More Q&A With Chief Justice Geoffrey Ma Tao-li

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On the greatest potential challenge to the Basic Law

The Basic Law has been with us since 1997. It’s a constitution. And as such, it raises constitutional issues that the courts have to grapple with. 15, 50 or 500 years from 1997, it’s still going to be quite a challenge when you deal with certain constitutional issues, because it covers such a wide range of topics.

For example, in the first half of next year, the CFA will be hearing the foreign domestic helper case, followed by W v Registrar of Marriages.  I’m sure these sorts of cases will pose great challenges.

And, of course, Article 158 cases may come up as well. Some people may think Article 158 comes up a lot. It doesn’t. But when it does come up, they are likely to be difficult cases, not least because they are sensitive.

Although, having said that, no matter how sensitive a case is, judges will only decide according to the law.

On judges’ awareness

I think it is important that judges know what’s going on. Being independent does not mean that judges are completely ignorant about what is going on in the real world.

On the progress of the Civil Justice Reform

I think time will tell if the CJR has achieved all it sets out to do. Three and a half years (since it began) is too short to know the full effects. I think we’ve got to look at even a ten-year period to know for sure. It’s heading in the right direction though and a lot of improvements have been made. But a lot more can be done.

Mediation has really worked in many types of cases – family cases, some of the lower claim disputes such as building management cases, personal injury cases and even some big money disputes.

I am satisfied with it, but I can hardly go out and say that I’m really happy we’ve achieved everything we have, because I think only time will tell.

On whether his experience as a barrister has helped as a judge

Very much so. I think the way a barrister approaches a case is quite similar to what judges do. Thorough preparation, knowing the facts and the law, and then arriving at a legal answer to the problem. It’s the same basic approach as a judge although the judge has the advantage of being able to ask counsel to assist the court.

The only difference is that as a barrister or solicitor you are finding ways to put your client’s position as attractively as possible to the court whereas the court is concerned with only finding the right and fair answer according to law.

As a barrister, you don’t shut your eyes to what your opponent will say. Quite the opposite. You have to know the other side’s strong points and see whether you can meet them, or meet them as best you can. Sometimes you just can’t. You’re only as good as your case, as they say, but that’s right only to an extent. This is where hard work comes in. Absence of hard work may lose you a good case. Hard work could well win you a borderline case, especially if the other side has not put in enough work.

On whether becoming a judge is a matter of public service

Judges work for the community and in the public interest – without doubt that is what judges do.  Many talk about financial sacrifices made by experienced practitioners who join the Judiciary. This is true, but a drop in income – this can sometimes be well over $10 million a year – is not of course the reason why it can be said judges act in the public interest. They serve the public by making decisions which have an important impact on the litigants before them, and sometimes the public at large, always according to the law. It is also a way of giving something back to the community which has been good to them.

On whether the roles of solicitors and barristers will converge: a fused profession

This is raised from time to time, usually in the context of it being perhaps more economical for the client.

The current topic is Higher Rights of Audience for solicitors, where solicitors can apply to the Higher Rights of Audience Assessment Board to qualify to be an advocate in the higher courts up to, and including, the CFA. I am very keen to see how that works in practice. If these rights are properly and fully utilized, this may be a possible indication for the future that the two professions may become closer.

At the moment I don’t see a convergence, simply because the separation of the two professions works, without any serious debate for change. Students wishing to become lawyers will still have to make the choice between becoming a barrister or a solicitor.