Bench Press
In the eight and a half years I led InvestHK, the major factor we always put front and centre in our pitch to potential foreign investors was Hong Kong’s legal system. Rule of law, use of common law, innocent until proven guilty in criminal cases, respect for private property rights including intellectual property, enforceability of contracts etc, all administered by an independent judiciary. In the annual opinion surveys we conducted asking foreign companies why they had set up here and what they most liked, the legal system came top of the polls year after year, neck and neck with our low and simple tax system.
Because the legal system is at the heart of Hong Kong’s success as an international financial and business centre, and because Hong Kong’s strength is so important to the future development of China, so it is that those who wish China ill must turn their big guns against us, in particular against our judiciary. It explains why the United States has sanctioned some of our judges and runs a non-stop barrage of false criticisms. It explains why the British government – little more than an adjunct to Washington these days – instructed two of their own judges to quit our Court of Final Appeal.
At the ceremony last week to mark the opening of the new legal year, Chief Justice Andrew Cheung Kui-nung referred to the orchestrated harassment and pressures some judges had faced. But he assured the public that the quality of the judiciary and its independence had not weakened. He regretted the departure of some of the overseas non-permanent judges who sit on the top court. Recruiting replacements would be tough in the current geopolitical environment. But even without them our legal system would be robust as we had a large pool of qualified legal professionals steeped in the common law.
The outgoing chairman of the Bar Association, Senior Counsel Victor Dawes, described our judges as first class and urged the public to have confidence in their performance. He also had two pieces of advice for the authorities. First, he urged greater transparency and more explanations from the government when it was implementing national security legislation. This would help the public understand better what was happening and reduce any misperceptions. This was particularly important in any case involving politicians or journalists as they were bound to attract more attention. Secondly, he urged the government to strike a better balance between economic and security aspects in its public statements.
I cannot agree more with Dawes on this point. The constant harping on about national security and dragging the subject into discussion of other issues creates the false impression that Hong Kong is a hotbed of dissension with a population on the brink of insurrection. It isn’t and we aren’t. Yet repeated comments in this area risk creating or at least supporting a false narrative with adverse effects on our economic messaging. Even potential visitors are entitled to wonder if Hong Kong is still a safe place to visit. We shouldn’t be spooking the horses.
The latest example of this is the response to Trump’s inauguration, welcoming the possibility of improved ties while at the same time putting down a marker against “political interference or inappropriate actions”. In the context of previous communications that can only be a reference to national security legislation and ongoing court cases. What exactly did that comment add to the conversation?
Both Cheung and Dawes pointed out something that should be obvious but is often overlooked: the vast majority of cases before our courts have nothing whatever to do with national security.
While our legal heavyweights are clear that our judicial system is generally working well and our judges are of high quality, there is always room for improvement. Indeed in recent years the chief justice has made changes to improve various aspects in such areas as dealing with public complaints, revising the code of conduct for judicial officers and updating the appraisal system.
There are two features of our existing system that we should try to maintain for as long and as best we can. They are Judicial Review (JR) and trial by jury. The first is not popular with governments because it implies that the administration in a particular case might not have been perfect. Nobody likes to admit that. Moreover a JR can lead to delay in a particular project and in some cases result in additional cost.
Yet in our hearts we know the simple truth is the administration does sometimes cut corners and occasionally someone leaves a finger on the scales to tip the balance in favour of a particular outcome. The possibility of a wronged individual seeking a Judicial Review is an essential safeguard. Responsibility for delay or additional cost should be laid at the feet of those who cut the corners or left the finger on the scales, not the litigant.
Trial by jury may not be popular with law enforcement agencies for the same reason. To spend weeks, sometimes months on a case carefully assembling evidence only to have it thrown out because a group of civilians were persuaded otherwise by a smooth-talking lawyer, or a witness was prepared to commit perjury under oath, can be very frustrating.
Sometimes trial by jury may not be suitable in a particular case because a fair outcome is seriously at risk, for example where organised crime is involved with large sums and there is a danger of corruption or intimidation. Or where a case has political overtones and the community is divided and passionate.
In such cases trial by one or more judges sitting together is safer for all concerned. But hopefully these can be kept to a minimum.