Reform is a buzzword in today’s Hong Kong. After his annual duty visit to Beijing earlier this month, Chief Executive John Lee Ka-chiu pledged his commitment to pursuing reforms in Hong Kong, following the guidance outlined by President Xi Jinping. Earlier, on Nov 8, Xia Baolong, director of the Hong Kong and Macao Work Office of the Communist Party of China Central Committee, presided over a high-profile meeting with Hong Kong business leaders in Shenzhen, urging Hong Kong to accelerate reforms in critical areas such as finance, industry, tourism, housing, health, and education. He admonished that Hong Kong should not continue to rely on the old playbook. In my view, reform should also encompass the Judiciary and our judicial processes to strengthen the rule of law.
Our Judiciary was bogged down in the early days after the reunification by its insistence on adhering strictly to some outdated practices adopted during British rule, as well as its refusal to adapt to the changing circumstances of our society, particularly in meeting public expectations for greater transparency and accountability. Judges continue to wear antiquated wigs and robes from the British-rule era, reflecting an irrelevance to a rapidly changing world and alienating the local populace.
In October 2022, during the 20th National Congress of the Communist Party of China, President Xi Jinping stated in his report, “The Hong Kong Special Administrative Region needs to improve its legal and judicial system to attain perfection.” At that time, Executive Councilor and Senior Counsel Ronny Tong Ka-wah suggested that President Xi’s remarks indicated a need for improvements in our legal system and the Judiciary’s established procedures.
Since then, it has been encouraging to note that the current chief justice has introduced several measures to enhance the Judiciary system, such as revamping the public-complaint procedure, introducing a revised code of conduct for judicial officers, and updating the appraisal system for judges, which have significantly increased transparency and accountability.
However, progress in some key areas remains elusive. In 2019, Henry Litton, a highly regarded retired Court of Final Appeal judge, published a book titled Is the Hong Kong Judiciary Sleepwalking to 2047? In it, Litton criticized the protracted legal decision-making process that incurred great public expense and frequently failed to deliver appropriate judgments, noting that many litigations initiated by the then-opposition camp were politically motivated and involved frivolous judicial reviews funded by the government’s legal aid.
Litton rightly pointed out the shortcomings of the judicial review (JR) system. One notable case once paralyzed the construction of the Hong Kong-Zhuhai-Macao Bridge, in which the opposition camp enlisted an elderly female recipient of social welfare to apply for legal aid, objecting to the construction on environmental-protection grounds. Her JR application was granted by a British judge, resulting in a one-year delay and financial losses amounting to HK$8.8 billion ($1.13 billion).
We have now witnessed a similar situation with the JR decision regarding the government’s resumption of a small portion of Fanling’s Hong Kong Golf Club for public housing. Following a JR application filed by the golf club, High Court Judge Russell Coleman, in his 229-page judgment, filled with references few ordinary citizens could understand (including the Battle of Copenhagen in 1801), overturned environmental authorities’ conditional approval for building 12,000 public flats on part of the golf course, effectively halting the public housing project. This decision disappointed tens of thousands of underprivileged families living in inhumane conditions.
During a major public consultation in 2018 addressing the housing crisis, there was significant support for reallocating the entire 172 hectares of the Fanling golf course. Ultimately, the government compromised by agreeing to reserve only 32 hectares — less than one-sixth of the land — for public housing and amenities. This decision was welcomed by the community at that time. However, the gold club has refused to concede, despite retaining two full 18-hole international-standard golf courses and one nine-hole course, and has fought against the government’s decision at all costs, including employing top lawyers to launch this JR application.
As required by law, the project underwent a comprehensive environmental impact assessment (EIA) process, which included specialist advice from the Advisory Council on the Environment (ACE). The statutory process commenced in 2019 and continued until May 2023, culminating in the generation of an EIA report. During the public inspection period, 1,451 written comments were received, including from the club. The EIA process involved extensive consideration by the ACE, which requested and received further information on multiple occasions. Ultimately, the ACE approved the report, albeit with conditions, for the director of environmental protection’s final approval.
The best way forward is for the chief justice to take decisive action by forming a widely representative Judiciary reform committee and tasking it with proposing improvements to the Judiciary so that it is conducive to the rule of law in the HKSAR
The club argued that since the completion of the EIA report, additional information — including data from bird, bat and moth surveys and a tree compensation plan — was crucial for environmental protection and warranted another full public consultation before approval. Coleman concurred, agreeing that the government had failed to consult the public again in light of the new information, despite the government’s legal representative arguing that the additional information had been fully considered by the experts sitting on ACE, and by the director of environmental protection.
If the judgment sets a troubling precedent; if the government is legally obligated to conduct a fresh public consultation every time additional information is submitted, it could lead to unsustainable procedures. This ruling is unlikely to be welcomed by the underprivileged public, who may perceive the court as prioritizing the interests of bats and moths over their urgent need for public housing.
More importantly, consider the potential impact on the Northern Metropolis project, which aims to transform 30,000 hectares of land in the New Territories into an economic hub and housing center. This establishes a dangerous precedent on complying with environmental protection and could be easily abused to delay any project in that region. The government must appeal against this unhelpful judgment.
In contrast, the Singaporean government has successfully resumed land from two golf clubs — the Jurong Country Club in 2015, and the Keppel Club in 2022 — without encountering the obstructions faced in Hong Kong. These decisions were made based on the principle of prioritizing basic public needs, specifically addressing Singapore’s public housing shortage.
Therefore, we must ask whether JR applications with unforeseeable significant implications for the public interest and funding should be heard by a single judge.
Another issue that warrants review is the jury system. In the “Dragon Slaying Brigade” trial, 14 individuals were charged with allegedly plotting to detonate explosives and kill police officers in December 2019, at the height of the “black-clad riots”. The evidence was overwhelming, with firearms, explosives and a plan of action seized. While seven defendants pleaded guilty, only one of the seven who pleaded not guilty and was tried by a jury was convicted. Police were reportedly “shocked” by the not-guilty verdicts, prompting calls for reform of the jury system.
In another case, a husband who suspected his girlfriend of infidelity brutally attacked her and her two daughters with a knife, causing multiple injuries. He then placed their bodies together and set fire to their apartment, resulting in all three deaths. Such carefully planned cruel actions can hardly be regarded as “impulsive actions”. Yet the jury found him not guilty of murder, instead convicting him of manslaughter.
Both cases violated all common sense, raising questions about the fairness of the jury trial. The problem is that jurors deliberate in secret and are not required to provide reasons for their decisions, making appeals difficult. Indeed, many countries have abolished the jury trial.
The best way forward is for the chief justice to take decisive action by forming a widely representative Judiciary reform committee and tasking it with proposing improvements to the Judiciary so that it is conducive to the rule of law in the HKSAR.
The author is an adjunct professor of HKU Space and a council member of the Chinese Association of Hong Kong and Macao Studies
The views do not necessarily reflect those of China Daily.
