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“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.”
The Hong Kong judiciary has an image problem. It's not helped by the annual pantomime of legal types parading around in wigs and silly clothes. This stilted show of ‘My Lords’ - the majority are men - sends a message of antiquated stuffiness and disconnection. The laymen look on with a mixed sense of amusement and unease at an institution he little comprehends. In recent years many voices have called for changes in the judiciary. The reception to these calls is lukewarm at best.
Then this week an esteemed insider broke ranks. He's lambasted judges for their misplaced actions and occasional overreach. More on that later
At the annual opening of the legal year jamboree, the Chief Justice speaks to review the court's work. For several years, he's voiced concerns over 'unwarranted' attacks on the judiciary.
Meanwhile, on a related note, the 2019 ‘Index of Economic Freedom’ placed Hong Kong at the top of its list. But, it did downgrade ‘judicial effectiveness’ which slipped from ‘free’ to ‘mostly free’. Beijing’s interpretation of local laws gets cited as we reason for the slippage.
That’s a recurrent theme in the media and from overseas commentators, who assert that Hong Kong’s legal system is under threat. Besides, so-called democratic politicians stoke these fears to support their political agenda. They are not above making misleading statements or peddling opinions as facts.
While the system is far from perfect - no legal system is - it nonetheless functions with objectivity. After all, it put a former Chief Executive and his deputy in prison. Donald Tsang is a state leader, with a position in the Mainland hierarchy higher than a provincial governor. Nonetheless, he couldn’t escape an examination of his criminality in court. He then went to prison.
The case of high-ranking civil servant Mike Rowse is also worth a look. To cut a long story short, Rowse was scapegoated for the alleged failings of the 2003 HarbourFest. Disciplined by an internal civil service process, he received a fine. Rightly aggrieved, Rowse sought a judicial review. This review destroyed the government’s case, exposing the top of the administration to ridicule.
The judiciary has ruled against the government on many occasions. In the process, it affirms its independence and willingness to uphold the rule of law. That I applaud.
Of course, the sensational stuff make the headlines. Although, most of the cases going through the Hong Kong legal system are mundane and dealt with at magistrate court. The majority of these cases involve three crimes: shoplifting, common assault, and drug possession. Around 60% of defendants plead guilty at the first opportunity. The high proportion of guilty pleas is no surprise. The government will only bring cases it believes it can win.
For several years, Chief Justice MA Tao-li has responded to adverse comments about specific judgements. He has asked that the public be ‘rational and well-informed’ in their comments. Then, directs them to read judgements to understand the reason for decisions. But here's the problem. Many of the judgements are incomprehensible to the laymen.
Moreover, the full reasoning often takes time to emerge. In fairness to the public, it’s not always clear why certain judgements arose. Even those of us with the time and some legal knowledge struggle at times. Thus, it’s a stretch to ask the ordinary citizen to weigh a judgement.
No rational individual sanctions personal attacks on magistrates and judges. These demand swift action to uphold the integrity of the judicial system. Yet, it's inescapable that much needs improving in the courts. At times it appears buried behind arcane thinking and strange practices. Even as a seasoned police officer it’s unsettling to enter a court to give evidence. Thus, the ordinary citizen is most likely intimidated by these strange legal precincts.
Much of the recent criticism arose from a perception that magistrates were indulgent of violent Occupy protesters. This fed a narrative of bias. Proving or disproving these assertions is a hopeless task. Except it’s right to say magistrates wouldn't tolerate such unruly behaviour in court. Which begs the question, why the rest of society, including police officers, need to endure such antics?
Then this week we’ve seen the publication of a blistering insider attack on the conduct of the judiciary. Justice Henry Litton, a well-informed observer, exposes many failings of the Hong Kong judiciary. As a distinguished lawyer and former judge of the Court of Final Appeal, he’s well placed to comment. He doesn’t pull his punches in ‘Is the Hong Kong Judiciary Sleepwalking to 2047?’
He highlights the delays in getting cases through the courts. The role of lawyers engaging in a ‘carnival of words’ that amounts to a charade sums up his position. He cites the Mainland Port Area judicial review as an example of the abuse of process. Pointing out that the four litigants had no substantial interest in the matter, he concludes their actions were political. Nonetheless, the review went ahead in ‘an earnest but misguided manner’. Litton feels the judge overstepped his remit.
His book gives other examples. In his view, Hong Kong’s judicial system has morphed into ‘Frankenstein’ law by absorbing elements that don’t fit well. He cites European law as an example. For the most part, he places the blame locally and not on the actions of Beijing. He holds his colleagues to account for what he sees as a lack of common sense. This trait he couples to a propensity to get lost in pedantic argument.
Litton harks back to the fact that common law sought practical solutions that brought a greater good. He despairs that aspects of the process in Hong Kong have become political theatre.
As a solution, he seeks a return to the ‘strict discipline of law’. The dismissing of frivolous judicial reviews brought about by political posturing would be a start. Those are my words; he made no such statement.
Hong Kong enjoys a special place in the world. It has been well-served by it common law legal system. But, innovation will be necessary to sustain public support. Likewise, the current system has a shelf life that expires on 30th June 2047.
China was pragmatic enough to allow the common law to survive the handover, and I trust they will continue to see its benefits. In the meantime, the judiciary would do well to hear the voices of unease. A change will come and it’s best to direct it rather than get dragged along.
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.