The Bar Association and the Hong Kong Law Society have just made a joint statement criticising the recent protests against the sentencing on the Amina Bokhary case: “Any attempt made to bring public pressure on a Magistrate or Judge to change his or her mind upon a review of sentence is to be deplored.” (… though I don’t agree that the rallies aim to bring pressure on the judge concerned; the question is whether the public is justified in publicly expressing their disagreement with a court decision.)
Tbis particular scenario embraces a lot of issues worthy of reflection, and I guess, should make an ideal ‘textbook case study’ for first-year students of law or liberal/general studies. For me, the last thing that I’d want to see is trial by the masses. This is very dangerous and will only take us back to the days of the Cultural Revolution.
Surely, people’s reaction to a court decision will sometimes be emotional. They don’t have the legal training, they may not know much about the workings of the judiciary, they may not have full knowledge of a case, or the (mitigation) factors that the judge is considering.
What I’ve been thinking of is: When that happens, should (a) the judiciary dismiss the public reaction as emotional and uninformed, or (b) explain in greater detail the judge’s rationales behind his sentencing?
I think (b) is impractical and unnecessary. The prosecution can appeal according to established procedures. Also, the public has to TRUST that judges are making impartial decisions based on their best judgement.
The question is, (I may be wrong here but at least this is my impression), that people have been becoming less trusting of the judiciary. (I repeat: my observation may be wrong.) If this is true, what are the reasons? Well, it’s difficult to pinpoint the exact reasons. Perhaps, it’s because people in HK have become better educated (so that they may not automatically look up to judges as authority figures). Perhaps, people are more concerned about their ‘rights’. Perhaps, the mass media likes to stir up public emotions.
In the last few years, the public’s discontent with a court decision has been confined to toned-down grumblings in the letters page, and in phone-in talk shows. Last week was the first time in my life seeing people taking to the streets to publicly protest against a court decision. For me, this is really worrying.
To go back to the Bokhary case, I do not doubt Yuen’s impartiality. That’s why I have no problem with his upholding his decision. But the public sees the case from a different perspective. They use their logic, and the only information that is available to them, and then form their own opinion about the judge’s sentence. Personally, their reaction may not be ‘right’ or justified; but it’s undertandable, because they ARE concerned that the rich and famous will get preferential treatment.
The world is changing, and people will not respect authorities just because they have the authority. More than 10 years ago, I never had a query from a student who was not happy with his grade. But in recent years, this has been happening more and more often. And I don’t take offence, because they have the right to do so. I will patiently explain to the student concerned why I can’t give him the grade that he thinks he deserves.
Hence, I think the judiciary is faced with a critical diliemma here. On the one hand, it needs people’s trust, so that they don’t lash out at whatever court decisions they find (superficially) unfair. The judiciary is not a politcal or government mechanism; our usual notion of accountability should not apply to the judiciary. On the other hand, in the run-up to the 22nd century, people will not automatically go along with the decison of a judge simply because it is handed down by a judge.
This is the challenge for the judiciary in the 21st century.