Face to Face with Hon. Henry Litton GBM CBM JP, Former Permanent Judge of the Court of Final Appeal

Mr. Henry Litton, Former Permanent Judge of the Court of Final Appeal, speaks about his career, his judicial philosophy and recent comments he has made about the Hong Kong judiciary which have attracted much public and media attention.

Mr. Litton said that he “felt like a fish returning to water” when he was appointed from the Bar to the Court of Appeal in 1992.

“As a practising barrister you face many pressures,” he explained. “You are pressed by anxious clients to ‘win’. It takes much restraint not to push the envelope too hard. There are times when you have to fight with your conscience.”

Before his appointment to the Bench, he acted as deputy judge of the Supreme Court (as the High Court was called prior to 1997) on many occasions and also served as the chairman of many statutory boards and tribunals, such as the Inland Revenue Board of Review and the Town Planning Appeal Board. “I felt totally comfortable in those capacities. You dealt with the issues before you the best you could, quickly and simply, free from external pressures, so being the decision-maker rather than the advocate was attractive to me.”

As the Vice President of the Court of Appeal, he said he was able to regulate (to some extent) its sittings. “It was a very efficient court. I do not recall a single case where judgment was not delivered within a few weeks – very often the day following the last hearing. We were well assisted by the secretaries and clerks.” It was a “professional environment” that I “thoroughly enjoyed”, he said.

Most Difficult Case

Throughout his distinguished career, Mr. Litton has dealt with many difficult issues in many difficult cases, but the hardest, he said, was undoubtedly Bank of East Asia v Tsien Wui Marble Factory & Palmer and Turner.

“It concerned the new Bank of East Asia building, completed in 1982. Granite panels mounted on the concrete structure formed the cladding of the building. Some 10 years later the Bank became aware of serious defects in the cladding. It took the experts some time to discover the cause. Eventually the bank sued the supplier of the granite cladding and the architects.”

“At trial, the architects admitted they were negligent in the design of the cladding, but said that the Bank’s cause of action was time-barred under the Limitation Ordinance (the “LO”). This admission lulled the parties into thinking there were no factual issues to be tried. The sole question was thought to be purely one of law: in terms of s. 4(1) of the LO, when did the cause of action against the nominated subcontractor and the architects accrue? The trial judge found in favour of the Bank, but he was reversed by the Court of Appeal. So the Bank appeared before us in the CFA as the appellant.”

When the limitation issue was properly analysed, there were a number of possible dates when the cause of action might be said to have accrued. This depended on the facts, and there were few findings of fact in the lower courts, Mr. Litton explained. So one difficult issue was whether to send the case back to the trial court to make findings of fact. As the presiding judge, I was determined to avoid the “wasteful course” of sending it back to the trial court, he said. Instead, the CFA made additional findings of fact, based on the incontrovertible material before us.

In the end, the CFA dismissed the Bank’s appeal by a majority of 3-2, although on grounds different from those of the Court of Appeal.

Judgment, Humility, Focus

The three most important qualities Mr. Litton believes a judge should possess are judgment, humility and focus.

Judgment relates to “the use of time and energy”. That is, to decide when a case should be “dealt with summarily”, and when it requires “deep analysis”. Too often trial judges agonize over trivia and lengthily discuss arcane points of law when all that is required is to apply the law, he said.

A good judge is also humble – they “see the world as the common man and woman sees it.” They don’t judge from “some great height”, with a “wrinkled brow and sneer of cold command”, he said, referencing the poet Keats.

Finally, a good judge should also be focused, honing in on “the real issues” before them, while having the “wider horizon” (ie, the full scope of the case) in view. Good judges are not “ensnared in a tangle of words”. They judge issues, not personalities. Their conclusions accord with common sense, which lies at the heart of the common law, he explained. And they render a judgment which the average educated person can understand.

