Accessibility of law

The Chief Justice listed six indicators of the rule of law at the ceremony for the admission of the new senior counsel last year. One of which is “the public has access to the reasons for the outcome of any court proceedings”. He also described that judgments containing reasons in arriving at the legal result made publicly available are a manifestation of the spirit of the rule of law.

At the ceremonial opening of the legal year 2020, I highlighted the importance of reinforcing the societal recognition and implementation of the rule of law in Hong Kong, outlining an initiative which spans over 10 years for the promotion and education of the rule of law. One of the short term targets is strengthening the community’s understanding and practice of it through promotion, education and capacity building. To achieve this objective, the Department of Justice (DoJ) has devised plans to roll out public education projects for various sectors, including the general public.

Rational and constructive exchanges of views on court decisions will help promote the awareness of the concept of rule of law in society. While there are frequent discussions about the outcome of a case, little is reported relating to the reasoning that set out the legal and evidential basis of the judgment. Only by looking at the reasoning of a judgment will one be able to apprehend the basis of the decision and then to participate in an informed discussion. In Hong Kong, judgments are available at the Judiciary’s website.

However, judgments are usually thorough and hence inevitably long. Issues involved in a case can be plentiful and complicated, necessitating both factual and legal analysis. They will also contain legal concepts that may not be easy to understand. These features may unfortunately deter some members of the general public from embarking on a perusal of the judgment.

Since 2018, the Department of Justice (DoJ) has set up a dedicated page “Summary of Notable Judgments” to provide a brief account of the main points in notable judgments by the High Court (Court of First Instance and Court of Appeal) and the Court of Final Appeal. Cases are selected on the basis that they involve significant legal principles, issues of public interest, or that they are of general interest to the community. We hope that the public, by reading the summaries, will not only be able to grasp the most important aspects of the judgments, but also experience the analytical process undertaken by the judge when dispensing justice.

In each summary, we provide a brief background, legal issues arising from the dispute, and main points of the decisions by the court. However, we do not include our own points of view in the summary so as to enable the readers to get to know the reasons for the decisions in an objective way.

The duty of judges is to adjudicate cases before them in accordance with law and evidence. This is done by taking all admissible evidence in context and applying the same to the law objectively and impartially. Similarly, it is equally important for one to avoid making over-generalised view or passing judgment on a matter based only on versions from one side. Instead, we should remain in a reasonable and objective manner by adopting an open mind, considering all relevant facts and analysing from different perspectives before we come to any conclusion.

Yet, judges may err too. There may be situations in which the parties have to consider taking the matter further to appeal. When the judge’s decision in the case was wrong by erring in law, in fact, or in the exercise of his/ her discretion; or if the decision was unjust because of a serious procedural or other irregularity, the DoJ will have to decide whether or not to appeal or in the case of criminal cases to appeal by way of case stated, or institute review of sentence, etc. Our decisions have to be made in accordance with legal principles and court procedures and a result of our careful analysis of the case in context.

We hope that the “Summary of Notable Judgments” on the DoJ website will encourage the general public to be better informed of how our legal system operates and to be more interested in the correct principles of law that are akin to our daily lives. We share the same objective with the Secretary for Education to foster the right values of students by helping them to better understand the Basic Law and the spirit of the rule of law. In the near future, the DoJ will roll out more capacity building programmes and further strengthen collaboration with local and international stakeholders with a view to achieving our mission of “Rule of Law and Justice for All”.

August 30, 2020