The Chairman briefed members on the background leading to the special meeting to consider the Judge Caird situation. Members noted that since the Judiciary Administrator had cast doubt on the constitutional propriety for her to forward a number of questions raised by the Chairman regarding the Judge Caird situation to the Judiciary, the Chairman had asked the Legal Adviser to prepare a legal opinion advising the Panel on (a) the proper avenue for those questions to be forwarded to the Judiciary and (b) how the Panel should take the issue further. The Chairman then drew members attention to the press release announcing that the Governor would appoint a judicial tribunal under Article XVIA(6) of the Letters Patent to investigate whether District Court Judge Brian Caird should be removed from office for misbehaviour. The press release was tabled at the meeting and subsequently issued to absent members vide LegCo Paper No. CB(2)2206/95-96. The Chairman therefore suggested and members agreed that the meeting would focus its deliberation on the latest development about the appointment of the judicial tribunal. In this connection, Mr Martin LEE informed members that before Judge Caird disqualified himself from the trial of Aaron Nattrass, the defence counsel of the trial had sought his advice through the Legal Aid service as to whether Judge Caird should be allowed to preside the trial. A meeting was subsequently held and it was decided that Judge Caird should continue to preside.

Statutory procedures governing dismissal of a judge

2. At the invitation of the Chairman, Legal Adviser briefed members on the relevant provisions of the Letters Patent regarding the Governors power in the appointment and dismissal of judge of the Supreme Court or the District Court and the prescribed procedures of dismissal. He explained that a judge of the Supreme Court or the District Court might be removed from office only for inability to discharge the functions of his office or for misbehaviour. If the Governor considered that the question of removing the judge from office ought to be investigated, he should appoint by instrument a tribunal which should inquire into the matter and report on the facts to the Governor and recommend to the Governor whether he should request that the question of the removal of judge be referred to the Judicial Committee of the Privy Council. If the tribunal so recommended, the Governor had to request the question to be referred accordingly. The Judicial Committee could accept or not to accept the tribunals recommendation and then advise the Crown on what action to take. The Governor had to follow the Crowns decision as to whether the judge should be removed or not. Mrs Miriam LAU asked and Legal Adviser pointed out that the Governor could appoint a tribunal so long as he considered that the question of removing a judge from office for inability or for misbehaviour ought to be investigated. There was no requirement to establish the fact that there was indeed inability or misbehaviour.

Commission of Inquiry Ordinance (Cap. 86)

3. In light of the fact that the thrust of public concern over the Judge Caird situation was whether or not he had been subject to political pressure in hearing the fraud trial of Aaron Nattrass, the Chairman asked whether there was an alternative source of power for the Governor to order an investigation with a wider scope. Legal Adviser responded that the Commissions of Inquiry Ordinance (Cap. 86) empowered the Governor in Council to appoint a commission to inquire into the conduct or management of any public body, the conduct of any public officer or into any matter whatsoever which was, in his opinion, of public importance. He informed the meeting that such power had been invoked several times to deal with issues of sufficient magnitude. Mr Andrew CHENG asked and Legal Adviser explained that the subject of the inquiry to be conducted by the commission could be very broad. It would be given all the powers of a court in a normal trial and the right to immunity.

II. Meeting with the Administration

Terminology of the press release

4. With reference to the phrase "he made false allegations that two other judges had attempted to influence him" in the press release, members expressed grave concern and dissatisfaction that the Government seemed to have already jumped to conclusions about the behaviour of Judge Caird. They questioned the credibility of the inquiry in the light that Judge Caird had already been presumed to have made false allegations in advance of the tribunals findings. Mr Bruce LIU asked and Mr Richard HOARE responded that the Governor had not formed any view that the judge should be removed from office. However, the Governor, having taken the decision to appoint a tribunal, must presumably have felt that there was a case to answer. Mr HOARE urged members not to focus too much on the terminology of the press release. He explained that the purpose of the tribunal came from Article XVIA(4), i.e. whether the judge should be removed from office. Reference to false allegations was only a statement of what the misbehaviour under investigation was. However, he reminded members that Judge Caird had claimed that two other judges had put political pressure on him and yet subsequently acknowledged that any complaints of pressure were unfounded. Such behaviour, as he understood, was behind the recommendation by the acting Chief Justice for the appointment of a judicial tribunal. In this connection, Mr James TO remarked that Judge Caird might have made the subsequent acknowledgement under pressure.

5. Mr Albert HO referred to the functions of the tribunal as prescribed in Article XVIA(6)(b) of the Letters Patent and queried that the tribunal, so appointed, should not have the power to make recommendation about dismissal of a judge. He opined that the press release as it was worded had contravened the Letters Patent since it had presumed that Judge Caird had made false allegations. In this regard, Legal Adviser pointed out that the press release had no legal force. However, whether it would become a legal issue in the future would be another matter.

