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SCMP Reporter

HONG KONG'S courts are likely to be hit by a flood of appeal cases when, for the first time, a comprehensive history of the territory's past cases is published.

  The legal system has long been accused of failing to administer fair justice because Hong Kong has no comprehensive and easily accessible collection of judgments from important past cases.

  But now, the publication over the next 18 months of 30 law volumes, containing details of previously unreported cases, may lead to the Court of Appeal being flooded with requests for reviews of verdicts and sentences.

  A Sunday Morning Post investigation reveals decisions of the Privy Council have reversed important Court of Appeal verdicts.

  One of the worst cases involved a man who faced the death penalty but later had his murder conviction quashed by the Privy Council. This ruling went unreported and so would not have been available for guidance in similar cases.

  Hong Kong's legal profession has described the problem as making a 'mockery of the practice of common law' and has questioned the 'outdated' methods of law reporting.

  'Criminal law and sentencing is the most obvious area where there may be an increase in appeals as a result of more cases being reported and therefore being made more accessible,' said Tony Kinnear, managing editor of Butterworths Asia.

  The publishers are currently embarking on a project to print 30 volumes of Hong Kong Law, covering unreported judgments going back to 1841.

  Solicitor Andrew Byrnes, co-author of the Public Hong Kong Law Reports - an independent publication concentrating on Bill of Rights issues - said: 'Undoubtedly there will be more appeals when these important judgments come to light. Once significant, previously unreported, judgments come to light, solicitors will be able to use them to help their clients.'   And one prominent barrister, who would not be named, said: 'There are judgments with 'Not For Circulation' stamped on them. These are judgments which do not end up in the Supreme Court library, they are being kept from the public eye.'   According to the judiciary, the decision on whether a judgment is classified important rests with the presiding judge. If it is deemed to establish new principles of law, then details will be passed to the Supreme Court library and on to the Hong Kong Law Report where it will be published in further detail.

  But critics claim this method is impractical, stressing that a body representing the legal profession should be responsible for deciding important cases of law.

  In 1982 the Court of Appeal affirmed a murder conviction against Lau Sik-chun, who faced the death penalty. That decision was later reversed by the Privy Council. 'This was a sensational reversal which indicates the Court of Appeal was hopelessly wrong,' the barrister said.

  'That decision does not appear anywhere because it is critical of the Court of Appeal. If you were to research the law of murder, one would assume, in this particular case the Court of Appeal's decision is statute, but that is totally wrong.

  'I know of no other country where the judiciary decides which cases should be reported and which should not. 'In England, Australia, New Zealand and Canada, judgments are published within five weeks of being decided. In Hong Kong we have what is called 'lost law'. The first judgment in the Hong Kong Law Report 1992 is a case that goes back to 1974. How can the public expect to be tried fairly when it takes 18 years to record a judgment?' he said.

  'The classic example is of the High Court judge Ernest Baber. Only one of his judgments was recorded in 14 years.

  'How can you teach law when you cannot find it? How can Hong Kong produce a competent selection of barristers and judges if they do not have enough material to refer to? We are perpetuating a generation of ignorance,' he said.

  Dr Nihal Jayawickrama, a law lecturer at the University of Hong Kong, said the fact that important judgments went unreported made 'a mockery of common law'.

  'It is difficult to make use of current Hong Kong law because it takes so long for it to be reported - that is if it actually ends up being published. I teach administrative law and make use of English law because it is more easily available and is reported on a weekly basis.

  'Common law is to be found in the judgments of superior courts. How can Hong Kong claim to practise common law when important judgments go unreported? This interferes with every aspect of the legal system,' Dr Jayawickrama said.

  'It is like making new laws in the Legislative Council but not publishing them, we are walking around in the dark at the moment.

  'I am sure there will be appeals against sentences and convictions once more of these important judgments come to light,' he said.

  'Law reporting must be done on a systematic basis.'   The critics are adamant the answer lies in computerisation. 'I would like to see all Court of Appeal, High Court and district court judges provided with permanent secretaries who type up all judgments immediately, then distribute them to all judges via the computer, sending copies to the relevant libraries so they can be openly accessed by members of the profession and the public,' the barrister said.

  High Court judge Mr Justice Kaplan agrees computerisation is essential. 'There are some judgments which slip through the net. The system needs tightening up. I have heard some of the first instance cases are not reported in the library.'   A spokesman for the Bar Council in England said: 'In any common law system, a properly funded law reporting process is absolutely essential to ensure justice is done to individuals and businesses. If people are being deprived of their legal rights it becomes a major problem.'   Asked about the standard of law reporting in Hong Kong, barrister Martin Lee Chu-ming QC said: 'It is unsatisfactory and the indexing in the Supreme Court library is very poor.

