Defending judicial independence

Our judicial system is highly regarded and internationally recognised. Hong Kong cases are cited in overseas jurisprudence from time to time, which speaks volumes on the confidence of the global legal community in the integrity and quality of Hong Kong’s judicial system. However, it appears that our judicial system has become a target of savage criticisms which are motived by political overtones.

The Department of Justice (DoJ) has reiterated that members of the public have the right to express their views on court decisions and related matters within the boundary permitted by the law. However, unrestrained personal attacks on judges are never tolerated. When the Court of Final Appeal was unjustly accused of giving in to pressure in reaching a decision, the DoJ promptly defended the Judiciary by dismissing such defamatory remarks. When the intimidation against a judicial officer came to light last month, the DoJ also in no time issued a press statement to condemn the violent act.

Judicial independence is the cornerstone of our society. Safeguarding judicial independence is not just the duty of any particular lawyer, but an obligation of every single law-abiding citizen. In my speech delivered at the Ceremonial Opening of the Legal Year 2018, I said that “[i]t is my duty to ensure that the independence of our Judiciary, as enshrined in the Basic Law, is respected and not arbitrarily attacked or criticised. I urge the community to take the same stance.” In particular the two legal professional bodies, the Hong Kong Bar Association and the Law Society of Hong Kong, which are the crucial stakeholders of the legal sector, are duty bound under the “Rules and Regulations” and the “Memorandum of Association” respectively to safeguard our judicial independence.

Since 2019, the Judiciary was under attack on many occasions, be it destruction of court facilities or malicious attacks against the Judiciary. The DoJ spared no efforts to defend the judicial system. When doxxing activities towards judges and other persons involved in the administration of justice were on the rise, as guardian of public interest, I made an application for injunction in October last year to restrain acts of doxxing against judicial officers and their family members. In granting the injunction, the court heavily condemned the conduct of doxxing by saying “what is impermissible is for the public commentary or criticism to descend into personal attacks, or worse still to the public encouragement of the invasion of privacy of, or harassment of, or threats to, or attempted intimidation of Judges or Judicial Officers or their families.”

Any person who acts in violation of an injunction order may be held in contempt of court. Under common law, criminal contempt of court means conduct calculated to interfere with the due administration of justice, and that there must be a real risk that the due administration of justice would be undermined by the relevant conduct. Criminal contempt of court can take many forms. Examples are conduct disrupting court hearings or insulting judicial officers; refusing to be sworn to give evidence when called as a witness in the face of the court; scandalising the court by scurrilous words or conduct against judges; publication of any report which prejudices the fair trial of on-going proceedings; and obstructing the execution of court orders, etc. A common thread which exists in these examples is the real risk of undermining the administration of justice caused by the objectionable conduct. The sanction in criminal contempt is to maintain public confidence in the administration of justice in Hong Kong, and therefore, for the protection of the rule of law. The DoJ would assess each circumstance objectively and carefully to ascertain whether the element of contempt of court is found. In the case of scandalising the court, contemnors found liable can be fined and sentenced to imprisonment.

Individuals from local and overseas communities, from time to time, have been found expressing views on certain ongoing cases. A number of politicians used to irrationally ask for the withdrawal of charges against some defendants and demand for their immediate release, or even launch spiteful comments on personnel who carry out prosecution work. For cases in which the legal proceedings are still underway, it is inappropriate for any of us, not only the DoJ, to comment as it is a matter of sub-judice. Members of the public ought to wait until the court arrives at a decision and they are advised to read the judgment in order to form any objective and informed discussions. Only by carefully reading and correctly understanding court judgments, one would be able to dispel any unwarranted misunderstanding.

January 17, 2021