Last Wednesday The Honourable Justice Henry Litton, former Chairman of the Hong Kong Bar Association and retired Court of Final Appeal judge, gave a speech at the Foreign Correspondents' Club [video recording]. It was predictably controversial in the local Chinese and English press, and was replied to by politicians and commentators of various stripes.
This is my attempt to add to that debate. I am not a lawyer and have no formal legal training whatsoever. I write from a layman's perspective. I may make errors in my transcriptions, and I apologise in advance shall any arise.
2. Mr Litton seems to believe the Chinese government would like to see the legal system to be more approachable to the local Chinese population . There is no evidence for that. In contrary, Hong Kong's value lies in being the place where China can deal with the rest of the world; if the legal system could serve this better by remaining operating in English, then that is where Chinese interest lies too. Yet Henry Litton suggested that
3. He certainly thought the current court operation inefficient or even inappropriate. He recalled 1995 case of Hui Kin-Hong (許健康). Hui, a civil servant in the Lands Department at the time, was charged of possession of unexplained property, and hence in breach of s. 10 of the Prevention of Bribery Ordinance. Hui then applied for judicial review on the grounds that the relevant section were inconsistent with the Bill of Rights and should be struck down, as the charged officials were presumed to be guilty unless they explain the source of their property to the court's satisfaction. Henry Litton then recalled, as he sat at the Court of Appeal then, he only considered the history and actual conditions of Hong Kong, and did not look for persuasive precedents from all around the world. The judgment, written by Kemal Bokhary, was only eight pages long.
I do not think this is a fair comparison. As Henry Litton himself noted, in 1995, there were 'no trumpets, no fanfare, just the ordinary work of an appellate court'. That world, in which a judge of European extraction could just outline the rationale behind his judgment in a few pages, is long behind us. The Hong Kong society now demands more from the judiciary - in particular in cases with a high level of public interest. It is only reasonable for judges to be more detailed in their writing and consult relevant precedents in other jurisdictions more widely. After all, justice has to be seen to be done.
4. Around two thirds of his speech then used the proliferation of judicial review as an example that Hong Kong's legal system has become flabby and slow. As I understand from his speech, applicants for judicial review must first obtain leave to do so from a judge at the Court of First Instance, and such leave should only be granted if there were an arguable case.
He was critical of the approach the responsible judges took in three recent proposed JR applications - TVB's application with regards to granting new television licences, and Kwok Cheuk-Kin (郭卓堅) and Yvonne Leung's (梁麗幗) applications in connection to the first and second stage public consultation in the political reform process respectively. In all three cases, the responsible judge summoned the lawyers of both the applicant and the putative respondents to a hearing, and to argue whether there were a reasonably arguable case. He considered this unnecessary and inefficient - if there were no arguable case, then it should be summarily dismissed with a single paragraph. In his words, 'zero adds up to zero'.
But should the judge have done what he suggested, what would the judiciary become in the public's eyes? Again, justice has to be seen to be done, especially in judicial review cases where the local society has divergent views on. It remains puzzling to me that Henry Litton, one of the most respected former judges of Hong Kong, seemed to be quite willing to risk public confidence in the judiciary for some efficiency savings in court time. To do so would be an error, and would not add value to the Hong Kong legal system in the eyes of China or anyone.
5. He alleged that Yvonne Leung's application for judicial review was just an act of grandstanding, has no arguable case, and the court's hearings were a waste of time, and such act should be condemned by court. While I concur that Miss Leung's act was mainly grandstanding, I cannot see why a summary dismissal or even a condemnation by the court would boost public confidence in the judiciary. In politically controversial cases such as this one, it is commendable that the court has chosen to err on the side of caution, and chose inefficiency over potential perception of unfairness.
6. He also said, in what sounded to me a light-hearted bad joke that nobody laughed on the spot, that Yvonne Leung might have wanted to put the fact that she had sued the Chief Executive into her CV. What Henry Litton meant was that the object of JR, the second-round consultation on political reform, was undertaken by the three-person Taskforce on Political Development - the Chief Secretary, the Secretary of Justice, and the Secretary for Constitutional and Mainland Affairs, and the CE should not be listed as a putative respondent. But as the judgment set out, Miss Leung did not list the Chief Executive as a putative respondent; she listed him as a putative interested party. Instead of dealing a fatal blow against the former president of HKUSU, the Honourable Justice seems to have hit a straw man instead.
The emphasis that so many media from both sides of the spectrum attached to this remark, and their failure to check the facts, reflects the sorry state of the press in Hong Kong today.
7. Towards the end of his speech The Honourable Justice made a disheartening remark with regards to the 2011 judicial review case on the environmental impact assessment around the Hong Kong–Zhuhai–Macau Bridge project. In his own words,
8. His conclusion is worth repeating too.
9. On an unrelated point - the impact of the economic policy adopted by successive Hong Kong governments in the last 30 years was described by the Honourable Justice so eloquently:
And this elitist, condescending, 'I know better than thou' attitude of an older day is exactly what Hong Kong has to move forward from.
