The verdict against a securities company director, accused of murdering his alleged mistress, is unique. A life has been sentenced in the absence of motive, without discovery of the corpse, and without proof of how the alleged murder was carried out. It is possible in law to convict an accused in the absence of direct evidence. However, to extend this to a case where the accused has not confessed to the crime, and where no motive and modus has been proven, baffles legal acumen.

hong kong high court
Photo: HKFP.

The verdict appears to be based on the grounds that the accused had, in all probability, intimate knowledge about the alleged crime, something not divulged during trial, and that the accused is perhaps the last person who met the victim, now presumed dead. Prima facie, the conviction is a departure from the fair trial principle, which demands the prosecution prove the charge against the accused beyond reasonable doubt.

Whether new evidence will surface warranting fresh trial, or whether the conviction will hold in appeal, presently the case appears to be an exception in a system that is one of the best in Asia. The performance of the Hong Kong justice system remains acclaimed at par with the most advanced, mature, and independent jurisdictions of the world. In fact, it would be no exaggeration to claim that Hong Kong justice process is fairer than what exists in some European jurisdictions.

One reason Hong Kong maintains this quality is a highly vigilant bar and the exceptional standards of integrity and expertise that judges maintain and uphold. However, recently, as has also been published in this media, members of the public have highlighted areas of concern; if these concerns are left unaddressed there is potential Hong Kong’s justice process will degrade.

court of final appeal
Court of Final Appeal. Photo: Wikimedia Commons.

A notable increase in the time spent by an accused awaiting trial to commence is worrisome. One reason attributed to this is the vacancies within the judiciary that are left unfilled. In other words, there is a felt need to address the judge to population ratio. Whatever the factors involved, they need quick solving. Any clog in the process of justice delivery, if left unattended, has the potential to bring down the entire justice process.

For instance in India, a trial usually takes anywhere between 5 to 15 years to complete. This is the norm. Take the high profile case of the Uphaar Cinema fire that concluded this past week. The tragedy, which resulted in the death of 59 people and serious injury to over a hundred others, took place in 1997. The final verdict has taken 18 years.

supreme court of india
Supreme Court of India. Photo: Wikimedia Commons.

Such scandalous delay in routine in India has reduced public trust in the entire process of justice delivery. People avoid going to the court and instead seek private settlement of disputes. This has further corrupted the system. A large business of extra-constitutional, and therefore illegal, processes flourishes in India as a result.

Lawyers use the possibility of delays to protract proceedings. Repeated adjournments serve the lawyers as well as the clients who could benefit from time being bought. For this reason alone, in India there are politicians who can contest and win elections, term after term, even if they are facing a criminal trial in which evidence is such that if a trial were to proceed and conclude in accord with fair trial principles they will be convicted, bringing an end to their political career.

On the basis of bribes, police officers offer “off duty services” to rich persons in order to investigate crimes like theft and recover and return stolen goods. Policemen, plied with the appropriate payment, will track down a defaulting debtor and make the person return the loan. In the worst case, the threat made is that of  “fixing” the person in a criminal case, so that the person will have to spend the rest of their lives circling the corridors of a court.

Due to delays, the average Indian citizen does not believe in the justice process. This has led to a chalta hai (so it goes) attitude. Even when scams and corruption scandals have been uncovered within the Indian Judiciary, including that of corruption among the judges in the Supreme Court of India, public imagination and protest have failed to ignite. Corrupt judges and prosecutors do not face any investigation or prosecution. This is because the people of India have given up hope in their justice institutions; they no more consider serious defects in the justice process as matters affecting their rights and their quintessential democratic guarantees.

Therefore, when retrogressive amendments to the Indian Criminal Procedure Code, the Indian Evidence Act, and even to the Constitution were proposed in the year 2003, in the Justice Malimath Committee Report, the ordinary public, including the country’s media, did not react or respond. If the proposed amendments in law had been implemented, they would have taken away fair trial guarantees in India. The proposal had suggested removing the right to silence and presumption of innocence from law with the excuse that due to court delays the prosecution is often unable to produce trial witnesses and even if witnesses show up they often do not remember what they witnessed and therefore benefit the accused. The government appointed Justice Malimath Committee argued that under the prevailing circumstances, where delay is the norm in criminal trials, the prosecution is pitted against the accused in an unfair battle.

Due to the pressure, primarily from international civil society organisations closely watching India, the proposals were shelved, and remain shelved for now. However, the majority of the Indian civil society failed, and still fails, to understand the relevance of the proposed changes, and therefore did not bother with resistance. Delays in the justice process and corruption have alienated a majority of Indians. And, today, redeeming trust in India’s justice process by redesigning it to fit the needs of the world’s largest democracy, which is an onerous but imperative task, is not even on the agenda of the Indian civil society.

Public trust is built over long periods, in years of hard work and meticulous care. It can, however, be lost in just a short walk of mismanagement and ineptitude openly reflected in actions.

Hong Kong, as it exists today, is built on the strong foundation of the territory’s independent and professional judiciary. The strength of any judiciary is directly proportional to the public trust that the institution enjoys. And, Hong Kong is no exception.

Therefore, any hindrance in the justice process that could diminish public trust must be immediately attended to. Otherwise, as showcased in India, with which Hong Kong shares common inheritance, once the ship of public trust sails, clambering back aboard can become a monumental task.

Bijo Francis

Bijo Francis

Bijo Francis is a lawyer from India. He is the Executive Director of the Asian Human Rights Commission, Laureate of the Right Livelihood Award, 2014, also known as ‘The Alternative Nobel Prize’. Bijo’s research interests include constitutional law, legal theory, human rights law & practice, and history. Before joining the organisation he was a partner at ABA Associates and has litigated for Fortune 500 companies like SBI, BPCL, TATA Motors, and IOC.