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Justice Delayed is Justice Denied

This ‘Letter to the Hong Kong Lawyer’ by Gordon Oldham was originally published in April 2021. Please click here for the original article. 

According to the recent Financial Times article ominously titled ‘Companies consider writing Hong Kong out of legal contracts,’ multinationals are reviewing whether or not to exclude Hong Kong from their legal contracts over anxieties around Beijing’s expanding influence on the territory’s rule of law. International media commentary like this is fuelling increasingly negative perceptions of Hong Kong’s legal system.

In response, I suggest that now more than ever is the time for us, the local legal community, to come together and focus on fixing our actual, real-world problem. That is our broken court system.

Our courts resemble an inspiring but vintage Rolls Royce which still very much leads with ‘the Flying Lady’- the Rule of Law, but unfortunately, the seats are threadbare, the paintwork faded, the engine requires replacing and the electronics are non-existent.

This current state of affairs has nothing to do with our excellent Judges. Our Judiciary continues to deliver above and beyond and they have the full support of Hong Kong’s legal practitioners. The problems with our court systems are operational. The system exudes a delegation of responsibility mindset, a blanket resistance to all matters digital, an all-the-time-in-the-world attitude coupled with inefficiencies which viewed from a modern corporate setting are laughable – having someone sit and wait three hours for a piece of paper to be chopped is lamentable in this day and age. On top of this, there is insufficient numbers of support staff members, as well as Judges, and limited focus on how to help the Hong Kong public.

We legal practitioners know how embarrassing it is to say to a client that they have a great case but it will probably be 18 months before it is heard. A recent survey of 69 jurisdictions around the world, carried out by OLN, showed that overall, Hong Kong not only ranks in the top five for the most expensive court proceedings but also in the top 20% for the length of time it takes to actually get to court. We are expensive and slow.

On top of all this, those of us in the Hong Kong legal community know our local courts have been chronically ill-equipped to cope with Covid-19, especially compared to Singapore and other jurisdictions. The very jurisdictions that are looking to profit from the negative perceptions pronounced by the Financial Times.

However, we cannot simply blame the backlogs on Covid-19 or the judiciaries’ techno-phobia. These operational problems run deeper and point to a more ingrained malaise. It is, in fact, our collective acceptance that enables this antiquated and dysfunctional system to exist and persist. We have to actively be part of the change instead of tolerating it as some endearing, antiquated throwback together with horsehair wigs. As practitioners, we all laugh at the story of Jarndyce and Jarndyce, described so perceptively by Dickens, but in Hong Kong, those days still exist.

However, given the Hong Kong legal community lives in the increasingly competitive and globalised twenty first century, not in Charles Dickens’ times, we urgently need to take on a solution-minded commitment to revamp our courts and double down on our efforts to undertake the repairs necessary to renovate the infrastructure of our legal system, from top to bottom. Consider the following:

• Compulsory annual legal technology CPD: this has been introduced years ago in certain US states. Solicitors do not need to learn to code, but let’s stopped being frightened by terms such as legal design, robotic process automation and natural language processing.
• Ask our Law Society to establish collaboration with third parties/digital designers and lawyers: We should focus on how we want the courts to look with processes that lead to a user-friendly and above all faster and more efficient system.
• Online/video trials: Permit trials to be conducted online and in person, as we have seen in other jurisdictions.
• Digitalization of transcripts: Judges – please put down your pens – and allow the parties to have a written transcript produced at the end of every day. There are voice recognition programs and transcription technologies that can help.
• More Funding: There should be more financial resources available for the courts to shorten the waiting time for court hearings. These could fund for example:
  • more judges on the panel
  • transcribers to take notes and other clerks to handle note taking instead of the judge doing his/her own during trials
  • non-practicing lawyers to help write judgements to free up time for the Judges to review the draft instead of writing his/her own judgement
  • a restructuring of the legal department with more people, more KPIs, more commitment to service, and the delivery of a fast, reliable, efficient court service

In response to the Financial Times article, Teresa Cheng wrote ‘We continuously strive to meet market demands to ensure Hong Kong remains one of the world’s leading international legal hubs [….] for dispute resolution services.” However, the reality of cases taking 18 months to get to court does not make Hong Kong a leading global hub for dispute resolution services.

Now is the time for our legal community to come together and take action. We need to refocus and rebuild the Hong Kong court system, installing a modern, forward-thinking approach that serves the local community. That is if we want to continue to be proud of a Hong Kong legal system that stands head and shoulders above its international rivals.