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  • Dec 30, 2014
  • Updated: 11:20pm
CommentInsight & Opinion

Overworked justice system at risk

Dennis Kwok says overworked judges and a backlog of cases are affecting the quality of justice in Hong Kong, prompting the need for additional resources and support for the judiciary

PUBLISHED : Friday, 13 September, 2013, 12:00am
UPDATED : Friday, 13 September, 2013, 2:42am

Hong Kong's rule of law depends on the quality of our independent judiciary. It is the key contributor to the city's competitiveness and success under "one country, two systems". The lack of adequate resources and support, coupled with the recent spate of judicial vacancies and imminent retirements, has threatened the judiciary, access to justice and the state of our rule of law.

The average waiting time for cases, from filing to judicial hearing, has increased significantly in recent years. Civil matters in the Court of Appeal now wait an average of 131 days, an increase of 54 per cent since 2008 and in excess of the judiciary's 90-day target. The criminal cases list has an average waiting time of 180 days, exceeding the judiciary's 120-day target and an increase of 61 per cent since 2008. The civil cases list has an average waiting time of 244 days, exceeding the judiciary's 180-day target and an increase of 68 per cent since 2008.

Increased average waiting times only partially convey the severity of the current predicament. After queuing for a hearing, litigants have to then wait, sometimes for many months, before judgments can be delivered.

Judges’ workloads are now reported to be so daunting that some have to work through their annual leave

Judges' workloads are now reported to be so daunting that some have to work through their annual leave. Inevitably, the quality of some judicial decisions suffers as a result of overwork. The heavy workload has also partially contributed to difficulties in the retention and recruitment of judges from the private sector.

Nearly half of the judges on the Court of Final Appeal, Court of Appeal and Court of First Instance are aged over 60 and will reach statutory retirement age within the next five years.

The judiciary administrator, which is in charge of requesting funds on behalf of the judiciary from the government budget, has to be ever more responsive to the current difficulties and needs. From our perspective in the Legislative Council, the financial resources sought by the judiciary administrator in recent years have not kept pace with the needs of Hong Kong's courts and tribunals.

Substantial additional funding is necessary to maintain the consistent provision of services proportionate to ever-increasing caseloads.

As in other jurisdictions, judges are key to the operation of the judiciary and should play a leading role in its governance and financing, including the annual budgeting process.

A judges' council, drawn from and broadly representative of the judiciary - similar to that in Britain - should be established to guide and direct the judiciary administrator. A standing committee on judicial support and welfare can be established, consulting judges on their workload and addressing the balance between administrative and official duties, and their work in hearing and deciding cases.

Additional capital investment can be directed into expanding and improving the current court facilities to bring them in line with the 21st century. Given that most judges now have extended working hours outside of their court sittings, they should be provided with adequate time to write their judgments, and something as minor as after-hours secretarial support must not be overlooked.

More funds should be allocated to hasten the implementation of the judiciary's information technology strategy plan, which is taking far too long to put into practice. Introducing electronic filing will shorten case waiting times by allowing judges and court personnel to access, manage and review court documents more efficiently while at the same time reducing costs for litigants.

The judiciary should look into expanding its judicial assistants scheme, allowing more young and talented lawyers to aid in, and gain experience from, the judicial process by working directly under senior judges. Properly trained judicial clerks should be enlisted to provide all-round support to judges on an individual basis.

Magistrates must be provided with induction and continued vocational training, to increase their efficiency, improve their judicial skills and temperament and, in the long run, help develop the junior ranks to fill the pool of talent for higher judicial appointments.

We need to immediately consider increasing the total number of sitting judges, whether by filling current vacancies or by creating new permanent positions on the bench.

Judges are the ultimate arbiters of the rule of law in Hong Kong, and their importance and prestige should be appropriately reflected in Hong Kong's official order of precedence. Ultimately, judges' compensation must be increased to attract commensurate legal talent.

Our independent judiciary is crucial for Hong Kong. Overworked judges and a backlog of cases have a direct impact on the quality of justice, and urgent steps must be taken to prevent damage to our rule of law.

Dennis Kwok is a member of the Legislative Council for the legal functional constituency and a member of the Civic Party


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This article is now closed to comments

I absolutely agree with everything Dennis says. The judiciary is one third under strength and few people want to join it because of the arduous hours which do not only require judges to write judgments in thewir own time, but also to read papers in their own time. They are subject to the expediency of a judicial bureaucracy obsessed with maximising use of court time, too often at the expense of justice and quality of judges' decisions.
There are other implications: the Civil Justice Reform and case management system, introduced to encourage settlement or speed cases to trial, have only worked superficially. In practice, Masters of the High Court and District Court, pressured by administrative penny pinching, are persuaded to abandon the interests of justice in favour of decisions aimed at making court cases as short and cheap as possible, without proper regard for fairness.
This is particularly true in personal injury cases. The civil justice reform has introduced severe and even Draconian financial penalties for a party who does not do better at trial than he/she /it was previously offered by the other side. This has resulted in many cases settling early, which on the whole might be viewed as a good thing, but in practice it has resulted in injured persons who usually have limited resources, accepting less than they are properly entitled to. Thus, the main beneficiaries of the reform have been the insurance companies.
Where is the justice in that?
Visit the Judiciary website today and view the "Technology Court" specification document to gain an insight into the utter lack of foresight and decrepitude of the Judiciary Administration. It was issued on 4 April 2003 and remains the best they have to offer by way of technology. This is a total disgrace to all of us in Hong Kong and calls into question what on earth Ms Emma Lau, JA, has been doing for all her years in office.
Ma/Cheung are respectable court leaders
They face enormous problems, such as those epitomized
in DK’s hackneyed but otherwise vacuous prolixity
It is futile to repeat trite superficialities about waiting time and judicial vacancies
We need realistic data of caseload average and hi / lo per capita output of judges
Let’s see how today’s caseload per judge compared with 15 years ago
Let’s compare judicial pay/caseload in various common law jurisdictions
Quantitative comparisons should reveal qualitative deficiencies
Why US schools are trimming legal training from 3 to 2 years
but HK continues to fatten legal “education”, now to ? years?
The remedy we need is not quantitative
The two essential ingredients of law are authority and respect
which can't be expected as hand-me down or charity
and must be won by intelligence and diligent focus on significant and relevant matters
Let’s consider two jurisdictions comparable in population
Scotland (still) part of the UK has its own legal system
Singapore has fully mastered English and morphed it into Singlish,
a globally recognizable form of mutated English for official use
Where may Treasure Island go with a spineless legal system that’s
independent of the local community’s language and customs
and dependent on imports of foreign standards, “expertise”, customs, language …
such that it in effect has to beg outsiders for authority and respect to be imposed on the local population?
I agree totally with what Dennis says. Judges are overworked and fresh ideas need to be brought to the fore for reinforcements. I am not sure but have they really made full use of mediation in civil cases. A drop in the cases queued for hearing will relieve the judges a bit and allow them to concentrate on other serious cases. Personally, I hold the courts in high esteem and its a far cry from the courts in many jurisdictions where decisions are often swayed by political considerations.
The state of our courts is appalling and the Judiciary Administrator is at the heart of the problem. She ought to be replaced as a matter of urgency with someone with the vision and management capability to salvage what's left of a crumbling edifice. She has done a great disservice to the rule of law in Hong Kong.


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