tim's experiment

When Sarah Bernhardt came to London for the first time in 1879 she starred in a play called Medea, a bloodthirsty melodrama inspired by the story of a mythical Ancient Greek queen who, betrayed by her husband, killed his new wife and her own children by him.

Asked by a reporter what she thought of the performance a member of the audience said that it was “so unlike the home life of our own dear Queen!”

I had a rather similar reaction when, browsing the internet’s obscurer pastures, I came across Judge Frank Caprio. His Honour is the staple diet of an unusual television programme, sample here: https://www.youtube.com/watch?v=ORc0xXiJNd0  which follows his work as a rather humble judicial functionary, dealing mainly with minor traffic violations and occasional remands in custody.

There have been notoriously humane and gentle magistrates in Hong Kong, but the general trend runs more to the 17^th century precedent which (recorded in the mixture of French and English which lawyers were affecting at the time) went like this: the prisoner “ject un Brickbat a le dit Justice que narrowly mist. & pur ceo immediately fuit Indictment drawn by Noy envers le prisoner, & son dexter manus ampute & fix al Gibbet sur que luy mesme immediately hange in presence de Court”.

Judges have the undisputed right to exercise considerable power in keeping order in their own courtrooms. The relevant offence is known as “contempt in the face of the court”. Offenders can be fined and jailed in a most summary manner. It is a feature of Hong Kong courtrooms that this power is exercised with very little thought to its potential drawbacks.

In a case last week, for example, the judge took exception to the fact that a member of the public in the accommodation reserved for such people was wearing a scarf with a political slogan on it, which the judge took as a violation of an earlier order from her that there should be no displaying of banners or slogans.

Reports of this incident have as usual been sketchy. I hope there was something missing in the report that had the hapless defendant, a 62-year-old local lady, trying to explain herself and being told that her guilt had already been decided, the only point at issue was the sentence.

Well the case was adjourned and so must be considered to be still active. So we should not consider its merits in detail, or at all.

Some general points arise, however. The first is that, as the UK Law Reform Commission put it, “if … the procedure by which the court seeks to impose its authority lacks the basic features of justice which apply to criminal proceedings, then it undermines rather than enhances the rule of law.”

Or as an English judge put it when invited to exercise these powers: “When a judge deals summarily with an alleged contempt he may at once be a victim of the contempt, a witness to it, the prosecutor who decides that action is required and the judge who determines the matter in dispute and imposes punishment.”

Clearly this does not inspire a great deal of confidence. More seriously from the English legal point of view it is generally recognised that, as a recent commentator put it: “there are concerns that the summary enquiry procedure, although swift and robust, does not comply with the requirements of article 6 of the European Convention on Human Rights.”

Article 6 is the one that concerns fair trials. It does not, of course, apply in Hong Kong. However the Bill of Rights Ordinance does, and it stipulates in language strikingly similar to that of the Convention that anyone accused of a crime should have the right:

• to be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him;
• to have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing;
• to be tried without undue delay;
• to be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it.

In other words you have a right to a detailed explanation of the charge, time to think about it, and a lawyer, if necessary at the public expense, before the judge consigns you to the nearest dungeon.

Hong Kong judges might care to consider the relevant Practice Direction for English judges exercising their “great power”. They should:

  Tell the respondent of the possible penalty that the respondent faces;

  inform the respondent in detail, and preferably in writing, of the actions and behaviour of the respondent which have given rise to the committal application;

  if the judge considers that an apology would remove the need for the committal application, tell the respondent;

  have regard to the need for the respondent to be –

• allowed a reasonable time for responding to the committal application, including, if necessary, preparing a defence;
• made aware of the possible availability of criminal legal aid and how to contact the Legal Aid Agency;
• given the opportunity, if unrepresented, to obtain legal advice;
• if unable to understand English, allowed to make arrangements, seeking the court’s assistance if necessary, for an interpreter to attend the hearing; and
• brought back before the court for the committal application to be heard within a reasonable time;

  allow the respondent an opportunity to –

• apologise to the court;
• explain the respondent’s actions and behaviour; and
• if the contempt is proved, to address the court on the penalty to be imposed on the respondent; and

  where appropriate, nominate a suitable person to give the respondent the information.

It used to be a requirement that the judge considering a summary conviction of this kind should refer the matter to another judge who was not already involved in the case. Judges have more recently taken the view that this is not always necessary and may involve unnecessary delay. Still, where an adjournment is required anyway judges might consider a recent observation from the UK Court of Appeal:

“…the power to impose summary punishment for actions which one has oneself witnessed and is oneself the victim does appear to place the judge in the position of being witness, prosecutor and judge… In many cases where there has perforce to be a delay between the alleged contempt and the summary trial, it will be wise for the judge to refer the matter to one of her colleagues if for no other reason than to avoid the risk that this argument will be run.”

Having urged judges to be more circumspect in the use of their power to convict for contempt in the face of the court I must express some puzzlement at the apparent complacency over the matter of people taking pictures in court.

This has always been a notorious no-no for news purposes. The possibility of tourists taking pictures for their own amusement has not previously come up. This suggests that in the two recent cases in which “tourists” from the mainland were caught taking pictures of the jury and in one case uploading the results onto the internet, something more than mere curiosity was involved.

So it is disturbing that the perpetrators were released without penalty and without, apparently, any serious inquiry as to whether they were who they said they were, or were doing what they said they were doing.

We must all sympathise with the judge who thought a procession of celebrites appearing in the part of the public gallery reserved for Donald Tsang’s friends and family might influence the jury. The answer to this problem is to abandon the practice of reserving seats in the public gallery for the rich and famous. A seat for the defendant’s wife is reasonable; a court hearing is not a social occasion.

A jury may perhaps be influenced by a parade of harmless local bigwigs. Possibly not in the intended direction. It can surely be terrified by the discovery that pictures of members are being taken in circumstances which suggest that such pictures may end up in the files of the Secret Police of our northern neighbour.

Yet this does not seem to bother judges at all.