The judiciary is being put in the spotlight on an increasingly frequent basis, and so too are the judges or magistrates who have to dispense justice on a daily basis in a crucible of divided public opinion. Their judgments, whatever they are, will be controversial. Not because the judicial officers have acted controversially in arriving at their decision, but rather because the cases they are deciding are controversial.

So it is no surprise that, as the protest-related cases have been going through the court system this year, particular decisions have attracted immense commentaries in the press and on social media, with accusations of bias. In April this year, it was because a District Court judge expressed sympathy for a pro-government defendant who stabbed pro-democracy protesters. More recently in August, it was because a magistrate acquitted a District Councillor on charges of assaulting a police officer during a protest, and in doing so, deemed the police officers' testimony in a protest case unreliable. The ensuing storm from certain segments of the public and the press was intense, vicious, and personal.

When faced with such attacks, you might expect an ordinary person or their organization to react by being all over the airwaves, buying advertising space, and flooding the internet with their side of the story. After all, celebrities, politicians, and even companies do all it all the time. In the age of constant connectivity, where every person and institution is expected to be tweeting, posting, or sharing their thoughts almost reflexively, no doubt some will see the silence of courts as an admission of guilt.

But our judiciary is, by design, unable to do this.

The judiciary as a whole, and individual judges especially, rarely comment publicly, or engage, or participate in current affairs or events – particularly if they are of a political or controversial nature. This distant and, at times dignified, silence preserves the actual and perceived independence of the judicial officers, and ensures that everyone gets a fair trial.

But a fair trial also requires that the environment in which the trial is conducted, including outside the court room, is free from events that might otherwise prejudice it. That is why the Basic Law constitutionally guarantees the freedom of the courts to exercise their powers independently, and free from any interference.

It is also why we have laws and offences that impinge (ever so slightly, but with proportionality) on the freedoms of the press, and the exercise of free speech. These laws are of two types. The first is a prohibition on publication of certain matters while they are before the courts to ensure that parties, particularly defendants in criminal trials, do not have their trials prejudiced as a result of publicity or other undue influences. The second are the laws of contempt that prohibit written or verbal attacks on judges or the courts. Any such act done, or writing published, with intent to bring the court into contempt or to lower the court’s authority and to undermine public confidence in the administration of justice in Hong Kong is contempt of court. This ‘scandalizing the court or a judge’, as it is termed, is liable to prosecution (usually for sedition) and punishment by fine and/or imprisonment.

These laws, however, do not prevent bona fide discussion in the media of controversial matters of public interest merely because there are ongoing legal proceedings, nor do they restrict genuine and fair public discussions involving the judiciary and their decisions or sentences in criminal cases.

They do not put judges beyond criticism either. We are lucky that in Hong Kong our judicial officers are senior legal practitioners, with years of professional experience, and they are constitutionally bound to decide cases in accordance with the law based solely on the evidence that has properly admitted before them in accordance with set rules and procedures of a trial. This ensures judges and magistrates decide the cases on their merits, free of other considerations and gives everyone a fair hearing inside the courtroom. But if they err in their decisions there is an appeals procedure, and if they misbehave (which is exceedingly rare) there is a complaints and disciplinary procedure. With these established processes we can keep our court system in check without having to scandalize the court or risk interfering in the due administration of justice.

The role of solicitors in this milieu also deserves special mention. Firstly, as solicitors, we are officers of the courts and in the common law system, this duty is paramount. It’s even enshrined as the third provision in the Legal Practitioners Ordinance, which tells you how highly it ranks in the scheme of things. This means that lawyers by virtue of their role have a professional duty to educate clients about the court processes in the interest of promoting the public’s confidence in the administration of justice. By extension, it compels us to defend the judiciary from undue attack. The Secretary for Justice, as the chief legal officer who traditionally plays the role of the defender of the law and the courts, does not, in my opinion, absolve the remaining 12,000 legal practitioners in Hong Kong from their duty to do so. Secondly, while we can freely disagree with certain decisions handed down, judges and magistrates are entitled to expect that lawyers, in their public statements, will not engage in personal attacks on the judiciary or unfairly criticize judicial decisions.

Defending the judiciary does not require us to agree with everything the courts do or decide, but it is especially critical that we do not allow these attacks on the judiciary to continue unchallenged. Following the introduction of National Security Law and the recent debate about the separation of powers, both of which have undermined overall confidence of the public in our legal system, our judiciary is under incredible strain, and, if we do not take action to stop this, few good lawyers will want to be judges now or in the future. Just imagine the storm of criticism that Hong Kong will find itself in then.

(Davyd Wong is a practising solicitor, the founder of Pro Bono HK, and was recently elected to the Council of the Hong Kong Law Society. The opinions expressed here are his alone, and do not constitute professional advice of any kind.)

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