Terms of reference of the Judicial Tribunal

6. Members in general were of the view that the terms of reference of the judicial tribunal should be broadened to conduct a general investigation of the whole incident and to examine the conduct of two other judges who were allegedly tried to influence Judge Caird in handling the trial. They emphasised that it was important to clear up public concerns and to maintain their confidence in the judicial system. Mr Martin LEE suggested that the tribunal should be appointed to investigate as well whether Judge Caird had made false accusations in relation to two other judges and if so, whether he should be removed from office. He opined that the acting Chief Justice should have only made a prima-facie finding of facts which might call for the establishment of a tribunal, but not to make conclusion that Judge Caird had made false allegations. The Chairman remarked that the conclusion of the acting Chief Justice should not have any binding effect on the inquiry to be conducted by the tribunal. Mr Albert HO then expressed that investigation on Judge Caird alone would not be able to answer the question of primary importance as to whether someone had tried to pervert the course of justice.

7. In response to the Chairmans enquiry about the procedures in establishing a judicial tribunal, Mr HOARE explained that the Governor would appoint the tribunal by instrument under the Public Seal and the terms of reference of the tribunal which had not been finalised would be prescribed in the instrument. It would be up to the tribunal to determine whether the tribunal hearings would be heard in public and how they would be conducted. So far as he was aware, there was no real precedent for such a tribunal in Hong Kongs history. He was sure that the tribunal would be aware of members views on the matter. In this regard, Mr David CHU opined that the tribunal hearings should be held in public in order to demonstrate the independence of Judiciary. The Chairman further asked and Mr HOARE said that he did not know whether the terms of reference would be made public. However, he undertook to inform the Chairman of the position in due course. In response to the Chairmans enquiry, Mr HOARE explained that the Letters Patent did not preclude the Governor from taking further action if the facts reported by the tribunal so warranted.

Adm

Internal inquiry by the acting Chief Justice

8. Mr James TO expressed dissatisfaction that the internal inquiry conducted by the acting Chief Justice was held in private and the public had no knowledge of how the conclusion was drawn. He suggested that a formal request should be made (a) asking the acting Chief Justice to disclose the investigation proceedings and report of the internal inquiry to the public; or (b) asking for another internal inquiry to be conducted. Mr Albert HO shared his view. Yet, Mr Martin LEE held a different view. He pointed out that there was distinct disadvantage for inquiries of this nature to be held in public in view of the fact that the allegation might be totally unfounded and thus disclosure would be unfair to the judge concerned. Mr LEE further asked and Legal Adviser responded that to his knowledge, inquiries of such kind were not held in public in other common law jurisdictions. In this connection, Mr Andrew CHENG asked whether LegCo had the power to make such a request in light of the constitutional principles of separation of powers and independence of the Judiciary. Legal Adviser drew members attention to the panels terms of reference which had been drawn up in such a way as to enable the Panel to perform the role of monitoring the system of administration of justice effectively without undermining the independence of the Judiciary. He reminded that the panel was to monitor and examine the policy matters relating to the administration of justice and legal services (consistently with maintaining the independence of the Judiciary and the rule of law). According to his interpretation, independence of the Judiciary did not mean that there was no need for the Judiciary to be accountable to the Legislature. Its independence was to ensure that judicial officers would act independently, without subjecting to any outside interference, in the course of executing their judicial functions. However, while holding the Judiciary accountable, the Legislature had to be extremely careful to avoid contravening, or being seen to contravene, these constitutional principles. Mr Bruce LIU therefore suggested that instead of requiring the tribunal to disclose the findings, the Governor could be requested to report to LegCo after he had received the recommendations of the tribunal.

Appointment of a commission of inquiry

9. In the light that Letters Patent had only conferred very specific power for the Governor to order inquiry as to whether a judge should be removed from office, Mr James TO suggested that it was more logical for the Governor in Council to appoint a commission of inquiry under the Commissions of Inquiry Ordinance (Cap. 86) to investigate the allegations of political pressure surrounding the trial before launching the tribunal to decide whether Judge Caird should be dismissed for his misbehaviour. Mr Martin LEE and Mr Andrew CHENG said that the suggestion was worth considering. Yet, Mrs Miriam LAU held a different view. She would support the appointment of a judicial tribunal to investigate the case so long as (a) its terms of reference would be broadened to conduct a thorough investigation and (b) no prior assumption had been made about Judge Caird. Mr David CHU indicated his support to Mrs LAUs view. Mr Bruce LIU also supported the appointment of a judicial tribunal if the tribunal hearings would be held in public. In this connection, the Chairman asked why the Governor chose to use the narrow remit under Letters Patent, instead of the Ordinance with a wider scope for investigation. Mr HOARE explained that a tribunal had to be appointed whenever the question of dismissing a judge was involved.

10. There being no other business, the meeting ended at 6:30 p.m..

LegCo Secretariat
12 October 1996

* .. other commitments
# .. out of town

Last Updated on 12 Aug, 1998