A Linguistic Conundrum

“At the very heart of One Country, Two Systems is the common law system: a system which prevails in many jurisdictions, including the second most populous country in the world, India.” English is the “common language” of the common law and it is simply not possible for it to exist severed from its roots in the English language. Herein, he explained, lies “a conundrum.”

With 80 percent of the population unable to proficiently speak English, how can the common law remain effective in this community? Mr. Litton believes it boils down this: it must be expressed in a language which “the average educated person” can understand. In this multilingual city, when a judgment is given in English, as most of them are in the higher courts, a duty falls on the court to speak in a manner that not only makes it easy to understand in English, but also easy to translate into Chinese. This, to me, is “the guiding principle,” he said.

Even in other common law jurisdictions, where English is the common language, there has been a call for judges to avoid making judgments that, in the words of Lord Neuberger, are “readable by few, comprehendible by fewer still.”

“If justice is seen to be done,” said Lord Neuberger in a 2011 speech on open justice, “it must be understandable. Judgments must be open not only in the sense of being available to the public, but, so far as possible given the technical and complex nature of much of our law, they must also be clear and easily interpretable by lawyers. And also to non-lawyers. In an age when it seems more likely than ever that citizens will have to represent themselves, this is becoming increasingly important.”

Focused Judgments

Judges can often be pretty prolix, and Mr.Litton believes judges can do better.

The Issue

Common law is focused on remedies and is formulated out of experience, real situations, he noted. It springs from pragmatism.

The trial judge’s primary function is to “find the facts relevant to the issues”, not engage in a “discourse about the law,” he said. “In the vast majority of cases, once such facts are found, the correct legal consequences follow.”

Frequently, masses of irrelevant details and citations find their way into judgments that are not focused on the “real issues”, he said. And electronic media does make the problem any easier – it’s not only word processors, but also the easy access through the internet to almost every decided case. This seems to fuel the recent trend of counsel putting forward “every conceivable argument” and citing every tangentially relevant case that judges then laboriously go through in their judgments irrespective of their merit.

“I was an appellate judge for nearly a quarter of a century, and I can tell you, it is not easy for a judge to break out of this paradigm, to set aside counsel’s argument and cast his eyes over the wider horizon.”
The profession, on the other hand, can help improve matters and make the system more relevant and robust, by focusing on the facts of the case and exercising common sense, he added.

Lord Neuberger has also noted this trend in the UK, observing that sometimes judges feel the need to deal with every aspect of every point that is argued, which can make a judgment difficult and unrewarding to follow. “Reading some judgments one rather loses the will to live – and that is particularly disconcerting when it’s your own judgment that you are reading,” he has said.

Short v Long

So what’s a judge to do when faced with the choice of writing a short or long judgment? On the face of it, Mr. Litton finds the answer to be obvious: judgments should be as short as possible.

However, one should not give short shrift to the real risk involved with writing a judgment that is too abbreviated – that is, the risk of a judge not considering the issues and previous authorities properly. As explained by Lord Neuberger, “one of the main points of a judgment is to explain the decision to the parties, especially to the loser, to their lawyers and to any appellate court, and more generally to future potential litigants, to their lawyers, as well as to academics. And particularly in [a] common law precedent-based system, judges often should refer to and consider past decisions. So the shorter the better, but as with anything, you can have too much of a good thing.”

Judicial Review

Recent comments made by Mr. Litton about the judicial review system in Hong Kong have generated considerable media and public attention, prompting many members of the legal community to weigh in on his appraisal, including the Hon. Chief Justice Ma and the Chairman of the Hong Kong Bar Association, Winnie Tam SC, at the Opening of the 2016 Legal Year.

The Issue

Judicial review is focused on remedies (eg, orders of mandamus (mandatory orders), prohibition and certiorari (quashing orders)) that are available to deal with abuse of power, acting beyond jurisdiction and other actions of that nature on the part of the Government or public bodies. As such, they are “extremely important remedies”, Mr.Litton said.

