Understanding the Hong Kong Court of Final Appeal: Statistics and Inexplicable Patterns
Martin Kwan*
Chief Justice Ma notably said in 2019 that “everyone should be aware of just how the courts operate and handle cases”, which is vital to the rule of law and the maintenance of public confidence. In order to better understand the Hong Kong Court of Final Appeal (“CFA”), a number of statistical surveys have been done regarding various areas of the work of the CFA as a whole and the individual judges. This Article discovers three inexplicable patterns. The first one concerns the significantly lower rate of contribution by the Chief Justice than other Permanent Judges, where there is not any apparent justification. The second pattern involves two judges writing most of the main judgments for criminal cases, and on certain other areas of laws. This raises questions as to why this is the case and whether other judges have less opportunity to build up their expertise on these areas of laws. Out of the three unexplainable patterns, the most baffling one reveals that there are unusually high rates of (1) unanimous judgments and (2) single judgments (i.e. other panel members simply saying “I agree” to the main judgment) without writing separate judgments such as in depth concurrences or additional observations. There could be a number of explanations, ranging from (1) having a coercive, but undisclosed, norm of pushing for unanimity, (2) administrative reasons and (3) personal reasons on the part of the judges. There are also profound implications which could affect the public’s confidence in the CFA. It is submitted that writing concurrences, dissents or observations have the effect of covering more different arguments, which would make a judgment more acceptable to the public irrespective of the judgment’s conclusion. Thus, it is urged that the CFA should (1) seriously consider increasing transparency and (2) reflect on its approach on unanimity and its tendency to rely on single judgments.
I. INTRODUCTION II. A BRIEF INTRODUCTION OF THE CFA A. The Background of the Judges III. THE NUMBER OF CASES DURING 2011-18 IV. THE RATE OF CONTRIBUTION PER EACH DOMESTIC JUDGE A. The First Inexplicable Pattern V. THE CONTRIBUTIONS BY NON-PERMANENT JUDGES DURING 2011- 2018 VI. INDIVIDUAL JUDGE’S CONTRIBUTIONS TO CRIMINAL CASES A. The Second Inexplicable Pattern
* 2 Asian-Pacific Law & Policy Journal [Vol. 21:2
B. Similar Inexplicable Patterns Observed in Other Areas of Law VII. THE DISSENT RATE IS MORE OR LESS THE SAME THAN IN 1997- 2010 VIII. THE RATE OF HAVING A SINGLE UNANIMOUS JUDGMENT WITHOUT SEPARATE CONCURRING JUDGMENTS OR ADDITIONAL OBSERVATIONS IX. ARE HIGH UNANIMITY AND HIGH SINGLE JUDGMENT RATES PROBLEMATIC? A. The Third Inexplicable Pattern: Unusually High B. It Could Indicate a Lack of Diversity C. The Unanimity and Having Only a Single Judgment Could Be Caused by Some Undisclosed Norm(s) or Reasons: The CFA Should Clarify D. Lack of Transparency: A Serious Matter E. Is Increasing Transparency Feasible? How to Achieve Such? F. The Court May Not Be Performing at Its Full Capability G. Lack of Means of Accountability X. PUBLIC ACCEPTANCE AND CONFIDENCE: THE IMPACT OF HAVING ONLY ONE VOICE XI. CONCLUSION
I. INTRODUCTION
The Hong Kong Court of Final Appeal (“CFA”) is a reputable court which has produced a number of useful precedents that have received attention and even citations in other common law jurisdictions.1
1* In 2010, Hong Kong was ranked fifteenth in the world for judicial independence. Under the marvelous leadership of the sagacious Chief Justice Geoffrey Ma (who will retire in 2021), Hong Kong was ranked eighth in 2019, which was an impressive rise. See WORLD ECONOMIC FORUM, THE GLOBAL COMPETITIVENESS REPORT 2010-2011 177 (2010), http://www3.weforum.org/docs/WEF_GlobalCompetitivenessReport_2010-11.pdf; WORLD ECONOMIC FORUM, THE GLOBAL COMPETITIVENESS REPORT 2019 267 (2019), http://www3.weforum.org/docs/WEF_TheGlobalCompetitivenessReport2019.pdf. Hong Kong is therefore very fortunate to have the illustrious and venerated Chief Justice and his colleagues at the Court of Final Appeal, who together act as guardians of the rule of law and bring the Court to its current new height of greatness. The exceptional caliber of the Court has gained respect, trust and praise, making Hong Kong one of the leading jurisdictions. Enlightened by the judiciary’s constant strive for excellence, the author wishes to offer some humble insights (hopefully not seen as quibbling) on how the already-incredible Court could seek for ever greater perfection. The author would also like to thank the editorial team of APLPJ for their thoughtful editorial suggestions and dedicated help. He can be reached at [email protected]. There are numerous examples. In England and Wales, Blakeney-Williams v. 2020] Kwan 3
However, very little is known about the work and practice of the CFA. This is especially the case as Chief Justice Geoffrey Ma (“Ma CJ”) relatively recently became the Chief Justice on 1 September 2010, replacing the former Chief Justice Andrew Li. Thus, it is worthwhile to evaluate the CFA under Ma CJ’s administration.
In this Article, a number of statistical surveys have been done regarding various areas of the work of the individual judges, as well as on the CFA as a whole. These surveys provide a better and more comprehensive understanding of the court. The statistics will be critically evaluated. It is submitted that the statistics have revealed three inexplicable patterns, with the third being the most pressing and bewildering. The surveys cover the period of 2011 to 2018. The data for 2019 (up till July) is included for side reference, and it therefore be denoted as ‘2019a’ for clarity.
First, the Chief Justice has made significantly less contribution than other Permanent Judges in the form of writing the main or concurring judgments, or additional observations to cases. The contribution rate is only about half of other local permanent judges. There is no apparent justification or explanation for this, and the low rate could not be explained by administrative responsibilities. Although the CJ sat in most of the cases, he mostly said “I agree” without adding anything substantial to the judgment of other judges.
The second unexplainable pattern is that two of the Permanent Judges write most of the main judgments for criminal cases (significantly higher than the contribution by other judges individually). This also has occurred in cases involving other areas of law. An explanation is desirable, as this could mean other judges have paid less thought and have accordingly built up less expertise on these areas of law.
Thirdly and most importantly, there is an unusually high rate of (1) unanimity and (2) having only a single judgment (i.e., other members simply say “I agree”) without writing separate judgments/speeches2 such
Cathay Pacific Airways Ltd. [2012] 15 H.K.C.F.A.R. 261 and Oriental Daily Publisher Ltd. v. Ming Pao Holdings Ltd. [2012] 15 H.K.C.F.A.R. 299 were cited in Sloutsker v. Romanova [2015] EWHC 2053 (QB) at [81] (Eng.). In Canada, Ng Yat Chi v. Max Share Ltd. [2005] 8 H.K.C.F.A.R. 1 was cited in Unrau v. Nat’l Dental Examining Bd., 2019 ABQB 283 at para. 445-51 (Can.). In Australia, Shum Kwok Sher v. HKSAR [2002] 5 H.K.C.F.A.R. 381; Sin Kam Wah v HKSAR [2005] 8 H.K.C.F.A. 192; Chan Tak Ming v. HKSAR [2010] 13 H.K.C.F.A.R. 745; HKSAR v. Wong Lin Kay [2012] 15 H.K.C.F.A.R. 185 were cited in Obeid v. The Queen [2017] NSWCCA 221 (Austl.). 2 In terms of terminology, it is helpful to note that some describe “separate judgements” of other judges as “speeches”. See Trevor J. Shiels, Multiple judgments and the New Zealand Supreme Court, 14 OTAGO L.R. 11, 18 (2015): (“The traditional English 4 Asian-Pacific Law & Policy Journal [Vol. 21:2 as concurrence or additional observations. There could be a number of reasons for this and there may even be an undisclosed norm. It is submitted that always having only one voice among the judges is not desirable, and could lead to lower public confidence and acceptance. The CFA should consider the possibility of having a diversity of opinions in its judgments by having in-depth concurrences or additional observations.
These perplexing patterns would not have been revealed but for a statistical analysis. They raise concerns on transparency and the lack of proper means of accountability. This Article urges that the CFA should increase transparency by explaining them to the public through various means, such as public speaking at universities and conferences. Alternatively, it could provide explanations on its official website. Whilst the CFA often speaks on the nature of its work3, it has not explained on the trend or inclination of having unanimous or single judgments. Even if the CFA prefers to maintain a high unanimity rate for a good reason, it should spell out the underlying rationale or justification for doing so to the public for better transparency.4
II. A BRIEF INTRODUCTION OF THE CFA
The Court of Final Appeal is the highest court of Hong Kong.5 It was established on 1 July 1997.6 A substantive appeal will be heard and determined by a panel of five judges, consisting of (1) the Chief Justice (“CJ”), (2) three permanent judges (“PJ”), and (3) one non-permanent approach was that decisions were announced by speeches and delivered in order of seniority of the judges. Each judge would give his (and historically they were all male) narrative of the facts, statement of the law or legal principles, and conclusion.”). In this article, the term “judgments” will be used. By “concurrence”, it refers a separate opinion or judgment that considers the issues in greater depth than a mere “I agree”.
3 See Non-Court Engagements, HONG KONG COURT OF FINAL APPEAL (Dec. 9, 2019), https://www.hkcfa.hk/en/work/engagement/index.html. 4 For example, the Canadian Supreme Court has openly explained and justified to the public on why it has a low unanimity rate. In particular, Chief Justice of Canada Richard Wagner explained that having a low unanimity rate is “very good, positive for our jurisprudence”. He also justified this as “part of the common law heritage” and a natural consequence of having a diverse group of judges. See Cristin Schmitz, Halfway through 2019, SCC more divided than ever as nine judges fracture in 82 per cent of cases, THE LAWYER'S DAILY (July 9, 2019 at 9:26 AM), https://www.thelawyersdaily.ca/articles/13592/halfway-through-2019-scc-more-divided- than-ever-as-nine-judges-fracture-in-82-per-cent-of-cases (quoting Chief Justice Wagner). The point here is not so much about whether the explanation or justification provided is persuasive, but instead about transparency.
5 XIANGGANG JIBEN FA art. 82 (H.K.). See also Hong Kong Court of Final Appeal Ordinance (Cap. 484).
6 A Brief Overview of the Court of Final Appeal, HONG KONG COURT OF FINAL APPEAL (Feb. 28, 2017), https://www.hkcfa.hk/en/about/overview/index.html 2020] Kwan 5 judge (“NPJ”).7 There are two types of NPJs, namely local NPJs and overseas NPJs. The latter group consists of current or former judges of eminent courts invited from other common law jurisdictions.
Currently, under the leadership of Ma CJ, there are three PJs, namely Ribeiro PJ, Fok PJ and Cheung PJ. There are four local PJs, namely Bokhary NPJ, Tang NPJ, Chan NPJ and Stock NPJ; whereas there are fourteen overseas NPJs from the UK, Australia and Canada. In other words, there are twenty-two members in total.
Regarding the fourteen overseas NPJs, there are two current members8 and five former members9 of the Supreme Court of the UK. There are also two former members of the House of Lords (the predecessor of the Supreme Court of the UK).10 For the Australian members, two of them are former members of the High Court of Australia, which is the highest court in Australia.11 The other two Australian members are former Chief Justices of the New South Wales.12 The only Canadian member is the former Chief Justice of the Supreme Court of Canada.13
A. The Background of the Judges
The judges’ legal education background is a good starting point of reference to see if there is sufficient diversity, because other types of background information, such as personal political preference or social background, are not available. In 2019, 75% of all PJs (including the CJ) (i.e. three judges out of four) received their primary legal education in England.14 The remaining judge received his primary legal education in
7 Hong Kong Court of Final Appeal Ordinance, § 16. Where the Chief Justice is not available, the panel will consist of three PJs, 1 local NPJ and one overseas NPJ.
