The quality of justice

December 27, 2017 14:08
There is an unbridgeable gap between our liberal, democratic common law system and the Chinese Communist Party’s iteration of the judicial function. Photo: Bloomberg

Hong Kong’s legal system is sleepwalking to disaster.

Currently, Hong Kong is Asia’s only corruption-free, common law system of justice in which people can have confidence.

We still have a body of judges untainted by corruption and with the necessary skills and experience to conduct complex litigation and deliver competent and comprehensible judgments on a range of issues. The Court of Final Appeal judgments are universally recognized as first-class juridical decisions.

But it is a diminishing cohort and the quality of its gentle rain is under threat of no longer dropping from heaven.

No matter how much polite lip service may be paid to mainland courts, there is an unbridgeable gap between our liberal, democratic common law system and the Chinese Communist Party’s iteration of the judicial function.

Prominent mainland legal authorities’ assertion about Hong Kong’s judiciary being part of the administration and therefore subject to Beijing’s overall direction has exercised Hong Kong’s legal fraternity and generated anxious speculation as to how long the SAR’s judiciary will remain independent of political influence.

Hong Kong’s system of justice is premised on absolute standards which aspire to deliver a just outcome to the issues with which it is seised.

The PRC’s judicial system is intrinsically bound up in maintaining the supremacy of the Communist Party of China.

These are mutually incompatible objectives.

Yet I believe that our concerns should be much closer to home.

The shortage of judges in both the High Court and the District Court impacts directly and adversely on the quality of justice dispensed. Pre-1997 the solution was simple and effective – judges were recruited from other common law jurisdictions. This met both the quantitative and qualitative needs of the system.

The fact that judicial appointments are no longer filled from extra-jurisdictional lawyers despite the increasing inability of Hong Kong to staff the judiciary from our own resources suggests that it is no longer politically acceptable to do so.

This inevitable inference is drawn because apart from the key judicial appointments, there is nothing in the Basic Law to prohibit appointing judges from outside the jurisdiction.

Anyone interested enough to read the District Court judgments would quickly appreciate that all too often they fall below the requisite standards of competence.

Yet the area of greatest concern is at Magistrates Court level. I understand from barristers who regularly appear in these courts that the behavior of a significant number of Magistrates is distinctly unjudicial.

Bad courtroom manners, bullying and intemperate comments and interjections disrupt the proper process of hearings. The Magistrate is all in all in his or her courtroom, hence there is no justification for the “I’m in charge” syndrome which immediately identifies the actor as lacking in self-confidence.

Ten years’ seniority does not necessarily connote ten years’ practical experience or expertise consistent with the demands of the appointment. The magistracy is the coalface of the criminal justice system and the judicial officer before whom the majority of defendants will appear.

Comparisons are often invidious but appointments to the Magistracy in the UK have always been made from senior practitioners with a wealth of experience behind them, experience which they carry with them onto the bench.

When I speak of experience, I am not only talking about their time as legal practitioners but of their knowledge of the world at large and human frailty.

Judged by their behavior, far too many of our Hong Kong Magistrates lack both legal and worldly experience.

It is worth reflecting on the character and skills of traditional Chinese magistrates in Hong Kong’s colonial history. These were men steeped in local knowledge, a quality beyond value. They had the capacity to reflect cultural idiosyncrasies in their judgments. The old Colonial Judicial Service, whatever other failings it may have had, held these cultural values in high regard.

One carry-over from the Colonial Judicial Service is the career jurist. It is still possible to start out as a Magistrate and succeed to the High Court. This system can deliver quality appointments but only if the individual possesses the qualities essential for the original post.

Much the same reasoning applies to District Court appointments.

It has been rather unkindly said, albeit justifiably in some cases, that barristers who cannot make a success of a career at the bar seek the security of income by taking an appointment on the bench.

This would certainly explain some of the bizarre judgments.

Corruption is not the only potential weakness in a judicial system, crass incompetence is also destructive of confidence.

Our post-handover Chief Justices have persuaded some outstanding practitioners onto the High Court bench, for which we should be immensely grateful.

But the pool of such candidates is shrinking and as it does, so confidence in the quality of our system of justice risks evaporating.

We can still congratulate ourselves on the incorruptible quality of our judiciary that makes Hong Kong the stellar Asian jurisdiction. But this legal luminosity is starting to grow dim at the edges.

It is not too late to rectify if and only if the PRC will stay its suffocating hand.

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Queen's Counsel