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Friday, September 25, 2020, 09:50
Justice Department should ensure impartial judgments
By Yang Sheng
Friday, September 25, 2020, 09:50 By Yang Sheng

Recently, a 15-year-old boy pleaded guilty to arson and was sentenced to a probation order. The Department of Justice was not convinced by the light sentence and filed for a review with the High Court, which in turn replaced the sentence with time in a correctional facility. Meanwhile, a recent random survey showed while most respondents agree that the rule of law is a cornerstone of Hong Kong, not many of them have full confidence in the judicial system. The rule of law and judicial independence ensure the success of Hong Kong, but judicial independence does not mean judicial supremacy, let alone judicial dictatorship. Judges are human and can make erroneous decisions, which the Department of Justice should always appeal immediately. After all, public trust and confidence in the judicial system are earned with fairness and impartiality in court rulings. It is the Department of Justice’s responsibility to challenge controversial court decisions as they come, or the rule of law and justice could be in jeopardy.

The judiciary in Hong Kong should also advance with the times and keep itself up to date through reform, as its counterparts in the United States and United Kingdom have done over the years, such as setting up a sentencing commission or council to provide courts with fair, transparent and consistent sentencing guidelines

In recent years, some court verdicts failed to convince the public on judicial impartiality, as certain judges repeatedly “went easy” on politically driven rioters with sentences that can only be seen as a token slap on the wrist, if not let go scot-free. In doing so, they have severely tarnished the reputation of Hong Kong courts in many people’s minds. Certain judges seemed unable to hide their admiration for the defendants even after reviewing overwhelming evidence that proves them guilty. For example, a judge was so impressed by a teenager who pleaded guilty for attempted arson that he lauded him as “an outstanding youth” before giving him a probation order as “punishment”. Three offenders found guilty on public-order charges and fined a mere HK$1,000 ($129) were labeled future “pillars of society” by the presiding judge.

The anti-extradition-law campaign and the ensuing “black revolution” wreaked havoc in Hong Kong and heavily damaged its rule of law, prompting the local community to demand severe punishment of the culprits by courts at all levels to effectively deter such acts and restore the rule of law to public expectations. Unfortunately, some judges have consistently meted out sentences that do not match the severity of the offenses. Some judges sent wrong signals to the public, especially young people, leaving the impression that their crimes are worthy of the “lofty ideals” they pursue. Adding insult to injury is that certain judges could not even pretend to be apolitical or impartial in front of rioters, to the point they had to glorify the defendants one way or another. There is no doubt their high praises for the lawbreakers are meant to demonstrate their political preference, which flies in the face of the professional decree that judges should refrain from making political comments in court. As a matter of fact, the political enthusiasm and sympathy toward rioters that they exhibited in court have been duly interpreted by young rioters at large as unmistakable encouragement. Former Court of Final Appeal judge Henry Litton pointed out earlier that some judges continued to subordinate public interests to individual rights, creating a social environment which had led to chaos on the streets in the past year.

The verdicts and sentencing made by politically biased judges not only fail to uphold justice but also fall short of the expectation of the public on maintaining the rule of law. Inevitably, the public would wonder if they can still find justice in Hong Kong courts. In a recent poll to gauge public confidence in the justice system, the judiciary scored only an average of 3.7 out of 10 points, with judicial impartiality scoring even lower at 3.08. More than half of the respondents indicated that they did not trust the judiciary of Hong Kong, and more than 90 percent believed that some judges let their political preference interfere with court decisions on politically motivated crimes. It is high time the judiciary took faltering public confidence very seriously and made amends accordingly. People from all walks of life, meanwhile, owe it to themselves to tell the judiciary the critical reality as it is. 

Hong Kong society attaches great importance to judicial independence, so that judges conduct trials without outside interference, but it does not equal “judicial supremacy” or “putting the judiciary above the law”.

Secretary for Justice Teresa Cheng Yuek-wah noted in a recent article that judges make mistakes just like everyone else. “When the judge’s decision in the case was wrong by erring in law, in fact, or in the exercise of his/her discretion; or if the decision was unjust because of a serious procedural or other irregularity, the DoJ will have to decide whether or not to appeal or in the case of criminal cases to appeal by way of case stated, or institute review of sentence, etc. Our decisions have to be made in accordance with legal principles and court procedures and a result of our careful analysis of the case in context”. The prosecution code of the Justice Department also requires prosecutors to readily and promptly seek to remedy any error or injustice and, with equal commitment, seek to support a correct and proper decision of the trial court.

It is the duty of the Justice Department to maintain impartiality and justice of the judiciary. When mistakes made by judges cause major public and professional disputes, the department is duty-bound to correct them through immediate appeal. The judiciary in Hong Kong should also advance with the times and keep itself up to date through reform, as its counterparts in the United States and United Kingdom have done over the years, such as setting up a sentencing commission or council to provide courts with fair, transparent and consistent sentencing guidelines. This will boost public trust for and confidence in the judiciary and further strengthen the rule of law and judicial independence as an essential cornerstone of Hong Kong. 

The author is a current affairs commentator. The views do not necessarily reflect those of China Daily.


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