Closed-shop justice

Justice must not only be done, it must be seen to be done. That is, unless you are seeking justice for judges or members of the professions who may have misbehaved.

Take the case of Warner Banks, the coroner who resigned this month following allegations he had sublet his government flat to his girlfriend (now his wife) in breach of accommodation rules.

He was to appear before a judiciary investigating committee set up under the Colonial Regulations. Now that he has resigned, the investigation has been aborted.

But even if he had stayed on, the public would not have learned his defence and what the committee's decision was - under Colonial Regulations, disciplinary hearings are conducted in camera and subsequent decisions conveyed only to the Governor.

Even if the investigation were conducted under the Judicial Officers (Tenure of Office) Ordinance, any hearings conducted by a tribunal set up by the chief justice to investigate a judicial officer's misbehaviour are still likely to be held in camera.

Under section 11 of the ordinance, the chief justice may, after consultation with the Judicial Service Commission, make rules for the conduct of proceedings before a tribunal.

A judiciary spokeswoman said no rules had been made so far, but a working group was producing a draft. 'Our present thinking is that tribunal proceedings should be held in camera,' she said. 'This would be in line with the approach adopted in disciplinary proceedings for the rest of the public service.' Similarly, disciplinary hearings are held behind closed doors for most of the professions, though some have taken steps to conduct some hearings in public.

The Legal Practitioners Ordinance provides that the disciplinary tribunals of both the Law Society and the Bar Association hold their hearings in camera.

The disciplinary committee of the Hong Kong Society of Accountants also holds its hearings in camera but has the discretion to open these - wholly or partly - to the public.

A University of Hong Kong law lecturer, Michael Sandor, who co-ordinates courses on professional conduct, said the traditional view was that disciplinary hearings should be held in camera because a preview of allegations before the matter was determined could result in unfair damage to the reputation of whoever was facing a complaint. Even if the respondent was cleared by the inquiry, he could still lose his job or his clients if the hearing was open.

Mr Sandor said that besides transparency, the other principles that needed to be considered included people's right to reputation, privacy and earning a living.

'A disciplinary hearing is not a criminal trial in which the public has a concern about fairness,' he explained. 'However, the respondent in a disciplinary hearing may want to have it open and ought to have that right.' As far as the discipline of judges was concerned, Mr Sandor said that if an inquiry was held in public it could be sensationalised, leading to a loss of belief in the fair administration of justice.

However, Mr Sandor also noted that the traditional view of holding disciplinary hearings in camera was being increasingly challenged.

'The traditional view is no longer very persuasive because disciplinary tribunals are now seen as protectors of the public, not just maintainers of professional standards,' he said.

In Victoria, Australia, legislation now stipulates that tribunal hearings must be held in public. In England, the English Law Society has conducted disciplinary hearings in public since 1993.

In Hong Kong, the Legal Practitioners Ordinance provision of holding hearings in camera was challenged by Anthony Chua in 1994 during a complaint of professional misconduct.

The respondent applied for the disciplinary proceedings to be open to the public on the ground that section 35A(3) of the ordinance was inconsistent with article 10 of the Bill of Rights Ordinance on open and fair hearing.

By a majority decision, the Barristers Disciplinary Tribunal ruled that section 35A(3) be repealed to the extent that the mandatory prescription for the proceedings to be conducted in camera be removed and replaced by a discretionary power. The hearing was held in public.

Bar Association administrator Margaret Lam said the association had - in a submission to the attorney-general last year - proposed amending the section by adding the clause: 'The tribunal may sit in open hearings for the whole or any part of its proceedings upon the application of the person whose conduct is being inquired into.' The Hong Kong Law Society, however, has no plans yet to open its disciplinary hearings. A spokeswoman said proceedings were closed so that confidentiality could be maintained and public interest was protected.

She explained: 'Say a solicitor represented a client in a case and the case is over. There is no problem with the case's outcome, except that the solicitor may have breached rules [of a technical nature]. The client may not wish details of the case to be paraded in public as the disciplinary hearing does not relate to the case at all.' Concern over protecting members' reputations, however, has not prevented the Hong Kong Medical Council from holding its disciplinary hearings in public.

While the Medical Registration Ordinance empowers the council to hold such hearings in camera or in public, chairman Rosie Young Tze-tze said the council had adopted a general rule of holding all hearings in public.

Exceptions are made only when a doctor is alleged to have raped or molested a patient and the victim needs protection. A line must of course be drawn between protecting the reputation of professionals and the public's right to know.

As one barrister noted privately: 'Most people think there is no smoke without fire. Any professional brought before a disciplinary tribunal will have his or her reputation tarnished in some way, regardless of the result.' This concern is valid but not sufficient reason to keep the whole disciplinary process closed to public view. Open hearings shoule be the rule, with in-camera sessions when the interests of justice demand.