Friday, March 18, 2022

Law in a Goldfish Bowl (Henry Litton)

Henry Litton, Honorary Professor

On 27 September 2021 the Court of Final Appeal (CFA) handed down a judgment, Secretary for Justice v Leung Kwok Hung [2021] HKCFA 32, which raises a troubling question: Is the highest court in the land concerned with, or even interested in the due process of law?
     The process in question was a simple prosecution for a statutory offence in a magistrates court. The incident giving rise to the prosecution took place way back in November 2016. When the matter eventually reached the CFA nearly five years later the facts constituting the offence had still not been established. Hence Fok PJ, who gave the only judgment, introduced the matter by setting out what he called “the alleged facts”.
     “Alleged facts”. Alleged by whom? Presumably the prosecution. But is the prosecution infallible? What if those facts were wrong, or through the passage of time could not be proved in court?
     What the CFA determined were pure matters of law. But they don’t float in the air, unattached to reality on the ground. If the underlying facts giving rise to questions of law had been admitted by the defence at trial, that would have been a different matter. That wasn’t so in this case. Hence the issues determined by the CFA were based upon mere supposition.
     Is this due process of law? Is the court not concerned that, in a criminal prosecution, the guilt or innocence of the accused had still not been ascertained after so many years?

The alleged facts
In November 2016, the appellant Leung was a Legislative Councillor. On 15th of that month, he was at a committee meeting in the Council chamber. A government servant Mr Ma Siu-cheung, Undersecretary for Development, was in attendance. He had with him a folder containing confidential papers. In the course of the meeting Leung asked Mr Ma to produce some documents; he then crossed over from his seat to Mr Ma and snatched the folder from him. He passed the folder to another Councillor Mr Chu for him to read. The chairperson repeatedly asked Leung to return the folder to Mr Ma and for him to resume his seat. Eventually the chairperson ordered Leung to withdraw from the chamber and suspended the meeting. Mr Chu having read the contents of the folder returned it to a security guard who gave it back to Mr Ma.
     If these facts were true, Leung had undoubtedly acted in a disorderly manner and created a disturbance which interrupted the proceedings of the committee while the committee was sitting.

The criminal charge
Arising out of this, on 12 May 2017, Leung was charged with an offence under s.17(c) of the Legislative Council (Powers and Privileges) Ordinance, Cap. 382. The section reads:
“Any person who creates or joins in any disturbance which interrupts or is likely to interrupt the proceedings of the Council or a committee while the Council or such committee is sitting commits an offence and is liable to a fine of $10,000 and to imprisonment for 12 months …….”.
The criminal proceedings
In January 2018 Leung appeared before a magistrate to face the charge. If the primary facts were proved, it would seem clear that he had indeed created a disturbance whilst the committee was sitting and that it interrupted those proceedings; and Mr Ma would presumably have testified as to that. The proceedings would not have lasted more than half a day.
     As it was, the hearing lasted four days 15-18 January 2018). No findings of fact were made by the magistrate. The only finding she made was this: that, as a matter of law, s.17(c) of the Ordinance was not applicable to Leung because he was a Legislative Council member. This was, in effect, a declaratory judgment which she had no jurisdiction to make. She then adjourned the hearing.

A magistrate’s jurisdiction
A magistrate derives his jurisdiction from the Magistrates Ordinance, Cap. 227. Nowhere else. A magistrates court is one of summary jurisdiction, unlike the High Court which is a court of unlimited jurisdiction. A High Court judge has an inherent jurisdiction derived from common law to protect the court’s process. In contrast, the proceedings in a magistrates court are bound by the four corners of the Magistrates OrdinanceSection 19 of the Ordinance lays down the process for summarily dealing with a criminal charge. It is comprehensive. There is no room for deviation.
     The substance of the complaint must first be read over to the accused, and he must be asked if he pleads guilty or not guilty. If he pleads not guilty, the magistrate shall, in terms of s. 19, proceed to hear the matter in support of the charge, and also hear the accused and such evidence as may be adduced in defence, and also to examine such other witnesses as the complainant may put forward in rebuttal.
     Section 19(2) goes on to say:
“The magistrate, having heard what each party has to say and the witnesses and evidence so adduced, shall consider the whole matter and determine the same, and shall convict or make an order against the defendant or dismiss the complainant or information, as the case may be”.
“Preliminary issue”
When Leung first appeared before the magistrate in answer to the charge, he asked the magistrate to give what Fok PJ described as “a ruling on preliminary issues regarding the ambit and constitutionality of section 17(c)". In particular she was asked to rule on whether the section applies to a member of LegCo and to proceedings other than those involving a person called to give evidence under oath. She was also asked to rule on whether the provision is unconstitutional in "violating the freedom of speech and debate of the member and/or LegCo’s exclusive authority over its internal affairs enshrined in the Basic Law”.
     Wherein lies a magistrate’s jurisdiction to give such “rulings”? Assuming she complied, did the “rulings” bind only the defendant or every other LegCo member?
     Order 15 Rule 16 of the Rules of the High Court empowers a High Court judge to make “binding declarations of right” whether some other relief is sought or not. This has no application to a magistrate exercising a criminal jurisdiction under the Ordinance.
     Of course, if a defendant were minded to have the criminal proceedings against him delayed – and perhaps derailed – such a manoeuvre would be a sure-fire way of achieving that objective. As demonstrated in this case.
     What should have happened in the magistrate’s court is this. The charge having been read to Leung, he should have been asked to plead to the charge: Guilty or not guilty. If he pleaded not guilty, or refused to plead, the magistrate should then have entered a Not Guilty plea and called upon the prosecution to begin its case. Any invitation to give so-called “preliminary rulings” should have been rejected outright.

