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Kevin Kwong

DISTRICT Court Judge Colin Jackson had every reason to be annoyed last week when he was told that the Legal Department had done nothing to prepare for a two-day criminal trial which had already been delayed for eight months.

  The trial of two hair salon owners alleged to have conspired to transfer two passports to another person was stopped before it even began last Wednesday when the defence counsel asked for an adjournment.

  The judge was later told that the defence had not received a large bundle of new material relevant to the case from the Crown until the day the hearing was due to start.

  The court also learned that the Legal Department only ordered a prosecution two weeks before the trial, even though the case was transferred from the magistracy to the District Court last July.

  The Legal Department this week rejected any suggestion that it was slow in serving the relevant documents. A statement said the defendants were both given the relevant papers by the Legal Aid Department as early as last September.

  It also suggested that the department had done whatever it could to prepare for the trial and that it was the defendants, who did not have legal representatives until days before the proceedings were due to begin, who caused the delay.

  But the simple fact remains that owing to the delay, the trial has now been postponed until January, bringing the total waiting time for this particular case to 18 months.

  ''A replacement trial can't be arranged at five minutes' notice. It was a waste of taxpayers' money and witnesses' time,'' Judge Jackson said.

  Yet for those accustomed to a system jammed with a backlog of untried cases, queueing up for months to reach the court is not unusual.

  Judiciary Department statistics show defendants charged with criminal offences have to wait for trial in the District Court for an average of 217 days last year, compared to 165 in 1991 and 74 five years ago.

  Similarly, it took an average of 103 days last year for criminal cases to reach the Court of Appeal, compared to 90 in 1991 and 36 in 1988.

  There was, however, a slight drop in last year's average waiting time for criminal cases in the High Court.

  Defendants waited for an average of 242 days before cases were brought to the court, compared with 268 in 1991. The average waiting time five years ago was 82 days.

  At present, 11 per cent of the prison population is made up of those on remand awaiting trial. According to the Correctional Services Department, 219 defendants had been in prison custody for more than six months in February this year.

  The waiting time for justice, in both criminal and civil cases, is expected to take much longer in the next few years with an ever increasing workload for the legal fraternity.

  The Government, under continued pressure from legislators, pledged its support earlier this month for the creation of a senior administrator's post in the judiciary to ensure its efficient management.

  But some legal experts have expressed concern that little has, or even can, be done to deal with the exodus of experienced judges before 1997.

  ACCORDING to figures provided for the Legislative Council last month, the judiciary expects nine out of 10 appeal justices, including one Chinese, to retire by 1997.

  Also, six of the 23 High Court judges, including one local, will retire from the judiciary between now and the Chinese takeover.

    Attempts to attract new local recruits to the bench have had a poor response.

  Since 1988, only four judges have been appointed to the Court of Appeal - one of whom is a local - while in the High Court, 11 judges have joined - four of whom are locals.

  The Chief Justice, Sir Ti Liang Yang, warned the Government at the start of the Legal Year in January that he would need more judges in the High Court to cope with the case-load.

  ''I think it is unlikely that any organisation making whatever improvements in efficiency possible, would expect to be able to absorb an increase of that sort without delays being occasioned or without additional resources,'' he said.

  Professor Raymond Wacks, head of the Department of Law at the University of Hongkong, however, is sceptical that boosting the number of judges will see a proportional increase in the number of cases heard.

  He argues that many criminal cases in the District and High Courts are stalled by technicalities on the admissibility of evidence, which often require a ''trial within a trial'' to sort out.

  Professor Wacks believes that by videotaping all police questioning of suspects, as done by the ICAC, there would be a dramatic saving of time. ''We face a serious crisis. We need a much greater willingness on the part of senior barristers to accept judicial appointments, because there is no doubt in my mind that we need a strong core of local judges dedicated to the Rule of Law in order to maintain the integrity of our system,'' he said.

  Professor Wacks said many barristers are reluctant to leave their profession in order to join an institution which has an uncertain future in Hongkong.

  Miss Jacqueline Leong QC, who chairs the Hongkong Bar Association, said that the prospective shortage of judges was of great concern to the profession, but added that the issue had to be seen in context.

  She said it was not until recently that private practitioners were appointed to the judiciary. The traditional practice of appointing judges from the Colonial Legal Service was not challenged until the late 60s and early 70s.

  ''The Government did not show any enthusiasm to appoint members of the Bar to the Supreme Court bench until late 1980s when it was only 10 years away from 1997,'' she said.

  ''The difficulty is that the Government long-adopted the practice of not welcoming private practitioners to the bench. Then suddenly, they seem to have woken up and to localise, it came too little, too late.''   Ms Leong said the Government has discouraged local barristers from entering the bench by imposing different terms of service to those on offer to expatriates.

  ''They do the same job but are only treated differently simply because they are ethnically different. No one with any self-respect will take the bench because it is humiliating,'' she said.

  ''I have continuously said how concerned I am about China, that they might change the legal system or set up its own judiciary system without any explanation. That creates a lot of worries and uncertainty and you cannot expect a commitment over 20 years with this cloud hanging over their heads.'' 



Crisis on bench brings trying times for justice