"But how can you live and have no story to tell?" Fyodor Dostoevsky
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.