Inexcusable delays are undermining trust in Hong Kong’s legal system

Grenville Cross calls for deadlines to be set and improved manpower allocation to speed things up, as public confidence in our institutions’ ability to deliver justice, once lost, may be hard to regain

PUBLISHED : Wednesday, 09 November, 2016, 1:36pm
UPDATED : Wednesday, 09 November, 2016, 6:56pm

“Delay in justice is injustice”, said William Savage Landor. And a legal system bedevilled by delay, such as ours, inevitably suffers in various ways.

For example, although the Law Reform Commission’s subcommittee on the review of sexual offences produced some welcome recommendations this month – for the reform of the law concerning sexual offences to protect vulnerable people, some urgently needed – this took over 10 years, with the subcommittee having been originally appointed in April 2006.

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Again, following legal changes in Britain in 2004, another commission subcommittee was tasked in November 2006 with considering the pressing issue of whether a specific offence of causing or allowing the death of a child should be created. And yet, a decade on, its report is still awaited.

Even after a subcommittee does finally report, additional delays are by no means uncommon. For example, although the commission subcommittee on hearsay evidence in criminal proceedings, first appointed in May 2001, reported in November 2009, its proposal – to relax the admissibility rules – is still under consideration, with no apparent end in sight.

Secretary for Justice Rimsky Yuen Kwok-keung chairs the commission and, if people are to have faith in it, he must eradicate these delays. He might, for example, consider setting a two-year deadline for a subcommittee to report, with preliminary proposals required within a year.

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Although the commission relies heavily on volunteers giving freely of their time, when a subcommittee is formed, its members must be instilled with a sense of urgency. For his part, Yuen must ensure that reports, once published, are expeditiously processed, without undue delay.

The Independent Commission Against Corruption has also become notorious for its delays, which greatly exceed those of other law enforcement agencies.

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Its investigation into the allegations of impropriety against former chief executive Donald Tsang Yam-kuen took no less than three years and eight months to complete, while the ongoing investigation into his successor, Leung Chun-ying, over his receipt of HK$50 million from Australian engineering firm UGL, has now dragged on for over two years.

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The ICAC’s Operations Review Committee, which oversees investigations, is chaired by Maria Tam Wai-chu, and she must now read the riot act to the commissioner, Simon Peh Yun-lu. Inordinate delays undermine efficiency and fairness, and also damage public confidence in the ICAC, and Tam simply cannot afford to look the other way. Peh must be under no illusions over his duty to ensure that cases are expedited, that internal expertise is nurtured and that, if necessary, more investigators of the right quality are recruited.

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Once cases eventually reach the department of justice, delays have also arisen, partly because of the heavy workload. Although many senior prosecutors have departed of late, the people now at the top must show they can step up to the plate, and not leave difficult decisions to their subordinates, or outsiders. Tricky decisions must not, as a matter of course, be passed over to private lawyers, as happened, for example, with activist Ken Tsang Kin-chiu, whose assault case took a year to process after the papers were sent off to London for consideration.

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If Yuen needs to strengthen his office by recruiting senior prosecutors from the Bar or elsewhere, perhaps as consultants, there is ample precedent for this.

Once the judiciary is finally seized of the more serious cases in the High Court, yet further problems are emerging, partly related to the shortage of substantive judges. On November 2, for example, although 25 courts were operating in the Court of First Instance, only 11 were presided over by permanent High Court judges. The other 14 courts all relied on temporary High Court judges – some of them retirees, pressed back into service from abroad, but also including two senior counsel – helping out for several weeks. By November 4, there were 13 substantive judges sitting in the Court of First Instance, and 13 acting High Court judges. While this expedient certainly buys time, it leaves much to be desired.

Although the target time for bringing on trials for hearing in the Court of First Instance is 120 days, the actual time averaged out at 227 days in 2014, which slid yet further to 272 days last year.

Whereas, for example, Donald Tsang has had to wait over a year for his trial, which will finally start on January 3, the alleged Mong Kok rioters whose case was transferred to the High Court lastSeptember, have now been informed that they must wait 16 months for their trial – until January 2018.

To be credible, a legal system must be efficient, and rampant delays have to be ruthlessly rooted out

Quite clearly, the judiciary, which has many cases to try, often complex, cannot forever rely on retirees and stand-ins to help out with its manpower shortage. It must decide how best to attract experienced lawyers, if necessary from abroad.

An improvement in the judges’ conditions of service may be required, together with a raising of the retirement age from 65 to 70, or even 72, as this would make a career on the bench more appealing to the top end of the legal profession. Moreover, given the pressure, extra funding may also be required for additional judicial posts, and the Legislative Council would probably support this.

To be credible, a legal system must be efficient, and rampant delays have to be ruthlessly rooted out. Once public confidence in the ability of our institutions to deliver justice within a reasonable time is lost, it may be very hard to restore.

Grenville Cross SC is a criminal justice analyst