P.S. I would like to thank Valerie CHAN, Chun Ho LAI, and MUK Lam for the kindly discussions. All errors are mine.
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This is my attempt to add to that debate. I am not a lawyer and have no formal legal training whatsoever. I write from a layman's perspective. I may make errors in my transcriptions, and I apologise in advance shall any arise.
1. Curiously, the local media of both affiliations and languages chose to downplay or even omit Henry Litton's key message: after 2047 the international guarantees will lapse. Hong Kong's Basic Law, legal system, and way of life will be a matter of grace for the Chinese legislature. In his own words,
"What has Hong Kong got to offer? When such discussions about the future of Hong Kong [beyond 2047] once again take place, there will be some who will argue that English should cease to be an official language, and if at that time the common law system is seen to be flabby, slow, costly, pedantic, obscure, the question will be asked how can such a system be put forward as a model for a global financial and business centre... [By then] Hong Kong will then be on its own. There will not be another sovereign power alongside, contending for the continuation of our governing system and lifestyle, as Britain did in 1983."Mr Litton was right to point out this grave matter. That is, unless there were to be drastic changes to the body politic of China in the next 32 years, Hong Kong will have to show China that preserving its socioeconomic system will bring China more benefit than cost. But while he identified the disease, his diagnosis of where Chinese interest lies was sometimes tangential, and as we would see, as a result his prescriptions may not be the most appropriate.
2. Mr Litton seems to believe the Chinese government would like to see the legal system to be more approachable to the local Chinese population . There is no evidence for that. In contrary, Hong Kong's value lies in being the place where China can deal with the rest of the world; if the legal system could serve this better by remaining operating in English, then that is where Chinese interest lies too. Yet Henry Litton suggested that
"...some 80% of the population governed by the common law do not speak English... the judgments handed down by the court should be brief, direct, written in simple English so that they can, if necessary, be translated into Chinese. Obscurity spells injustice."He then went on to note that in a certain recent judicial review (JR) case, the High Court referred to persuasive precedents from jurisdictions as far as Nigeria, Lesotho, and South Africa, and asked how the judgment could possibly be translated into Chinese. This comment is intriguing. Should the African precedents be not persuasive, then the critique should be directed to the line of reasoning, not translatability; should they be persuasive, then they should be referred to. The technical difficulty he noted - translation into Chinese - is hardly material in the face of persuasive precedents that should be rightly cited, no matter wherefrom. It could easily be surmounted by adding footnotes to the Chinese version of the judgment that briefly describe the underlying cases.
3. He certainly thought the current court operation inefficient or even inappropriate. He recalled 1995 case of Hui Kin-Hong (許健康). Hui, a civil servant in the Lands Department at the time, was charged of possession of unexplained property, and hence in breach of s. 10 of the Prevention of Bribery Ordinance. Hui then applied for judicial review on the grounds that the relevant section were inconsistent with the Bill of Rights and should be struck down, as the charged officials were presumed to be guilty unless they explain the source of their property to the court's satisfaction. Henry Litton then recalled, as he sat at the Court of Appeal then, he only considered the history and actual conditions of Hong Kong, and did not look for persuasive precedents from all around the world. The judgment, written by Kemal Bokhary, was only eight pages long.
I do not think this is a fair comparison. As Henry Litton himself noted, in 1995, there were 'no trumpets, no fanfare, just the ordinary work of an appellate court'. That world, in which a judge of European extraction could just outline the rationale behind his judgment in a few pages, is long behind us. The Hong Kong society now demands more from the judiciary - in particular in cases with a high level of public interest. It is only reasonable for judges to be more detailed in their writing and consult relevant precedents in other jurisdictions more widely. After all, justice has to be seen to be done.
4. Around two thirds of his speech then used the proliferation of judicial review as an example that Hong Kong's legal system has become flabby and slow. As I understand from his speech, applicants for judicial review must first obtain leave to do so from a judge at the Court of First Instance, and such leave should only be granted if there were an arguable case.
He was critical of the approach the responsible judges took in three recent proposed JR applications - TVB's application with regards to granting new television licences, and Kwok Cheuk-Kin (郭卓堅) and Yvonne Leung's (梁麗幗) applications in connection to the first and second stage public consultation in the political reform process respectively. In all three cases, the responsible judge summoned the lawyers of both the applicant and the putative respondents to a hearing, and to argue whether there were a reasonably arguable case. He considered this unnecessary and inefficient - if there were no arguable case, then it should be summarily dismissed with a single paragraph. In his words, 'zero adds up to zero'.
But should the judge have done what he suggested, what would the judiciary become in the public's eyes? Again, justice has to be seen to be done, especially in judicial review cases where the local society has divergent views on. It remains puzzling to me that Henry Litton, one of the most respected former judges of Hong Kong, seemed to be quite willing to risk public confidence in the judiciary for some efficiency savings in court time. To do so would be an error, and would not add value to the Hong Kong legal system in the eyes of China or anyone.
