Hong Kong's Judges: Too Many Benchwarmers?

Football has a word for players who are not part of the starting eleven but are habitually named as substitutes – benchwarmers. In the old days, you didn't get so many of these due to the fact that only one substitute was allowed for many years since Keith Peacock came on as the first substitute in English football in the early 1960s. These days, though, with sides allowed to name seven substitutes, the upshot is that you get many more footballers who get paid handsomely for doing very little besides keeping the subs' bench warm. There are occasions when one wonders if it isn't a similar story for Hong Kong's 160-odd judges and magistrates.

Recent effusions from Hong Kong's judicial officials that have given cause for concern include those of District Court Judge Stanley Chan Kwong Chi, as he found lorry driver-cum-Taoist master Au Yeung Kwok Fu guilty of procurement by false pretences. Apparently ignoring the fact, which had come out in court, that the pseudo model the trucker managed to persuade to have sex with him had already had two abortions long before meeting him, when she was aged 12 and 13, Chan swapped gown and gavel for priestly vestments to pass judgement on the pregnancy caused by Au Yeung. It had, the judge intoned, in his self-appointed role as guardian of the morals, "resulted in the loss of a human life", although what that had to do with the case at hand eluded most observers.

The case of the Taoist master throws up plenty more food for though, not least, as Smog points out, because the law under which he was charged and convicted, "Procurement of an unlawful sexual act by false pretences" (Crimes Ordinance, Cap 200, s 120), is worded in such a way that it raises many more questions than it answers. The law states, in essence, that it is an offence for a person to procure "another person, by false pretences or false representations, to do an unlawful sexual act".

The major, and very serious problem, with this is that "unlawful" is smuggled in rather than defined, which lends a certain circularity to the law. Moreover, the addition of the word "unlawful" strongly implies that there are circumstances in which sexual intercourse under false pretenses is lawful, and yet these circumstances remain, like the "unlawful", undefined.

Returning to judicial effluence, there can be no better starting place for the interested than a book by former Hong Kong Court of Appeal judge, Benjamin Liu Tsz Ming, perhaps the single most extraordinary book I have ever read. Given that the author was a judge, you would be forgiven for thinking that How Are We Judged? refers to Hong Kong's judges, with a nod to Juvenal's famous dictum "Quis custodiet custodes ipsos?" But you would be wrong, as the book is actually about the way in which judges judge lawyers. Sounds bizarre? I promise you, not half as bizarre as the farrago of non-sequiturs, banalities and babblings that somehow manages to captivate the reader for 242 pages.

The following extract from the chapter called "Judicial indiscretion and calibre" gives a taste of the kind of prose you'll be contending with:

"Judicial appointments have never been known to be truly fair or perfect. Cliques and coteries aside, it is usually not the best but a more agreeable candidate who is successfully nominated. The less than rigid means of selecting judges is not necessarily repulsive. Flexibility is an inherent nature of the common law system. It is imperfect largely in the sense that it is not uniform. Both sound and less sound judges may be appointed." (p. 70)

Was Liu, I wonder, responsible for drafting Cap 200, s 120?

As for putting benchwarmers out to pasture, Liu is refreshingly candid in that patristic, my-way-or-the-highway, manner of his:

"Between an incompetent judge and one who is or appears to be difficult to cope with, the lesser evil is decidedly the latter. Once appointed, a judge is virtually irremovable." (p. 181)