Judges bound by law, not personal choice, says chief

PUBLISHED : Tuesday, 15 January, 2008, 12:00am
UPDATED : Tuesday, 15 January, 2008, 12:00am

Critics told not to blame courts if they disagree with rulings

Judges are bound by guidelines laid down by legislation and higher courts when deciding punishment, and critics of particular sentences should look elsewhere for remedies, the chief justice said yesterday.

Andrew Li Kwok-nang made the comment during his address to the ceremonial opening of the legal year at City Hall.

Sentencing was more of an art than a science, the chief justice said, and in arriving at a punishment, judges were in most cases bound by what legislators had decided was the appropriate maximum sentence for a crime.

'Views have been expressed ... that the sentence imposed in a particular case was inappropriate,' the chief justice said.

'Where the statutory maximum is considered to be inadequate, its revision is a matter for the executive and the legislature,' Mr Justice Li said.

While the chief justice did not say to which cases he was referring, a number of recent sentences have been criticised as being out of step with the severity of the crime.

In many cases, judges have decried the lack of sentencing options available to them.

In 2006, the Court of Appeal called for an increase in the maximum sentence for dangerous driving after being unable to sentence two minibus drivers to more than five years per charge after their race through the streets of North Point left one person dead and 19 injured.

The chief justice, along with Secretary for Justice Wong Yan-lung, Bar Association chairman Rimsky Yuen Kwok-keung and Law Society president Lester Huang, also hailed the expansion of the use of mediation as an alternative to settling disputes in court. Not only was it more than likely to be cheaper than traditional litigation, it also meant disputes were addressed earlier and the likelihood of a win-win result was greatly enhanced.

With that in mind, the chief justice said it was only reasonable that the government should extend legal aid services to cover all types of mediation.

'There is no justification for depriving [less well off litigants] of this effective process for dispute resolution,' he said.

Legal aid was also touched on by Mr Yuen and Mr Huang.

Mr Yuen called for the Legal Aid Department to be made entirely independent of government.

Mr Huang, on the other hand, sought to remind the government of his members' complaint over the lower fees being paid to solicitors retained in legal aid criminal cases.

'We hope that government will approach this ongoing issue with a fresh mind and accord due respect to solicitors who work in this important area,' Mr Huang said.

He also said that with the growth of mediation and the increased legal complexity, people should be aware of the high costs incurred by solicitors in making sure they are up to date with developments.

'Today's legal problems are often much more sophisticated than first meets the eye and so the community must be more prepared to meet legal expenses,' he said.

'Solicitors will give good value for money.'

At a press conference after the ceremony, the chief justice was reluctant to comment on the recent shifting of the Legal Aid Department portfolio from the chief secretary's administration wing to the Home Affairs Bureau.

He noted that the two professional bodies had expressed reservations about its operations. 'The availability of legal aid, both civil and criminal, is a key aspect of the administration of justice. I'm sure the government is conscious of this.'

The opening of the legal year is one of the rare times the chief justice takes questions from the media, and he was bombarded with queries about the pace of democratic reform.

Regarding whether it was possible to reverse the recent decision by the Standing Committee of the National People's Congress ruling out universal suffrage in 2012, Mr Justice Li said he could give no answer.

'That is a matter for the application of mainland law,' he said.

'What I should say is that the interpretation of the Basic Law by the Standing Committee is binding on the Hong Kong courts.'