Dilatory justice

March 09, 2020 09:58
A file picture shows judges attending the ceremonial opening of the legal year at City Hall in Hong Kong on January 13. Amid a backlog of cases, judges are increasingly falling behind. Photo: Reuters

Covid-19 hysteria has even struck the usually placid Hong Kong judicial system, suspending most court activities.

However, the legal community has now been informed that court services will be staggered back into service by around mid-April. Perhaps staged or phased would have been a happier verb but the picture of the judiciary administration staggering back into action does seem more apposite.

To be clear, I am not referring to the members of the judiciary but the grey figures who comprise the administrative body responsible for running the courts.

It never ceases to amaze me how subservient the judges are to their administrators.

On the bench, judiciary members are lions but faced with the administrators they become mice.

No sooner has a case finished than the next one is scheduled to follow immediately on its heels, leaving unanswered the question when does the judge write his or her judgment?

Within days, recollection begins to fade, impressions of witnesses – a transient judgment at the best of times – begin to blur and the judge becomes increasingly reliant on his or her notes and the written closing submissions.

What effect can this have on the quality of the judgment?

The delay between counsel's closing submission and delivery of judgment is increasing such that a year is now regarded as unexceptional.

There was one extreme case where the judgment was delivered two years after the conclusion of the evidence and legal argument.

The old adage ‘Justice delayed is justice denied’ used to refer to the delay before getting a case heard but these days it is more likely to refer to the gap between the end of the hearing and delivery of judgment.

In part, this is the result of there being insufficient judges to handle the workload but integral to this problem is the shortage of suitably qualified candidates for appointment. No-one wants to see the numbers made up by stuffing the bench with lesser able legal brethren. Equally, judicial salaries are not designed to tempt any but the most public spirited of successful barristers onto the bench.

To maintain quality, judges could be recruited from other common law jurisdictions just as used to happen before 1997. But that would doubtless be regarded as a serious political faux pas in certain quarters.

So it is that we struggle on, the judges compelled to try to catch up with their backload of cases but increasingly falling behind. One has to ask, albeit rhetorically, if this is the quality of justice which Hong Kong deserves?

Part of the problem is a deep-seated flaw in the trial process.

I grew up in a system in which, when the last witness finished his or her evidence, counsel would rise to their feet to make their closing submissions. At the end of which, the judge would start to deliver an extempore judgment.

This may sound curious to the ears of most legal practitioners in Hong Kong but it was ever so in England.

As counsel, we formulated our argument as the case progressed, so that we were ready to deliver our closing submission after the last witness stepped down. Over the years, this skill was honed so that on becoming a judge, counsel were primed and ready to deliver a reasoned judgment.

In Hong Kong, however, it became the practice for counsel to be given time to prepare their written submissions, sequentially, with the defense being given time to study the plaintiff’s closing submission before composing theirs. The art of extempore submissions was either lost or did it never ever occur?

If barristers have never acquired the skill, they are most unlikely to be able to take it onto the bench with them.

Consequently, cases get strung out, the judge waits until the final submission comes in before writing the judgment. Well, one hopes that is so though there is a suspicion that some tribunals write the judgment before they even hear the case.

Accepting that the system has this inherent delaying mechanism, nonetheless most judges develop their view of the case as it goes along and could readily write the factual analysis at the close of the evidence, reviewing it in the light of any revelation in counsel’s closing submissions.

Equally, in broad terms, the legal principles and precedents applicable to the case will have been canvassed at the start of the case and those governing the outcome will be in the forefront of the judge’s mind at the close of the evidence.

Thus a restatement of the applicable law could also be roughed out by the time the evidence is all in.

We are all creatures of habit and habits die hard, especially the bad ones. Which being the case, I see little prospect of there being a significant change, regardless of the advantages of it being for the better.

Nonetheless, this temporary suspension of court hearings will have given our overworked judges some time in which to catch up on the most egregiously delayed judgments. Who knows, being afforded time within which to do so may inspire the more courageous ones to resist the judiciary administration’s wholly impracticable scheduling of cases.

The pressure to clear the backlog of cases that have concertina’d because of the suspension will only serve to add to the stress on judges. That is not good news for their health or the health of the administration of justice.

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King's Counsel