HK judges shouldn’t be protected from criticism

Tony Kwok argues that the city’s judiciary is accountable to the people for its decisions, and doesn’t deserve special treatment

For those who said no, they should read this classic case law of Ambard vs the Attorney General of Trinidad and Tobago (1936): “Justice is not a cloistered virtue, she must be allowed to suffer the scrutiny and the respectful even though outspoken comments of ordinary man.”

One recent case in point involved 13 activists who conducted a violent protest on June 13, 2014, outside the Legislative Council Complex against government development plans in the North East New Territories. In the process, they charged with bamboo sticks and metal objects to force open the door to the LegCo Complex. They caused more than HK$400,000 in damage to the building and injured a security guard who needed 85 days of sick leave to recover. The extent of the violent nature of their action was self-evident.

Yet the trial magistrate saw it fit to simply hand down a community service order to all of them. His decision was widely criticized, forcing the Department of Justice to consider a review of the sentence.

Thanks to the wise decision of the Court of Appeal, these violent offenders’ initial sentence was replaced with an immediate custodial sentence of 13 months’ imprisonment. The decision was popularly applauded and generally regarded as appropriate and correctly reflecting the severity of the offense, bearing in mind that the maximum sentence for such offense of unlawful assembly is three-year imprisonment.

Yet when the case came before the Court of Final Appeal, the bench saw it fit to release all of them from their custody immediately. As expected, such a stunning judicial turnaround drew many outspoken public criticisms. One came from Stanley Ng Chau-pei, a local deputy to the National People’s Congress. Ng wrote on his Facebook: “These criminals are definitely not going to repent, and this will set off a ticking time bomb in society… The court’s decision would ‘poison’ a generation.” He called the judges “sinners against society”, “old men trying to be nice guys … youth spoilers”. These are harsh comments indeed but are they really that unreasonable in the circumstances?

The same top court also quashed the jail terms for student activist Joshua Wong Chi-fung and two of his comrades over the illegal “Occupy Central” protests of 2014. Putting these two cases together, what kind of message is our supreme court trying to convey to our youngsters?

Disobeying the law and even harming people with violent action in the name of political activism will not entail adverse consequences? Indeed, in an interview with the media the following morning, one of them actually showed no remorse for their actions, which he insisted were not violent!

Many had come forward to ask this valid question: If public officials and legislators can be criticized, why not the judges?

The problem of the Hong Kong legal and judicial fraternity is, in my view, when it starts behaving like the people in Plato’s Cave. They refused to look outside Hong Kong and learn from the good judicial practices in the wider world. If they had just looked at their common law masters in the United Kingdom, they should know that the offense of “scandalizing the court” was abolished in June 2013.

The reason for it being abolished, according to Lord Pannick QC is that “confidence in courts is what it is and prosecuting people for scandalizing the court will not improve public confidence if it is already low. Respect for the judiciary is undermined rather than strengthened by the existence and use of a criminal offense which provides special protection against free speech relating to the judiciary”.

I believe those who keep using this offense to threaten people with criminal prosecution for this outdated offense should really be ashamed of themselves.

The other problem reflected in this case is the inability of our court to come up with appropriate sentences that reflect the social mores of the community. The UK has established a Sentencing Council, consisting of academics, lawyers, politicians and people’s representatives to provide guidelines for judges in sentencing so as to address the problem of sentencing inconsistency. If we have this for the initial trial in the magistracy, we may not need the long and tedious path of appeals to get the sentencing right, or perhaps still wrong in the end!

Freedom to criticize or complain against any person holding public office is universally regarded as a cornerstone of the public accountability system. Yet all public complaints against any members of the judiciary are currently dealt with internally, with no accountability to the public, a case of the judges monitoring themselves. Just imagine if this were the case for police, the public would be up in arms!

I recalled one ICAC case before a magistrate which ended up with acquittal, despite strong evidence. It was later revealed that the defense counsel was a divorcee of the magistrate but the magistrate did not make any declaration of such conflict of interest or recuse himself. Instead he was biased toward the defense throughout the trial.

The ICAC lodged an official complaint to the judiciary but was later informed that since they had divorced, their relationship was not regarded as a conflict of interest and the magistrate need not declare or recuse himself!

In the UK, there is now an Independent Judicial Conduct Investigation Office that handles public complaints on the misconduct of judges; I wonder what would be the outcome if the above ICAC complaint had been handled by this office.

What Hong Kong also needs is to set up a “court watch” program, which is very common in Western countries, such as the US and Canada, and Europe. They are regarded as a legitimate and effective check-and-balance mechanism in a democratic society, to ensure that judges do not abuse their power. For example, in the US state of Louisiana, the court watch program was co-founded by the Business Council of New Orleans with a view to “observing and reporting on whether the judges, prosecutors, public defenders are doing their jobs professionally, transparently and without wasting taxpayer resources”.

In the court watch program in the Netherlands, they discovered that one temporary magistrate had failed to declare his relationship with the defense counsel, being his colleague in the same chamber. As a result, the court rule was changed requiring all magistrates and judges to display their CVs in the public database of the judiciary.

Former top judge Henry Litton of the Court of Final Appeal warned in December 2015 that Hong Kong’s legal system had been “misused” and “drawing in irrelevance” and accused Hong Kong’s judiciary of “sleepwalking” toward 2047. He strongly urged discussion on the future need of the judiciary to start soon. I honestly hope his wise words have not fallen on deaf ears!