8 Baroness Hale and Lord Reed. See The Non-Permanent Judges, HONG KONG COURT OF FINAL APPEAL (Dec. 20, 2019), https://www.hkcfa.hk/en/about/who/judges/npjs/index.html. 9 Lord Neuberger, Lord Clarke, Lord Collins, Lord Walker and Lord Phillips. See id. 10 Lord Hoffmann and Lord Millett. See id. 11 Justice French (former Chief Justice of the High Court of Australia) and Justice Gummow. See id. 12 Justice Spigelman and Justice Gleeson. See id. 13 Justice McLachlin. See id.
14 They are Ma CJ, Ribeiro PJ and Fok PJ respectively. See The Judges, HONG KONG COURT OF FINAL APPEAL (Oct. 14, 2019), https://www.hkcfa.hk/en/about/who/judges/pjs/index.html. One explanation for studying in England is that the first local law school, the University of Hong Kong, was 6 Asian-Pacific Law & Policy Journal [Vol. 21:2
Hong Kong and pursued postgraduate legal education in the US.15
Regarding the four local NPJs, three judges out of four received their legal education in England, with the remaining one being educated in Hong Kong. For the 14 non-local NPJs, nine (64% of all NPJs) of them are current or former British judges; four (29%) of them were from Australia; the remaining one (7%) is from Canada. The only two female judges, who are NPJs, were appointed in 2019. This means there is no local female judge sitting in the CFA. It is unknown if the local judges studied in England by way of scholarship or were self-funded. If they were the latter16, it would suggest that most of the local judges (75% of all local PJs and NPJs) were presumably from, at the very least if not higher, a strong middle-class background. For further discussion on diversity issues, see Section VIII(B) below.
In terms of the age (see Table 1), the average age in 2019 of all twenty-two members is seventy-three years old. To further break it down, the average age for the CJ and PJs is sixty-two. The average age for local NPJs is seventy-two. The average age for overseas NPJs is seventy-seven.
Table 1 – Age of the Judges Judge Year of birth Age in 2019 Ma CJ 1956 63 Ribeiro PJ 1949 70 Fok PJ 1962 57 Cheung PJ 1961 58 Bokhary NPJ 1947 72 Chan NPJ 1948 71 Tang NPJ 1947 72
established in 1969 (as a Department of Law as it then was). Therefore, the younger members would have to and/or preferred to study in England in order to work as a barrister in Hong Kong under the British ruling before the handover to China in 1997. See CHRISTOPHER MUNN, A SPECIAL STANDING IN THE WORLD: THE FACULTY OF LAW AT THE UNIVERSITY OF HONG KONG, 1969–2019 1, 105-06 (2019).
15 Cheung PJ. See Cheung PJ, HONG KONG COURT OF FINAL APPEAL (Oct. 24, 2019), https://www.hkcfa.hk/en/about/who/judges/pjs/index_id_22.html. 16 The possibility is strong, because firstly, there does not seem to be any public record on the award of scholarships. Secondly, some of the local judges (e.g. Ma CJ and Fok PJ) also received their secondary education in England. Ribeiro PJ studied for a further LLM in England, apart from his undergraduate degree in England. It is unlikely that scholarships would be as generous as to have such a wide coverage. See The Permanent Judges, HONG KONG COURT OF FINAL APPEAL (Oct. 24, 2019), https://www.hkcfa.hk/en/about/who/judges/pjs/index.html. 2020] Kwan 7
Stock NPJ 1945 74 Lord Hoffmann 1934 85 Lord Millett 1932 87 Gleeson 1938 81 Lord Neuberger 1948 71 Lord Walker 1938 81 Lord Collins 1941 78 Lord Clarke 1943 76 Lord Phillips 1938 81 Spigelman 1946 73 Gummow 1942 77 French 1947 72 Lord Reed 1956 63 Lady Hale 1945 74 Beverly 1943 76 Average of all judges - 73
III. THE NUMBER OF CASES DURING 2011-18
One will notice that the official website of the CFA has its own statistics for the number of cases.17 The numbers produced by the CFA itself are higher than the ones in this Article. The difference could be explained, presumably, because the CFA’s figures include judgments on procedural matters (e.g. costs) and doubt-count cross and joint appeals. Essentially, procedural cases do not involve substantive resolution and joint/cross appeal cases actually have the same content. By contrast, the methodology adopted in this Article is to count the number of cases listed on the database by the Hong Kong Legal Information Institute, which is widely regarded to be an authoritative and accurate source.18 This Article will count cases based on content, i.e. if multiple cases have the same content, they are counted as one.
17 The Role of the Court of Final Appeal (CFA), HONG KONG COURT OF FINAL APPEAL (Jan. 13, 2019), https://www.hkcfa.hk/en/faqs/role_cfa/index.html. 18 The database is maintained by the University of Hong Kong Faculty of Law and the Department of Computer Science. The official website is available at https://www.hklii.hk/eng/. See Graham Greenleaf et al., The Hong Kong Legal Information Institute (HKLII): Its Role in Free Access to Global Law via the Internet, 32(2) H.K.L.J. 401, 412 (“HKLII is, and was at its initial release, the most comprehensive collection of Hong Kong law available for free access which can be searched with a single search”). Various guides have suggested this database when explaining how to do legal research in Hong Kong, which demonstrates its importance. See e.g. STEFAN H C LO, KEVIN KWOK-YIN CHENG AND WING HONG CHUI, THE HONG KONG LEGAL SYSTEM 349 (2019); Law Useful Websites: Judgments & Decisions, THE CHINESE UNIVERSITY OF HONG KONG LIBRARY (Oct. 2, 2019), https://libguides.lib.cuhk.edu.hk/c.php?g=307659&p=2054256. 8 Asian-Pacific Law & Policy Journal [Vol. 21:2
By way of illustration on the difference in methodology between the one adopted by this Article and the official statistics, in the CFA case of Thomas Alexej Hall v. Libertarian Investments Ltd., the court itself issued a judgment on costs. However, it can be observed that the same judgment on costs (with the same content) has two case number, namely [2014] HKCFA 19 and [2014] HKCFA 20. Similarly, for the substantive judgment, it too has two case numbers, namely [2013] HKCFA 93 and [2013] HKCFA 94. The reason is because it involved a cross-appeal: Hall v. Libertarian and Libertarian v. Hall, respectively.
Therefore, since this Article will only count such case once, arguably the statistics will provide a more accurate view of the work and patterns of the CFA than the official statistics. Unless otherwise specified, all numbers will be round up to the closest integral.
In terms of counting the number of cases, the methodology excludes procedural or ancillary judgments, namely matters which do not go into the substance of a particular case. This includes, for example: (1) judgments on costs; (2) leave to appeal; (3) extension of time to satisfy judgment19; (4) follow up applications20; (5) application to re-open an appeal21; and (6) judgment on interest.22
The number of cases per year has been steady (see Table 2). The total number of cases will serve as the basis for calculating the percentage of contribution by individual judges per year below.
Table 2 – Number of cases between 2011-2018 Year Total Number % of Number Public, number of criminal of civil constitutional, of cases criminal cases out cases or human cases of all right cases cases 2011 22 4 18% 18 1 2012 24 11 46% 13 2 2013 30 6 20% 24 4 2014 25 7 28% 18 2
19 Libertarian Investments Ltd. v. Thomas Alexej Hall [2014] HKCFA 2. 20 Kam Leung Sui Kwan v. Kam Kwan Lai [2015] 18 H.K.C.F.A.R. 631. 21 Brian Alfred Hall v. HKSAR [2014] 17 H.K.C.F.A.R. 17. 22 Hong Kong Electric Co. Ltd. v. Comm’r of Rating and Valuation [2012] 15 H.K.C.F.A.R. 1. 2020] Kwan 9
2015 23 5 22% 18 0 2016 24 12 50% 12 0 2017 19 9 47% 10 3 2018 20 10 50% 10 1 2019a 12 8 67% 4 2 Average 23 8 35% 15 2 (2011- 18) Total 187 64 - 123 13 (2011- 18)
IV. THE RATE OF CONTRIBUTION PER EACH DOMESTIC JUDGE23
The rate of contribution includes writing (1) the main judgment which forms the ratio decidendi, (2) concurring judgment (which agrees to the conclusion of the main judgment but with different or additional reasoning), (3) dissent, and (4) additional observation (usually a few paragraphs or sentences analyzing the facts or laws, intended to be a supplement to the main judgment written by fellow judges).
What it does not include is a mere “I agree”.24 In other words, this survey aims to see the number of cases where a particular judge says “I agree” or contribute substantively in the above mentioned ways.
The following calculation denoted in percentage is based on the number of cases which the judge has made contributions, out of the total number of cases in that particular year. It is worth noting that there is a separate column of “everybody or ‘we’”, which denotes two separate situations. For the “everybody” situation, there is only one single judgment issued in the name of “The Court” (i.e., in the name of everybody)25 or listing the names of all judges26. This will only be counted
23 It includes members who has been or was a PJ during the period of 2011- 2018. 24 For examples on what “I agree” is, see, e.g., HKSAR v. Gammon Construction Ltd. [2015] 18 H.K.C.F.A.R. 110 (where the first four paragraphs of the judgment were the separate “I agree with the judgment of Mr. Justice Gleeson NPJ” by Ribeiro PJ, Tang PJ, Fok PJ and Stock NPJ respectively.). 25 See, e.g., Leung Kwok Hung v. President of the Legislative Council (No 1) [2014] 17 H.K.C.F.A.R. 689 (where the heading lists “The Court”). 26 See, e.g., SPH v. SA [2014] 17 H.K.C.F.A.R. 364 (where the heading lists “Chief Justice Ma, Mr. Justice Ribeiro PJ, Mr. Justice Tang PJ, Mr. Justice Bokhary NPJ, Lord Collins of Mapesbury NPJ”). 10 Asian-Pacific Law & Policy Journal [Vol. 21:2 once in this column.
By contrast, the “we” situation denotes where the single judgment is written by a Judge A, but (1) the other judges do not separately say “I agree” and (2) that single judgment usually used “we” throughout. Yet, in the “we” situation, the judgment is issued in the name of Judge A only.27 Therefore, for counting purpose, in the “we” situation, it will be counted as a contribution by Judge A, and it will also be counted in the “everybody or ‘we’” column.
Thus, to fully and fairly understand the number of contributions of a particular judge, it is helpful to take into account the percentage in the “everybody or ‘we’” column.
Table 3 - % of individual contributions in the number of cases out of all cases in a particular year Year Ma CJ Ribeiro Fok Chan Tang Bokhary Everybody Cheung PJ PJ28 NPJ29 NPJ30 NPJ or “we” PJ31 2011 14% 36% - 32% - 50% 9% - 2012 29% 38% - 33% - 58% 0% - 2013 23% 27% 3% 23% - 20% 3% - 2014 12% 28% 28% - 24% 12% 32% - 2015 17% 26% 35% - 17% 4% 0% - 2016 8% 33% 38% - 29% 4% 17% - 2017 11% 32% 32% - 21% 5% 11% - 2018 10% 25% 30% - 25% 10% 15% - 2019a 0 8% 42% 0 0 0 25% 8% Average 15.5 31% 32.6 29% 23% 43% 11% - (2011- % % (2011 (2013 (2011- 18)
27 See, e.g., Sec’y for Justice v. Florence Tsang Chiu Wing [2014] 17 H.K.C.F.A.R 739 (where the judgment was in the name of Ribeiro PJ, but his Honour used “we” throughout). See also HKSAR v. Fugro Geotechnical Servs. Ltd. [2014] 17 H.K.C.F.A.R. 755 (where the judgment was issued in the name of Fok PJ).
