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Online responses to Pursuable Complaints

Judiciary's Response to Complaint (HCA 2310/2018)

The following is the response issued by the Judiciary concerning a complaint against The Hon Mr Justice Wilson Chan (“the Judge”) in connection with the adjudication of the case of HCA 2310/2018.

Gist of Complaint

2. The complaint received by the Judiciary mainly alleged that the Judge made a wrong judgment in the Action in that he had copied 95% of the plaintiff’s submissions and failed to analyze the facts.

The Panel of Judges' Investigation Report

Outcome of investigation

3. The complaint is not substantiated.

A. Background

4. The complainant is the defendant in HCA 2310/2018 (“the Action”). The plaintiff, Li Siu Lun (李肇麟, “Mr Li”) brought the Action against the complainant claiming damages for assault, harassment and intimidation committed by the complainant and/or his agents and also a permanent injunction.

5. Mr Li’s case was that the complainant was a subcontractor of his company. After his subcontract was terminated in March 2018, the complainant repeatedly harassed the staff of the main contractor. In August 2018, Mr Li also received several telephone calls from people claiming to be debt collectors sent by the complainant. The callers scolded Mr Li with abusive and foul language, demanded him to make repayment and threatened to cause harm to him and his family members. Despite a report had been made to the Police and a cease-and-desist letter sent by his solicitor to the complainant, Mr Li continued to receive phone calls from unknown callers during late night and very early morning and also threatening WhatsApp messages.

6. The complainant denied he was a subcontractor. His case was that he and Mr Li were business partners and used to collaborate on construction projects. In March 2018, their relationship turned sour. Despite his repeated requests, Mr Li refused to produce the books and accounts relating to the projects they had worked on. The complainant did not dispute he had contacted the main contractor. His friend, Mr Ng, had made phone calls to Mr Li. He himself had sent WhatsApp messages to Mr Li. However, he stated that they were all for the purpose of getting the books and accounts from Mr Li. He denied there was any assault, harassment or threat made to Mr Li.

7. At the trial, which lasted three days, Mr Li was legally represented and the complainant acted in person. They both provided the court with written opening and closing submissions. The Judge handed down his judgment on 2 November 2021. The Judge held that the claim of assault and the claim of harassment were not made out, but the claim of intimidation was established on the evidence. He awarded to Mr Li HK$100,000 as damages and granted a permanent injunction. He also awarded costs against the complainant to be taxed on the District Court scale.

8. The complainant has not appealed the judgment.

B. The complaint

9. By his letter dated 1 July 2023, the complainant complained that the Judge made a wrong judgment in that he had adopted 95% of the plaintiff’s submissions and failed to analyze the facts in the case.

C. Findings

10. The Panel of Judges, comprising the Hon Anthea Pang JA, the Hon Andrew Chan J and the Hon Keith Yeung J, has considered the complaint in depth. The thrust of the complaint is that the Judge failed to carry out an independent analysis of the case in that he had substantially copied the plaintiff’s submissions.

11. It is fundamental that judicial decision and judgment should reflect the judge’s independent analysis and reasoning. That a judge must bring an independent mind to his judicial function and must also be seen to do so is crucial to the integrity of the judicial system and maintaining public confidence in the judicial process.

12. The core question in this complaint is whether the Judge had brought an independent mind when adjudicating on the dispute and the issues in the case.

13. From reading the judgment and the parties’ opening and closing submissions, it can be seen that a substantial part of the judgment was indeed copied from the plaintiff’s opening and closing submissions. In some places, the Judge expressly indicated that he agreed with or accepted those parts of the plaintiff’s submissions that he had adopted: see paragraphs 54, 61, 68, 73, 84, 86, 88, 100 and 102 of the judgment.

14. The findings and conclusion of the Judge were set out in paragraphs 106 of the judgment onwards. They are predominantly in the judge’s own words. This part of the judgment reflects the Judge’s analysis and application of the legal principles to the facts as found on the evidence. It demonstrates that the Judge had carried out independent assessment and analysis of the evidence and the relevant law. Specifically, while the Judge found as a fact that the complainant had used angry words and foul language during his meetings with Mr Li and had caused nuisance to the staff of the main contractor, the complainant’s conduct did not in law amount to assault or harassment for the reasons set out in paragraphs 108 to 110 of the judgment.

15. It is thus evident that the Judge did not copy and accept the plaintiff’s submissions indiscriminately or without bringing an independent mind to his judicial function. Instead, he had given independent consideration to the evidence and the applicable law in the case. He did not accept the plaintiff’s submissions in entirety. He had given reasons for holding against the plaintiff on the assault and harassment claims and for awarding damages in a sum less than what was sought by the plaintiff. The Judge also stressed in his response to the complaint that he had “gone through the intellectual process of considering, analyzing and agreeing with the plaintiff’s submissions” before concluding that the plaintiff’s claim in intimidation was made out.

