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Trusted judge who fought for legal integrity of city

Mr Justice Michael Hartmann began his career as a reporter in Africa, and carried his liberal attitudes into the city's highest courtrooms

PUBLISHED : Monday, 01 April, 2013, 12:00am
UPDATED : Monday, 01 April, 2013, 5:06am
 

Mr Justice Michael Hartmann may not be the most publicly visible judge to have served in the High Court but few equal his reputation for handing down rulings that are consistently liberal, except, perhaps, for Mr Justice Kemal Bokhary.

Hartmann was one of the five Court of Final Appeal judges who ruled last month on the right of abode of foreign domestic workers in Hong Kong. While the whole city was waiting for the landmark ruling, Hartmann was the first judge on the panel to make a robust defence of the judiciary.

In last month's issue of Hong Kong Lawyer, published by the Law Society and which came out about two weeks before the ruling, Hartmann said Hong Kong's courts would remain as independent and well-respected as they are now, regardless of what some cynics may say. The following week, Chief Justice Geoffrey Ma Tao-li, speaking at Chinese University, echoed this view and described a "fearless judiciary", which would deliver sound judgments regardless if they were in line with the government's wishes.

When, last Monday, the city's top court delivered its judgment, it refused to entertain the controversial request by the secretary for justice for it to refer to the National People's Congress Standing Committee for an interpretation of the Basic Law.

During his career as a full-time judge between 1991 and his retirement July last year, Hartmann heard numerous Judicial Review cases involving human rights, and on many occasions ruled against the government.

But his passion to uphold the rule of law and to safeguard the constitutional rights of Hong Kong people is unquestionable.

In Hong Kong Lawyer, Hartmann explained why joining the judiciary was the best decision of his life - aside from asking his wife Melanie to marry him. "One of the reasons is the fact that I joined a top-rate institution. One that, in my opinion, has had a critical role to play in Hong Kong's post-1997 prosperity."

In 2006, Hartmann ruled that covert surveillance operations conducted in the city had no valid legal basis. He ruled as unconstitutional a law authorities had relied on for decades to allow phone-tapping, but he gave the government six months to get its house in order.

In a judicial review in 2008, he decided the Broadcasting Authority had restricted freedom of speech when it made a discriminatory ruling against an RTHK television programme about homosexuality.

Another eyebrow-raising decision was his ruling in the Court of First Instance against granting the Independent Commission Against Corruption a warrant to search the newsrooms of seven major newspapers, including the South China Morning Post, in 2004. His written judgment in the case reflected his deep support for upholding freedom of the press.

The ICAC said the search was part of a serious criminal investigation but Hartmann said this was not sufficient to justify the warrant. He also noted a judge had a responsibility to ensure the legal process was not abused by law enforcement agencies because "an application for a search warrant constitutes a serious intrusion upon the freedom of the press".

Although his ruling was later overturned by the Court of Appeal, he gained the admiration of the city's journalists.

Chairwoman of the Journalists Association Mak Yin-ting said Hartmann had adopted a liberal approach in interpreting the law, legal principles and concepts about human rights - the last of which was both important and appropriate. "Instead of narrowly and literally interpreting the law, a constitutional judge should adopt a liberal attitude and a broad approach when the issues deal with human rights or … the rights will not be effectively protected," Mak said.

Hartmann's interest in press freedom is not entirely surprising - early in his career he was a reporter in Rhodesia, now Zimbabwe.

Hartmann was born in Mumbai in 1944 in a British military hospital to an English father and an Australian mother. He finished his education at a boarding school in England then went to university in Southern Rhodesian. He left three years after its independence in 1980.

He relished being a young reporter. "It was the early days of the struggle for majority rule … That was my baptism of fire as a young journalist," he wrote.

In 1983, Hartmann, who is also a novelist, arrived to join the then Attorney General's Chambers as a government lawyer before joining the judiciary in 1991. He wrote four adventure thrillers in Africa and four more after he came to Hong Kong. They were all published in Britain in hardback and paperback.

Although Hartmann's reputation lies largely in deciding some of the city's thorniest constitutional issues, he was also a family law judge who brought empathy to the cases before him.

In an interview with the Post in September last year, Hartmann admitted that reaching a decision in family disputes, especially those involving children, was sometimes harder than with a judicial review.

"Judicial review is about analysing legal principles and weighing different aspects of public needs. Family law is dealing with profound issues in the lives of each member of the family and children. You know whatever decision you have reached, you are going to hurt one or the other parent.

"Most [family law] judges would tell you the most difficult cases are not the big money cases - such as a multibillionaire divorcing his wife, where you have a very large cake you can cut. The really difficult cases are when you have two loving parents and each has a different view on how best to ensure the welfare of the children."

Veteran family law lawyer Dennis Ho Chi-kuen described Hartman as one of the most trusted in the field, who would make a fair ruling based on the legal principles and law.

"Mr Justice Hartmann is a very good family judge who has helped clarify a lot of ambiguities in the family law principles and concepts.

"Instead of just making his ruling, he explained to the parties, as well as the lawyers, the concepts, such as custody, sole and joint custody. He also developed a lot of principles in the family cases, such as the use of wardship proceedings," Ho said.

So what's next for Hartmann?

As he told Hong Kong Lawyer: "Melanie herself has only recently retired after 17 years in the one job, which gives us the chance to travel more, to take long walks which we love and to free ourselves from a few of the day-to-day pressures."

 


Mr Justice Michael Hartmann

Born: July 24, 1944

1971: Admitted as an attorney, notary public and conveyancer in Rhodesia (Zimbabwe), practising as a partner in a firm in the capital city.
1983: Arrived in Hong Kong and joined the then Legal Department as Crown Counsel.
1984-1989: Promoted to senior crown counsel and became a deputy principal Crown Counsel.
1991: Left the government and appointed district judge in November.
1998: Appointed as a judge of the Court of First Instance in March.
2008: Elevated to justice of the Court of Appeal in September. When he reached the retirement age of 65 on July 24, 2009, his judicial service was extended for three years until July 23, 2012.

Current Positions:
Non-permanent judge of the Court of Final Appeal.
Chairman of the Higher Rights Assessment Board.
Chairman of the Market Misconduct Tribunal and the Securities and Futures Appeals Tribunal.

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