28 Fok PJ was appointed on 21 October 2013. See The Judges (Fok PJ), HONG KONG COURT OF FINAL APPEAL (Oct. 25, 2018), https://www.hkcfa.hk/en/about/who/judges/pjs/index_id_23.html. 29 Chan NPJ became a NPJ in 2013, where he was previously a PJ. See The Judges (Chan PJ), HONG KONG COURT OF FINAL APPEAL (Mar. 12, 2015), https://www.hkcfa.hk/en/about/who/judges/npjs/index_id_8.html. 30 Tang NPJ was a PJ between 2012 and 2018. He was previously a NPJ in 2010- 2011 and now remains as a NPJ. See The Judges (Tang NPJ), HONG KONG COURT OF FINAL APPEAL (Jan. 4, 2019), https://www.hkcfa.hk/en/about/who/judges/npjs/index_id_58.html. 31 Cheung PJ recently joined the CFA on 25 October 2018. See The Judges (Cheung PJ), HONG KONG COURT OF FINAL APPEAL (Oct. 24, 2019), https://www.hkcfa.hk/en/about/who/judges/pjs/index_id_22.html. 2020] Kwan 11
(2014 -13) -18) 13) -18)
A. The First Inexplicable Pattern
There is an inexplicable pattern. It is difficult to explain why Ma CJ’s rate of contribution is about half of the other Permanent Judges (Ribeiro PJ and Fok PJ). Is it because Ma CJ has other engagements? Or is it because the CJ is supposed to contribute less, based on a norm or office policy? If Ma CJ has other engagements or work, what are they? Is there any undisclosed norm for the PJs to do more work?
One possible reason is that the CJ has more visiting and speaking non-court engagements locally and overseas.32 According to publicly available data which lists all of the non-court engagements of the judges, the CJ has taken up the highest number of non-court engagements (see Table 4). Furthermore, on average, 49% of the CJ’s engagements require overseas travelling. This may explain why the CJ contributes the least.
Table 4 – Non-court engagements Year Ma Fok Tang Ribeiro Total of % of CJ’s Number CJ’s % of CJ PJ NPJ PJ all engagements of CJ’s overseas travel members out of the overseas out of all of his total travel own number of engagements everybody’s engagements 2015 6 4 2 2 14 43% 3 50% 2016 9 3 4 0 16 56% 5 56% 2017 4 5 1 1 11 36% 2 50% 2018 10 1 3 1 15 67% 4 40% 2019 5 0 0 0 5 100% 2 40% a
However, these non-court engagements fail to provide a proper justification for the lower contribution rate. Firstly, it fails to explain why the CJ can have a high rate of contribution in 2012 at 29%, but not in other years. Secondly, non-court engagements are relatively short as they usually require only half to a few days.
It is possible that the CJ has a significant amount of other administrative work.33 Yet, the responsibility to deal with administrative 32 There is a list of all non-court engagements in the official CFA website. See Non-Court Engagements, HONG KONG COURT OF FINAL APPEAL (Dec. 9, 2019), https:// www.hkcfa.hk/en/work/engagement/index.html. 33 In an interview with Ma CJ when his Honour was the President of the Court of Appeal (as he then was), he said that he spent “less than fifty per cent of my time in court”. His Honour explained that: “Much of my time is concerned with the 12 Asian-Pacific Law & Policy Journal [Vol. 21:2 tasks does not justify contributing less to cases. This is because the main function of the CJ, who is also a full-time Judge, should be making a legal, rather than a non-legal, contribution.
In any event, the explanation based on administrative work is weak. This is because the CJ sat as a member of the panel/bench in seventeen out of all twenty cases in 2018. Yet, in eleven cases34, Ma CJ simply said “I agree”. This would suggest that the CJ was not really over- burdened by administrative tasks, as otherwise he would not be able to sit in as a panel member.
Thus, this Article suggests that the CFA should consider explaining whether there is any reason why the CJ has a lower contribution rate. To ensure the invaluable legal knowledge and skills of the CJ could be put in legal use, it is suggested that the CFA should consider increasing non-legal personnel to deal with the administrative matters, so the CJ could have more time. The administrative burden of the CFA should not unfairly deprive the public and the litigants the proper utilization of the legal wisdom of such a great legal mind.
V. THE CONTRIBUTIONS BY NON-PERMANENT JUDGES DURING 2011-18
This survey aims to evaluate the contributions made by NPJs who have never become PJs. The CFA is peculiar in the sense that it has a lot of pre-eminent judges from other common law jurisdictions acting as NPJs. It is widely perceived that they will be able to bring valuable legal insights to Hong Kong to foster local legal development.35 Apparently, not all NPJs will be stationed in Hong Kong every year.36 Each year, a number of administration of the High Court”. Yet, there is no public information on whether this still holds true after Ma CJ assumed the current role in the CFA. See Alumnus profile: The Hon Chief Justice Geoffrey Ma, THE UNIVERSITY OF BIRMINGHAM, https://www.birmingham.ac.uk/schools/law/who-we-are/alumni/profiles/profile-ma.aspx. 34 To avoid any doubt, it is helpful to clarify that in Lee Kwok Wa v. Sec. and Futures Comm’n [2018] 21 H.K.C.F.A.R. 537, the 188-word judgment by CJ (co-written with Fok PJ) does not count as a contribution, because their Honours were simply clarifying their agreement to whose opinions on which particular point (as Ribeiro PJ, Tang PJ and Spigelman NPJ wrote substantive opinions separately). It in effect adds nothing substantively.
35 See, e.g., ERIC C. IP, HYBRID CONSTITUTIONALISM: THE POLITICS OF CONSTITUTIONAL REVIEW IN THE CHINESE SPECIAL ADMINISTRATIVE REGIONS 115 (2019). 36 Joseph Fok PJ, Judges from other common law jurisdictions in the Hong Kong Court of Final Appeal (speech delivered in Commonwealth Law Conference 2017 on Mar. 22, 2017), available at https://www.hkcfa.hk/filemanager/engagement/en/upload/43/ D5_The%20Use%20of%20Non-local%20Judges%20in%20Overseas 2020] Kwan 13 members will come and take part in a few cases.37
The number of “contributions” for this survey include (1) writing the main judgment (usually the only single judgment with whom all agree to) and dissent, and (2) concurring judgments or additional observations. They are separately counted and are denoted in the form of “the number of the former category of contribution + the number of the latter category” in the columns below.
Table 5 – The number of contribution by NPJs who have never become a PJ Year Lord Mason38 Lord French39 Lord Stock Lord Hoffmann Walker Neuberger Reed40 2011 2+1 1 1 - 0 0 - 2012 1+1 1 1 - 1+1 0 - 2013 3 1 0 - 0 0 - 2014 1 0 1 - 1 0 - 2015 0 1 1 - 0 3 - 2016 2 - 0 - 0 0 - 2017 0 - 1 1 1 1 0 2018 1 - 1 0 1+1 1 1 2019a 1 - 0 1 0 0 0 Total 13 4 6 2 6 5 1
Table 5 – Continued Year Lord Gleeson Gummow41 Lord Lord Spigelma Lord Clarke Collins Millett Phillips42 n43
%20Jurisdictions.pdf (“The practice is for an overseas NPJ to come to Hong Kong for a stint of four weeks in the course of which the Court hears appeals during the first two weeks, leaving the latter two weeks for the writing of the judgments. Given the number of overseas NPJs on the Court’s panel, each judge will usually sit once every 12 to 18 months or so.”). 37 Hong Kong Court of Final Appeal Ordinance, § 16(1)(c). 38 Sir Mason is no longer a member of the CFA (1997-2015). See The Judges (Sir Anthony Mason), HONG KONG COURT OF FINAL APPEAL (Aug. 24, 2018), https://www.hkcfa.hk/en/about/who/judges/former/index_id_53.html.
39 Mr. Justice French joined in 2017. See The Judges (French NPJ), HONG KONG COURT OF FINAL APPEAL (Sept. 21, 2018), https://www.hkcfa.hk/en/about/who/judges/npjs/index_id_56.html.
40 Lord Reed joined in 2017. See The Judges (Reed NPJ), HONG KONG COURT OF FINAL APPEAL (July 30, 2018), https://www.hkcfa.hk/en/about/who/judges/npjs/index_id_57.html.
41 Mr. Justice Gummow joined in 2013. See The Judges (Gummow NPJ), HONG KONG COURT OF FINAL APPEAL (Sept. 21, 2018), https://www.hkcfa.hk/en/about/who/judges/npjs/index_id_20.html.
42 Lord Phillips joined in 2012. See The Judges (Phillips NPJ), HONG KONG 14 Asian-Pacific Law & Policy Journal [Vol. 21:2
2011 0 0 - 1 - - 0 2012 1+1 1 - 0 0 - 0 2013 0 2 0 3 1+1 0 1 2014 0 0 1 0 0 1 1 2015 2 1 0 1 2 0 0 2016 0 0 1 0 0 1+1 0 2017 0 1 1 1 0 0 0 2018 1 0 0 0 0 1 0 2019 0 0 0 0 0 0 0 a Total 5 5 3 6 4 3 2
Table 5 – Continued Year Gault44 Hartma Scott Mortime Litton47 Total n45 r46 contributions 2011 1 0 1+1 0+3 0 7+5 2012 0 0 0 0 1 dissent+1 7+4 2013 1 1 0 0+1 3+3 16+5 2014 - 0 0 0 0 6 2015 - 0 0 0 0 11 2016 - 0 0 - 0 4+1 2017 - - 0 - 0 7 2018 - - 0 - 0 7+1 2019 - - 0 - 0 2 a Total 2 1 2 4 8 83
COURT OF FINAL APPEAL (Sept. 21, 2018), https://www.hkcfa.hk/en/about/who/judges/npjs/index_id_18.html. 43 Mr. Justice Spigelman joined in 2013. See The Judges (Spigelman NPJ), HONG KONG COURT OF FINAL APPEAL (Sept. 21, 2018), https://www.hkcfa.hk/en/about/ who/judges/npjs/index_id_19.html. 44 Mr. Justice Gault is no longer a member of the CFA (2006-2015). See The Judges (Sir Thomas Gault), HONG KONG COURT OF FINAL APPEAL (May 26, 2015), https://www.hkcfa.hk/en/about/who/judges/former/index_id_51.html. 45 Mr. Justice Hartman is no longer a member of the CFA (2010-16). See The Judges (Michael Hartman), HONG KONG COURT OF FINAL APPEAL (Aug. 24, 2018), https://www.hkcfa.hk/en/about/who/judges/former/index_id_55.html. 46 Mr. Justice Mortimer is no longer a member of the CFA (1997-2015). See The Judges (John Mortimer), HONG KONG COURT OF FINAL APPEAL (Aug. 20, 2015), https:// www.hkcfa.hk/en/about/who/judges/former/index_id_52.html. 47 Mr. Justice Litton was a Permanent Judge during 1997-2000 and his Honour remained as a NPJ during 2000-2015. See The Judges (Henry Litton), HONG KONG COURT OF FINAL APPEAL (Aug. 24, 2018), https://www.hkcfa.hk/en/about/who/judges/former/index_id_54.html. 2020] Kwan 15
To put the number of contributions in context, it is helpful to calculate the actual percentage of cases contributed to out of all cases per year. This will show a better picture of how significant in number the contributions are. It is interesting to note that while these members only make up of one place in a five-member panel/bench, they wrote an average of 34% of all main judgments and contributed to 43% of all cases per year on average. In other words, these demonstrate that the contributions of these members are significant.
