the pain is still causing spasms. In the meantime, I’d encourage you to read his book to understand how we could reduce Hong Kong’s autonomy.
January 2019
There is not enough space here to discuss Litton's crucial points. Thus, only a complete 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 to 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 Court of Final Appeal judge. 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 whether the judiciary is giving away Hong Kong's autonomy—a fundamental question. Why? 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 our situation. I must concur. 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 convincingly argues that some magistrates and judges have lost their way. They allow lawyers to dictate the course of events in court, which indulges in discussing esoteric points of law unrelated to the issue at hand. This pandering to political causes often undermines law enforcement for no good reason.
Litton clinically reviews several cases that illustrate his position. First, he asserts that 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.
According to Litton, Barrister Mark Sutherland sits at the top of the offensive conduct category. 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.
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 disregard local conditions. He cites examples, including the case of a UK caravan raised in a property developer action.
The third and perhaps most troubling point is that Beijing is compelled to intervene. Its interpretations then erode Hong Kong’s autonomy. In short, matters that can be handled locally and pragmatically 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. 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, common law is an accumulation of individual cases from which law principles evolve. Common law should focus on remedies and finding practical solutions. He laments that this is not happening. Lawyers' theorising, polemics, and grandstanding bury the real issue under a mountain of words. Using clever but futile arguments has destroyed sensible and workable systems.
Litton argues that, on occasion, judgements do not consider practicalities. He notes that 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 adequately handled by the legislature.
Like many police officers engaged in public order duties, I struggled from the 1990s. At times, it was challenging to understand my responsibilities and powers. Litton sheds some light on this. He mentions judgments taken without consideration of the practicalities of policing. The confusion 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, encouraging protesters to test our bottom lines.
These bottom lines shifted so that by the time of Occupy, the police facilitated illegal road occupations. This absurd situation significantly damaged the perception of the rule of law. The interests of the wider community were 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 remedies 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 is hampered by having a judge sit over the administration's shoulder. 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, and the pain is still causing spasms. In the meantime, I’d encourage you to read his book to understand how we could reduce Hong Kong’s autonomy.
January 2019
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