The sustainability of Hong Kong’s legal system – prospects for Hong Kong’s judicial independence
A speech delivered at a speaker luncheon of Hong Kong Democratic Foundation on 12 January 2010
Ladies and gentlemen, thank you very much indeed for inviting me here today. I’ve learned much about the Hong Kong Democratic Foundation during the course of this lunch, and in my talk I must bear in mind the high quality of the people that belong to your organization.
I am afraid that yesterday the Chief Justice, at the opening of the Legal Year stole most of my best lines. So if you want to know what I am going to say – just read his speech.
The Chief Justice yesterday indicated the importance of the independence of the judiciary and made the point that its independence is guaranteed to a large extent not so much by what it is in the Basic Law but by the fact that there has been no political interference in the nomination and appointment of judges. This is the most important point of all in my view. There have recently been a number of appointments of new judges. I know most of them. They come from different political backgrounds, different political fields. From the point view of the Bar, from the point of view of Hong Kong society generally, it is gratifying to know that there is no interference at all. If people are good enough, they become judges whatever their political views are.
So as far as the second point in the second part of my talk today – the prospects for judicial independence – I’d like to say to you that it looks good. We have been independent here – independent from Britain that is – since 1997 and China has stuck to what it said it would do, and that is not interfere with the judiciary. There is no indication that it is going to do anything different in the future. In my view the Chief Justice’s major achievement has been to ensure that the judiciary is held in the same high regard internationally – not just locally – as it was before.
I have known people overseas who have assumed that we are just part of China, we follow Chinese Law. Recently, I was in England and people said how did you manage to learn the Chinese Laws and what happens to you if you don’t speak Cantonese properly? This was asked of me by lawyers in England. People just don’t understand and it could so easily have transpired that the judicial system went in that direction. It hasn’t.
For those in the know and those who want to participate in Hong Kong life, people from overseas, investors etc., it is one of the most gratifying features of all to know that Hong Kong’s legal system is held in such high regard, as it was before and there is no sign that it’s going to change. Basically, this is what divides us from China. China’s got all the other things that make a nation great, so how can this little dot, on the back of China, retain its greatness? It is because of the legal system. Macau is different because it’s got casinos. We are different because of our legal system. And I think it will remain that way.
Stability and change
Now lawyers, in their general nature, are conservative people, we rely in court on precedents, which means if a judge said something before it must be right. So we’re conservative in that sense. In Hong Kong, bizarrely, we are more conservative than almost anywhere in the world, I think. Here we are part of China and yet we wear wigs in court. Very few countries in the world still have wigs. We dress up with robes, causing not laughter to other people but a raising of eyebrows. And we use strange and archaic language. In court, we call people “my lord”, “your worship” and things like that. Why do we do it? Because we’re conservative. That is the way it has always been; and I think after 1997, the authorities, the government and particularly the Chief Justice were particularly keen to maintain this old English system, to show the world that we are different; to show that world that we don’t have a People’s Court and that we are different from China.
The importance of that was emphasized by all the different speakers at the opening of the legal year yesterday – that we are different, that we are independent from the Executive. That is the fundamental difference between us and not only China but most other countries in Asia.
Although we are inherently conservative, the law changes and changes radically. Sometimes we hardly notice it. But let us take England, which since the Magna Carta of 1215 has had a system of law that is based on the absolute sovereignty of Parliament. This has changed with the accession to the European Community. Now England is subject to strange and unusual laws imposed by the European Community and is subject to the Court of Justice in The Hague. This has been a huge change in the law and huge change in how people see things. They now have a Supreme Court instead of a House of Lords.
In Hong Kong, we too have had enormous changes over the years. Before 1997, we had the Bill of Rights and suddenly for the first time, laws were measured against something other than the Letters Patent, which was a kind of free for all. One now has to see if a law conforms to the Bill of Rights. As to the Bill of Rights, my recollection is that this arose because of Tiananmen Square. We needed something to protect us. Frankly I don’t think the Bill of Rights can protect us against a Tiananmen Square, but there you are. I once said in a speech that the Bill of Rights only benefits drug traffickers and lawyers, but perhaps I was overly cynical because when the legislature looks at new legislation it has to look at the Bill of Rights. Now, after 1997, we have the Basic Law, and all laws now have to conform to it and that includes the Bill of Rights.
