Thursday, February 1, 2024

New Book: Archbold Hong Kong 2024 (Sweet & Maxwell)

Editor-in-Chief: The Hon Mr Justice Bokhary
General Editor: Professor Simon Young
Sweet & Maxwell
October 2023

Preface by the General Editor

Hong Kong said goodbye to a legal giant on 24 June 2023. Sir Ti Liang Yang made enormous contributions to the law in Hong Kong before 1997, especially in criminal cases. In his 40 years of service in the Judiciary, he adjudicated criminal cases in all possible judicial roles in Hong Kong: magistrate, District Judge, Judge of the High Court, Justice of Appeal, Vice-President, and Chief Justice. Uniquely, he had a practice of visiting some of the defendants he had convicted to see how they were doing in prison.

    His vision of the law and the role of courts was articulated in a speech he gave at the Chinese University of Hong Kong in October 1984. He had no a priori concept of the place of law. Rather, he thought that society, as “the mother of law”, “determines the contents of its laws”. Believing a “particular type of society requires a particular law”, he was adamant that Hong Kong not simply copy English law but that it would take root and grow into something distinctively Hong Kong. He described the process in these terms, in his 1992 speech at the Opening of the Legal Year:

     “But the legal system that has taken root may still be regarded as an alien organism.  The final stage must be transformation – a process by which the spirit of the legal system is so intermingled with the culture and ethos of the new society that a new system emerges, still largely based on the ancestry whence it came, but evidencing a metamorphosis which has eradicated its foreignness.”

He believed this transformative process would not be insular but undergone with the benefit of talent and precedents from other common law countries, particularly “the United Kingdom, Australia, New Zealand or Canada”.  He thought that having foreign judges and lawyers serving in Hong Kong would help us “avoid being out of touch and at the same time enrich our own law”.

     As for the role of courts, it is the “judicial organ that breathes life and motion into our law”, whose aims include “to attain balance within the society”. He made the following insightful statement about the function of courts which is worth reflecting upon:

    “If the courts constantly let the people and the executive arm of government clearly understand the limits of their own rights and obligations so that all words and actions may be tested against the law, then the law will become something which is capable of life and movement, and it sets a standard of behaviour which everyone may rely on.”

     Many of his criminal law judgments have endured and demonstrated great foresight. For example, his judgments on attempts (The Queen v Chan Kwong [1987] HKLR 756 (CA)) and implied assertions in hearsay (The Queen v Ng Kin-yee [1994] 2 HKCLR 1 (CA)) are still assigned readings in our LLB/JD law curricula. His judgment on cross-examining police officers on lying in previous proceedings (The Queen v Lam Wai-keung [1994] 2 HKCLR 9 (CA)) resonates with the Court of Final Appeal (CFA)’s judgment in HKSAR v Wong Sau-ming (2003) 6 HKCFAR 135. One can trace the seeds of the Mushtaq direction to The Queen v Yu Ho-man [1995] 1 HKCLR 87, 89(ln 25) (CA). His judgment in Mohd. Daraiz v The Attorney General [1976] HKLR 386, 397 (HC), though overruled in Halim Sulman v The Queen [1977] HKLR 214 (CA), showed emergent recognition of a half-way house defence for offences of strict liability. His judgment on the co-conspirators’ rule (The Queen v Alick Au Shui Yuen [1993] 2 HKC 219 (CA)) has been highly influential and helped inform the later CFA judgments on the issue, e.g. HKSAR v Vivien Fan (2011) 14 HKCFAR 641.

     Sir Ti Liang had a strong view of judicial independence. He stated: “It is absolutely necessary that judicial work be carried out strictly in accordance with the law and be not influenced by outside factors in any way.”  Thus, despite receiving several threatening letters when he was trying the corruption case of former police superintendent, Peter Fitzroy Godber, they had no influence on him and he was not scared.  He also believed judicial independence “not only ensures impartial trials, it also has the effect of preventing abuses and excesses by the government so that the people may receive the protection of the law”.  Such view was reflected in his decision in The Queen v Li Wing-tat [1991] 1 HKLR 731 (HC), holding that the magistrate should have stayed the charges brought against protesters for using loudhailers and collecting donations without permit.  He found that it offended “the sense of fairness” for the police to suddenly change from a regular practice of giving violators a warning to prosecuting them, without prior notice of a change in practice.  Though the decision was overturned in The Queen v Soo Fat Ho [1992] 2 HKCLR 114 (CA), it demonstrates the former Chief Justice’s concern that prosecutorial power be not abused.

     I wish to thank all those who contribute to the continuing success of this publication including all the contributing editors, the Sentencing Editor, the Editor-in-Chief, my team of student editors, and the wonderful colleagues at Thomson Reuters.

Professor Simon NM Young
Ian Davies Professor in Ethics
Parkside Chambers
29 August 2023

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