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Understanding the Hong Kong Court of Final Appeal: Statistics and Inexplicable Patterns

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Understanding the Hong Kong Court of Final Appeal: Statistics and Inexplicable Patterns 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.”).
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