Basic Law forces a judicial rethink

PUBLISHED : Friday, 16 September, 2005, 12:00am
UPDATED : Friday, 16 September, 2005, 12:00am

Hong Kong judges have had to look at issues through the lens of the Basic Law, with people becoming more aware of the protection the constitution entitles them to, retiring District Court Judge Fergal Sweeney said.

Judge Sweeney, who made the initial ruling in the Kwong Hing case this year that threw into doubt the Independent Commission Against Corruption's use of covert surveillance, was the first judge to rule that clandestine investigations breached Basic Law Article 30's provision on privacy of communication.

His ruling resulted in the issuance of an executive order by Chief Executive Donald Tsang Yam-kuen and culminated in activist 'Long Hair' Leung Kwok-hung filing a judicial review of the chief executive's 'dereliction of duty' for not bringing into force a law regulating covert surveillance.

The ICAC had argued that judges routinely admitted evidence obtained through covert means, but Judge Sweeney said things were changing, with courts looking more to the Basic Law for authority.

'We are subject to our Basic Law, which is stronger than anything we had before,' he said. 'Courts have to look at these issues in a fresh light, from a constitutional perspective rather than simply a common-law perspective.'

The 55-year-old judge has his last sitting in the District Court today, before he leaves with his wife for Dublin tomorrow. He cited as one of his memorable cases the 'Two-Bullet Tour' case, in which a Vietnamese illegal immigrant sneaked into Hong Kong to earn a living in jail.

'I hate jailing people - it is a real strain every time I have to send someone to jail, but I felt no strain when sending this one because that was exactly what he wanted,' he said. 'It was heartbreaking when, as a magistrate, I had to send to 15 months in jail some people who had snuck in to be with their families here.'

Judge Sweeney strongly endorsed the Law Reform Commission's recommendation issued on Wednesday that lawyers be allowed to take on cases on a 'no win, no fee' basis.

'I think they are a great idea and give everybody access to the civil courts,' he said. 'If the case is successful, lawyers get their costs; if unsuccessful, they don't charge the client - that is a filtering system because they won't take a case that is hopeless.'

He said the system worked well in Ireland and sometimes, where lawyers were willing to take risks with cases, it helped to 'push the law out a little bit further'.

He clarified a comment in a Chinese-language newspaper that had him criticising private prosecutors working for the Department of Justice in complex commercial crime cases. He said like doctors, barristers had specialities, and the department should take care to pick the 'right horse for the right race'.

He said in two to three cases a year, he had barristers who were inept in complex commercial crime cases.