I have appeared in a complicated Order 14 with a number of points of law in the case, and An Interim Payment Case of modest complexity. In each case the Master has refused effectively to give written reasons for his judgment. This is particularly galling for those clients who have lost, especially when they have travelled from abroad, as they wish to know the processes of reasoning, as to why they have lost., and that our system of justice is alive and working. Winners are not so bothered usually as they won and that is all they care !
Sitting on committees I hear constant complaints about how masters dispose of appeals in appeals against the refusals of Legal Aid Certificates, wherein they merely state “I concur with the decision of the Legal Aid Officer”.
I was always taught that a judicial decision in the common law systems had to be properly reasoned, by the one judge sitting, and that judge has to give his reasons to ensure that he is being fair. This is probably not so necessary in the Court of Appeal when there are usually three judges, and they are probably dealing with a narrow focus for decision.
Giving no reasoned judgments or a simple “I concur with the Legal Aid Officer”, will not pass muster in Australia, New Zealand or UK. Certainly in first instance decisions by judges, one might observe since the CJR principles were introduced in 2009 ( April Fool’s Day 2009) a tendency in Hong Kong judges to be more prolix. So why do Masters in lower Hong Kong Courts think they can evade giving reasons for their judgments. Does this show they are being fair? Does this expose their processes of reasoning? Perhaps they do not want to show these reasoning Processes.
The Principles Involved
So let us remind ourselves as to why and how a Master or indeed any person who exercises a judicial or quasi-judicial function in Hong Kong, of the processes of reasoning required. This is especially important in cases where the client is not represented, as he or she will want in clear language how and why the result has been reached. This should be done in simple language, and not jargon, such as is used by our medical friends. Everyday language which is simple and easy to understand, and in Hong Kong easy to translate.
Another reason for making Masters write decisions is to make sure that their standards of decision making improve and also the standards of decision making within the government departments improve. If no reasons are given for a decision, there is little chance of improvement in the decision making, as the originally flawed processes are not exposed. Such flawed and egregious decision-making processes was recently exposed in the case involving the development of land in Hoi Ha, where no demonstrable need for the development was exposed. The plan drawn by Lands Department was deliberately wrong, so the proposed development did not appear to be within 30 metres of a stream. I do not think that this application was appealed by the Government somehow !
Some decisions of Masters are appeals themselves, and the Master is supposed to conduct a hearing de novo. By saying merely “I concur with the officer who made the decision”, does not exactly exude confidence that he or she has reviewed the evidence de novo. Further of course, when no reasons are evinced by the Master, the Court of Appeal in conducting the review cannot examine the processes by which the Master came to the decision. Some more cynical lawyers may suggest that is what the Master was trying to avoid in not giving his reasons !
Further, by merely stating the bald decision, or “I concur with the officer who made the decision” does not force the Master to sit down and really think whether he is actually coming to the right decision. Writing a judgment de novo, forces the Master to write, re-draft and think about what he is deciding, and what the result should be in the case. How does one know whether the Master has considered the relevant materials only? How can an appellate court even divine what was in his mind to understand if he really knew what the case was about?
How Should a Master write his Judgement – a few polite suggestions
I cannot get away in this article, with merely being critical about the brevity of these decisions in Hong Kong without suggesting how Masters ought to be writing their judgments.
There ought to be a brief decision describing the real issues in the case as one should start a legal opinion, and then identify the relevant areas of disagreement between the parties. This keeps the decider relevant, and serves as continuing guidance throughout the writing to keep relevant. “It was a bright sunny day when Geoffrey Jones was playing cricket on a village cricket green in Somerset. He hit a six and the ball went over the main road and smashed through a greenhouse where Mrs. Simpkins was watering her geraniums. It hit her on the head and caused her brain damage. Is Geoffrey liable for damages for the personal injuries caused to her in public nuisance? Geoffrey says he is not as, villagers have been playing cricket on that green for over 100 years and no public nuisance has ever been caused. Mrs. Simpkins says he is liable. “
Long decisions using Party A and Party B and phrase after phrase, are incomprehensible. We the readers get lost in them. Recitations of many sections also distracts the reader from the essentials of the judgment. Dictation tools such as Dragon 10 encourage prolixity. Further of course even we lawyers can give up attempting to wade through obscure details. Judges who write by the yard tend to delay writing the decision. Lord Eldon took seven years in one case and Mr. Justice Baber frequently took years to write decisions. We have some judges at present who take over two years to write simple judgments, who become lost in irrelevant detail. No I am not suggesting prolixity in writing judgments, just a crisp statement of the issues. This will encourage the writer to come back to a review of his or her decision with relative ease and sense of security in the judgment itself.
After the issue has been stated simply, the relevant facts should be set out. Those should be followed by the contested facts upon which the Master should give his processes of reasoning, to which he has to apply the relevant law. Then he has to resolve the issues simply and come to a clear conclusion.
The crisp conclusion is Masters ( and for that matter all judges ) should be able to state clearly what the decision is at the top of the judgment. In our system of precedent, it is important that we as lawyers can find for clients clear statements in similar cases. Now most cases decided in Hong Kong are available on the internet and the Judiciary Website. It is even more important to know whether a case assists the client or does not. Having virtually no reasons for decisions in Order 14 Cases, or Interim Payments Cases or Legal Aid Appeals, does not assist practice.
We do not have headnotes in these reports on the internet, so it is even more important that there is a short intelligible statement at the beginning of the issues and possible even the result. Otherwise it is difficult to concentrate on endless flipping through the pages of Party A & Party B. Remember long re-statements of sections of ordinances, bores the reader. Thus a judgment which is hard to read probably comes hard to read, and therefore of little value.
So this is a plea for strong intelligible judgments to be the order of the day, and not viewed as unnecessary.