18-10-2019

Judges’ Attires – Some Personal Thoughts of a Judge – By Mr. Justice Patrick Chan

29-01-2016

[The speaking note at the Ribbon Cutting Ceremony on the donation of judges’ attires to Hong Kong Shue Yan University, 21 November 2015.]

Judges’ attires are funny dresses in this modern age. Not too many people would wear them and go around in public. I do not think I can trace their history and tradition now. I would not know how they came about and why they are different. But I would like to share my feelings about these dresses with you.

First, these dresses reflect the solemnity of the courts. While they are different, there is one common theme.  They remind us of the solemnity of the courts and the legal system and the need to show respect to the courts and the system. The courtroom is the place where judges uphold justice. It is the place where people’s rights and liberty are honoured and protected. It is the place where the law which affects our daily life is pronounced. Judges are the key characters of the courts. The courts are an essential component of the legal system. When we respect judges, we pay respects not only to the individual persons holding judicial office. Some of them we like and some we do not. When we respect judges, we in fact pay respects to the law, the courts and the whole system. Respect for the law, the courts and the system is the cornerstone of the Rule of law.

We often hear judges and lawyers say to one another “with respect”, “with the greatest respect”, or “my learned friend”, “the learned judge”, even though they do not agree with each other and do not mean respect in their hearts. However, that is the tradition of mutual respect, a respect for the law, the courts and the system and what is more, for the Rule of law.

Second, these dresses are a symbol of the judges’ duty and powers. Many see the judges to have great powers: power to decide whether a person is guilty or not guilty, power to sentence a person to prison, power to resolve disputes between citizens and between citizens and the government and big corporations, power to punish for contempt of court people who show disrespect to the court or interfere with the administration of justice. But such powers are given to judges only for the purpose of performing their duty. Duty always comes before powers. If a judge is not discharging his judicial duty, he does not have those powers. He is just an ordinary person, like you and me. But whenever a judge puts on his judicial attire and sits in court, he carries on his shoulders an onerous duty, the duty to administer justice fairly, impartially and independently. When he takes up his office, he would make an oath, a judicial oath to serve conscientiously, dutifully, in full accordance with the law, honestly and with integrity, safe guard the law and administer justice without fear or favour, self interest or deceit. This is a duty which he must discharge to the best of his ability.

Third, the different attires remind judges to be humble. There are different attires for different levels of court. A judge may move up the judicial ladder. But as he goes higher and thus puts on the attire of a higher position, the task he has to perform is more difficult. He is just the same person, he will not be more intelligent or cleverer by his promotion. But he ought to be wiser, more experienced, more learned, and he can only be so provided he is humble and is prepared to learn. He does not know everything, every principle of law. He has to rely on the lawyers appearing before him. When he says: “can counsel assist me on this and that”, he is in fact asking for help on something he does not know. A judge is not infallible, he can make mistakes and he can be wrong. The parties who feel aggrieved by his decisions can appeal. On appeal, more judges will then scrutinize and may overturn his decisions. So the higher his position is, the more humble he should be.

Fourth, judges’ sense of justice may sometimes be misplaced. Every judge is duty bound to do justice and every judge is anxious to make the right decision. No doubt he will try his best to do so. But there is an inclination that he may think that what he is doing or has done must be right and just. But there is a possibility or a risk that what he is doing or what he has done is NOT right or just. This is not surprising: he may simply be wrong; or he may not have the full picture of what actually happened, that is, he may not have all the evidence; or he may have been misled by witnesses or lawyers on some important matters. His sense of justice may have been misguided or misplaced. Law students and academics must be familiar with Lord Denning the famous judge in the English Court of Appeal who was always very anxious to do justice and extended some legal principles to serve what he believed to be right and just in the cases he heard. But on many occasions, he was found by a higher court, the House of Lords, to be wrong, to have misplaced his sense of justice. I think many of us often make the same mistake. We think we are doing is right and just when it is not. It is important for all of us, especially judges, to always keep an open mind, to listen more patiently to others and to analyze carefully before jumping to a conclusion which may be influenced by our wrong sense of justice.

It is not always easy for judges to know what is right and what is just. It is not always easy to do justice. It may be said that judges are not dispensing justice, they are only trying their best to minimize injustice. I always remind myself of this whenever I put on a judge’s gown and sit in court.

This is all I wish to share with you.

來源:2016年1月號

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