10/6/2010 2:04:47 AM EST
Not Entirely Legal - Part 27
Geoffrey Ma; cricket; political dimension; societal justification; Andrew Li; chief justice; common law judge; Peter McLellan; location of district court; reform
Posted by Malcolm Merry

Forward defensive

Our new chief justice seems to have been in good form at the press conference in the second week of September to mark his taking up of the post, batting away journalists’ questions with ease. Cricket-loving Geoffrey Ma played an easy forward defensive block to the inevitable question about implementation of Article 23 of the Basic Law, the anti-subversion legislation that has long been in limbo: not a matter for him, he explained, no idea what the administration is planning. He met with a seasoned straight bat an enquiry about political cases: politics is for politicians, judges deal with the law.

Except that judges don’t only deal with the law. They have to apply it to facts as well as interpreting it, and applying it often involves choices with a political tinge. Legislators throughout the common law world have long avoided difficult choices by delegating them to the wise men of the law, giving the judiciary discretion about what to do in difficult cases. In exercising such discretion, judges often resort to policy reasons, though they rarely call them that.

Interpretation too can have a political dimension. This is particularly so with constitutional and bill of rights issues where the striking of a balance between the interests of the individual and those of the community is often called for. As a trial judge and later as chief judge of the High Court, Ma CJ will be well aware of that. Public lawyers dress this political exercise up in phrases such as “proportionality” or “societal justification”.

Remember the case about the power of the police to require that a car owner tell them who was driving his car at a particular time? To many, the trial magistrate included, that was an infringement of the right against self-incrimination. If striking it down was administratively inconvenient or a blow to order and good government, the answer was to redraft the law or try a different approach such as attaching the penalty to the car rather than the driver.

Yet to the law-abiding general community, the law would not have seemed overly oppressive. We had lived with that law for decades. Who knows what chaos may have reigned on the roads if the power had disappeared. Pragmatism pointed towards letting it remain.

But judges are not allowed to do pragmatism, at least not overtly. The rules of the judicial game demand that there be reasons other than that the end justifies the means. It is then that the court has to descend to policy justifications for its conclusion.

So, in the driver’s case, we were told by the appeal court that road conditions in Hong Kong were different, our roads narrow and crowded, which meant that overseas precedents were distinguishable. That’s just the sort of justification one would expect to hear from a government minister. There’s no law in it but quite a bit of politics. Whether it’s factually correct is a question that those with experience of driving in other places in addition to Hong Kong would be able to answer as well as, perhaps better than, chauffeur-driven, island-centric judges. And if that’s the case, you can be sure it’s not law but something else.

First wicket down

As a follower of test cricket the new chief justice will be aware that one of the most difficult positions is that of the batsman who comes in at the end of a long and successful opening stand. It is almost impossible for the new man to perform better than that which has gone before. Statistics suggest that he often fails, a second wicket going down soon after the first. The best that realistically can be hoped for is that he plays a consolidating innings.

The now-retired Andrew Li did indeed play a very good opening knock and will be the proverbial hard act to follow. That was in part because in 1997 everything being new, there were no expectations to live up to and lots of apprehension about what might follow. On sensitive questions Li CJ proved principled and liberal, which was just the right approach for the times. Of course he was helped by the government’s panicked, and as it transpired quite unnecessary, reference of the right-of-abode issue to Peking, which made the judges appear even more the defenders of liberty against dictation. The current secretary for justice is unlikely to oblige the new chief in this way.

On the surface at least the Geoffrey Ma rather resembles his predecessor: high-quality English education and training, Hong Kong barrister with lucrative civil practice, head of a long-established set of chambers, rather formal with conventional tastes, widely respected. This points to more of the same. Yet the characters of the two chief justices are, inevitably, different. The more extrovert new chief is unlikely to opt for steady-as-she-goes. He may see his role as opening partner rather than next man in.