“There is nothing wrong with the threshold for judicial review,” he continued. “To get leave to start proceedings the applicant must satisfy the judge of the High Court that he has a reasonably arguable case for one of the reliefs mentioned earlier. This has been referred to as a ‘firewall’. Rightly so. It shields public officials from being vexed with frivolous and hopeless proceedings,” he said.

Rather, the issue he takes with a handful of cases (eg, Television Broadcasts v Communication Authority, Kwok Cheuk Kin v Chief Executive & the Government of the HKSAR and Yvonne Leung Lai Kwok) is that the procedure adopted by the judge by-passed the “firewall”. He believes it gave “oxygen” to frivolous and vexatious applications that should have been screened out. “Full stop.”

He believes it is “crucial” for public authorities to have confidence in the processes of the High Court. “For the Court to fail in maintaining the discipline of law, and allow its processes to be abused, erodes such confidence.”

The Appraisal

The vigor with which a view is expressed should not detract from its substance or be misconstrued. So Mr. Litton’s appraisal is to be put in context. The concern is brevity, efficient use of court resources and discipline of the law.

The vital role of judicial review is acknowledged especially in the unique circumstances of “One Country, Two Systems”. It has not been said that every unsuccessful application is an abuse of process. Nor is it denied that judicial review and convenience are sometimes not on speaking terms. Judicial reviews might cause delays and increased costs but those things are unavoidable in maintaining the rule of law.

However, as for the substance, many have persuasively elaborated on why the overall system is sound and why it is of equal importance to buttress public confidence in the judiciary and rule of law.

For instance, Paul Shieh SC, former Chairman of the Bar, said “[i]ndeed [the] very existence [of judicial review] is a good thing and marks Hong Kong from mainland China. It has room for improvement in that judges can be expected to be more robust in screening out undeserving cases, but very often judicial review applications take place against a polarized political background.”

“In order that their decisions are not criticised (wrongly, and almost as a kneejerk [reaction]) by interested parties as ‘the death of the rule of law’ (or evidencing ‘the judiciary turning red’), judges can be forgiven for spending more time and effort in demonstrating that the unsuccessful applicant has had a fair hearing and in explaining in greater detail why he or she has lost.”

It is hoped that the profession and the judiciary will continue to meaningfully evaluate these issues and seek to improve, as and when the need arises.

Life after the CFA

As an Honorary Professor of Law in the Faculty of Law at the Hong Kong University, Mr. Litton hopes to continue contributing to the development of the law in Hong Kong in the years to come. “In particular, I shall continue to advocate simplicity, clarity and sharp focus in the law. These are all essential to make the common law an effective implement of good governance in Hong Kong, in tune with the needs of the age.”

Hon. Henry Litton GBM CBM JP
Former Permanent Judge of the Court of Final Appeal

Former Justice Henry Litton was born in Hong Kong. He was educated at Diocesan Boys’ School Kowloon, King’s College Taunton and Merton College Oxford. He was called to the English Bar in 1959, and admitted to practise in Hong Kong in 1960. In 1970, he was made Queen’s Counsel. He is an Honorary Bencher of Gray’s Inn, London. He has served seven terms as the Chairman of the Hong Kong Bar Association. He has also served as chairman of numerous statutory boards and tribunals, including the Town Planning Appeal Board. Mr.Litton is also the founder of the Hong Kong Law Journal and served as its editor-in-chief for 22 years. He is also the adviser to the Hong Kong-Macau Office and member of the Basic Law Advisory Committee. He was appointed to the Court of Appeal in 1992 and became one of its Vice Presidents. In 1997, he was appointed Permanent Judge of the Court of Final Appeal. He retired in 2000 and became a Non-Permanent Judge of the CFA for 15 years. In September 2015, he retired from the CFA. Presently, he is an Honorary Professor at the Faculty of Law, Hong Kong University.

Editor, Hong Kong Lawyer
Legal Media Group
Thomson Reuters