Justice Flip-flop
7 June 2006
Update 6-Dec-08: in order to clarify the law, the prosecution appealed the second written ruling, seeking to have the first written ruling (which reversed the oral ruling) upheld. On 5-Dec-08, the Court of Final Appeal dismissed the appeal, determining that the first written ruling was invalid.
The man responsible for overseeing free and fair elections in Hong Kong finds himself in the middle of a controversy over his flip-flop on a judgement, reports Nick Gentle in the SCMP today. In case HCMA636/2007 Justice Pang Kin-kee, a high court judge and Chairman of the Electoral Affairs Commission, was asked to rule on an appeal of a magistrate's conviction of a company for operating an unsafe screen-printing machine, for which it had been fined HK$25,000. The judge handed down his judgement at 09:30 on 15-May-08, dismissing the appeal, finding no errors in how the magistrate handled the case.
Then the appellant's counsel wrote to point out that this was inconsistent with what the judge had said during the hearing on 28-Sep-07, some 8 months earlier, and at 15:00 the same day he reissued the judgement, finding inadequacies in the magistrate's handling of the case, and allowing the appeal.
This poses two obvious questions. First, how can it take so long to issue a ruling on such a simple matter? Surely the judiciary should have some performance pledge to the community. Secondly, why isn't the original ruling on line, with a link to the revised ruling?
It is not for us to answer the first question. As to the second, there is no excuse for it. Hong Kong's judiciary maintains a web site of written judgements since World War II, excluding the judgements in most criminal cases, which apparently are normally given orally rather than in writing - although it would be possible to publish transcripts of those.
At Webb-site.com we have read a lot of online judgements in our time, and you will find links to many of them on the various company pages of our archive. While it is not unusual to see a "corrigendum" or correction to some detail in a judgement, we've never seen a ruling reversed in this manner. Surely once a judgement has been handed down, then it has immediate effect, even if only for a few hours, and should be included in the judicial archive. It is also questionable whether a judgement can be reversed by the same judge after it has been given. Isn't that a matter for the appeal courts, even if the judge realises he has made an error?
So to correct this, in the interests of judicial transparency, Webb-site.com has obtained and is publishing the original ruling, and you can download it at this link: HCMA636/2007 version 1. The revised ruling is at this link: HCMA636/2007 version 2. Both are in Chinese, so we'll leave it to you to compare them.
Of course, the third question is, if Justice Pang was so late in issuing his written judgement, did the passage of time cause him to get his facts muddled, and did he refer back to the court transcripts before writing his first judgement? Was this a case of Justice delayed, Justice denied, and Justice then granted?
Justice Pang, who turns 61 in August, is also Chairman of the "Advisory Committee on Post-office Employment for Former Chief Executives and Politically Appointed Officials", which is supposed to stop former officials from taking private sector jobs soon after they retire which might conflict with their former roles. He is also a member of the secretive Panel of Judges on Interception of Communications and Surveillance, who approve phone-taps and bugging by the ICAC, police, customs and excise department and immigration department.
© Webb-site.com, 2006
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