Hong Kong urgently needs to improve its legal and judicial system

Any Hong Kong resident who cares about the governance of the Hong Kong Special Administrative Region cannot help but be drawn to a very important sentence in the full text of the 20th Communist Party of China National Congress Report delivered by President Xi Jinping. It states in the chapter on “one country, two systems”, inter alia, that “the Hong Kong SAR needs to improve its legal and judicial system to attain perfection” (or “wanshan” in Chinese).

Seasoned political commentator Professor Lau Siu-kai suggested that by “improvement”, it means that the “patriots ruling Hong Kong” concept should extend to the Judiciary, and judges should consider themselves part of the governance system in the SAR. Executive Councilor and Senior Counsel Ronny Tong Ka-wah suggested that the report refers to the need for improvement in our legal system and the Judiciary’s established procedures, but not on the common law system.

Some political analysts noted that this sentence was not in the 19th National Congress Report in 2017 and hence something must have happened between then and now that triggered the need for its inclusion in this very important report. 

A reasoned conjecture would point to the 2019 social unrest and subsequent insurrection violence that exposed all the weaknesses of our legal system and judicial procedures, such as the huge backlog of prosecution cases; the obvious political bias of many magistrates and judges favoring the rioters with their preposterous acquittal verdicts, or dishing out the disproportionately lenient noncustodial sentences for serious riot offenses, or allowing them bail, thereby facilitating their absconding overseas; the generous legal aid given to rioters, which inevitably went into the pockets of anti-establishment lawyers; and the public complaints against judicial officers, which were never seen to be acted upon. 

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Since then, there has been a strong public outcry demanding a full Judiciary review to enhance its public accountability and transparency.

There is no doubt that our much-abused JR and legal-aid system rank among those areas that, in the eyes of the central government, need serious improvements and a drastic overhaul

Indeed, the recent judicial review (JR) on the medical-exemption certificates case highlights several areas of huge concern. The first question that the public wants to know is why Kwok Cheuk-kin, a well-known serial litigant in JR cases, succeeds in securing legal aid, which is funded entirely by taxpayers money, when he had already sought JRs on government decisions in over 90 cases in the past 16 years, with most cases criticized by the court as an abuse of process. And he has been ordered to pay court costs. As a result, he now owes the government over HK$50 million ($6.37 million) and was declared bankrupt. 

In September, 2017, the Legal Aid Department blacklisted him for three years from any application for legal aid. Most importantly, he had himself taken three doses of COVID-19 vaccines and is not one of the holders of the medical-exemption certificates. In other words, the government’s decision to ban the certificates had nothing to do with him and does not affect him at all. Based on the principle of “locus standi”, the judge, Justice Russell Coleman, should have rejected his application for JR. 

The only people who are entitled in this case to initiate a JR are those holders of the exemption certificates. The fact that none of them had come forward strongly suggests that they knew their certificates were fake and hence would not dare to expose themselves to police investigation!

Yet when the Legal Aid Department rightly turned down Kwok’s application for legal aid, another High Court judge in the chamber overturned the department’s decision. This particular hearing was held in secrecy in the chamber, and the judge did not even publish the reason for his decision for public scrutiny. But the worst part is, the judge’s discretionary decision cannot be appealed. Where is the public transparency and accountability that should be the hallmark of a just and open judicial system?

The significance of this case is that it has set a dangerous precedent in allowing any person in future to seek legal aid to challenge any government decision, even though the government decision does not directly affect him or her! This contradictory state opens the Pandora’s box, in principle, to endless irrational confrontational conflicts initiated by mean-spirited litigants through their abuse of the JR process. 

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It can literally put many major government projects on the line, along with the 110 key performance indicators, as announced by John Lee Ka-chiu in his first Policy Address. They would now become tempting targets for JRs instigated by any remaining opposition with the potential of causing project delays, resulting in massive cost overruns due to inflation. 

The ease with which JRs can be obtained have abundantly been demonstrated when the so-called “pan-democrats” dominated the Legislative Council. All they need to do is to get an unemployed person to do the dirty work for them by first seeking legal aid, who would not have to bear any financial liability.

We don’t need British judges to tell us what the government can or cannot do. Some of them might even be regarded as potential security risks for their former service in the foreign military. The Judicial Officers Recommendation Committee should be required to explain to the public why any foreign judges should be appointed in future

One should not forget the JR case which temporarily paralyzed the construction of the Hong Kong-Zhuhai-Macao Bridge, where the opposition put up an elderly female recipient of social welfare to apply for and was granted legal aid, objecting to its construction. Her JR application was granted by a British judge. This resulted in a one-year delay of the project, and financial loss to the tune of HK$8.8 billion! 

The other JR case with profound negative implications occurred when the 2019 social unrest was at its peak. High Court Judge Anderson Chow Ka-ming sided with the Hong Kong Journalists Association’s JR in ruling that the riot police officers’ failure to display their identification numbers and the police complaint system had both contravened the Bill of Rights Ordinance! 

It inflicted massive damage to police morale at a time when society needed their protection the most. The same judge had earlier ruled that the Emergency Regulations Ordinance was against the Basic Law. But fortunately, it was later overturned by the Court of Appeal. Otherwise, the damage would have been unthinkable!

