Flaws can be found in most statistical surveys. But when the Court of Final Appeal (CFA) overturned 55 per cent of 29 rulings of the Court of Appeal it considered last year, it raises serious questions. The figure is worse than that recorded in 1998, when 43 per cent of 21 cases were successfully challenged.
Many factors come into play when a ruling is overturned on appeal. The availability of new evidence, the presentation of new legal arguments not heard by the original judge, or a decision by the highest court to overturn its previous rulings can quash a lower court's decision. Appeals to the CFA, the territory's highest court, usually involve sophisticated points of law. And the quality of counsel and of judges has critical importance.
It is no secret that the Hong Kong Judiciary has always suffered a shortage of judges. The material rewards and social status of eminent lawyers in private practice are so high that few are willing to join the bench. That was why, for a long time before 1997, most courts were manned by expatriates. That reliance diminished as 1997 drew near because new nationality restrictions applied to key members of the higher courts after the handover. As a result, more locals, including non-Chinese with long years of local experience, have become judges.
While no hasty conclusions should be drawn, one shudders to think that the addition of experienced lawyers to the bench might explain the contradictory decisions handed down by the CFA and the Court of Appeal on the same cases. Could the quality of counsel assisting be suffering because the local bar has lost some of its most able members, who may have, in turn, become poor judges, at least in the short term? Legal professionals will differ on whether this is the right question. But they would probably agree that any learning process could be enhanced by exposing participants to the best practitioners possible, wherever they come from, provided they do not enter through the back door.
