Judicial Manpower

In 2012, the Council set up a working party to address the concerns raised by practitioners about a number of cases in which the Court of Final Appeal (“CFA”) quashed the convictions of the appellants with critical comments on the prosecution and the courts below. These cases included Vivien Fan v HKSAR [2011] HKEC 949 (which has come to be known as the “Shanghai Land case”), Andrew Lam v HKSAR [2009] FACC 5 and Winnie Lo v HKSAR [2012] HKEC 263 where the CFA quashed the criminal convictions of the solicitors involved.

The working party published its report titled “Access to Justice – Review of Recent Court of Final Appeal Judgments Affecting Professional Advisers and Others” in 2013. In the report, three areas of concern in relation to how the three cases were prosecuted, the role of the Judiciary, prosecution and compensation policies of the Department of Justice (“DOJ”), as well as phone tapping were discussed in detail.

One of the recommendations in the report addressing the concern about the quality of justice in criminal courts was to widen the current pool of applicants for appointment as a judicial officer and to improve resources and assistance to judges by increasing funding and expanding available training to judicial officers.

While the above concern still lingers in our mind, a recent Court of Appeal judgment dated 26 May 2016 quashed the criminal conviction of a solicitor on the basis that the judge of the court below had erred in his approach to the interpretation of the phrase, “having reasonable grounds to believe” (HKSAR v Wu Wing Kit and another [2014] CACC 299).

It may be timely to revisit some of our suggestions to improve the judicial manpower situation that directly impacts on the administration of justice.

The demands on judges and judicial officers are significant. The current system imposes heavy duties on many office holders who have to spend their days in court, attend to administrative duties, sit on internal and external working parties, and somehow find sufficient time to write their judgments. There is an obvious need to strengthen the establishment.

Under s. 9(1A) and s. 9(2A) of the High Court Ordinance (Cap. 4), solicitors with 10 years’ post qualification experience are eligible for appointment as High Court Judges. These provisions were added to the High Court Ordinance in 1995 and 1982 respectively, but so far, appointments to the High Court, be it as High Court Judge, Recorder or Deputy High Court Judge, from the solicitors’ branch of the profession have been very rare. According to the Judiciary Administrator’s report in April 2016, at the Judge of the Court of First Instance of the High Court (“CFI”) level, a total of 16 CFI Judge appointments were made since 2012. Out of the 16 appointments, only two were solicitors.

The traditional approach of recruiting from senior barristers restricts the search for talent undesirably and should be reviewed.

Many law firms support the Judiciary by permitting their solicitors to clear their diaries so they can accept temporary appointments as Deputy District Court Judges or as Masters in the High Court. Senior solicitors should be regarded as suitable candidates for appointment as Recorders or Deputy Judges in the High Court.

The Judicial Officers Recommendation Commission (“JORC”) should widen its search and should actively consider making such appointments so that potential candidates can receive experience sitting as Recorders and as Deputy Judges in the High Court and be assessed on capability as well as suitability.

Further, consideration must also be given to improving the pay and working environment of Hong Kong judges. The provision of more support staff and more time to write judgments and prepare for hearings would improve the working environment of judges and potentially attract more lawyers to the Judiciary who possess the required and right talent.

It was acknowledged in the Judiciary Administrator’s report that there are some recruitment difficulties at the CFI level. I am glad to learn that during the past two years or so, the Judiciary has been conducting a number of reviews to address the recruitment difficulties of CFI Judges as well as the long-term needs of the whole of the Judiciary and that one of these is the review on the conditions of service of judges and judicial officers (“JJOs”).

As the Chief Justice said at the Opening of Legal Year on 11 January 2016, “The importance of the law in Hong Kong makes it imperative that the quality of our Judiciary should be of the highest possible standard”. The Judiciary has made proposals to the Government as a result of its review on the conditions of service of JJOs. I look forward to the implementation by the Government of appropriate measures to improve the JJOs’ service conditions so that the required talent is attracted to join the Judiciary. 

Jurisdictions: 

President, The Coucil of The Law Society of Hong Kong