Table 6 – The contribution of NPJs in context (out of all cases per year) Year % of any type of % of main judgments per year contribution (excluding dissent, concurrence and observation) 2011 54% 32% 2012 50% 25% 2013 70% 53% 2014 24% 24% 2015 48% 48% 2016 21% 17% 2017 37% 37% 2018 40% 35% 2019a 17% 17% Average 43% 34% (2011- 18)
VI. INDIVIDUAL JUDGE’S CONTRIBUTIONS TO CRIMINAL CASES
It is interesting to note one pattern in particular, which is that Fok PJ and Ribeiro PJ contributed the highest number of criminal main judgments. Furthermore, the number they wrote is significantly higher than other members. Thus, it raises the issue on why this is the case.
For counting purposes, the number below does not include concurring judgment.
Table 7 – Contribution to criminal cases Year Fok Ribeiro Ma Bokhary Tang Stock Cheung Lord French PJ PJ CJ NPJ NPJ NPJ PJ Hoffmann NPJ 2011 - 0 0 2 0 0 - 0 - 2012 - 5 2 2 0 0 - 0 - 2013 1 3 0 0 4 0 - 0 - 16 Asian-Pacific Law & Policy Journal [Vol. 21:2
2014 6 1 0 0 1 0 - 0 - 2015 2 1 0 0 1 - 0 - 2016 4 4 1 0 2 0 - 1 - 2017 4 4 0 1 1 0 - 0 1 (incl. 1 on costs law) 2018 3 2 0 0 1 1 1 0 0 2019 3 0 0 0 0 0 0 1 1 a Total 23 17 3 5 9 2 1 2 2
Table 7 – Continued Year Lord Spigelman Litto Chan Gault Lord Gleeson In the Phillips NPJ n NPJ NPJ Clarke NPJ name of NPJ everyone 2011 - - 0 2 1 0 0 0 2012 0 - 0 2 0 0 1 0 2013 0 0 1 3 1 1 0 0 2014 0 1 0 0 0 0 0 1 2015 1 0 0 0 0 0 0 0 2016 0 0 0 0 0 0 0 0 2017 0 0 0 0 0 0 0 1 2018 0 0 0 0 0 0 0 2 2019 0 0 0 0 0 0 0 2 a Total 1 1 1 7 2 1 1 6
Denoting the figures in percentage, it can be observed that Fok PJ and Ribeiro PJ together wrote, on average, 72% of the main judgments for all criminal cases per year.
Table 8 – The percentage of Fok and Riberio PJ writing for the criminal cases per year Year Fok PJ Ribeiro PJ Adding up Fok PJ and Ribeiro PJ 2011 - 0 - 2012 - 45% - 2013 17% 50% - 2014 86% 14% 100% 2015 40% 20% 60% 2016 33% 33% 66% 2017 44% 44% 88% 2018 30% 20% 50% 2020] Kwan 17
2019a 37% 0% - Average 47% 28% 72% (2014-18) (2011-18) (2014-18, as Fok PJ joined in late 2013 only)
A. The second inexplicable pattern
Arguably, this pattern raises three issues. First, the data gathered suggests that Fok PJ and Ribeiro PJ are the ones who are mainly responsible for dealing with criminal cases. The underlying reason is unknown. The frequency of writing criminal judgments may imply that Fok and Ribeiro PJ have more expertise on criminal matters.
Secondly, the question is whether this is a good sign. In the absence of an explanation, having two judges doing most of the criminal work could mean other judges have paid less thought and have accordingly built up less expertise for criminal cases.
Thirdly, does this imply counsels should focus more on persuading Fok PJ and Ribeiro PJ during trial, as there is a 70% chance that they are the ones writing the judgment?
This Article suggests that, for transparency reasons, the CFA should explain why this is the case.
B. Similar inexplicable patterns could be observed in other areas of laws
For example, Fok PJ wrote the main judgment for 40% of all tax law cases (two out of five).48 This is the highest among all judges. Furthermore, Ribeiro PJ both wrote the main judgment for 40% of defamation cases (two out of five).49 Again, this percentage is the highest among all judges. Moreover, it can also be observed that Ribeiro PJ wrote the main judgment for two out of four cases involving corporate matters50,
48 Fok PJ wrote the main judgment for Perfekta Enters. Ltd. v. Comm’r of Inland Revenue [2019] 22 H.K.C.F.A.R. 203, and Church Body of Hong Kong Sheng Kung Hui v. Comm’r of Inland Revenue [2016] 19 H.K.C.F.A.R. 54 (Tang PJ also wrote a separate main judgment). 49 Ribeiro PJ wrote the main judgment for Oriental Daily Publisher Ltd. v. Ming Pao Holdings Ltd. [2012] 15 H.K.C.F.A.R. 299, and Oriental Press Grp. Ltd. v. Fevaworks Sols. Ltd. [2013] 16 H.K.C.F.A.R. 366. 50 Ribeiro PJ wrote the main judgment for Tam Shuk Yin Anny v. Choi Kwok Chan [2011] 14 H.K.C.F.A.R. 1, and Luck Continent Ltd. v. Cheng Chee Tock Theodore [2014] 17 H.K.C.F.A.R. 863 (though this case was quickly dismissed due to new and 18 Asian-Pacific Law & Policy Journal [Vol. 21:2 which again is the highest among all judges.
In other words, as Fok PJ and Ribeiro PJ generally contribute amongst the most to all cases (around 30% as shown in Table 3), it could be argued that these judges have apparently built up expertise in various areas of laws, seemingly unrivalled by other judges.
One possible explanation is that since Fok PJ and Ribeiro PJ are local PJs, it makes sense that they inevitably would have contributed more often. Yet this explanation is insufficient, because the same pattern could not be observed from other former PJs, such as Tang PJ and Chan PJ (as they then were). It is noteworthy that on Fok PJ’s arrival, he had taken up most of the criminal cases.
This is something inexplicable, as it is unknown if this is a new policy of the CFA to build up their expertise in those areas of laws, or due to other reasons. On one hand, providing more opportunities to local PJs may be an effective strategy to nurture local legal talents. On the other hand, it is unknown if this is beneficial to the public and the CFA as a whole, as it could mean other judges have less thought on these areas of laws.
VII. THE DISSENT RATE IS SIMILAR TO THE RATE IN 1997-2010
The rate for having unanimous decision during 2011-2018 is 96.3% (i.e., the dissent rate is 3.7%) is similar to the rate for 1997-2010 at 95.7% (see Table 9).51 There were seven cases with dissents during 2011- 18, yielding an average of about 0.9 case per year; whereas there were 16 cases in 13 years (1997-2010), yielding an average of 1.2 cases per year.52
Table 9 – Dissent Year Number of By whom % of dissent of dissents all cases 2011 0 - 0 2012 1 Litton NPJ53 4% 2013 1 Chan PJ (as he 3% decisive facts).
51 Ip, supra note 36, at 206 (quoting JILL COTTRELL AND YASH GHAI, Concurring and Dissenting in the Hong Kong Court of Final Appeal, HONG KONG’S COURT OF FINAL APPEAL: THE DEVELOPMENT OF THE LAW IN CHINA’S HONG KONG 283, 297-98 (Simon NM Young & Yash Ghai eds., 2014)).
52 COTTRELL & GHAI, supra note 52, at 321. 53 HKSAR v. Wong Yuk Man [2012] 15 H.K.C.F.A.R. 712. 2020] Kwan 19
then was)54 2014 2 Tang PJ (as he 8% then was)55 + Ma CJ and Ribeiro PJ56 2015 0 - 0 2016 1 Tang PJ (as he 4% then was) and Bokhary NPJ57 2017 1 Tang PJ (as he 5% then was) 2018 1 Tang PJ (as he 5% then was)58 2019a 0 - 0 Average 0.9 - 3.7% (2011-18) = Unanimous rate of 96.3%
Cottrell and Ghai found that the major area of dissent involved public law and human rights.59 The same pattern cannot be observed during 2011-18, which evenly spans from statutory interpretation60, criminal61, public and constitutional62, civil procedure63, and corporate.64
54 W v. Registrar of Marriages [2013] 16 H.K.C.F.A.R. 112. 55 Moulin Glob. Eyecare Trading Ltd. v. Comm’r of Inland Revenue [2014] 17 H.K.C.F.A.R. 218. 56 T v. Comm’r of Police [2014] 17 H.K.C.F.A.R. 593. 57 Cheng Wai Tao v. Poon Ka Man Jason [2016] 19 H.K.C.F.A.R. 144. 58 Nam Sang Wai Development Co. Ltd. v. Town Planning Bd. [2017] 20 H.K.C.F.A.R. 196.
59 COTTRELL & GHAI, supra note 52, at 322. 60 Moulin Glob. Eyecare Trading Ltd. v. Comm’r of Inland Revenue [2014] 17 H.K.C.F.A.R. 218 (attribution); T v. Comm’r of Police [2014] 17 H.K.C.F.A.R. 593 (license matters); Nam Sang Wai Development Co. Ltd. v. Town Planning Bd. [2017] 20 H.K.C.F.A.R. 196 (town planning); Sec. and Futures Comm’n v. Yiu Hoi Ying Charles [2018] 21 H.K.C.F.A.R. 475 (insider dealing). 61 HKSAR v. Wong Yuk Man [2012] 15 H.K.C.F.A.R. 712 (telecommunication offence). 62 Democratic Republic of The Congo v. FG Hemisphere Assocs. LLC [2011] 14 H.K.C.F.A.R. 95 (on foreign state immunity); W v. Registrar of Marriages [2013] 16 H.K.C.F.A.R. 112 (same-sex marriage). 63 Chau Cheuk Yiu v. Poon Kit Sang [2012] 15 H.K.C.F.A.R. 460 (extension of time). 64 Cheng Wai Tao v. Poon Ka Man Jason [2016] 19 H.K.C.F.A.R. 144 (on 20 Asian-Pacific Law & Policy Journal [Vol. 21:2
VIII. THE RATE OF HAVING A SINGLE UNANIMOUS JUDGMENT WITHOUT SEPARATE CONCURRING JUDGMENTS OR ADDITIONAL OBSERVATIONS
Having a single judgment means that other members of the court simply say “I agree to Judge A’s judgment” whilst adding nothing (or where is only one single judgment issued in the name of everybody65). In other words, there is only one judgment by Judge A (or a single judgment co-written by two to three judges together), which also means that it must be unanimous. The other members do not write a concurrence judgment or provide their additional observations on the law and/or facts.
This aim of this survey is different from measuring the dissent rate above, because this considers the frequency where the judges are in complete agreement with each other with nothing else to add; whereas the survey on dissent measures the frequency where the judges have a split among themselves.