A few modest aims

What might Ma CJ hope to achieve then during his tenure? Civil justice reform and mediation, those twin themes of the last few years, seem certain to feature. Dare I suggest that more would be achieved on both those fronts if a more focused approach were adopted?

The impact of the changes in procedure has been mild. This is in part because everyone is still feeling the way but also because the changes were somewhat limited. There was nothing for instance about that great cost cow, disclosure of documents. Still less was there any move towards a docket system in which the judge who is to be in charge of the trial becomes involved from a very early stage and can intervene in the case’s progress confident that he or she knows the facts well and will benefit from pushing the case forward.

Listening to the chief common law judge from New South Wales, Peter McLellan, speaking at the HKU 40th anniversary conference earlier this year one realized that our changes in the rules regarding expert evidence have been unambitious indeed. The then chief justice putative was taking avid notes. My observation is that experts pay lip service to the new code whilst continuing with the practice of being advocates for their client’s interest.

As for mediation, there were signs at the conference that the tide is turning and the passionate and exaggerated claims for this method of resolving disputes are dissipating. It is a useful and sensible step which can save clients of modest and intermediate means from disputes that they cannot afford and can also release large commercial organisations from the grip of the lawyers, but is far from the comprehensive replacement for litigation that the mediation-pushers proclaim. Nor is litigation always a bad thing, especially in test cases and on points of principle.

Centralisation in excess

Another suggestion is that the judiciary should press the government to allow the district court to sit in the northern part of the SAR. The “new towns” at Taipo, Sheung Shiu, Yuen Long and Tin Shui Wai are in reality well-established, substantial cities with populations of around half-a-million each. In other jurisdictions they would be major provincial centres with their own court houses. Yet all they have is the magistracy at Fanling: not a civil court to be seen. It’s the same in the east, at Tseung Kwan O and Ma On Shan.

It approaches absurdity that litigants from these cities and their environs should be obliged to travel to Hong Kong Island to receive justice. The anomaly will only increase as the commercial gravity, and population, of the SAR shifts towards Shumchun. As I’ve pointed out before, a district court that does not sit in the districts is a contradiction in terms.

Yuen Long would be an ideal location for a New Territories District Court building. It is now linked to Kowloon, Kam Tin, Ping Shan, Tin Shui Wai and Tuen Mun by a fast and efficient railway service; the light rail connects it to local districts and villages. An expressway leads to Sheung Shui, Taipo and Shatin. The border lies only a little to the north with a long bridge over to Shumchun Bay.

If the administration baulks at the cost, the judiciary could at least reinstitute the district court at the Shatin Law Courts and start civil sittings at one of the court rooms in the large, impressive and relatively new Fanling court building. Taking justice to the people, no mean aim for the head of the judiciary,s does not just mean extending legal aid and free representation.

Opening up the silk road

The post of chief justice carries a certain amount of patronage, none more than in respect of appointment of senior counsel. Ma CJ will no doubt be the first to promote a solicitor-advocate to that status, although perhaps not so soon as Huen Wong, President of the Law Society, seems to be hoping.

The previous chief justice revamped the system, bringing it up to 1980s standard at least, but to nothing like the degree of transformation in England. There the taking of silk is now regarded as essentially a matter for the applicant: is he or she prepared to take the risk? Consequently more or less any established advocate can apply with confident expectation of approval.

The whole system there is transparent. A few years ago one counsel whose application had been constantly turned down judicially reviewed a refusal to let him see the comments on his application and was successful. As a result he discovered that his rejections were the result of false information recorded on his file.

Reform of the system in Hong Kong would require both self-abnegation of power and an opening up of process. All very 21st century. Over to you, chief.


Malcolm Merry is Associate Professor of Law at the University of Hong Kong and a Hong Kong barrister. He is the author of Hong Kong Tenancy Law (5th ed, LexisNexis 2010) and co-author (with Paul Kent) of Building Management in Hong Kong (2nd ed, LexisNexis 2008).

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