By Colin Cohen

Hong Kong, 7 July 2023: Judicial copying, whereby judges reproduce swathes of lawyers’ submissions in their rulings, is neither a new issue nor unique to Hong Kong. But, no matter when or where it happens, the practice undermines the legal system and affects public confidence in the judicial process.

The issue has been thrust back into the spotlight recently with Mr Justice Wilson Chan being given a “serious reprimand” by Chief Justice Andrew Cheung for wholesale copying in his High Court judgment of a trademark dispute. The Court of Appeal has ordered a retrial after the defendants complained the judge had copied “over 98%” of his judgment from the plaintiff’s case. Among the remaining 2%, the appeal judges found “there is not one full sentence written by the trial judge in his own words”.

In reaching its decision, the Court of Appeal referenced previous cases in Hong Kong and overseas. A precedent matter in Hong Kong is Nina Kung v Wong Din Shin (2005) 8 HKCFAR 387, where the trial judge had copied verbatim from the written submissions of both parties, and it is worth noting the words of the Honourable Mr Justice Roberto Ribeiro, Permanent Judge of the Court of Final Appeal, in the CFA’s ruling:

“There is of course nothing wrong with a judge accepting the submissions of one party or the other where he agrees with them. It is an everyday occurrence that a judge will adopt arguments made by one side or the other, often quoting verbatim a passage from a written argument. Usually, of course, this is openly acknowledged with the judge saying that he accepts the submission which was put in the way he set out. However, the copying may occur to such a degree and in such a manner that serious questions may arise as to whether the judge has abdicated his judicial function or at least as to whether his conduct is such that justice has not been seen to be done by an independent judicial tribunal.”

Further afield, the Court of Appeal of England and Wales held it was “thoroughly bad practice” for a judge to construct a ruling “derived almost entirely” from the winning party’s submissions while failing to address the central arguments raised by the losing party or to explain why their arguments were rejected.

The Supreme Court of Canada noted courts in that country and elsewhere “have held that copying in reasons for judgment is not, in itself, grounds for setting the judge’s decision aside”. However, if the practice would lead a reasonable person “to conclude that the trial judge has not put his or her mind to the issues and made an independent decision based on the evidence and the law, the presumption of judicial integrity is rebutted”.

Concerning Mr Justice Wilson Chan’s judgment, the Court of Appeal concluded: “A reasonable person can hardly be assured that the judge has been willing or able to apply his own intellect to the issues and come to grips with them himself. As the CFA said in Nina Kung, the ‘fundamental point’ is that a judge must bring an independent mind to his judicial function and be seen to do so.”

It is worth mentioning that just days after that ruling, the Court of Appeal again questioned a written judgment in a civil case by the same judge, noting that it involved extensive use of counsel’s submission. The appeal judges said they would give “little to no weight” to his ruling. He has previously faced two similar complaints.

In mitigation, it should be stressed that our judges and magistrates are overwhelmed with work. There is a backlog of cases due to the pandemic and a shortage of manpower. Hong Kong currently has 164 judicial officers at all court levels and tribunals with 47 vacancies.

As well, we should do more to support our judges. In other jurisdictions, they receive training in writing judgments and sometimes have associates to provide first drafts. In this regard, it is welcome news that the Chief Justice has instructed the Judicial Institute, which organises lectures and training sessions for court officials, to improve judges’ awareness of the issue of copying.

The Court of Appeal ruling has delivered a timely reminder of the importance of independent judicial thinking. While acknowledging this requirement, here are three concluding thoughts:

First, given the adverse publicity, we can be certain judges have taken note and will be more careful with their written rulings. Second, the need for improved support for our judges has been made plain. And third, as Secretary for Justice Paul Lam has argued, this latest and most high-profile incident showcases our legal system’s transparency and accountability. From a regrettable episode, we can at least take some positives.

Senior Partner in BC&C since 2004, Colin Cohen has vast experience in the highest levels of Hong Kong’s legal system, leading teams in complex corporate crime cases, high-conflict civil litigation, dispute resolution, landmark judicial reviews and Court of Final Appeal hearings. He can be contacted at colin@boasecohencollins.com.