During 2011-18, the average rate of having only a single judgment for the whole case is 64%. See Table 10.66
Table 10 – Rate of having a single judgment (where other members simply said “I agree”) Year Number of single % of single judgment judgment 2011 10 45% 2012 7 29% 2013 15 53% 2014 18 72% director’s fiduciary duty). 65 For illustrations, see supra note 26 and 27. 66 In terms of counting, it excludes mere summary of the conclusion of the court (e.g. something along the lines like “The Court unanimously conclude that…”), which is usually done by the most senior judge in the court and includes no legal and factual disposition. For illustrative examples, see, e.g., Tam Mei Kam v. HSBC Int’l Tr. Ltd. [2011] 14 H.K.C.F.A.R. 512, where it can be seen that the judgment was delivered by Chan PJ (as he then was), but Bokhary PJ (as he then was) made a summary of the conclusion of the whole court as dismissing the appeal by referring to Chan PJ’s judgment. See also HKSAR v. Yan Suiling [2012] 15 H.K.C.F.A.R. 146 for an additional example, where Ma CJ made the mere summary, with Chan PJ (as he then was) delivered the judgment. 2020] Kwan 21
2015 19 83% 2016 18 79% 2017 14 74% 2018 15 75% 2019a 12 100% Average 15 64% (2011-18)
IX. ARE HIGH UNANIMITY AND HIGH SINGLE JUDGMENT RATES PROBLEMATIC?
A. The Third Inexplicable Pattern: Unusually High
“To the Anglo-American lawyer, dissenting opinions are a familiar feature of the judicial process.”67 However, the rate of “concurrence and dissent in Hong Kong are lower than in many other common law courts”.68 Comparing with the rates of foreign highest courts, it can be argued that the unanimity rate of the CFA is unusually high. For example, in the US, about two thirds of all Supreme Court decisions in recent years were divided (not unanimous).69 Similarly, in Canada, the Supreme Court of Canada has a lower unanimity rate than Hong Kong over the last decade, and has even hit the record low of 40% in 2019.70 It is also fairly common that the judges in the Supreme Court of Canada would provide concurring
67 Edward Dumbauld, Dissenting Opinions in International Adjudication, 90 U. PA. L. REV. 929, 929 (1942). See also Joe McIntyre, In Defence of Judicial Dissent, 37 ADEL. L. REV. 431, 431 (2016); John Alder, Dissents in Courts of Last Resort: Tragic Choices?, 20 OXFORD J. LEGAL STUD. 221, 221 (2000).
68 COTTRELL & GHAI, supra note 52, at 296. 69 Cass R. Sunstein, Unanimity and Disagreement on the Supreme Court, 100 CORNELL L. REV. 769, 781(2015) (“The percentage of unanimous decisions fell to 61% in 1941, to 49% in 1942, and to 38.5% in 1943. From that point, it has exceeded 50% only four times (1996, 1997, 2005, and 2013), and it has fallen below 40% in most years (40 out of 70).”) See also PAMELA C. CORLEY, AMY STEIGERWALT & ARTEMUS WARD, THE PUZZLE OF UNANIMITY: CONSENSUS ON THE UNITED STATES SUPREME COURT 2 (2013). 70 Cristin Schmitz, Supreme Court of Canada hits record low 40% unanimity rate in 2019; many appeals came from Quebec, THE LAWYER'S DAILY (January 21, 2020 AT 11:15 AM), https://www.thelawyersdaily.ca/articles/17529/supreme-court-of-canada- hits-record-low-40-unanimity-rate-in-2019-many-appeals-came-from-quebec? article_related_content=1 (The ‘Supreme Court’s average unanimity rate on the results of appeals from 2000 to 2017 was of 71 per cent’. Also, it was noted that increasing frequency of dissent is ‘the new normal’, quoting Eugene Meehan QC, the Executive Legal Officer to chief Justice Lamer.) See also Schmitz, supra note 5; Donald R. Songer and Julia Siripurapu, The Unanimous Decisions of the Supreme Court of Canada as a Test of the Attitudinal Model, 42(1) CAN. J. POLITICAL SCI. 65 (2009). 22 Asian-Pacific Law & Policy Journal [Vol. 21:2 judgments. In Australia, the unanimity rate of the High Court of Australia during 2013-17 was 76%, and was lower (and low when compared to Hong Kong) in the previous years at 67% during 2007-12, 54% during 2003-7 and 61% during 1998-2003.71 The unanimity rate of the Supreme Court of the United Kingdom from 2009 to 2012 was 75%, which is already perceived as “high.”72 These figures in the United States, Canada, Australia and the United Kingdom arguably form a striking contrast to CFA’s 96.3% of unanimity rate.
Whilst the lack of dissent apparently demonstrates a high team spirit and the simplicity of having only one judgment makes the Court’s judgments easier to understand, the unusually high rates of unanimity and single judgments (i.e., only with “I agree”) have profound implications. Also, the possibility of having “suppressed dissent” is a serious matter.73 Former U.S. Chief Justice Charles E. Hughes succinctly and powerfully raised the importance and the implications of having separate judgments and/or dissents, and achieving unanimity may not always be good: But unanimity which is merely formal, which is recorded at the expense of strong conflicting views, is not desirable in a court of last resort, whatever may be the effect upon public opinion at the time. This is so because what must ultimately sustain the court in public confidence is the character and independence of the judges. They are not there simply to decide cases, but to decide them as they think they should be decided, and while it may be regrettable that they cannot always agree, it is better that their independence should be maintained and recognized than that unanimity should be secured through its sacrifice... A dissent in a court of last resort is an appeal to the brooding spirit of the law, to the
71 Jeremy Gans, News: Agreement in the High Court, MELBOURNE L. SCHOOL OPINIONS ON HIGH (April 23, 2018) https://blogs.unimelb.edu.au/opinionsonhigh/2018/04/23/news-agreement-in-the-high- court/. See also Andrew Lynch & George Williams, The High Court on Constitutional Law: The 2014 Statistics, 38(3) UNSW LAW J. 1078, 1080 (2015) (the unanimity rate for 2014 was 42.86%); Andrew Lynch & George Williams, The High Court on Constitutional Law: The 2018 Statistics, 42(4) UNSW LAW J. 1443, 1444 (2019) (the unanimity rate for 2018 was 44.07%); Katie Walsh, Vanity sidelined for ‘unprecedented unanimity’ by the High Court, FIN. REV. (Feb. 23, 2018, 2:10 AM), https://www.afr.com/ business/legal/vanity-sidelined-for-unprecedented-unanimity-by-the-high-court- 20180221-h0weg4.
72 BENJAMIN ALARIE & ANDREW J. GREEN, COMMITMENT AND COOPERATION ON HIGH COURTS: A CROSS-COUNTRY EXAMINATION OF INSTITUTIONAL CONSTRAINTS ON JUDGES 28 (2017). 73 Sean Farhang and Gregory Wawro, Institutional Dynamics on the U.S. Court of Appeals: Minority Representation Under Panel Decision Making, 20(2) J.L. ECON. & ORG. 299, 306 (2004). 2020] Kwan 23
intelligence of a future day, when a later decision may possibly correct the error into which the dissenting judge believes the court to have been betrayed.74
B. It could indicate a lack of diversity
While it is true that Hong Kong does not have different provinces as in Canada75, and U.S. judges may have stronger connections with politics76, these differences cannot justify persuasively for the unusually high rates. This is because Hong Kong itself equally has a diverse community, different walks of life, different social classes and diverse social views and values.77 Even though the CFA is supposed to be apolitical and should remain neutral, it is hard to believe how the unusually high unanimity and single judgment rates can lead to decisions that are broadly acceptable to a sufficient portion of the community.
Dissents, and concurring judgments, even though they are not the main judgment, have the effect of producing a more inclusive and reasoning-diverse decision representing different reasons that are acceptable to more communities holding various values.
It is helpful to illustrate this argument with an example. Reasoning A is only acceptable to Community A (which accounts for 30% of all people). By ‘acceptable’, it means that the intrinsic value/perspective/approach/ideology reflected by that reasoning is agreeable to that community. Reasoning B is only acceptable to Community B (which again accounts for 30% of all people). Reasoning C is acceptable to Community C (which accounts for 10%) and so on for any
74 CHARLES EVANS HUGHES, THE SUPREME COURT OF THE UNITED STATES: ITS FOUNDATION, METHODS AND ACHIEVEMENTS 67-68 (1928). 75 Schmitz, supra note 5 (When interviewed, the Chief Justice explained that the dissent rate is a result of diversity, that the nine judges come ‘from nine backgrounds, coming from different provinces, languages, training would be unanimous on every decision.’). 76 Jeffrey Rosen, Can the Judicial Branch be a Steward in a Polarized Democracy?, 142(3) DÆDALUS 25, 28-29 (2013) (Regarding the former justices in the US, “a majority of the justices who decided Brown came from a political background – including two former senators (Harold Burton and Hugo Black), two former attorneys general (Tom Clark and Robert Jackson), a former head of the Securities and Exchange Commission (William O. Douglas), and one former judge who had also served as a senator (Sherman Minton).” It was further noted that “Republican nominees had to commit to overturning Roe, while Democrats had to commit to upholding it.”). 77 This is evidenced in the composition of the Legislative Council of Hong Kong, comprising of members from eighteen different political parties representing different interest groups and communities. This suggests that Hong Kong has a diverse community with different values, beliefs, and interests. See FREEDOM HOUSE, FREEDOM IN THE WORLD 2018: THE ANNUAL SURVEY OF POLITICAL RIGHTS AND CIVIL LIBERTIES 1140 (Arch Puddington et al. eds, 2019). 24 Asian-Pacific Law & Policy Journal [Vol. 21:2 other reasoning. Reasoning A and B are not in conflict and can reach the same conclusion; whereas Reasoning C would reach the opposite result. If there is only one single unanimous judgment adopting Reasoning A (e.g. because the judges all have a background and social class of Community A), essentially it means the judgment is only acceptable to 30% of all people. This would mean the judgment has low acceptance by the public.
By contrast, if there is a judgment with concurring judgments and dissents, the effect is that the collective decision as a whole, though it reaches a particular conclusion, at the very least, has exhibited a diverse spectrum of reasonings that are acceptable to other communities. Just with the addition of a concurring judgment adopting a Reasoning B, the judgment would at least be acceptable to both Community A and Community B, thus accounting for a majority (60%) of the public. A quick example would be the recent, headline-making case of HKSAR v. Tsang Yam Kuen Donald.78 The former Chief Executive Mr. Tsang, who was a government official with the highest rank in Hong Kong, was convicted for the criminal offence of misconduct in public office for failure to disclose conflict of interests. Mr Tsang appealed to the CFA against the conviction. The CFA held that the trial judge at the first instance court has provided a wrong direction to the jury. Therefore, the conviction was quashed. Importantly, the CFA said that there was no need to have a re-trial using the correct direction, because Mr. Tsang, pending the appeal process, has already served his sentence (of 12 months of imprisonment) and “suffered” what was already considered “a just punishment for the offence in respect of which he would be re-tried” (this italicized part is classified as “Reasoning A” for the present purpose).79 The judgment was unanimous, meaning that there was only Reasoning A and nothing else.
Although the CFA rightly noted that there was strong public interest in knowing whether Mr. Tsang was really guilty or not, and whether there should be a re-trial would depend on the interests of justice, the CFA disappointingly only provided a short sentence (quoted above as the Reasoning A) as the actual balancing exercise.
It is submitted that this Reasoning A may not be acceptable to a sufficient portion of the public, and for our purpose, would only be acceptable to Social Group A. This is because the implication of Reasoning A is that just because a person has served the sentence, it does not matter whether he/she is guilty or not. This logic is hardly acceptable to everyone, as some may think the otherwise: Even though one has served the sentence, if he/she has really committed a crime, he/she should 78 [2019] 22 H.K.C.F.A.R. 176. 79 Id. at para. 80. 2020] Kwan 25 be found guilty.
