As an international business center, Hong Kong needs a world-class legal system, based on clearly expressed legislation and precedents.
But in recent years, its flexibility has been exploited by people who file muddled, complex, mega-lengthy cases—often ones that don’t even involve them.
Some of these come across as thinly disguised political grandstanding.
Absurd complaints over arrangements at an important West Kowloon railway station are a case in point—and should have been thrown out by judges, says top legal mind Henry Litton.
INSPECTION OF THE GUARD of Honour by the Chief Justice is part of the Ceremonial Opening of the Legal Year. The Chief Justice is in his full court attire. The Guard of Honour is formed by police officers in serried ranks armed with bayonetted rifles. The Chief Justice is accompanied in his inspection by a senior officer carrying a ceremonial sword.
The ritual goes back to colonial times. The symbolism is clear. The law is a robust and effective instrument of governance; it has a cutting edge.
Sadly, as things stand today, there is a mis-match between the image conveyed by the ceremony and reality on the ground.
The Chief Justice in his speech extolled the virtues of the common law system. Highlighting a “critical component” of the system, he referred to the doctrine of precedent: “Judges not only decide cases, but also create legal precedents.”
Such decisions, he said “guide and even govern how the subsequent cases involving similar facts and issues are to be determined.”
And when it comes to interpreting and applying statutory provisions, “the interpretation that the courts give to a piece of legislation becomes binding law in itself, affecting the results of future cases.”
That, in essence, is how the common law operates: a system of judge-made laws, alongside legislation. Each judgment is, in effect, part of the building blocks for the whole edifice.
As far as legislation is concerned, the aim is always for simplicity, short sentences, which make for clarity. Legislators come from all walks of life. They are not all lawyers. Hence, as is often the case, to render things simple and intelligible, a piece of legislation would state broad principles, leaving the judiciary to fill in the gaps.
LAW IS CLEAR: BUT ARE JUDGES?
Does it not necessarily follow that the courts, in turn, have an obligation to reach for simplicity and intelligibility in interpreting statutes? And, by the same token, in every other area of the law?
The Chief Justice said: “The wider community must also deepen its understanding of our common law system in order to make it work.”
How, one might ask, is the wider community to have any understanding if judges do not make that possible by striving for clarity, brevity, simplicity?
This raises a wider question: Is a legal system fit for purpose if it is laden with words which make little sense to the ordinary citizen; if it is shrouded in complexity and obscurity?
Words are the vehicle of thought. If the thinking is muddled, the language will be complex, leading often to absurdity.
The Chief Justice, in his speech, said that “English, the language of the common law, is the common international language used by the world over in international business and dealings.” This makes the judicial process, he said “readily understandable to those from outside and inspire confidence in our system”.
Yes, confidence in the system comes from understanding; and this could only be attained if judges strive to make their judgments understandable.
Take this statement made by a High Court judge in December 2021:
“The recent culture in the context of judicial review proceedings for there to be excessive prolixity and complexity, in what are supposed to be concise grounds for judicial review, as often as not serve to conceal rather than illuminate the essence of the case being advanced.”: Tam Sze Leung & Others v Commissioner of Police [HCAL 191/2021] para 9.
In that case, the initiating process – Form 86 – “comprised over 60 pages of closely typed description and argument,” said the judge. That, by its very nature, was abuse of process; there is no way a document like that could have properly stated the grounds for application and the relief sought. A properly completed Form 86 should not be longer than one sheet of A4 paper.
CULTURE OF COMPLEXITY
The judge’s criticism was directed at the legal profession, in judicial review proceedings. He spoke of the “culture” of prolixity and complexity; that is to say, systemic dysfunction. Not isolated abuse.
What efforts have judges made to change the culture? In the Tam Sze Leung case, the answer is simple. No effort was made at all. Quite the contrary.
The judge who first received the papers, with the duty to resolve the matter ex parte, should simply have dismissed the application out of hand as an abuse of process; that would have sent a clear message to the profession. But what actually happened? The case is now on the way to the Court of Final Appeal, having generated multiple pages of “closely typed” text at two levels of courts, which no one can understand.
As we have seen, agitators have aimed at destabilizing the government by attacking such projects through the courts.”
When one sees the mega-judgments being handed down by the judiciary, dealing with argument and counter-argument put up by counsel, often with little relevance to the actual issues on the ground, is there not a case for saying that the “culture” of prolixity and complexity infuses the judiciary as well?
Given Hong Kong’s limited resources, major infrastructure projects must necessarily involve participation by overseas enterprises. And, as we have seen, agitators have, in the past, aimed at destabilizing the government by attacking such projects through the courts. How the courts respond to these attacks would influence decisions made overseas as regards participation.
