Heed the chief justice’s words to ease fears over Hong Kong’s judiciary
- Accusations of bias among judges have arisen amid protest-related cases, but there are mechanisms in place to handle complaints and no reason to assume bad faith
- If people listen to the chief justice and keep politics out of the courtroom, concerns about the independence of Hong Kong’s judiciary will diminish
The judiciary is fortunate, however, to have somebody in Chief Justice Geoffrey Ma Tao-li who is experienced and knows how to handle criticism. Although Ma has faced calls for judicial reform, he has himself always been a reformer.
For example, after Ma commissioned a review, the Judicial Studies Board was established in 2013 with a full-time staff. While Ma chairs its governing body and its daily operations are supervised by Mr Justice Poon Siu-tung, its role is to enhance judicial skills and knowledge by developing continuing education for judges and magistrates.
Apart from identifying specific training needs at each court level, organising seminars and visits and promoting judicial wellness, it provides useful research support for judicial officers. By all accounts, it has had a real impact on judicial effectiveness.
When bias is alleged, however, a sense of proportion is vital as only a few judicial officers are involved. There are 21 judges in the Court of Final Appeal, 14 in the Court of Appeal, 34 in the Court of First Instance and 39 in the District Court, and complaints against them are rare. There are also 56 full-time magistrates, five special magistrates and several deputy magistrates.
The number who have attracted criticism can be counted on the fingers of one hand. Of course, any judicial officer misbehaving is one too many, but this cannot be allowed to tarnish the reputation of a 170-strong judiciary.
Internal disciplinary mechanisms exist for individuals who misbehave, as in the civil service. If a judicial officer is found to have acted inappropriately, they may be counselled and a formal record kept, which could affect assignment of cases and future postings. If the failings are grave, formal proceedings to secure removal from office may be unavoidable.
He emphasised that “judges must not be influenced by political considerations of whatever nature in the discharge of their duty to apply the rule of law”. He also said some people level criticism simply because they dislike particular decisions, not because the actual process is flawed.
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In England and Wales, for example, there is a sentencing council which promulgates sentencing guidelines for particular offences. Although judges are normally expected to follow them, they can impose a higher or lower sentence than indicated if there is a good reason for doing so.
In Hong Kong, the Court of Appeal issues detailed sentencing guidelines for particular offences. In protest cases, for example, the court indicated higher sentences were appropriate if the offence was premeditated, large scale, there were many participants or a high level of violence, it resulted in damage, or it continued for a long time.
As a result, jail sentences of between four and seven years are now imposed on protesters, and they are having some deterrent effect. The guidelines have produced consistency throughout the trial courts, and they indicate which offences deserve heavy punishment.
The court made it clear public order offences were a real and growing concern and trial courts must respond appropriately. It also endorsed guidelines indicating unlawful assemblies must be deterred by judicial officers and, where they involve violence, there is a duty to impose tough penalties.
Although there is a right to bail, it can be denied if flight is a risk. Even if granted, chances of abscondment can be reduced if stringent conditions are imposed, such as reporting three times a day.
Given recent instances of flight, suspension of extradition treaties by several jurisdictions and the readiness of some countries to grant political asylum, it is vital that magistrates appreciate the situation. If the courts are not prepared to take judicial notice, the judiciary should arrange briefings by experts familiar with flight risks.
Grenville Cross is a criminal justice analyst