Changes are taking place. There is no doubt about that. We have had huge changes in our civil law reform. I believe there’s going to be enormous changes in the criminal law also. You see, people respect a law if they understand it. Our laws in my view are far too complex. I think Dickens said the law is an ass. Generally what he was talking about is the law of evidence and I don’t blame him. The law of evidence is basically impenetrable. Although we rely on precedents in trials, of course people have different views on what the law is. And do the judges get it wrong? Of course they do. That is why we have appeal courts. And it is only when we get to the Court of Final Appeal that we know what the law is.
My view is that eventually people will start to demand more certainty in the law. I was just talking to your vice-chairman Mr Cautherley about money-laundering offences. The law poses great difficulty for honest people, who comprise 95% of the population, who want to go about their lawful business without having to fill in millions of forms to show that they are not laundering money. These things are perhaps inevitable as a result of drug running and terrorism funding. But the law is too complicated and people will demand that it changes. I think the change has got to come from academics. Those teaching law have to encourage the simplicity of the legal system – that is where it has got to come from.
Convicting the innocent
There are many aspects of the law which could be changed quite easily. One of the things that concerns me as a defence lawyer is the fact that I know that there are many innocent people in prison. When I said that in a preface in Archbold (Law Journal) recently it caused great offence to the Judiciary but it is true. The fact is that there are innocent people in prison. And anybody who believes that only the guilty are convicted is very naive indeed.
In England, they have set up a Board that looks at long-term prisoners. With DNA developments recently, this has become very useful and DNA developments have freed people convicted of rape and murder. In England, a woman convicted of murdering her newborn child was shown to be innocent. They don’t have that kind of thing in Hong Kong. In America, it was started off through the universities. Students started looking at particular cases and examining them to see if the person was innocent. Obviously, most people are guilty. The ones that they look at tend to be those who have said all along that they were innocent.
I will give you an example. I was asked to go and see a person who was convicted in 1994 of murder. There was only one witness. That person had been caught by the police murdering somebody – it was a robbery. And he said if you give me immunity, I will tell you who I was with. Very stupidly, in my view, and I was in the Legal Department at the time, the person in charge said: all right, you tell us who was with you and we won’t prosecute. And he said: it was Mr. Chan. There was no forensic evidence against Mr. Chan – none, nothing. There was no evidence at all except for one man who said it was him. And the jury believed him. And it went on the Court of Appeal which said credibility was a jury issue: it is not for us to decide if he is guilty or innocent. The jury believed him. The Privy Council at the time said we are not going to deal with this simple matter of credibility – that is for the jury to decide. Perhaps they were right.
When I went to see this man, he said: look, I could have got out ages ago on parole but I will never get out because I will never say that I was guilty. I am an innocent man. I did not kill this person and I will stay in prison for the rest of my life because I am an innocent man. Perhaps he lied to me, I don’t know. But I believe that he was innocent. But there is no way now that it could possibly be determined at this late stage.
I think the Government needs to set up some kind of provision, to look at people who may be innocent and were wrongly convicted. We were talking about DNA which is very useful for old rape case and murder cases, etc. It is much more difficult when you are looking at commercial crime, when you are looking at corruption when people are convicted on the word of an accomplice. Accomplices are used too often in my view. But nevertheless, that is the way forward – something the Government should be looking at.
And when we are talking about the future of the legal system, I think it is very important indeed – it is essential in fact – that the community as a whole knows that only guilty people go to prison. The community would also be comforted by the fact, the knowledge that at least some independent bodies will look into it afterwards to see if in certain cases – not every case – that there was a genuine conviction.
Ladies and gentlemen, I will end on that complaining note and I shall be happy to take some questions.
Clive Grossman (郭兆銘)
General Editor of Archbold Hong Kong and Former Vice Chairman of Hong Kong Bar Association (Archbold Hong Kong總編輯及香港大律師公會前副主席)
12 January 2010
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