There is no doubt that our much-abused JR and legal-aid system rank among those areas that, in the eyes of the central government, need serious improvements and a drastic overhaul. Indeed, one of our most eminent legal practitioners, Henry Litton, a retired judge of the Court of Final Appeal, had publicly criticized the abuse of the JR system and had openly called for a major review of the Judiciary. In my view, one simple way forward is to adopt the recommendation of the 2014 UK legal aid review, which required all legal aid applicants to prove that they are a real victim of a government decision that causes “life or liberty to be at stake” before JR and legal aid can be approved. Why is this simple and effective deterrence not adopted?

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One of the main problems of the Judiciary is that many of the consequential court decisions, such as those affecting the JR and legal aid application hearings mentioned above, are made by a judge acting alone based entirely on his personal wisdom as well as bias. And their decisions, in most cases, are not appealable, despite the massive impact of their decisions on the society as a whole.

Another classic example of a single judge making questionable decisions with long-term deleterious social impacts took place during the 2019 insurrection, when the magistrates had rightly refused bail to the rioters, but their decisions were reversed by High Court judges who acted alone in chambers, without the need to give any reasons, and again, their decisions are not appealable. 

This resulted in many of the rioters, radical activists and opposition leaders absconding by seeking refuge overseas and beyond the reach of our laws. They included Ray Wong Toi-yeung, Ted Hui Chi-fung, Nathan Law Kwun-chung, Sunny Cheung Kwan-yang, Wayne Chan Ka-kui and Sixtus Leung Chung-hang, many of them have now carried on with their virulent political agitation maligning the central government and the HKSAR government while actively collaborating with foreign politicians in carrying out their malevolent deeds and subversive activities.

One further example is the recent case in which High Court Judge Jeremy Poon Shiu-chor granted an application for a barrister from the UK to represent Jimmy Lai Chee-ying, the publisher of the defunct Apple Daily, in the forthcoming national security trial, which is scheduled to start on Dec 1. Lai is currently facing three charges under the National Security Law for Hong Kong — two counts of conspiracy to collude with foreign countries or external elements, and one count of collusion with foreign forces.

The principle governing the hiring of foreign barristers to handle trials in Hong Kong is simple: that the expertise is not available locally, and the issues involved in the case were of unusual difficulty or complexity.

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It defies common sense to suggest that a British counsel has greater expertise than a Hong Kong-based lawyer in interpreting the National Security Law, which was drafted and passed by the Standing Committee of the National People’s Congress of China, based on the Chinese continental law system! Despite the strong objection from the secretary for justice and the Hong Kong Bar Association, the High Court judge still granted the application in favor of Jimmy Lai. 

What is even more perplexing is that the judge was quoted as saying, “There are issues which would arise during the trial, such as how the National Security Law should be understood in relation to freedom of expression.” How the National Security Law should be understood must be based on the expert knowledge of the mainland legal system and its law drafting principle, in which the UK counsel can hardly claim greater expertise than his Hong Kong counterparts!

We all know the likely consequence of the judge’s decision in allowing the UK counsel to represent Lai in the trial. The UK counsel would play to the gallery and lionize his client as “a champion of free speech and democracy” and picture the National Security Law as the iron fist bent on “smashing all liberties and democratic aspirations in Hong Kong, in infringement of universally recognized human rights and democracy”. 

Needless to say, the international media would lap it up, and have a field day bashing China as the villain behind Lai’s misfortune.

It is absolutely possible that if all of the above-mentioned cases are heard before a different judge, the results may well be very different. It is time that the Judiciary should consider reducing the risk of having one single judge making monumental decisions that could have wide-ranging and long-term impacts to our society. 

The best option now is for the chief justice to grab the bull by the horns to form a widely representative Judiciary review committee to examine and to propose improvements to its systems and procedures, to enhance its transparency and public accountability, and as such, comply with the directive of the 20th National Congress

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One remedy is to introduce a speedy appeal process, and the other is to adopt the mainland practice of having a three-judge court making collective decisions. Indeed, this practice has already been adopted in the High Court trials for national security offenses in lieu of a jury, and it has been working well.

As Professor Lau pointed out, it is time the “patriots administering Hong Kong” concept be extended to our Judiciary. Twenty-five years after the reunification, it is time for our judicial community to be our own master and determine our own unique judicial system and practice, as pointed out by the Legal Functional Constituency representative legislator, Ambrose Lam San-keung. 

We don’t need British judges to tell us what the government can or cannot do. Some of them might even be regarded as potential security risks for their former service in the foreign military. The Judicial Officers Recommendation Committee should be required to explain to the public why any foreign judges should be appointed in future. The expertise of foreign judges, if still valued, should stay in the civil litigation division to enhance international business confidence, and that’s all!

Of course, we all treasure the importance of the independence of our Judiciary, but that does not mean that they can continue to be complacent to resist changes, and continue their way of doing things as practiced in the colonial era. 

The current chief justice, Mr Andrew Cheung Kui-nung, has initiated some laudable improvements, such as the revamping of the public complaint committee, the introduction of the revised code of conduct for judicial officers and the staff appraisal system, and putting the house more in line with the new administration’s emphasis on efficiency and results-focused.

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However, more needs to be done. The best option now is for the chief justice to grab the bull by the horns to form a widely representative Judiciary review committee to examine and to propose improvements to its systems and procedures, to enhance its transparency and public accountability, and as such, comply with the directive of the 20th National Congress. And there is something that can be done immediately to drive the message home. How about the abolition of the archaic practice of requiring lawyers to wear furry wigs and theatrical costumes to appear before them, thereby inspiring giggles and ridicule among countless bemused Chinese citizens.

The author is an adjunct professor of HKU Space and a council member of the Chinese Association of Hong Kong and Macao Studies.

The views do not necessarily reflect those of China Daily.