Flaw in the jewel

January 09, 2017 10:02
The decisions of the Court of Final Appeal not only reflect the jurisprudence of the common law but are held in the highest regard by jurists around the world. Photo: Bloomberg

The trial of Donald Tsang is being conducted by Queen’s Counsel from London, both for the prosecution and for the defense.

Both counsel had to apply to the High Court for leave to appear, a process that is regulated by guidelines laid down by the Chief Judge of that High Court.

The entitlement to have counsel of one’s choice is safeguarded under our system of law.

Whether or not London-based counsel are any better than those available in Hong Kong is not necessarily the issue.

Certainly, there is a far greater pool of specialist counsel in England and Wales from which to choose.

The Court of Final Appeal enjoys the enrichment of having some of the most outstanding Common Law jurists as Non-Permanent Judges.

Hence, non-Hong Kong-based judges and counsel are familiar in our judicial system.

The inclusion of these outstanding overseas judges necessarily imports different perceptions of legal thinking and by drawing on developing jurisprudence in different jurisdictions, it enriches the blood of the court’s decisions.

I would argue that the decisions of the CFA not only reflect the jurisprudence of the common law but are held in the highest regard by jurists around the world.

Before 1997, many appointments were made to the judiciary from highly experienced common law counsel, from England, Australia and New Zealand.

Many of these appointments made great contributions to both the administration and development of the law here.

The concept of drawing upon the vast experience of these non-indigenous judges brought with it the knowledge and expertise of jurisdictions enriched by generations of sophisticated legal evolution.

One could argue fairly that the pre-1997 judiciary, which drew heavily on the Colonial Judicial Service, artificially stunted the growth of a reservoir of homegrown judicial talent.

But in the relatively small population of Hong Kong, the common law tradition of making judicial appointments almost exclusively from the ranks of the practising Bar meant that without overseas appointments, the judiciary would only have been staffed by stripping out the most capable leading practitioners.

Another factor is that despite its relatively small population, Hong Kong enjoys and needs a large number of judges if the administration of law is to be effected with appropriate expedition.

The SAR’s legal system is the jewel in the Bauhinia crown.

Its incorruptibility and the integrity of its decisions enjoy a confidence that makes it the civil jurisdiction of choice within Asia, particularly for mainland businesses.

Yet, the permanent judiciary is undermanned and the workload disproportionately high.

Both these problems could be significantly alleviated by recruiting for judicial appointments from the same common law jurisdictions from which the Non-Permanent Judges of the Court of Final Appeal are drawn and from which specialist leading counsel are admitted on an ad hoc basis to conduct specific trials.

Given that there is formal recognition of the great value that such non-indigenous lawyers bring to the administration of justice in the SAR, it is puzzling that such a ready solution to a pressing problem is not applied.

Sadly, one cannot help but conclude that official policy is to "localise" exclusively so that no judicial posts will be filled from overseas.

But if this is the direction in which Hong Kong is being driven, there will be an inevitable dilution of quality in the judiciary.

Doubtless there will be screams of protest, but in my opinion there is a systemic weakness in the career structure for barristers in Hong Kong. Opportunities for the young barrister to acquire the expertise essential for an advocate are far too few, yet there is no substitute for experience.

Given the entirely appropriate professional restrictions on advertising, the opportunities for counsel to be briefed is a dogs dinner of family connections, college chums and pot-luck.

Some senior barristers do try to introduce young counsel to their solicitors but Hong Kong’s fiercely competitive environment militates against such generosity.

Hong Kong has no established system of barristers’ clerks to manage counsel’s practice.

Indeed, a crucial dimension of a barrister’s chambers in England is the quasi-corporate system in which the clerk acts as a manager, introducing new members to solicitors who are established clients of the chambers.

This essential service to solicitors is self-monitoring because the clerk knows that his or her reputation depends on the quality of counsel so introduced.

Equally, the clerk quickly learns the strengths and weaknesses of individual members of chambers and can guide the structure of their careers.

The absence of such a structure means that in Hong Kong instructions to counsel are substantially ad hoc and much advocacy is seriously sub-standard.

The pressure to make judicial appointments can and sometimes does lead to this lack of experience being carried onto the bench, especially at the lower levels.

If quality is the ultimate victim, the jewel will lose its lustre and become mere paste.

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