The CFA could have easily provided more elaborations or more reasons (i.e., Reasoning B and C, etc.) to justify not having any re-trial. For example, the CFA could have explicitly conducted a more detailed and more comprehensively reasoned balancing exercise. A possible Reasoning B could say that Mr. Tsang has already gone through a burdensome process and would therefore be unfair to have a re-trial. In other words, Reasoning B takes into account the burden and the unfairness; whereas the thrust of Reasoning A is that Mr. Tsang has already served a just sentence. The two reasonings are very different: Reasoning B is based on fairness of re-trial, which in turn links to values based on what a justice system should be (e.g., fairness would see that a defendant is not unfairly over- burdened); whereas Reasoning A is from the perspective of retribution.
To be absolutely clear, the point here is not dwelling on whether there should or should not be a re-trial (and it is agreed that there should not be a re-trial). The Court’s ultimate conclusion does not matter. Instead, the point is that the Court’s unanimous single judgment, especially when it is short on this issue, does not have a comprehensive or inclusive reasoning. Had Reasoning B been additionally explored, the judgment would have been acceptable by a wider public. The thrust of the issue with having only Reasoning A is that there could be a significant portion of the diverse public who do not find the perspective of retribution persuasive and/or sufficient: Not everyone is a retributionist. Arguably, had other judges contributed a concurring opinion, the obvious Reasoning B (and even C and so on) would, most likely, have been included. The CFA could also rebut certain Reasoning D and E. This would allow the public to know that the CFA has taken into account different arguments (which inherently encompass different values) and would find the judgment more acceptable and persuasive irrespective of the conclusion.
One may ask if a court is obliged to reach a publicly acceptable judgment. There is no explicit rule for this. However, one should not forget that at the end of the day, it is a trite aspect of the rule of law that court judgments affect the public.80 Its reasoning binds and influences the public. If the judgment is only acceptable to a small number of people (for reasons such as the judges all come from very similar background), this
80 See, e.g., PADRAIG MCAULIFFE, TRANSITIONAL JUSTICE AND RULE OF LAW RECONSTRUCTION: A CONTENTIOUS RELATIONSHIP 130 (2013) (noting “the centrality of public confidence to the rule of law”); CHERYL SAUNDERS & KATHERINE LE ROY, Perspectives on the Rule of Law, in THE RULE OF LAW 1, 10 (Cheryl Saunders & Katherine Le Roy eds., 2003) (“Beyond constitutional measures, courts depend on political forbearance, which in turn tends to be fostered by public support for the role and public acceptance of the fairness of their decisions. The rule of law is threatened if this support falters...”) (emphasis added). 26 Asian-Pacific Law & Policy Journal [Vol. 21:2 will only slowly erode the authority and persuasiveness of the court, as the acceptance is low.
The public respect the court for reaching any conclusion. Choosing Reasoning A is not problematic if other Reasonings like B and C have been considered and there is no need for the court to accept them. Yet if the court only has a unanimous single judgment and mention nothing about Reasonings B and C (i.e., without any attempt to consider or to rebut them), it gives the impression that the court has failed to fully consider all arguments representing diverse inherent values. In those circumstances, the respect will slowly fade, as (1) the court has not done its proper job of having full consideration of all arguments and (2) the court would only be perceived to be overly detached from the diverse communities by not taking into account. Some may even negatively infer that the court does not have the ability to realize there are other values and reasoning.
Arguably, this problem is particularly relevant when the CFA has unusually high rates of unanimity and single judgments. At the very least, the court should demonstrate willingness and ability to realize other values in the form of legal and factual arguments, even if it chooses to rebut them. It is not desirable for the CFA to be perceived as being, intentionally or unintentionally, ignorant of other arguments. It is arguable that the contributing causes are that there is lack of diversity in the background of the members (see Section I(A) above)81, or there exists some norms leading to an artificial unanimity (discussed below). It is suggested that the CFA should seriously consider increasing their diversity of opinions.
C. The Unanimity and Having Only A Single Judgment Could Be Caused By Some Undisclosed Norm(s) or Reasons: The CFA should Clarify
Reverting back to another possible explanation for the unusually high rates of unanimity and single judgments, it is possible that there may be some hidden norms or reasons among the judges to achieve this.
The existence of such norms or reasons is not impossible. In fact, there was a sign for this. In the 2014 case of T v. Commissioner of Police, Lord Neuberger, sitting as NPJ, said:
81 There is an interesting and potential issue which is out of the scope of this paper. Assuming the judges are all from at least a middle-class background (not necessarily referring to the financial aspect, but it broadly refers to the middle-class way of thinking), and the same holds true for the barristers who argue in court (as evidenced from the fact the legal sector may still be dominated by Oxbridge-educated lawyers), this would suggest that most of the arguments in the court would be heavily influenced by the middle-class way of thinking. 2020] Kwan 27
Indeed, were it not for the fact that I am disagreeing with the Chief Justice and Ribeiro PJ, from whose opinions I differ with considerable diffidence, I would have limited myself simply to agreeing with the judgment of Fok PJ. However, as it is, like Tang PJ, I consider it appropriate to express my reasons in my own words, which may represent a slight difference of emphasis or approach from that of Fok PJ, but that should not detract from the fact that I agree with his judgment.82
This baffling passage immediately provokes a big question: Why? If a judge has or could have come up with their own ideas or opinions, why would he/she choose to be silent and only speak up when fellow judges choose to do so? Lord Neuberger said his Honour himself has got something different from Fok PJ (despite they both have the same conclusion for the case), but yet he would have chosen to maintain silent.
This is a big issue, because achieving unanimity may trivialize the importance of a case. The case of T ultimately was a 3:2 decision (i.e., it was a rare occasion where there were dissents). It was notably one of the few cases recalled in 2019 by the CJ as “important”.83 Had it been a unanimous decision where everyone simply said “I agree” (and this would apply to any other unanimous case with a single judgment), the importance of the case may well have been belittled in an undeserved manner and failed to draw proper and sufficient academic, practical and social attention.
The exact reason for the originally intended silence is unknown, and it could be motivated by several reasons. One possibility is that such a norm did exist but it was temporarily eased, because the CJ, as the head judge, took the (rather rare) initiative to dissent. It is also possible that since fellow colleagues had raised their voice, it then psychologically encouraged others to speak up.
In sum, there could be three possible explanations for the usually high rates of unanimity and single judgments.
First, according to the U.S. experience, it could be done for
82 [2014] 17 H.K.C.F.A.R. 593 (Emphasis added). This also raises issues on the role of NPJ. NPJs are supposed to increase judicial independence. See IP, supra note 36, at 205 (who offers some criticisms on the role of NPJ). 83 See Ma CJ, The Chief Justice’s Address at the Farewell Sitting for The Honourable Mr Justice Tang PJ (Oct. 22, 2018), in THE HONG KONG COURT OF FINAL APPEAL, transcript available at https://www.hkcfa.hk/filemanager/engagement/en/upload/ 70/CJ's%20speech_eng%20sitting.pdf. 28 Asian-Pacific Law & Policy Journal [Vol. 21:2 thoughtful and benign motives. There was once a push for unanimity by the former U.S. Chief Justice Earl Warren.84 It was believed that unanimity could provide more certainty and more authoritativeness than a split decision.85 Also, pushing for unanimity could be helpful “where judges come from political backgrounds but strive to be neutral”.86 This is especially the case given that judges in the U.S. Supreme Court have a strong political connection.87 Furthermore, it was also believed that a unanimous decision is more persuasive, because “if the Court is able to persuade the broader legal community, that may in turn translate into acceptance among the citizenry”.
The head judge is not necessarily the one who pushes for unanimity. It is equally possible that there is a practice of “judicial logrolling”, which is based on “norms of reciprocity” under which “unanimity is maintained by rotation of opinion writing, coupled with a general practice of deference to the writer by other judges on a panel”.88 In other words, “Judge A votes to support Judge B’s preferred disposition in one case in exchange for Judge B supporting Judge A’s preferred disposition in another case”.89 Again, the motive for doing so is based on the benefits mentioned above.90
This first explanation may hold true in the CFA. This is evidenced from the fact that in politically/socially-controversial and headline- catching cases, it is observable that the CFA will usually issue a single
84, Dennis J Hutchinson, Unanimity and Desegregation: Decisionmaking in the Supreme Court, 1948-1958, 68 GEO. LAW J. 1, 34 (1979).
85 F. Andrew Hessick & Jathan P. McLaughlin, Judicial Logrolling, 65(2) FLA. L. REV. 443, 481(2014). Hughes, supra note 75, at 67: ‘There are some who think it desirable that dissents should not be disclosed as they detract from the force of judgment. Undoubtedly, they do.’ See also MICHAEL F. SALAMONE, PERCEPTIONS OF A POLARIZED COURT: HOW DIVISION AMONG JUSTICES SHAPES THE SUPREME COURT’S PUBLIC (2018).
86 COTTRELL & GHAI, supra note 52, at 289.
87 RICHARD A. POSNER, HOW JUDGES THINK 269, 272 (2010) (noting that the Supreme Court is bound to be political, especially given the Court inevitably has to deal with a lot of political-legal issues); Margaret L. Moses, 161 Beyond Judicial Activism: When The Supreme Court Is No Longer A Court, 14(1) J. CONST. LAW 161, 161, 208, 214 (2011) (noting that the Supreme Court is quite political and the Justices could seem to be ‘politicians in robes’); Richard A. Posner, The Supreme Court is a political court. Republications' actions are proof., WASHINGTON POST (March 9, 2016), http://www.washingtonpost.com/opinions/the-supreme-court-is-a-political-court- republicans-actions-are-proof/2016/03/09/4c851860-e142-11e5-8d98- 4b3d9215ade1_story.html (‘The priors that seem to exert the strongest influence on present-day Supreme Court justices are political ideology and attitudes toward religion.’). 88 Farhang & Wawro, supra note 74, at 309. 89 Hessick & McLaughlin, supra note 86, at 446. 90 Id. at 481. 2020] Kwan 29 judgment in the name of “The Court,” apparently in the pursuit for more authoritativeness. For example, this occurred in Secretary for Justice v. Wong Chi Fung, the defendant Joshua Wong, who was a young and famous political leader, was charged for the offense of unlawful assembly in relation to the protests of the Umbrella Movement.91 Other examples include HKSAR v. Hui Rafael Junior (where a world-class billionaire and a high-rank government official were prosecuted for bribery matters)92, Leung Chun Kwong v. Secretary for the Civil Service and Another93 (discrimination against same-sex marriage), and Leung Kwok Hung v. The President of the Legislative Council of the HKSAR and Another94 (involving vital issues on separation of powers on whether the court should and can assess the powers of the President of the legislature).
The first explanation is followed with the question on why the judgment has to be issued in the name of “The Court,” but not simply follow the usual “I agree” routine, when both will equally lead to a unanimous conclusion. One possible explanation is that the latter has less weight due to a “lack of credibility about the concurrences;” whereas the former, as a “composite judgment”, allows everyone to be “credited with the work.”95
Moving on to the second explanation, the high rates may also be caused by administrative reasons, rather than having any prudent aim. It is possible that the judges themselves have an undisclosed norm of division of labor, so that a particular case is allocated to a particular judge to write the judgment.96 Alternatively, the judges may simply be prevented by the heavy workload to write separate concurring opinions or observations.97 However, it is difficult to assess if the CFA really has too much work to do, especially given that there are plenty of local and overseas NPJs to form different panels in different cases every year. It is argued that this explanation is weak as it is difficult to see how writing a short additional
91 [2018] 21 H.K.C.F.A.R. 35. Joshua Wong had drawn a lot of local and international attention for his political acts. His international fame is reflected by the fact that he has once featured on the cover of Time Magazine and has a wealth of supporters 92 [2017] 20 H.K.C.F.A.R. 264. 93 [2019] 22 H.K.C.F.A.R. 127. 94 Leung Kwok Hung v. President of the Legislative Council (No 1) [2014] 17 H.K.C.F.A.R. 689.
