Letter written to SCMP post editor about HK courts

[ohchk2001]

This was a letter to the editor on the SCMP. The title of it is "HK's judiciary a remnant of colonialism"

Speaking at the opening of the 16th Commonwealth Law Conference, Chief Justice Andrew Li Kwok-nang opined that the "convening of this Conference in Hong Kong represents a recognition of the successful implementation of the principle of 'one country, two systems'". This self-congratulatory statement is problematic.

"One country, two systems" refers to Article 5 of the Basic Law, which provides that Hong Kong's "previous capitalist system and way of life" should "remain unchanged for 50 years".

Before full integration, Hong Kong is free to develop its capitalist system.

However, such freedom alone cannot be construed as evidence of successful implementation of the autonomous principle without regard for its purpose.

Hong Kong under the Basic Law is like a recruit on probation. It is vain to allege successful recruitment if probation performance has failed to meet public expectations and continuation of service after probation is unlikely.

The judiciary in Hong Kong is a tolerated colonial remnant rather than a well-liked local institution.

As P. Reid observed ("Legal reforms to suffer from crucial omission", April 3), the law is "primarily a business activity" in Hong Kong where access to justice is not equal but is determined by whether and how much one affords to pay and that as "the achievement of justice takes a distant back seat", pro bono activity "simply does not exist".

Public antipathy is evidenced by the lack of reporting on the Commonwealth Law Conference in any of the local Chinese-language newspapers.

For comparison, legal practitioners in Singapore and Switzerland develop laws to serve their native communities' interests.

Under the Loyal Principle of Switzerland's constitution the confederation and the cantons are under a mutual duty to co-operate in the state's best interest. In contrast, many in Hong Kong's legal profession view co-operation with the mainland and the local authority as anathema.

They abhor native values but embrace and rely on foreign influences.

Their colonial mentality makes them see British common-law rulings as superior standards for imposition on the "ignorant" indigenous populace.

As even the Court of Final Appeal actively perpetuates the system of foreign non-permanent judges, an outdated and biased institution, there is little hope that the judiciary in Hong Kong may attain the same level of internal and external respectability enjoyed by its counterparts in Singapore and Switzerland.

Audrey Lam, Mid-Levels

While I agree with the fact that you have to pay for justice here in Hong Kong and it's not equally accessible to everybody, the same can be said in many other countries like the United States or Canada. Especially the US. Typically if you don't pay for a criminal defense lawyer in the US and choose to go with a court appointed "public defender" your access to justice is far more limited and you get a much worse deal.

It's not a perfect system, but the HK judiciary is independent in HK and seems to do a pretty good job handing down impartial judgements. The legal system and rule of law is sound, and the commentary about legal professionals "adhoring" native values seems a bit ridiculous especially when comparing our courts to Singapore courts which are heavily politically influenced and used to suppress opposition candidates. This puts their independence to question, though they do a good job with commercial matters. However Hong Kong courts do just as good of a job with commercial matters and they aren't politically motivated.

I personally had a lot of experience dealing with the US court system in both civil and criminal matters. I find Hong Kong courts to be superior in both.

I do hope that legal representation becomes more affordable in both Hong Kong and the US but no system is perfect. Hong Kong's courts though are certainly a step above the courts in other Asian countries. Look at Japan for example. Their courts are a farce and in the case of criminal matters, conviction is virtually guaranteed. Other Asian countries have courts that totally lack judicial independence.

The legal system here is sound and developed. That is already better than many other jurisdictions. Certainly there is room for improvement, but that can be said for all jurisdictions.

Finally nobody knows what will happen after 2047, but there is no evidence that the common law system would be suspended. No central government officials have discussed ANYTHING in regards to that so all anyone can do is speculate. I personally think that the Chinese will be pretty pragmatic and will have a "If it aint broke, don't fix it" policy.

What do you guys think?

[shri]

you have to pay for justice here in Hong Kong and it's not equally accessible to everybody, the same can be said in many other countries like the United States or Canada

I personally find the barrister / solicitor separation and the way the barristers bill their services blows up the expenses way beyond the amount of service delivered.

>> Certainly there is room for improvement, but that can be said for all jurisdictions.

Does that mean we sit back and let another jurisdiction take the lead?

From my perspective, the legislation is antiquated (perhaps a reflection on the antiquated judiciary?) in many respects (no digital laws... similar to UK and US) which results in too many cases being settled as the parties do not trust the judges to make sound decisions...

[ohchk2001]

Can you clarify what you men by "No digital laws"? You mean the lack of a law similar to the Digital Millennium Copyright Act in the US?

Oh yeah that's exactly what HK needs. The DMCA is a bunch of BS and considered controversial by some.

From wikipedia.org

The DMCA has been criticized for forcing all producers of analog video equipment to support the proprietary copy protection technology of Macrovision, a commercial firm.[citation needed] The producers of video equipment are forced by law to support the Macrovision technology to the financial benefit of Macrovision whereas those who build the video equipment get nothing in compensation.

The DMCA has been criticized for making it too easy for copyright owners to encourage website owners to take down allegedly infringing content and links which may in fact not be infringing. When website owners receive a takedown notice it is in their interest not to challenge it, even if it is not clear if infringement is taking place, because if the potentially infringing content is taken down the website will not be held liable. The Electronic Frontier Foundation senior IP attorney Fred von Lohmann has said this is one of the problems with the DMCA.[13]

Google, Inc., asserted misuse of the DMCA in a filing concerning New Zealand's copyright act. Takedown notices targeting a competing business made up over half (57%) of the notices Google has received, the company said, and more than one-third (37%), "were not valid copyright claims." [14]

The less laws the better I say. As long as the current laws are enforced in a consistent manner that's all I care about.

You make a good point about the barrister / solicitor separation, but isn't it that way in the UK?

[shri]

ohck : not DMCA ..

Something like this .. ( Results within legislation - Statute Law Database )

>> isn't it that way in the UK?

Doesnt make it right. Specially if you're looking at a more progressive legal system.

[shri]

Also take a look at CDA section 230 .. ( Section 230 of the Communications Decency Act - Wikipedia, the free encyclopedia ). Far more relevant than the DMCA.