5. He alleged that Yvonne Leung's application for judicial review was just an act of grandstanding, has no arguable case, and the court's hearings were a waste of time, and such act should be condemned by court. While I concur that Miss Leung's act was mainly grandstanding, I cannot see why a summary dismissal or even a condemnation by the court would boost public confidence in the judiciary. In politically controversial cases such as this one, it is commendable that the court has chosen to err on the side of caution, and chose inefficiency over potential perception of unfairness.
6. He also said, in what sounded to me a light-hearted bad joke that nobody laughed on the spot, that Yvonne Leung might have wanted to put the fact that she had sued the Chief Executive into her CV. What Henry Litton meant was that the object of JR, the second-round consultation on political reform, was undertaken by the three-person Taskforce on Political Development - the Chief Secretary, the Secretary of Justice, and the Secretary for Constitutional and Mainland Affairs, and the CE should not be listed as a putative respondent. But as the judgment set out, Miss Leung did not list the Chief Executive as a putative respondent; she listed him as a putative interested party. Instead of dealing a fatal blow against the former president of HKUSU, the Honourable Justice seems to have hit a straw man instead.
The emphasis that so many media from both sides of the spectrum attached to this remark, and their failure to check the facts, reflects the sorry state of the press in Hong Kong today.
7. Towards the end of his speech The Honourable Justice made a disheartening remark with regards to the 2011 judicial review case on the environmental impact assessment around the Hong Kong–Zhuhai–Macau Bridge project. In his own words,
"... The judgments are so obscure that no one can understands them. Yet if there's one thing that symbolises the relationship between Hong Kong and the Mainland, it would be that bridge. Delay on the Hong Kong end must have had impact on the project as a whole. How was this explained to the Mainland authorities concerned?"The Honourable Justice may well consider the case vexatious, not reasonably arguable, or should simply be summarily dismissed at the first instance. But the quote above is the thin end of the wedge. It is akin to suggesting that apart from considering the relative merits of the arguments that the parties presented, the court should also take into account the reaction of some authorities in a neighbouring jurisdiction. Should this become the prevalent view in Hong Kong's appellate courts, what would become of the public and international confidence that the judiciary currently enjoy?
8. His conclusion is worth repeating too.
"The legal system in many instances is wrapped in obscurity, clothed in mumble-jumble, suffocating under citations, and drowning in irrelevance. The question - the harsh question - must be asked. Is the Hong Kong judiciary sleepwalking towards 2047, wandering in a dream world of its own, a world of authorities, legal texts, precedents, black letter laws, as if those were the entire substance and reality that exist, detached from the people whose only language is Chinese? ... As 2047 closes in, what Hong Kong needs is present to the world as a robust, vigorous legal system, one that is clear-cut, expressed in language easily understood."I agree and fully support that the Hong Kong judiciary should modernise, use Chinese more, and conduct its proceedings in a way that is more accessible to the general public. On the other hand, the Hong Kong legal system should also remain valuable to the Chinese government, so that its preservation could be justified beyond 2047. But these are two important yet distinct issues. The former is a reform that has been long overdue; come 2047 or not, the system should stop alienating members of the public who are not proficient in English as soon as possible. On the other hand, whether China has an interest in preserving the common law system has everything to do with its commercial and political considerations, and very little to do with whether it were approachable to the local ethnic Chinese population or not. We should not confuse one important question with another.
9. On an unrelated point - the impact of the economic policy adopted by successive Hong Kong governments in the last 30 years was described by the Honourable Justice so eloquently:
"We don't have gas, oil, minerals, [or] coal; we have no industry to speak of; the verdant rice fields of Shatin, Tai Po, and Yuen Long are long gone; our seas are cleared of fish; we import water from the East River and electricity from Daya Bay."10. A final note. Despite all of Mr Litton's suggestions for moving forward and change, the whole affair sounded more like a far echo from a bygone era. His view that judges should just hand down judgments without fully explaining their line of reasoning even in the most controversial cases is unmistakably colonial. In a mirror image of how local ethnic Chinese often failed to differentiate the divergent agendas of the British Government in London, the colonial service officials in Hong Kong, and local merchants of British descent such as the Swire and Keswick families - lumping them under the 'British' bracket - the Honourable Justice might have inadvertently made the mistake of equating the Chinese government's interest with that of the monolingual Chinese-speaking residents of Hong Kong. This is unlikely to be the case. Even the setting was that of the yesteryear: what could be more nostalgic than a former judge of Eurasian descent delivering a speech in English in, of all places, the Foreign Correspondents' Club?
And this elitist, condescending, 'I know better than thou' attitude of an older day is exactly what Hong Kong has to move forward from.
P.S. I would like to thank Valerie CHAN, Chun Ho LAI, and MUK Lam for the kindly discussions. All errors are mine.
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