95 COTTRELL & GHAI, supra note 52, at 290 (quoting Roderick Munday, Judicial Configurations, 61 CLJ 612, 648 (2002)). 96 Farhang & Wawro, supra note 74, at 307. 97 Ma CJ, Speech at Ceremonial Opening of the Legal Year 2019 (“CJ’s Speech 2019”), THE GOVERNMENT OF THE HKSAR (Jan. 14, 2019), https://www.info.gov.hk/gia/ general/201901/14/P2019011400413.htm (the CJ said the workload in the CFA is high). 30 Asian-Pacific Law & Policy Journal [Vol. 21:2 observation or opinion would take a lot of time.
If there is really such an undisclosed norm of sharing workload, this should ideally be explained to the public. The public may not find any job rotation among full-time judges acceptable, as it would imply that not all judges contribute equally to a case. This could also be perceived as unfair to the litigants, who may expect all judges to form and expressly state their view. Furthermore, if the CFA really cannot withstand the workload, it should consider proposing an increase in the number of PJs.98
Equally, there could be a norm that judges will only express concurring opinions or dissents for important cases. Such a norm exists in overseas court.99 This norm is problematic, as it could be difficult to truly realize how important a particular case actually is. It is possible that such a norm does exist in the CFA, as it seems to have the practice of issuing a joint judgment in the name of everybody (e.g., “The Court”) for important cases (see above). Whilst this practice may provide a positive signal that the court is firm on the important matters that widely affect the public, the downside is that for cases issued in the name of a single judge, it would imply that the court itself consider the matter to be less or not important. Arguably, any case which goes up to the highest court is arguably very important, and it is doubtful if this norm is a good practice.
The third explanation is that the high rates could be caused by psychological and personal reasons on the part of the individual judges. Farhang and Wawro noted that the judges may refrain from expressing a dissent or a separate opinion due to (1) organizational loyalty and (2) the loneliness of dissent.100 This is especially the case given “the majority’s brute numerical force” formed by fellow colleagues by all simply saying “I agree”. Given the unusually high rates, it could even be argued that the “I agree” pattern may have already formed as a workplace custom in the CFA.
This possibility is not only observed in the U.S., but has also been
98 Under § 5(5) of the Hong Kong Court of Final Appeal Ordinance (Cap. 484), it provides that there should “not be less than 3 permanent judges”. In other words, theoretically, there is no legal prohibition to have more PJs.
99 John O. McGinnis, The Indispensability of Judicial Dissent, LAW & LIBERTY (August 6, 2017), https://www.lawliberty.org/2017/08/06/the-indispensability-of-judicial- dissent/ (In the US, “Justice Ruth Bader Ginsburg recently noted that she sometimes refrained from dissenting in the cases she regarded as less important like tax disputes and saved her dissents for the big ones like those on gender equality”. The same approach happened in other US courts, where it was noted by an interviewee-judge that “it was norm among his colleagues to suppress written dissent in all but important cases.”). 100 Farhang & Wawro, supra note 74, at 306. 2020] Kwan 31 noticed in Australia. This is well-described by Justice Kirby, a former Justice of the High Court of Australia, that there can be a: …psychological tendency for judges in appellate courts to conform to majority opinions, describing a so-called “cascading effect” in group psychology that involves going along with the majority. It is usually easier to agree. Concurring in someone else’s opinion may be more congenial to colleagues. It certainly involves less work than expressing one’s own contrary opinion.101
D. Lack of Transparency: A Serious Matter
In sum, it is unknown what the real cause for the unusually high rates for having unanimity and single judgment. It is urged that the CFA should consider improving the transparency.
The seriousness and importance of having the unusually high rates are not to be underestimated. This is because of two reasons. First, it could involve issues on honesty, if judges are, be it indirectly or unintentionally, forced to, or choose to, hide dissent by reason of any norm, personal reasons or custom.102 It is simply not entirely logical to expect one to be in 100% agreement by saying “I agree” in any litigation, especially in the cases in the highest court. In this sense, the consensus is not genuine. Arguably this is not something expected by the public (and also the litigants).
Secondly, if there is a coercive norm, then the consensus is not a result of real deliberation, debate and persuasion. This implies issues on the quality of judgments and the fairness of the decision-rendering process. This will be explored in more detail below.
E. Is Increasing Transparency Feasible? How to Achieve Such?
There are many ways to achieve better transparency, be it in the form of public speech, information on the official website or other means. Increasing transparency is not uncommon, and the judicial preference for unanimity or else is no secret. There are two good examples.
First, Australia has been open. Mr. Justice Kirby openly said in an
101 The Hon Justice Michael Kirby AC CMG, JUDICIAL DISSENT, 12 JAMES COOK U. L. REV. 4, 7-8 (2005). See also Andrew Lynch, Taking Delight in Being Contrary, Worried About Being a Loner or Simply Indifferent: How Do Judges Really Feel About Dissent?, 32(2) FED. L. REV. 311 (2004).
102 See COTTRELL & GHAI, supra note 52, at 291. 32 Asian-Pacific Law & Policy Journal [Vol. 21:2 academic Article that there are measures in place to encourage unanimity and even revealed the techniques of doing so: In the New South Wales Court of Appeal, we had institutional procedures to reduce needless dissent for sometimes it is highly desirable to strive for a single, unanimous opinion. Our techniques included the fair assignment to all judges of the writing of the primary draft and a culture of mutual respect, reinforced by happy social intercourse. These methods have never been features of the High Court of Australia.103 The same holds true for Canada, where Chief Justice Wagner openly explains the higher dissent rate.104
Secondly, the U.S. adopted a similarly open approach. The judiciary’s stance (such as discouraging dissents) does not matter, as long as there is sufficient transparency for the public. For example, as it then was in the past, Canon 19 of the American Bar Association’s Judicial Canons of Ethics expressly and openly laid down its stance on writing dissents: It is of high importance that judges constituting a court of last resort should use effort and self-restraint to promote solidarity of conclusion and the consequent influence of judicial decision. A judge should not yield to pride of opinion or value more highly his individual reputation than that of the court to which he should be loyal. Except in case of conscientious difference of opinion on fundamental principle, dissenting opinions should be discouraged in courts of last resort.
F. The Court May Not Be Performing Its Full Capability
There are many advantages of writing concurring judgments, dissents, separate opinions, and additional observations. They could persuade fellow judges, as they “can be swayed by an articulate and well-reasoned argument from a colleague with a differing opinion”.105 They can also motivate the judge who write the main judgment to write in a more persuasive and prudent manner, especially when the opinions of
103 Kirby, supra note 102, 9-10. 104 See supra note 76. See also Schmitz, supra note 5.
105 ROBERT A. CARP ET AL., JUDICIAL PROCESS IN AMERICA 417 (2019). See also McGinnis, supra note 100 (“sometimes dissents can change outcomes: on reading a written rebuttal of their arguments members of a majority have been known to change their minds”). 2020] Kwan 33 other judges sound more persuasive and involve counter-arguments of each other’s views.106
Furthermore, having separate judgments could provide more certainty and aid proper understanding of the (complex) principles of law. This is well-described by Lord Reid that: …it is never wise to have only one speech in this House dealing with an important question of law...When there are two or more speeches they must be read together and then it is generally much easier to see what are the principles involved and what are merely illustrations of it.107
The unusually high rates of unanimity and single judgments suggest that the litigants, the public and even the CFA itself cannot have full access to these advantages. A good example is the case of C and Others v. Director of Immigration and Another, where interestingly Ribeiro PJ’s speech only contained one sentence and nothing else, which was “I agree with the judgment of Sir Anthony Mason NPJ and, subject to that judgment, am also in broad agreement with the judgment of Mr Justice Tang PJ.”108 The peculiar point is that Ribeiro PJ was only in “broad” agreement with Tang PJ. This means his Honour was not in complete agreement. Then, what was the point, issue, argument, fact, or law that Ribeiro PJ was not in agreement? There was no elaboration.
