Judges resolutely dispense justice despite abuse
Vulgar criticism of judges has no place in our community, not least because ... it is invariably flawed and leads nowhere. As with threats, abuse does not influence judges, who have taken a judicial oath to safeguard the law and administer justice without
The law is multifaceted, and can be hard to interpret. Judges, prosecutors and lawyers sometimes see things differently, and the discussions that ensue hopefully contribute ultimately to a correct answer. Acting in good faith, the various parties to criminal proceedings invariably have a shared objective, which is achieving a just outcome of cases, meaning one which is legally sound.
Of course, even Homer sometimes nods. Judges can and do make honest mistakes, but these can be corrected by the higher courts. After a magistrate convicted 13 demonstrators of staging a violent protest at the Legislative Council over the government’s development plans for the New Territories, he sentenced them to perform community service. When then secretary for justice Rimsky Yuen Kwok-keung argued on review that such sentences were manifestly inadequate and/or wrong in principle, the Court of Appeal agreed, and substituted sentences of imprisonment, ranging from eight to 13 months.
However, when the offenders appealed to the Court of Final Appeal, their sentences of imprisonment were set aside on Sept 7, with the judges undertaking to give their reasons at a later date. Although they had not even read their reasons, some local commentators nonetheless took it upon themselves to traduce the judges, in ugly terms. One local politician even described the judges as “sinners against society”, claiming they were guilty of “professional misconduct”.
However, as events have shown, it is invariably imprudent to rush to judgment. It is a basic legal precept that decisions should not be taken or opinions formed until such time as all the evidence is in. Until then, it is best to keep an open mind, and to hold one’s peace. The wisdom of this approach is now apparent, and will be obvious to anyone who has read the court’s reasons for its earlier decision, issued on Sept 28.
The Court of Final Appeal has made it abundantly clear that the trial magistrate did indeed err in imposing community sentence orders, because he had not given sufficient weight to the need for “a deterrent sentence”. The judges very properly noted that “the degree of violence involved in the present case, the number of persons involved, the duration of the unlawful assembly and the injuries and damage inflicted merited immediate custodial sentences”. The judges, therefore, have concluded that immediate terms of imprisonment were necessary, notwithstanding that their critics had earlier accused them of going soft on crime.
The Court of Final Appeal explained that, although the 13 offenders had properly been imprisoned, it had to shorten the terms to between three and five months because the Court of Appeal had made a fundamental error. This arose when the judges, having issued new sentencing guidelines for unlawful assembly cases, proceeded to apply them retroactively, which is contrary to the Hong Kong Bill of Rights Ordinance (Article 12). Whenever sentencing guidelines are issued, they only apply to future cases, and this error obviously required correction. An offender is always entitled in law to be sentenced according to the usual practice applicable when the offense occurred, and this meant that, on the basis of the then-relevant case law and the facts, a sentence in the region of four months’ imprisonment was appropriate.
The Court of Final Appeal, moreover, reendorsed the new sentencing guidelines for unlawful assembly cases (previously formulated by the Court of Appeal in the unlawful assembly case which precipitated the “Occupy Central” movement). These put all and sundry on notice that, because of the rising number of large-scale public protests, it is now necessary for the courts to emphasize deterrence and punishment in sentencing where there has been violence. Far, therefore, from going soft on those who engage in violent demonstrations, as their critics had claimed, the judges have again made it abundantly clear that anyone who offends in future must expect condign punishment.
A High Court judge, moreover, has recently been extravagantly criticized for overturning the assault conviction of former legislator Wong Yuk-man. This appears to have been after extensive legal argument. If she was wrong, the secretary for justice may well seek an appeal, as it could set an unfortunate precedent for the future. Appeal or not, however, the judge, who has great experience and has handled many difficult cases, undoubtedly acted in good faith. She will have carefully weighed up the law and the facts, and sought to achieve justice, having heard submissions from both sides. Even if she has got it wrong, which is by no means a given, that is no reason to impugn her motives or her competence.
Vulgar criticism of judges has no place in our community, not least because, as the court’s judgment in the 13 demonstrators’ case illustrates, it is invariably flawed and leads nowhere. As with threats, abuse does not influence judges, who have taken a judicial oath to safeguard the law and administer justice without fear or favor. What it can do, however, is to poison the minds of some people in the community, and elsewhere, who do not know all the facts. This, in turn, may erode confidence in the legal system, which is obviously damaging for Hong Kong.