Reflections on Development of the Judiciary

As we bid farewell to our second Chief Justice since the resumption of sovereignty in 1997 and extend our welcome to our third Chief Justice in January 2021, it may be an opportune time to reflect on how our Judiciary has evolved with the times over the past two decades.

When addressing the audience of an international conference in September 1999, Former Chief Justice Andrew Li pointed out succinctly that “The challenge of the Judiciary will be to perform the constitutional role and the adjudicative role, in a rapidly changing environment in a manner which commands the respect and confidence of society.”

Over the years, the Judiciary has facilitated open and transparent justice by, for example, enabling the public to have ready and easy access to court judgments anytime anywhere. Since 2001, in addition to judgments of the Court of Final Appeal handed down since its establishment in 1997, judgments of various levels of courts including Court of Appeal of the High Court, Court of First Instance of the High Court, District Court, Family Court and Lands Tribunal, handed down as far back as 1993, has been made available on the Judiciary website. Further, starting from October 2020, summaries of selected decisions in the District Court and Magistrates’ Courts which may attract great public attention are prepared and uploaded to the Judiciary website as far as practicable. The Judiciary has indeed made a substantial effort to facilitate the ability of the public to exercise their right to scrutinise judgments of the courts vigorously.

Other improvements include the introduction of WiFi in the Wanchai Law Courts Building and other court buildings throughout Hong Kong in phases since 2014 to further promote open justice and of the Interactive Voice Response (IVR) System to enable easy access to information about hearings round-the-clock over the telephone in Chinese, English or Putonghua since 2001. Further, in an effort to meet the challenges brought by the increasing number of unrepresented litigants in civil cases in recent years, the Judiciary set up the Resource Centre for Unrepresented Litigants in 2003 to provide general enquiry services on court rules, forms and procedural matters in civil proceedings in the High Court and the District Court.

To improve access to justice at reasonable cost and speed, the Judiciary conducted a comprehensive review of the civil rules and procedures of the High Court (“CJR (Civil Justice Reform)”), the process of which spanned nearly a decade. The CJR was initiated in 2000 by Former Chief Justice Andrew Li, when he appointed a working party to conduct the review. The recommendations in the final report of the working party were accepted in 2004 and implemented with effect from 2 April 2009. These included re-defining and simplifying procedural obligations, reducing the number of court hearings before trial, encouraging earlier settlement, introducing greater transparency to litigation costs and giving the court more extensive and flexible powers to manage the progress of cases through the system. The CJR is an important milestone in our civil justice system.

Another major reform concerned the rights of audience. The Law Society’s persistent call to the Judiciary to reform the structure of rights of audience finally came to fruition with the gazette of the Legal Practitioners (Amendment) Bill 2009 in June 2009. Eligible solicitors can enjoy rights of audience before the High Court and the Court of Final Appeal. To solicitors, it expands the scope of legal services that solicitors can provide to the public. Those solicitors who are interested in and good at court advocacy can enjoy the flexibility of appearing before the higher courts. More importantly, to the public, this extension gives them a wider choice of advocates, facilitating access to legal assistance in the administration of justice.

Reform is indeed an on-going process and the most important is the readiness to rise to challenges and to improve and change in a timely manner.

On timeliness, we are pleased that the Judiciary finally agreed to revise the judicial guide on the bands of hourly rates allowed for solicitors and their staff on party and party taxations (Scale Rates) in 2018, although the revision should have come much earlier having regard that the last revision was in 1997 and the economy and the legal service market during the 21-year gap had substantially changed. Allowing the divergence between the normal average chargeable hourly rates of solicitors and the Scale Rates to widen means that a successful litigant is being seriously disadvantaged. What he recovers from the losing party under a costs order, pursuant to the principle of “loser pays”, has become substantially insufficient to cover what he actually pays his solicitor. This widening recoverability gap erodes the principle of “loser pays” and adversely diminishes the attractiveness of Hong Kong as an international dispute resolution center. Going forward, we urge that it be closely monitored and updated regularly in a timely manner.

In recent years, politicization of the Judiciary has intensified. Appalling news about unfounded comments and attacks on the judiciary was reported one after the other in the past year – graffiti abuse against a named judge, groundless accusations of judges making decisions with a political bias and even a death threat against a judicial officer. The Law Society has issued numerous public statements in the past two years to protect judicial independence and integrity. The seriousness of the attacks on the Judiciary has also led to the Judiciary issuing public statements itself to clarify rumours and misunderstandings about the role of our judges and judicial officers. Article 84 of the Hong Kong Basic Law states that judges and judicial officers shall adjudicate cases in accordance with the law. They do not adjudicate on the basis of the parties’ political ideologies. The task of the courts is to adjudicate impartially on the legal and factual issues involved in a particular case according to the law, whatever the nature of the controversy and whoever the parties may be. Where a court has ruled on the legal issues in a particular way at first instance, the proper avenue for a party dissatisfied with the court’s judgment is to pursue an appeal, not to ventilate anger and dissatisfaction by attacking judges.

The COVID-19 pandemic has acted as a catalyst to the Judiciary’s adoption of technology to minimize unpredictable disruptions to access to justice. It is hoped that the momentum to take advantage of technology will not be lost with the subsidence of the pandemic and will continue to be a focus in its operation to enable the Judiciary to serve the public better in terms of accessibility, cost-effectiveness and efficiency.

Melissa K Pang, President

Jurisdictions

President

The Law Society of Hong Kong