16. In all, the Judge had brought an independent mind to his judicial function of adjudicating on the issues in the Action, despite that over 90% of his judgment was copied from the plaintiff’s submissions. The complaint that the Judge failed to analyze the facts of the case is therefore not made out.

17. The complaint also alleged that the Judge had made a wrong judgment and that the complainant was a business partner of Mr Li and not his subcontractor. It is to be noted that there has been no appeal against the Judge’s decision. Further and importantly, the findings made by the Judge are part of his judicial decision. The complaint mechanism does not serve the purpose of, and is not an avenue for, interfering with a judicial decision or overturning the outcome of a case. Any party to proceedings who is aggrieved by a judicial decision may, in accordance with the applicable procedures, seek redress by appealing or applying for review to a higher court.

D. Conclusion

18. For the reasons set out above, the complaint against the judicial conduct of the Judge in adjudicating the Action is not substantiated.

19. However, substantial incorporation of parties’ submissions in a judgment, especially without acknowledgement, is not acceptable as it would give rise to serious questions as to whether a judge has abdicated his judicial function or whether his conduct is such that justice has been seen to be done, and that he should not do so in the future.

20. The Panel of Judges further notes that in an earlier case after the Court of Appeal had criticized the Judge for judicial copying, the Chief Justice of the Court of Final Appeal and the Chief Judge of the High Court had reprimanded the Judge who had promised not to make the same mistake in the future. The present case arose before the above incident. The Panel of Judges considers that the Judge should be reminded again of the issues concerning substantial incorporation of parties’ submissions in a judgment as set out in paragraph 19 and that he should avoid similar practice in future. Suitable support and guidance on judgment writing should also be provided to the Judge.

Views of the Advisory Committee on Complaints against Judicial Conduct

21. The Advisory Committee on Complaints against Judicial Conduct (“the Advisory Committee”) has carefully reviewed this case through extensive deliberation. It notes that whilst some degree of incorporation of parties’ submissions in a judgment is acceptable and indeed quite common, excessive judicial copying casts doubts on whether the judge has applied an independent mind to the facts and issues that he/she has to decide.

22. If the judgment, because of substantial judicial copying, fails to demonstrate that the Judge has brought an independent mind to his/her judicial functions, this would, generally speaking, be regarded as cogent evidence which may lead to the conclusion of judicial misconduct, in the absence of any satisfactory explanation.

23. However, if the judgment, despite the substantial judicial copying, demonstrates that the Judge has applied an independent mind to the facts and issues involved in deciding the case, the judicial copying should, subject to considerations in paragraph 24 below and generally speaking, not be regarded as judicial misconduct, absent any other special circumstances.

24. Even for cases falling under paragraph 23 above, since substantial judicial copying is prone to raise doubts about whether the judge has exercised an independent mind in performing his/her judicial functions, it becomes an unnecessary and undesirable distraction. The focus of the parties and the appellate court should remain on the core issues raised in the case, rather than on combing through submissions, evidence and transcripts to determine whether the judge applied an independent mind when preparing the judgment. This would otherwise result in unnecessary wastage of limited judicial resources and legal costs. Moreover, since the dividing line can be difficult to discern, it makes substantial judicial copying a highly “dangerous” practice to be engaged in.

25. Having considered all the relevant circumstances of this case, the Advisory Committee agrees with the conclusion that the Judge has applied an independent mind to the facts and issues involved in this case, and the complaint should hence not be substantiated.

26. Nonetheless, the Advisory Committee emphasizes that justice must not only be done, but should also be seen to be done. Upholding the perception of impartiality and fairness is essential to maintaining public confidence in the administration of justice. For the reasons explained in paragraph 24 above, substantial judicial copying should, therefore, be strongly discouraged in any event.

27. The Advisory Committee supports the follow-up actions suggested by the Panel of Judges, including the need to clearly remind the Judge to avoid substantial judicial copying when writing judgments unless there are exceptional circumstances.

The Chief Justice of the Court of Final Appeal’s Decision

28. After considering the investigation report of the Panel of Judges and the advice of the Advisory Committee, the Chief Justice of the Court of Final Appeal concludes that the complaint is not substantiated.

29. The key consideration underlying the above conclusion on the complaint in question is that despite the substantial judicial copying on the facts and circumstances of the present case, the judgment has nonetheless demonstrated that the Judge has applied an independent mind to the facts and issues in this case.

30. The Chief Justice stresses that as a matter of principle, a judge’s duty is to decide a case independently and impartially, and this should be demonstrated in the judgment. This is integral to upholding the perception of impartiality and public confidence in the judicial process. Excessive judicial copying in a judgment casts doubts on whether the judge has applied an independent mind to the facts and issues that he/she has to decide. For the reasons given in paragraph 24 above, the Chief Justice takes the view that substantial judicial copying should be strongly discouraged in any event.

31. The Chief Justice concludes that the Judge should be firmly reminded to desist from the practice of substantial copying of parties’ submissions in judgments unless there are exceptional circumstances. Suitable guidance on judgment writing should also be provided to the Judge.

13 February 2025