The Chief Justice, in his speech, spoke of “the common law’s strong emphasis on rigorous analysis” which, if done, would eliminate at an early stage much abuse practised in the public law field. And that would, in turn, inspire confidence in the system for overseas investors.
THE AGITATORS STEP IN
Take the West Kowloon Rail Terminal Co-location matter, which erupted about five years ago: Leung Kwok Hung & Others v Secretary of Transport, Secretary for Justice and Chief Executive [HCAL 1160/2018].
After the most meticulous study and discussion by government bodies on both sides of the border over many years, Legco passed the Guangzhou-Shengzhen-Hong Kong Express Rail Link (Co-location) Ordinance, approving the setting up of a Mainland Port Area within the West Kowloon Rail Terminal.
In September 2018 the project was officially launched, and the trains started running. All immigration, customs and quarantine processes – whether by Hong Kong or Mainland officials – took place within the terminal building. For obvious reasons, those processes performed by Mainland officials in the Mainland Port Area (leased to the PRC government) followed Mainland laws.
Then came a “constitutional challenge” by four individuals: well-known agitators, funded by Legal Aid.
In essence, the challenge was this: The entire arrangement as laid down by the Ordinance was contrary to the Basic Law. No particular article in the Basic Law was identified. Just “the Basic Law”. That, on its face, was sheer nonsense.
The matter began in the usual way with an application for leave to start judicial review proceedings. This is governed by Order 53 of the High Court Rules. It goes to a High Court judge ex parte – that is to say, it is a matter between the applicants and the judge alone, without the proposed respondents (the Secretary for Transport, etc) being vexed. The judge had a duty to protect the integrity of the process.
Order 53 rule 3(7) says that the judge “shall not grant leave unless it considers that the applicant has a sufficient interest in the matter”.
Neither Leung Kwok-hung nor any of the other applicants had the least interest in the matter, more than anyone else. They were agitators pure and simple. No leave to proceed should have been given. The matter should have been dismissed outright. End of story.
What happened? It proceeded to a full hearing: 30 and 31 October 2018. Twelve barristers, six of them Senior Counsel, with their attendant solicitors, appeared before a High Court judge.
A HUGE CASE, TO NO PURPOSE
The judge eventually delivered a mega-judgment: 56 pages.
After an exhaustive recitation of the history of the project, he concluded that the arrangement for “co-location” – amalgamating all the immigration, customs and quarantine facilities in one building – was “reasonable” and made “good sense”.
But, said the judge, “whether [the arrangement] is legally permissible is a separate issue which I shall consider later in this judgment”. There then followed multiple paragraphs of counsel’s argument and counter-argument.
The huffing and puffing in court was not for real… at the end of the day, the only possible outcome was the dismissal of the application.”
To what purpose? Was there a real possibility that the judge might, at the end of the day, conclude that the applicants had made out their case, that the entire project as authorised by the Ordinance was “unconstitutional”? That the Mainland Port Area must be vacated, the Mainland officials expelled, the trains stop running?
Or was this all just a pantomime? The huffing and puffing in court was not for real; at the end of the day, the villain is chased off the stage; the only possible outcome was the dismissal of the application.
Judicial review is a process undertaken in the interests of good governance of the community. The applicant does not go before the court to vindicate some private right. If he succeeds, the whole community is affected. Hence, any relief given is, ultimately, discretionary. Would it have been in Hong Kong’s interest if the entire arrangement for co-location be overturned? The thought is grotesque.
THE LAST WORD, OR NOT
There was also this awkward fact facing the judge. The enactment of the local Ordinance authorising the establishment of the Mainland Port Area within the West Kowloon Terminal was preceded by a declaration of the Standing Committee of the National Peoples’ Congress of 27 December 2017 approving the arrangement, stating unequivocally that it was consistent with the Basic Law.
The final power of interpretation of the Basic Law rests with the Standing Committee of the NPC. That, surely, was the last word on this matter.
Not so. The inanity of the hearing before the judge went this far: there was a hot debate as to whether the Standing Committee had issued an “interpretation” under Article 158(1) of the Basic Law, or had made a mere “decision”, with no binding effect. The judge spent nearly six pages of his judgment on this sterile debate.
Was this case an example of “common law’s strong emphasis on rigorous analysis”, or was it yet another mindless kowtow by the court to the human rights industry? That even the most absurd arguments put up by counsel required respectful “analysis”?
How does this inspire confidence in the vigour of the common law system?
And, lastly, is this faithful implementation of the policy of One Country Two Systems?
The Honorable Henry Litton was Permanent Judge of the Court of Final Appeal in Hong Kong from 1997 to 2000.
He has written a number of articles reviewing legal themes in Hong Kong law. To see all of them, click here.