Kemal Bokhary

Courts are keen to convict, claim lawyers

A barrister says this is because of the growing number of former prosecutors becoming judges

PUBLISHED : Tuesday, 08 January, 2013, 12:00am
UPDATED : Tuesday, 08 January, 2013, 6:04am

Lawyers are suggesting that judges are becoming more inclined to convict defendants as growing numbers of former prosecutors join the bench.

This follows the appointment last week of four District Court judges, two of whom had held senior positions in the Department of Justice, including a former senior assistant director of public prosecutions.

Six district judges appointed since 2009 were former prosecutors - just over a fifth of the total appointments in that time.

A senior barrister who specialises in criminal cases said judges now were more likely to convict than before 1997 and lawyers were having to disprove their clients' guilt rather than prosecutors having to prove it beyond reasonable doubt.

The barrister, who spoke on condition of anonymity, said it was down to localisation of judges and an increase in former prosecutors being judges.

"There has been a growing number of locals as well as prosecutors joining the Judiciary," the barrister said.

"Many judges share a mindset that a person would not be brought to a trial without strong criminal evidence and thorough police investigation, which gives rise to the tendency of the court to find the defendants guilty."

Records show that the conviction rate after trial in the District Court was 68.6 per cent in 2011.

The question was also raised by a lawyer when liberal judge Mr Justice Kemal Bokhary spoke at the Foreign Correspondents' Club yesterday.

While he agreed that a judge could become prosecution-minded, he said: "You can find a good judge just anywhere and a bad judge just anywhere as well."

But he recalled that one of the most fair-minded judges he knew was Simon Li Fook-sean, who had been a prosecutor all his life before becoming a judge.

The question was asked by Andrew Lam Ping-cheung, a solicitor who was charged by graftbusters in a share-manipulation case but exonerated by the Court of Final Appeal in 2010.

Also in the speech, Bokhary said he was confident that the courts would act independently when they dealt with the government's controversial request for the Court of Final Appeal to seek reinterpretation from Beijing on right of abode law.

"No body can pick up the phone and tell the judges what to do," the former permanent judge said at the FCC.

"If you want to undo what we did, you have to do it openly.

"That's the way it was and I believe that's the way it is," he said. "Without it, the rule of law will die. If it continues, the rule of law will live," he said.

Secretary for Justice Rimsky Yuen Kwok-keung meanwhile denied that the government's request was buck-passing and disrespect for the rule of law.