The implication is profound. It means that a judge, who could have contributed, chose not to spell out their reasonings. Their thoughts could have been vital to the public, as it could point to a flaw in the reasoning of the other judgments, or it could be a useful observation for future decisions. Yet, there is no mechanism in place to encourage such contributions. Rather, it is unknown if there may even be counter- mechanisms which deter such (as suggested above, such as heavy workload or undisclosed workplace norm). It is also possible that judges have personal reasons not to add a comment.109
106 COTTRELL & GHAI, supra note 52, at 290. 107 Broome v. Cassell [1972] AC 1027, 1084-85 (Eng.). 108 [2013] 16 H.K.C.F.A.R. 280 at para. 2 (emphasis added). 109 It is noteworthy that in Real Estate Developers Ass’n of Hong Kong v. Bldg. Auth. [2016] 19 H.K.C.F.A.R. 243, the same happened again with Ribeiro PJ, who said at [2] that his Honour was “respectfully broadly in agreement” with Tang PJ. This time Ribeiro PJ wrote a full-length judgment, though he again did not expressly explain where he disagreed with Tang PJ. By contrast, all of the other judges simply said ‘I agree’ in this and other cases. It is possible that Ribeiro PJ may have refrained from explicitly pointing out any disagreement out of rapport with and respect to Tang PJ. Apart from Ribeiro PJ who sometimes interestingly said “broadly agree”, another exception is Tang PJ, who 34 Asian-Pacific Law & Policy Journal [Vol. 21:2
Additionally, the routine “I agree” may also have a substantive impact to the legal development due to lack of debate. A good example is the 2013 case of Kowloon Development Finance Ltd. v. Pendex Industries Ltd., where Lord Hoffmann, sitting as a NPJ, wrote the main judgment of thirty paragraphs to whom everybody simply said “I agree”.110 This case concerned the law on rectification of contract for common mistake. His Honour adopted the objective test of common intention proposed (as obiter) in Chartbrook Ltd and Another v Persimmon Homes Ltd and Another111. His Honour also took notice of the existence of academic criticisms against the objective approach and defended the approach briefly in two paragraphs.112
This case was actually a valuable opportunity for clarifying the proper approach for rectification (and hence vital to the legal development on this area), but it was missed due to the simple concurrence in the form of “I agree”. By a striking contrast, in the recent English Court of Appeal decision of FSHC Group Holdings Ltd v Glas Trust Corporation Ltd, the Court wrote a 195-paragraph judgment to carefully deliberate on whether the Chartbrook approach was correct.113 Its stringent and prudent analysis revealed that there are two rival approaches - one that is objective (i.e. requiring an objectively-inferred common intention and a mistake), and another one that is subjective (i.e. requiring an actual common intention and mistake).114
The English Court of Appeal took the underlying academic and doctrinal debates very seriously. This is evidenced from the fact that the English Court cited numerous pre-2013 academic articles raising various criticisms of the approach in Chartbrook.115 The English Court highlighted sometimes would add “There is nothing I can usefully add” apart from “I agree”. This happened in Nice Cheer Inv. Ltd. v. Comm’r of Inland Revenue [2013] 16 H.K.C.F.A.R. 813 at para. 3 and Moulin Glob. Eyecare Holdings Ltd. v. Olivia Lee Sin Mei [2014] 17 H.K.C.F.A.R. 466 at para. 3. This arguably strongly demonstrates Tang PJ’s personal efforts to contribute as much as possible. 110 [2013] 16 H.K.C.F.A.R. 336. 111 [2009] 1 AC 1101 (Eng.) [60]-[62]. 112 Kowloon Dev. Fin. Ltd., supra note 111, at para. 22-23. Lord Hoffmann adopted the objective approach without too much elaboration, arguably because his Honour was a member judge in Chartbrook and was a strong supporter for the objective approach. 113 [2019] EWCA (Civ) 1361 (Eng.). 114 Id. at [137]. 115 Id. at [129]-[130]. The Court cited a number of pre-2013 literature, including David McLauchlan, Chartbrook Ltd v Persimmon Homes Ltd: Common-sense Principles of Interpretation and Rectification?, 126 L.Q.R. 8 (2010) (Eng.); Paul Davies, Rectifying the Course of Rectification, 75 M.L.R. 412 (2012); Paul Davies, Rectification versus 2020] Kwan 35 the importance of the controversy as demonstrated by the overwhelming abundance of available materials: The controversial nature of the issues raised by the Chartbrook and Daventry cases is also reflected in the number of lectures – unprecedented in our experience – in which judges or retired judges have commented on those issues. In addition to the two lectures mentioned earlier given by Sir Kim Lewison and Sir Nicholas Patten, we have had the benefit of reading nine other such lectures, comprising two given by each of Lord Hoffmann and Sir Terence Etherton and one by each of Sir Christopher Nugee, Sir Paul Morgan, Lord Toulson, Lord Neuberger and Lord Briggs, as well as an article.116
Through a detailed investigation, the Court found that the subjective approach is the correct one, after consideration of (1) principles117, (2) precedent118, (3) policy119, (4) the approaches taken in other common law jurisdictions such as the Australia and New Zealand120, (5) benefits and limits of the objective approach121, and (6) whether injustice will be created by the two approaches122. The Court also carefully examined the counter-arguments, and after judiciously balancing between the two approaches, found the objective approach was wrong as a matter of principle and policy.123
Again, the conclusion on which approach is to be chosen does not matter. This is especially the case here, because the objective approach no doubt is also powerful and has its own advantages (as the Court of Appeal
Interpretation: The Nature and Scope of the Equitable Jurisdiction, 75 C.L.J. 62 (2016); Richard Buxton, Construction' and rectification after Chartbrook, 69 C.L.J. 253 (2010). The Court also cited post-2013 literature. 116 Id. at [130] (emphasis added). 117 Id. at [140]-[147]. 118 Id. at [154]-[163]. 119 Id. at [173]-[174]. 120 Id. at [167]-[172]. 121 Id. at [148]-[153]. 122 Id. at [175]. 123 Id. at [176] (“For all these reasons, we are unable to accept that the objective test of rectification for common mistake articulated in Lord Hoffmann’s obiter remarks in the Chartbrook case correctly states the law.” “We consider that we are bound by authority, which also accords with sound legal principle and policy… [to make a legal distinction between situations involving an antecedent contract and those which do not. For the latter, a subjective test is to be applied]”.). 36 Asian-Pacific Law & Policy Journal [Vol. 21:2 has also recognized).124 It is disappointing that other members of the CFA expressed no comment on this controversy and simply adopted Lord Hoffmann’s stance. However, it does not necessarily mean that the other members have to disagree with Lord Hoffmann, but they should have discussed the controversy with their own views. If the other members were so deeply persuaded by Lord Hoffmann’s stance, they should have stated their own reasons on why Lord Hoffmann’s approach is preferable. They could have defended it against any potential counter-arguments on principles or policy, especially given that the CFA, as the highest court, has the power to clarify or overrule any principles.
In effect, the CFA has reached what the English Court of Appeal has now found to be flawed doctrinally. The lack of sufficient analysis in the first place back in 2013 was disappointing. In effect, the CFA forewent a valuable opportunity for properly considering the matter. Most importantly, this is not beneficial to the public: the commercial and legal world may have doubts on whether future commercial cases should follow the more comprehensively-reasoned Court of Appeal decision, or follow instead the inadequately-reasoned CFA judgment. This could have been avoided had the CFA raised and dealt with this debate back in 2013, irrespective of its conclusion/stance. Had the CFA’s judgment been equally well-reasoned with strong and comprehensive reasons, the commercial world in Hong Kong would not have faced the dilemma on whether it will be overturned. It should be borne in mind that where commercial law is involved, it would be particularly helpful and important to provide more certainty to the commercial world.
In other words, the public (and the legal sector) will now have doubts on whether the CFA back in 2013 has fully taken into account the points made in the English Court. There is a big difference (in terms of legal certainty) between (1) the CFA having considered all of the same arguments made in the English Court, but have rebutted them with adequate reasoning, and (2) the CFA not being fully aware of the arguments made in the English Court and not considered them (or with no clear evidence on whether the CFA has considered them at all). In the latter situation, the judgment is more likely to be overturned on reconsideration.
G. Lack of Means of Accountability
Having separate judgments, opinions or observations allow the public and the legal world to maintain oversight over the work of the CFA. Former US President Thomas Jefferson once forcefully complained about judges not writing their own opinions:
124 See, e.g., id. at [150]. 2020] Kwan 37
The practice is certainly convenient for the lazy, the modest & the incompetent. It saves them the trouble of developing their opinion methodically and even of making up an opinion at all. That of seriatim argument shews whether every judge has taken the trouble of understanding the case, of investigating it minutely, and of forming an opinion for himself, instead of pinning it on another’s sleeve.125
Certainly, the criticism of laziness and incompetence made by Jefferson is arguably not applicable here, because it is believed that the judges are diligent and capable. Also, there are many possible benign and thoughtful reasons (as mentioned above) for not expressing an opinion. Yet, Jefferson’s point could be understood as raising a concern regarding how the lay public will perceive the court. Even if a judge works diligently, has thought through a case thoroughly, and he/she genuinely has nothing to add (especially if their colleague’s judgment was outstanding), a simple “I agree”, puts into question whether their diligence will be realized by the public.
Thus, in the absence of proper transparency, the public confidence in the court may be unnecessarily eroded. This should ideally be avoided as public confidence is a vital part of the rule of law and judicial independence. The CFA should carefully ponder on the need to increase transparency.
X. PUBLIC ACCEPTANCE AND CONFIDENCE: THE IMPACT OF HAVING ONLY ONE VOICE
In a 2019 speech, the CJ rightly recognized the importance and “necessity of having the community’s confidence in what we do”, as this is a vital component of the rule of law.126 The CJ also realized that “members of the community have at times vastly different views” (including social and political values) and stressed that the court’s role should be neutral and should only focus on the legal issues. Importantly, the significance of transparency has been acknowledged. Yet, there were still an abundance of criticisms made against the courts in Hong Kong (not just the CFA) based on political bias, which the CJ attributed the cause to “misunderstanding or inaccuracies”.127 The CJ reasserted that the CFA is
125 Letter from Thomas Jefferson to William Johnson (Oct. 27, 1822), in THE WRITINGS OF THOMAS JEFFERSON, VOL. XII: CORRESPONDENCE AND PAPERS, 1816- 1826, 246, 250 (2009). 126 CJ’s Speech 2019, supra note 98. 127 Id. It is noteworthy that this speech by the CJ itself has triggered strong reactions. See Ping-fat Sze, International justice: a matter of grave concern (Pt 2), 7850 38 Asian-Pacific Law & Policy Journal [Vol. 21:2 independent and free from any influence.
Whilst it is true that the judges in the CFA are most likely indeed neutral in social/political terms, arguably the CJ has missed the cause of the issue. When there are unusually high rates unanimity and single judgment, the effect is that there is only a mono-voice in the CFA. As argued above, this mono-voice may not always be acceptable to a sufficient portion of the community. The mono-voice inherently and inevitably must represent certain values, so that even if the judges are genuinely neutral, it still gives rise to the perception that they are being biased in favor of certain values. As in the example of the Donald Tsang case above, the mono-voice of applying only a retributionist argument would seem to the public to be value-biased.
Therefore, to achieve sufficient public confidence and acceptance, there should be more transparency and diversity. Diversity does not only refer to the judges’ backgrounds; more importantly, diversity would also require a broader and more comprehensive consideration of different legal and factual arguments, because the arguments reflect a diverse spectrum of values. This should be done by having more separate judgments, ideas and opinions, instead of having a mere “I agree” to a single judgment. It would be helpful to consider the issues from additional perspectives and to rebut counter-arguments. This is because these would demonstrate the court’s ability to realize the existence of other arguments that denote other intrinsic values. Notably, this ideal and worthwhile practice is observable in the High Court of Australia128 and the Supreme Court of Canada.129
NEW L. J. 17, 18 (2019) (who argued that the CJ seemed to suggest that “making a complaint about judicial conduct was also deemed disrespectful, although the community is entitled to have the highest expectations of judicial officers”. Sze further contended that in “a civilized society, respect for the judiciary is earned, not given, with humility and dedication”.). 128 For recent examples, see, e.g., Unions NSW v. New South Wales (2019) 363 HCA 1 (Austl.) and Australian Sec. and Invs. Comm’n v. Kobelt [2019] HCA 18 (Austl.). Both cases have five separate judgments by seven judges, sufficiently covering most, if not all, perspectives and arguments. This demonstrates the even if the majority are inclined to reach a particular conclusion, they can still have separate and different reasoning. 129 Recent cases have mostly reflected two different (yet equally persuasive) perspectives between the majority and minority, which therefore is very inclusive. Thus, the Supreme Court of Canada does not have the mono-voice problem as in Hong Kong. See, e.g., R. v. Le, [2019] 434 D.L.R. 4th 631 (Can.) and R. v. Stillman, [1997] 1 S.C.R. 607 (Can.). Notably, there were only two judgments (one by the majority and one by minority) in each case (by seven judges in total). It demonstrates that an inclusive approach does not necessarily mean everyone has to write a separate comment or opinion, which can sometimes be complicated to read. It is noteworthy that having diverse opinions is welcomed by the Chief Justice of Canada Richard Wagner. See Schmitz, supra note 5. 2020] Kwan 39
It must be stressed and clarified, again, that the conclusion reached by the courts does not matter, as long as it is comprehensively well- reasoned. It is equally possible to achieve unanimity but with more reasoning and contributions by different judges.
XI. CONCLUSION
The CJ said in 2019 that “everyone should be aware of just how the courts operate and handle cases”.130 This is undoubtedly true. Reading cases individually would provide insufficient understanding of the CFA. This Article is the first to do a number of surveys regarding the work of the CFA during 2011-2018. It is interesting to note that there were a lot of patterns which could not be explained, and which would not have been revealed but for the use of a statistical method. In order to achieve better transparency and increased public confidence in their system, the CFA should consider explaining these inexplicable patterns. This would assist the public, and the legal sector, to better understand the CFA and have more confidence in its work. As the introduction of new technology like big data analysis and AI will create more advanced legal research and statistical methods, the CFA should prepare for more stringent and detailed checks and analysis in the future. This would be beneficial for the courts, the public, and the litigants, as similar research would encourage more transparency and increase public confidence in the CFA.
130 CJ’s Speech 2019, supra note 98.