Justice delayed
'Justice delayed is justice denied' is a phrase coined by the English prime minister William Gladstone, but its essence was more eloquently defined by the late chief justice of the US Supreme Court, Warren Burger: 'A sense of confidence in the courts is essential to maintain the fabric of ordered liberty for a free people, and three things could destroy that confidence and do incalculable damage to society: that people come to believe that inefficiency and delay will drain even a just judgment of its value; that people who have long been exploited in the smaller transactions of daily life come to believe that courts cannot vindicate their legal rights from fraud and over-reaching; that people come to believe the law - in the larger sense - cannot fulfil its primary function to protect them and their families in their homes, at their work, and on the public streets.'
I doubt whether the frequent delays in delivering judgments in Hong Kong have yet damaged people's confidence in our courts, but one senses that patience is wearing thin.
Two to three months' delay is quite normal between counsel's closing submissions and the judge's handing down the judgment, but all too often the delay is far in excess of these modest intervals. Six to 10 months is becoming almost customary though no one has aspired, as yet, to beat the all-time record of 18 months.
Quite apart from the stress such delays occasion to the parties, not to mention the monumental inconvenience caused, there are very real concerns that the passage of time must almost inevitably impinge upon the quality of the judgment. Memories of the demeanour of a witness quickly fade and judges relying upon their own manuscript notes of the proceedings rather than a transcript of the evidence will indubitably fall into errors of recollection. All human beings are fallible.
Are the judges therefore open to valid criticism? Aside from a precious few who seek to emulate O'Riley's donkey ('O'Riley had a donkey/everyone admired/permanently lazy/and temporarily tired'), our judges are models of industry and commitment, so wherein lies the problem?
I suggest that it is twofold: part historical and part institutional.
Historically, unlike their English brethren, Hong Kong's judges, in the main, do not deliver extemporary judgments. In England, save for the exceptionally lengthy trial, shortly after counsel concludes the last closing argument, the judge embarks upon his judgment.
Incidentally, the same format is followed in criminal trials where the judge commences summing up immediately after the closing speech for the defence. This procedure is a by-product of a system in which counsel are accustomed to making their closing submissions straight after the close of the evidence, unlike in Hong Kong where there will almost always be an adjournment for counsel to prepare written submissions.
Hence, when, as in England, counsel has had to be prepared to expound upon his case hard on the heels of the evidence, once the barrister is elevated to the Bench, it is a relatively straightforward extension of a practice that he has acquired to be ready to deliver an extemporary judgment.
Given the evolutionary character of the acquisition of this skill, it would be extremely difficult to suddenly change Hong Kong practice. However, help is readily and practicably to hand by way of an institutional change.
Over a number of years, judicial administrators have acquired a power that is wholly disproportionate to their role in the justice system. Anyone who has watched Judge John Deed, the English TV series, will be familiar with the conflict epitomised in the judge's ongoing battle with the Lord Chancellor's minions. Allowing for a degree of artistic licence, the series accurately reflects this conflict.
It appears that Hong Kong's judiciary is similarly afflicted. Justice, in a civil service perspective, is to be measured out in terms of the number of hours that a judge spends, physically, in his courtroom. This asymmetric perspective regards the efficacy of the system as calculated not on the quality of justice delivered but by the quantity of cases that can be stuffed through the courtrooms like so many components on a factory conveyor belt. No sooner does one case conclude than the judge has to start the next one.
When, then, one might inquire, does he have time to write his judgment? The answer is the evenings, weekends, holidays and whenever he can find a little spare time when the judiciary's bean counters are not treating him like a sausage skin, to be stuffed, sectioned and enumerated so that they can produce those ridiculous charts to demonstrate that they have met their targets. Who, one is compelled to ask - albeit not in the expectation of receiving an honest answer - sets these 'targets'?
Having witnessed this quiet revolution go unchallenged in England, I cannot say that I am altogether surprised that Hong Kong's judges have not risen up like King John's barons and demanded a judicial Magna Carta.
But if the fabric of ordered liberty is at risk of being brought into disrepute by such delays, perhaps it is time for the judges to stand up and, with the indisputable authority that poor Oliver Twist lacked, demand: 'Please, sir, may we have more time?'
Neville Sarony, a practising silk in Hong Kong, was until 2004 a Recorder of the Crown Court of England and Wales