The points of law
The points of law as put to the magistrate were jumbled and obscure. As eventually synthesized by Fok PJ, they boiled down to this: Leung was not subject to liability under s 17(c) because: (a) Article 77 of the Basic Law, together with sections 3 and 4 of the Legislative Council (Powers and Privileges) Ordinance, gave him immunity from legal action in respect of his statements, speeches and debates in Council or before a committee of LegCo; and (b) the “principle of non-intervention” precluded the courts from examining the conduct of LegCo members in proceedings in the chamber.
     These points verged on the absurd and should have been given short shrift. As to (a), the Ordinance laid down the framework for a secure and dignified environment for LegCo to carry out its constitutional role and penalised unruly conduct which interrupted proceedings. Leung’s behaviour was clearly unruly. He was charged not because of anything he had said in the course of debate, but because of his thuggish behaviour. If the facts as alleged were proved, he clearly came within the terms of s.17(c).
     As to (b), it is extraordinary that Leung, a lawmaker, should have argued that he was above the law. In fact, in a previous case in which Leung himself was again a party, the CFA had so ruled: Leung Kwok Hung v President of the Legislative Council ( No.1 ) [2014 17 HKCFAR 689.

Exercise of judgment
There are times when courts must examine propositions of law with deep application and care. There are other times when a robust approach is necessary. That, too, is an exercise of judgement, in distinguishing between the two situations. To entertain arguments with knitted-brow when a proposition should be dismissed out of hand is to degrade the discipline of law, and encourage forensic games being played in court – particularly in the lower courts. This was such a case. The harm lies open for all to see – if they chose not to close their eyes.

Leadership role
It must surely be the role of the CFA to show leadership in the administration of law; to demonstrate vigour and discipline in its processes; to decline entering into tortuous examination of legal propositions simply because counsel has raised them – particularly when such propositions involve contrived interpretations of the Basic Law.
     Simply see what Fok PJ said about the issues raised in the magistrates court:
“Despite the breadth of the questions for which leave to appeal was sought and granted, in light of the parties’ submissions in their respective written cases and at the hearing before this Court, the issues have been more focussed …”
     And when one reads the rest of Fok PJ’s judgment, it is clear that Leung simply had no case. Full stop. Anyone with a degree of common sense would have dismissed the propositions of law advanced by counsel out of hand.

All this raises an even wider question. Is the culture of the Judiciary in tune with the principle of One Country Two Systems? Is the energy of the Judiciary directed towards the effective and vigorous implementation of that principle? And what does it say about Hong Kong’s future as 2047 gets ever nearer and the answer is No?


  1. Oh Henry, you really have gone over to the Dark Side. I remember we discussed in Perth circa 1990s the flag desecration case you were hearing and me telling you about the American cases on the right created by the Supreme Court to burn the flag. It was clear then you were amenable to the new landlord. The creator of the Hong Kong Law Journal has come to this. Such a pity.

  2. Under a new animal welfare law, fishermen will be free to reel in their catch without fear of prosecution. But people buying a goldfish will have a legal duty to be mindful of their welfare needs

  3. Hong Kong’s judiciary has lost its former efficacy and judges need to focus on remedies and practical issues rather than esoteric arguments, said Henry Litton, former judge of the Court of Final Appeal, in an FCC webinar.

    “What I think one needs to do is to really just focus on the actual issues, rather than to give the entire narrative,” Litton said. “What has been happening in a lot of the cases is that the judges really are not focused anymore.”

    In his new book The Dance of Folly, or How Theatrics Have Tainted the Rule of Law, Litton argues the judiciary has been weakened over the past two decades by a culture of verbosity and philosophising when what’s needed is a focus on practical matters.

    “That is how the rule of law is supposed to work, not dissolving into clouds of words, of theories, of arcane analyses and so on which bear no relationship with the actual issue and problem on the ground,” Litton told FCC Journalist Governor Cliff Buddle.

    He outlined five cardinal rules for strengthening the judiciary and rule of law: effective action, discipline of law, ensuring the law has a cutting edge, focusing on remedies and preventing courtrooms from becoming places of debate.

    The former judge, who previously authored Is the Hong Kong Judiciary Sleepwalking to 2047?, said these changes are needed to ensure the survival of the city’s legal system in the coming years. He predicted that a decision would be made in the next five or six years on whether the common law system will be Hong Kong’s governing system beyond June 2047.

    The courts adopting a more common sense approach would be seen as a favourable move by Beijing, Litton said, noting that the central government will ultimately decide the fate of the judiciary. He argued that a straightforward and effective judiciary would have a better chance of survival.

    “For stability and prosperity, everyone everywhere would accept that when you have a legal system that actually works and functions, you should not dismantle it and try to replace it because there would be total chaos for many, many years, for generations maybe,” Litton said.