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Thursday, September 24, 2020, 09:11
Criticizing judges: Complaints procedures and higher standards
By Grenville Cross
Thursday, September 24, 2020, 09:11 By Grenville Cross

After a 15-year-old youth was sentenced on May 26 to 18 months’ probation for the offenses of arson and possession of materials with intent to destroy or damage property, the secretary for justice, Teresa Cheng Yeuk-wah, invited the Court of Appeal to review the sentence, arguing that it was manifestly inadequate (CAAR 1/2020). The defendant had pleaded guilty at Tuen Mun Court to hurling three petrol bombs on Fung Cheung Road in Yuen Long at around 1 am on Jan 8, for which his explanation was that he wanted to express his discontent with the government and test his homemade explosives.

When sentencing him, the magistrate, Kelly Shui, told the defendant that he was one of the “outstanding” youths who came before the court, and that she believed “you genuinely care about Hong Kong”, which, like the sentence, struck some observers as strange. Before the Court of Appeal, prosecutors contended that Shui had placed undue weight on his age and the need for rehabilitation, while underplaying the gravity of the offenses and the need for deterrence. On Sept 16, the court agreed, deciding that the sentence was unduly lenient, and substituted a detention center order for the probation order. This means the defendant will now be detained for up to six months at a detention center, where he will receive vigorous disciplinary training of the type often referred to as a “short, sharp shock”.

The way in which Shui handled the case attracted public criticism, and she was one of several judicial figures whose conduct of protest-related cases has generated complaints. Indeed, on July 13, the judiciary announced that it had “recently been receiving a large number of complaints against the same judge or judicial officer in relation to various judicial decisions and court cases, with such complaints being of an identical or similar nature”. In consequence, it explained, the chief justice, Geoffrey Ma Tao-li, had decided that to promote efficient communication and handling of such complaints, the judiciary’s complaints secretariat would “post the gist of, and response to, these complaints on its website, instead of replying to each complaint individually”.

Shortly after Ma’s announcement, three complaint instances were duly listed on the judiciary’s webpage, identified only by their case numbers. The three magistrates involved were accused of being biased or making statements of a political nature. This, according to the complainants, gave the impression that in protest-related cases, the magistrates had preconceived views when handling bail applications, making rulings, or conducting sentencing hearings, and their complaints will be investigated in due course.

Quite clearly, these steps toward greater transparency were designed to allay concerns, and Ma, who attaches great importance to people having faith in their judiciary, has done more than anybody to ensure that any complaints the public may have are properly addressed. Indeed, on April 1, 2016, after Ma had reviewed the mechanism for handling complaints against judicial officers, the Judiciary announced a series of systemic improvements. These included the establishment of the Secretariat for Complaints against Judicial Conduct, a standardized complaints form, a mechanism to facilitate complaint investigation, and the annual publication of statistics indicating the number of complaints found to be justified, or at least partially justified. 

In 2017, for example, the SCJC received 21 complaints over judicial conduct (not judicial decisions, which are separate), of which five related to attitude and behavior in court, seven to the handling of actual proceedings, and nine being a mixture of the two. Whereas four were classified as partially justified complaints, two of these related to undesirable attitude and behavior in court, one related to the conduct of actual proceedings in court, and one was a mixture of the two. In 2019, by contrast, there were 10 complaints concerning judicial conduct, none of which was found to have substance. 

Although Ma’s innovations are most welcome, the public must appreciate that they can only be taken so far. In accordance with the principle of judicial independence, complaints against judicial decisions cannot be entertained by the SCJC. A judicial decision can only be challenged by an appropriate legal procedure, such as an appeal or a review. This apart, and again out of deference to judicial independence, the SCJC can only process complaints about the conduct of a judicial officer once the court proceedings (including any appeal or review) have finally concluded.

The aspects of judicial conduct which can be investigated by the SCJC are threefold. The first involves allegations of poor or undesirable attitudes or behavior by a judicial officer in court, including such things as rudeness and lack of punctuality. Next are the accusations of improper handling of the court proceedings, which covers such things as bias, excessive intervention, inappropriate comments, lack of preparation, or unilateral communication with the parties. Finally, there is allegedly improper conduct not directly related to court work.

Although Ma has instituted a comprehensive complaints procedure, the judicial officers themselves must try to avoid unnecessary controversy. As the Guide to Judicial Conduct (2004) makes clear, “Impartiality must exist both as a matter of fact and as a matter of reasonable perception”. Even if, therefore, judicial officers feel sympathy with particular defendants, they must not grant bail when there is a real chance of abscondment, or cast about for reasons to acquit, or impose sentences which are so lenient that they will neither punish the offender nor deter others.

In particular, extravagant language, particularly where it might give an impression of bias, is best avoided by judicial officers. Every decision should be explained in a balanced way, and buttressed by logical reasoning. If, moreover, a judicial officer feels he cannot handle any particular case appropriately, he should be honest about it and recuse himself.

So long, however, as judicial officers adhere strictly to their judicial oath, which requires them to “administer justice without fear or favor, self-interest or deceit”, and avoid giving any contrary impressions, many of the concerns which have arisen can be put to bed.

The author is a senior counsel, law professor and criminal justice analyst, and was previously the director of public prosecutions of the Hong Kong SAR.

The views do not necessarily reflect those of China Daily. 


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