Alarm bells? What’s really alarming is ex-judge Henry Litton’s criticism of the Hong Kong judiciary

I had resolved a few weeks ago to stop complaining about violations of the law in contempt of court, but my resolution wilted in the face of a specimen from a very senior lawyer.

Mr Henry Litton, a former QC and a retired judge of our top court, has taken to airing criticisms of his successors on the Bench in the pro-government press. His latest effort started with the observation that the judgement of the High Court in a named case should “send alarm bells ringing in the Judiciary.”

Unfortunately, Mr Litton was so distracted by the alarm bells that he overlooked an important detail. The case about which he was complaining — Tong Ying Kit v the HKSAR — concerned whether Mr Tong should be granted bail.

Clearly Mr Tong will in due course face a trial, that is why he is in custody. It accordingly behoves media performers not to publish material which suggests that he is guilty, or for that matter innocent.

The sub-editor of the page on which Mr Litton’s masterpiece appeared, a mere journalist, followed the rules in his caption on a picture of Mr Tong, saying that he “allegedly rammed a motorcycle into a group of police while sporting a ‘Liberate Hong Kong’ flag.”

Mr Litton, on the other hand, cheerfully committed the offence known as strict liability contempt of court, by saying that the case concerned the man (already named in the previous paragraph) “who, on July 1st, furiously drove a motorcycle at police lines, eventually seriously injuring police officers. He was carrying a rucksack, from which protruded a black flag…” and so on. Not an “alleged” or “accused” to be seen.

It is not yet certain, but it is quite possible, that Mr Tong will be tried by a jury. Any juror who has read Mr Litton’s view of the matter has already been polluted by a prejudicial account.

After all, it is quite likely that part of the proceedings will concern the question of whether Mr Tong did drive “furiously” and whether he intended to hit the policemen. I have no idea what the defence might say about any of this. I do not know, you do not know, and Mr Litton does not know. But Mr Tong is entitled to a trial which is not preceded by newspaper copy which assumes and states his guilt.

Under the circumstances, it could be said that Mr Litton was in some danger of complaining about motes in other eyes while ignoring a beam in his own.

He does not, and nor do I, dispute the correctness of any of the court’s decisions concerning Mr Tong, who was refused bail. The Tong legal team applied for a writ of “habeas corpus”, an unusual way of seeking to overthrow a decision about bail, and as it turned out not an effective one.

However, counsel for Mr Tong also contended that there were deficiencies in the new national security law which meant that it should not apply yet, or at least should not have been applied on July 1.

The court rejected all these arguments, but Mr Litton is not happy with this. He is not happy because the court devoted 25 pages to giving its reasons for rejecting them.

In Mr Litton’s view, it is unacceptable for a Hong Kong court to even consider that there may be a constitutional problem with a law emanating from Beijing, and judges have a “prime constitutional responsibility” to “nip the mischief in the bud.”

The idea that Hong Kong courts have no jurisdiction over mainland Chinese legislation may well be an entirely accurate description of the law, and an entirely accurate description of the practical situation. Any failure to follow the Party line will be overruled or “reinterpreted.” I have some difficulty with the idea, though, that this is in all cases so self-evident that judges should simply refuse to entertain any argument on the matter.

It is an important principle that judges should explain the reasoning behind their decisions, and when the arguments are long and complex the reasoning will be long and complex as well.

After wading through some details of the particular case, and a long quote from the Chief Justice about the importance of open justice, you get a rather worrying indication of where Mr Litton is coming from.

He says the court, in Mr Tong’s case, has “failed to discharge its constitutional function.” This function includes “to judge effectively” (with which we can all agree), “clearly” (which is ambiguous in the context), and “in a manner which the ordinary citizen can understand.”

Surely not? Judges have never had a constitutional obligation to state their conclusions in a manner which the ordinary citizen can understand. My acquaintance with constitutional matters is of some antiquity, like Mr Litton’s, but I think I would have remembered an obligation to be understandable to the ordinary citizen, because it is so often flouted.

Some judges, like the late Lord Denning, accepted a moral obligation to phrase their conclusions, as far as possible, in language which the litigants would be able to understand. Most judges, though, feel that reaching the right decision is hard enough without abandoning the technical language of the law, so they leave explaining their mysterious craft to the legal advisers.

Of course we all agree with the need for open justice, but I do not think even the Chief Justice, or perhaps anyone except Mr Litton, believes that this requires all judgements to be written in a manner which will be instantly comprehensible to the man in the street. How many ordinary citizens read High Court judgements, however snappy?

The destination to which Mr Litton’s “constitutional function” is heading, he wrote, is “ensuring the resolute, full, and faithful implementation of the policy of One country, two systems.”

I, respectfully, disagree totally. It is not the constitutional function of the courts to implement government policy, resolutely, fully, faithfully or otherwise. The relevant principle is usually attributed to Lord Mansfield’s judgement in the case of John Wilkes in 1768, and, like so many legal antiques, is in Latin: “Fiat justitia ruat caelum,” which means “Let justice be done though the heavens fall.”

This is the standard to which judges should aspire. Under the present circumstances, it is something of a relief that Mr Litton is no longer one.

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