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Wednesday, September 18, 2019, 11:19
Criticism of judges must be accurate and just
By Grenville Cross
Wednesday, September 18, 2019, 11:19 By Grenville Cross

Court of Final Appeal has history of fair judgments, renowned jurists 

The Defend Hong Kong Campaign organized a protest outside the Court of Final Appeal last week, calling for the resignation of the chief justice, Geoffrey Ma Tao-li. Although the protesters were frustrated over recent judicial decisions, their call was misguided. Ma’s departure would achieve nothing, yet would be bad for the rule of law.

Although judges are certainly not holy cows, any criticism of them should be reasonable. Everyone enjoys freedom of speech, and constructive criticism of judicial decisions can be beneficial. As Ma himself explained in January: “Criticism, to be effective and constructive, must be informed as opposed to being based on misunderstandings or inaccuracies.”

It is, of course, always easy to find fault with a particular judgment, particularly when one disagrees with it. However, judges have a difficult task in resolving competing considerations, and it is hard to achieve a judgment that satisfies everyone. A judge, moreover, is not concerned with gaining popularity in any particular case, but in doing what he or she believes to be right.

The Defend Hong Kong Campaign was aggrieved over the lenient sentences sometimes meted out to people convicted of public order offenses. They were also unhappy over the apparent ease with which suspects accused of such offenses obtained bail. These, however, are certainly not matters for which Ma can be blamed.

He (Ma Tao-li) has presided over the Court of Final Appeal in a realistic way, and its judgments invariably combine both wisdom and common sense

He, like everyone else, has to respect the decisions of the lower courts, provided, of course, they are legally justified. Judicial officers enjoy a wide discretion to do what they think best, at least until such time as the secretary for justice, Teresa Cheng Yeuk-wah, chooses to challenge their rulings in a higher court, as is her right. Once that is done, the original decision can be rectified, provided it is shown to be erroneous in law or contrary to principle.

Since his appointment in 2010, Ma has established himself as a jurist of international stature, with an instinctive feel for justice. He has presided over the Court of Final Appeal in a realistic way, and its judgments invariably combine both wisdom and common sense. This helps to explain why the court is now so highly regarded in other jurisdictions, which sometimes cite its judgments.

As a cricket enthusiast with a deep grounding in the common law, Ma knows all about fair play in adjudicating cases. He has, moreover, always applied the law and, where necessary, developed it, in a logical way that satisfies current societal needs.

In truth, the rule of law has never been in safer hands. Ma, who is sometimes described as a “conservative” judge, appreciates Hong Kong’s unique status as a special administrative region, and recognizes the importance of operating within the parameters of the Basic Law. Never one for showmanship, he sets the right tone for his fellow judges, whom he leads by example. Without fanfare, he has quietly strengthened his court, and widened its experience base.

In consequence, those people around the world who spend their time disparaging Hong Kong, such as former Hong Kong governor Chris Patten and US Senator Marco Rubio, have no answer when they are pointed to the Court of Final Appeal, with its impeccable track record. Even their Civic Party proxies, renowned for fake news and scaremongering, invariably think twice before maligning the court or its judgments.

Thanks in large part to Ma, the court has recently attracted a host of eminent jurists from other jurisdictions to its ranks. This has greatly enhanced its standing, and reinforced its reputation for both excellence and independent reasoning. This is unsurprising, as the court now includes, for example, the president of the Supreme Court of the United Kingdom, Lady Brenda Hale, as well as her two predecessors, Lords Neuberger and Phillips. It also includes the former chief justice of Canada, Beverley McLachlin, as well as two former chief justices of Australia, Robert French and Murray Gleeson.

The presence of these legal heavyweights at the apex of our judicial system is the ultimate answer to those people who, whether in the European Union or the United States, seek, with the aid of unpatriotic elements locally, to undermine Hong Kong as a means of striking at China. Quite clearly, the legal system is safe in the hands of such renowned jurists, whatever the anti-China forces may claim.

In any event, Ma is certainly no “softie” when it comes to sentencing issues. In 2018, for example, he presided over the court when it considered sentencing levels in a case of unlawful assembly arising out of the “Occupy Central” protests in 2014. The court made it clear that public order offenses are a real and growing concern, and that trial courts must respond appropriately. It also endorsed guidelines that emphasize that unlawful assemblies must be deterred by judicial officers, and that where they involve violence, there is a duty on judges to impose condign punishment upon offenders.

In consequence, trial courts are now required to follow the court’s guidance whenever they sentence offenders for public-order offenses. Once, therefore, offenders are finally convicted of involvement in the recent disturbances, they must expect, unless there is particularly potent mitigation, to be imprisoned for a substantial period.

After all, Edward Leung Tin-kei, the founder of the separatist Hong Kong Indigenous party, was sentenced last year to six years’ imprisonment for his role in the Mong Kok riot of 2016, and the latest rioters will also face sentences of that sort, maybe even longer. These, of course, will be richly deserved, as they have deployed wanton violence against others and caused huge damage to public property. The judges, therefore, must not flinch from doing their duty, and Ma has already pointed the way for them.

Although many people have justifiable concerns over particular suspects being granted bail, the ultimate question for any court is whether the individual who is before it will attend the trial on the date fixed, or else abscond. If there is little or no chance of a suspect absconding, there is a high likelihood of bail being granted, even for quite serious offenses. After all, under the common law, a suspect is presumed to be innocent until guilt has been proved, and a deprivation of liberty for someone who has not yet been convicted of an offense is to be avoided wherever possible.

It is, moreover, clearly not desirable for a suspect to spend months in custody prior to trial, particularly if he or she is ultimately acquitted.

However, when bail is granted, stringent conditions will often be appropriate, including the surrender of travel documents. It is somewhat surprising, therefore, that this particular condition is not being applied more rigorously. After all, two alleged rioters, Ray Wong Toi-yeung and Alan Li Tung-sing, recently fled to Germany while on bail rather than face trial in the High Court. Once offenders have absconded elsewhere, there is, of course, little or no chance of securing their return, given Hong Kong’s dearth of fugitive offender agreements with other jurisdictions. Courts should, therefore, always keep this in mind before releasing suspects on bail.

Quite clearly, the way in which our legal system operates is not always fully understood by the public, particularly in the areas of bail and sentencing. Anything, therefore, that can be done by the judiciary and the Justice Department to promote greater public awareness will be welcome.

Although most judicial decisions are unexceptionable, errors can arise. When this happens, the public should understand that mechanisms exist to remedy things. The secretary for justice and her prosecutors always monitor the progress of criminal cases, and she can always intervene when unduly lenient sentences are imposed, or where bail is inappropriately granted.

Overall, however, our legal system continues to function well. As a consequence, the rule of law remains as strong as ever, if not stronger. This is a direct consequence of the sterling efforts of Ma and his colleagues, who deserve to be lauded, not condemned.

In the coming months, moreover, many prosecutions will be brought against suspects accused of involvement in the ongoing disturbances. These will undoubtedly pose significant challenges for the judiciary, some novel, and it will be subject to great scrutiny. At a critical time, therefore, the judiciary is fortunate to have a jurist of Ma’s stature at its helm.

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


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