  'For all these years law reporting has not been given the priority it deserves from the Legal Department, the Chief Justice and the Registrar.'   But the Chief Justice, Sir Ti Liang Yang, defended the state of law reporting and said there was no question of new important judgments coming to light which would expose cases where the wrong sentence or verdict had been announced.

  'We do not accept that barristers and judges do not have access to important cases,' he said. 'Practitioners have access to the libraries of the Supreme Court and their own professional bodies.

  'We would be interested to know what problems there are, if any, so we may take prompt action to improve our service.'   The deputy judiciary administrator, Matthew Cheung Kin-chung, said: 'The Supreme Court library does contain a comprehensive selection of important judgments from Hong Kong courts. These judgments are selected by the judges concerned on the basis that they establish new principles of law or represent fresh application of established legal principles.' CASE HISTORY CASE ONE In 1982, Lau Sik-chun's appeal to the Court of Appeal was dismissed. He had been sentenced to death for murder. One issue in this case was voice identification, another was whether there had been a common design to carry out the killing. The Privy Council, in highly critical language, ruled the trial judge and the Court of Appeal had made fundamental errors. It allowed the appeal and quashed the conviction. The Privy Council's decision appears in no textbook or series of Law Reports. Any law student, lawyer or member of the public considering these points of law, which occur regularly, will think the decision by the Court of Appeal represents the true state of the law.

CASE TWO Cases on the Bill of Rights where the appellants are successful have been mysteriously marked 'Not For Circulation'. In a recent decision, Yau Chi-keung succeeded in his appeal under the Bill of Rights. The case was wholly unknown to academics and lawyers because someone had decided it should not become public property. Yau had been sentenced to four years' jail after being convicted on a count of possession of equipment and articles intended for use in the forgery of documents contrary to 76A(1) of the Crimes Ordinance. The crime took place on January 17, 1991, when the maximum sentence for conviction under section 76A(1) of the Crimes Ordinance was 14 years' imprisonment. This section, as it stood then, covered a wide spectrum of criminality.

In June 1992, the section was repealed and replaced by section 76(1) and (2). The old offence of 'possessing equipment for forgery' was renamed as 'possessing equipment for making a false instrument'.

In subsection (1), if 'intent' is proved, the defendant can be sentenced to a maximum 14 years in prison. However, the crime of 'simple' possession in subsection (2) carries a maximum term of three years' imprisonment. The Appeal Court found that had the applicant been charged under the new law, he could only be charged under subsection (2).

They found the original sentence of four years in prison was wrong and cut it to 21/2 years. The Appeal Court said the case raised 'a substantial point of law' and stated: 'It would appear that this change in law was not brought to the attention of the deputy judge nor were the provisions of Article 12(1) of the Hong Kong Bill of Rights brought to his notice. Article 12(1) provides as follows: Where, since the commission of an offence, provision has been made by law for the imposition of a lighter penalty a defendant is entitled to benefit thereby.' It is ironic that while it was acknowledged the case raised 'a substantial point of law', it was also decided the judgment should not be circulated.

CASE THREE Poon Sau-tin - sentenced in May 1989 to 18 months' imprisonment for making a contradictory statement on oath contrary to Section 35 of the Crimes Ordinance - had his term reduced to 12 months on appeal. The appeal noted it appeared the trial judge had not seen an unreported judgment from the Court of Appeal concerning Wu Wing-keung, which stated sentencing should be in line with that for perjury and can be divided into three categories: The man who commits perjury in the course of giving evidence in his own defence, the law looks upon him somewhat benevolently.

There is not the unusual situation of a member of the family giving support to another member.

This is the most serious of the three categories, a third party who deliberately gives false evidence in support of a defendant. The Court of Appeal found Poon's case fell within the second category, and the decision his appeal read: 'This authority would have assisted him in assessing the gravity of the present offence in the present context. After anxious consideration, we were of the view that since the present case falls within the second of the three categories described by Hunter JA (Wu Wing-keung judgment), and in all the circumstances the sentence is too severe'.

CASE FOUR In July, the High Court debated a civil case (Dawson vs Talisteam MP 790/1994 ) on whether a purchaser should lose a $540,000 deposit on the sale of a property which fell through. One of the questions raised was whether two Australian cases applied to the Hong Kong hearing. If they did apply the purchaser would retain the deposit. The judge said the only direct reference in Hong Kong to the two Australian cases arose during a 1993 hearing, which did not apply to the Australian cases. In the end, the deposit was lost. But a judgment delivered in April had indicated the Australian cases had been applied to another case a year before (Lee Kenny vs Wong Kwok-yan civil appeal 151/1993 ) which led to the plaintiff retaining his deposit.

CASE FIVE A decision of the Court of Appeal dealing with plot ratios under the Town Planning laws was reversed by the Privy Council. The case dealt with important practical issues such as what constitutes a street and the necessary dimensions. The Privy Council case was never reported.



Courts to face flood of appeals