Date
17 August 2018
Given the shortage of judges at the High Court, the Hong Kong government should have tapped a retired legal professional, rather than a sitting judge, to head an inquiry into Saturday's deadly bus crash, observers say. Photo: HKEJ
Given the shortage of judges at the High Court, the Hong Kong government should have tapped a retired legal professional, rather than a sitting judge, to head an inquiry into Saturday's deadly bus crash, observers say. Photo: HKEJ

Bus crash inquiry: Who should be heading it?

A Public Inquiry establishes the facts, identifies those responsible for wrongdoing and makes recommendations with the aim of preventing or limiting a recurrence.

To ensure that the public is assured about the integrity of the Inquiry’s proceedings and conclusions, it is essential that the person appointed to conduct the Inquiry is someone in whom the citizens can have confidence.

In the United Kingdom, more often than not such Inquiries are headed by a serving or retired High Court judge.

But there is no magic in limiting such appointments to High Court judges. For example, the Inquiry into the management of the Whitehead Refugee Detention Centre in Ma On Shan was conducted by Denis Chang QC and a reputable Chartered Accountant.

Few will disagree that a Public inquiry into the bus tragedy that caused the deaths of 19 people is necessary, primarily to consider culpability and second to make recommendations to prevent a similar occurrence in the future.

Unfortunately, Carrie Lam’s decision to appoint a serving High Court judge to head such an Inquiry demonstrates that she is truly out of touch with practicalities.

The High Court is woefully short of judges. The serving judiciary is overladen with work, there is a backlog of cases waiting for trial and without appointing retired High Court judges to sit as Deputies for three month stints, the situation would be far worse.

The immediate requirement to appoint someone of suitable stature to head up an Inquiry into the bus tragedy could and should, ideally, be satisfied by appointing a retired High Court Judge.

An ideal candidate would be ex-Vice President of the Court of Appeal K.H. Woo. What a perfect opportunity for Carrie Lam to have shown that she is above petty political rancour by appointing her opponent for the position of Chief Executive and to deploy a man whose credentials fit the bill so admirably.

But, as is too often the case, the administration simply gets it wrong.

An alternative to a retired High Court Judge would be any of the eminent Hong Kong Senior Counsel.

Now there is another curiosity. Since 1997 none of Hong Kong’s non-Chinese Senior Counsel have been appointed to chair any of the major public bodies.

Appointment as Senior Counsel carries responsibility to serve the interests of the public, not just in legal matters. In the past, those appointed as Queen’s Counsel in Hong Kong were also made Justices of the Peace, in which capacity they had public duties to perform such as acting as prison visitors.

This government, like some previous post-handover administrations, has ignored a small but highly qualified group of professionals for such public duties, the only apparent reason being their ethnicity.

But the crux of my criticism is directed at inept administration rather than racial bias.

A visit to the High Court exposes a classic case of administrative ineptitude.

An isolated incident in October 2017 in which a man drew a knife in court and yelled at the judge who had ruled against him four years earlier, then fled the building, has prompted an absurd over-reaction.

It is desirable to prevent a disgruntled litigant from entering the building with a weapon, even though this is a very rare occurrence.

However, the Judiciary Administration has flooded the High Court building with uniformed ‘Security’ personnel who make a great deal of noise as they do a chaotic job of marshaling people into lifts, after which the visitor meets more of these ‘Keystone Cops’ jokers on every floor and staircase.

Screening visitors to the building to ensure that they are not carrying a weapon means channeling everyone through one of those airport security machines. This requires, at most, one person to monitor the X-ray screen, someone at the entry point to marshall visitors through the screening process and two or three people to physically search those who activate the alarm.

This is the procedure you meet on entering the Royal Courts of Justice in London’s Strand.

In Hong Kong, to my amazement, the screening apparatus is positioned about 30 meters inside the entrance door so that visitors have already entered the building some time before the screening process can be carried out.

Once through the screen, the physical risk to the judiciary is limited to a weaponless attack or verbal abuse.

Just observing these comics performing their concept of securing the building reminds me of the black and white Charlie Chaplin movies, except these actors make as much useless noise as a bunch of construction workers.

Apparently, this arrangement has been contracted out to a retired police officer rather than one of the professional security companies operative in Hong Kong. Why were none of these highly experienced and trained organizations contracted?

When government is asked to fund higher judicial salaries, improvements to health, education and the provision of legal aid, the purse strings are drawn tightly closed. Why such over-the-top profligacy with the High Court security system?

All of which brings me back to our ill-served judiciary. The judicial administration overloads the judges with cases, leaving them insufficient time to prepare for trials or to write judgments. Most judges are too polite to complain, they just get on with an increasingly over-burdened caseload.

I observed the same thing happening in England where the administrative tail began to wag the judicial dog. Why would eminent barristers want to give up a rewarding career at the Bar to be subject to the whims of a bunch of administrative dogsbodies? No wonder the judiciary is shorthanded.

And now Carrie Lam wants to diminish the number of effective judges yet further.

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RC

Queen's Counsel

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