Hunting The Wild Barrister: Hong Kong Law, Part 1
[This is the first of three posts regarding the unique legal universe of Hong Kong. Part 2 is here, and Part 3 is here.]
Hong Kong, China
I don’t know why I was surprised that the Hong Kong High Court was attached to a luxury shopping mall. Everything in Hong Kong is attached to a luxury shopping mall.
I had come to the city’s principal courthouse with pen and notebook, searching for my quarry: an actual barrister, wearing black robes and a wig. I had read about such beasts, even seen them on TV, but I, an American litigator, had never actually been in the presence of my counterpart, the English barrister. (Hong Kong, a former British colony, inherited England’s split legal profession, with solicitors conducting paperwork in their offices and barristers arguing cases in court.)
I rode the metro to Admiralty Station and crossed the skywalk into the Pacific Place Mall, which is the type of ludicrously high-end mall where you can select from hundreds of jewel-encrusted watches but you can’t buy a newspaper. Attached directly to the mall was an office tower containing municipal departments and, next to that, another tower containing the High Court.
I consulted my field notes and moved into position. The hunt was on.
The Plumage of the Wild Barrister
Lawyers in the United States, as everyone knows from television, wear business suits in court. The general rules are that darker suits give you more gravity than lighter suits, but don’t wear a black suit because that reminds people of funerals. In front of juries, it’s important to look like a dependable, upper-middle-class burgher, the kind of guy a juror would trust to invest the kids’ college fund. Looking flashy, stylish or wealthy can offend some jurors. A tiny number of attorneys can pull off the colorful, cravat-in-pocket boulevardier-dandy thing, but chances are you can’t, so just buy a solid navy blue suit from Brooks Brothers.
Courtroom lawyers in the English tradition don’t have to make these sartorial decisions. Barristers are required to present their cases while wearing a black robe. The most experienced barristers – those who have been granted the title “Queen’s Counsel” or “Senior Counsel” -- wear a robe made of black silk and are referred to as “silks.” Junior counsel – and all barristers, regardless of age, who are not silks are called “juniors” – wear a black robe made of more common material.
Barristers wear wigs in court. Why? Because wigs were the height of fashion for upper-crust European gentlemen in the 1600s and also helped prevent the spread of lice in Jacobian England; ergo, barristers wear them in 2007. Once you have been trained to “think like a lawyer,” this explanation makes complete sense.
The wigs are made from horsehair, often by the London boutique of Ede and Ravenscroft. There are three types of English barristers’ wigs: a “bar wig” worn by the advocates, a “bench wig” worn by judges and a “full-bottom wig” worn by the most senior members of the Bar on ceremonial occasions when they want to look like cocker spaniels. The wigs cost between US$800 to US$4,000, according to The Washington Post, but many barristers buy second-hand wigs, in part because an older, yellowed wig is a symbol of status and experience.
The costume is completed with accessories. Many barristers wear a special white collar, with a tie composed of two flat pieces of white cloth. Silks wear an additional waistcoat. Silks may also bring their own podium for use in court.
I figured I would just visit courtrooms until I bagged a barrister. Lugging around all that ridiculous clothing (and perhaps a podium), they certainly couldn’t run fast.
The Habitat and Hunting Grounds
The Hong Kong High Court is just another office building. While the city’s highest court, the Court of Final Appeal, is housed in a memorable red brick building which fronts the picturesque Anglican Cathedral, the High Court is located in a grey 19-storey office block on Queensway, one of Hong Kong’s widest and busiest roads. In addition to the Pacific Place Mall, the High Court is connected by skybridges to the Lippo Center and the United Center, two buildings in which many barristers have their offices, which are called “chambers.”
“High Court” is a collective term for two different courts, the Court of First Instance, which is the principal trial court for large-dollar civil disputes and serious criminal accusations, and the Court of Appeal, which reviews civil and criminal appeals from the Court of First Instance and certain other tribunals.
Although Hong Kong is a part of China, the city-state is allowed by a 1984 treaty to apply English common law until 2047. Joint Declaration, paragraph 3(3). Thus, most legal proceedings are conducted in English, with a Cantonese interpreter.
The courtrooms in the High Court are utilitarian and modern, with lots of tan wood. The judge’s raised bench is long, more than 15 feet long, so that it can be used by one judge for trial court proceedings or by two or more judges for appellate court proceedings. Above the judges’ platform is the round, red seal of Hong Kong. There is no flag, seal or emblem of the People’s Republic of China.
In front of the judge, facing the courtroom, is a long counter at which the court clerks sit. In front of them are three long benches with counters, facing the judge. The first bench is for the barristers arguing the case. The second bench is for the solicitors and clients. The third bench – which not every courtroom has – is for additional clerks or helpers.
The most striking feature is in the back of the courtroom, and it is literally a cage, with vertical and horizontal bars on the sides and across the top to form walls and a roof of bars. Litigants who are in custody are escorted in and out of the cage by law enforcement officers through a separate door. This is where incarcerated litigants spend their courtroom time, locked in a box at the back.
To the judge’s right is a jury box, which is one row of chairs along the wall behind a wooden divider, all perpendicular to the judge's bench. Hong Kong, like England, provides a limited jury trial right, i.e., for serious crimes and a small number of civil actions, such as defamation. A Hong Kong jury is seven to nine people.
To the judge’s left, facing the jury, are several rows of benches and seats which comprise the public gallery, split in two by the aisle leading to the two sets of double doors that lead to the courthouse hallway. The first two rows of gallery seats have writing ledges and appear to be for the press. The rest of the rows are for the general public. Quite nice courtrooms, all and all.
“Motion For Summary Judgment.” That looked good.
The Daily Cause List was posted on the ground floor. As I reviewed the calendar, I noted that the judges of the Hong Kong High Court were not overworked. Most of the judges had one to three items on their calendars. It’s not unusual for a Los Angeles Superior Court judge to have ten items on her morning calendar and, after disposing of those, spend the rest of the day in trial.
A Motion For Summary Judgment is a request in a civil case to end proceedings on the grounds that the opposing party does not have evidence to support its claims or defenses. The opposing party responds by laying out all of its evidence. Consequently, a motion for summary judgment is one of the law’s most efficient evidence-gathering devices.
I walked into the courtroom and took a seat. Two women clerks were busying themselves, and neither said anything to me. About ten minutes after the scheduled time of the hearing, two Chinese lawyers and the defendant, who was representing himself, walked in and spoke at length with the clerks in Cantonese, handing her several multi-page documents. After the conversation, the lawyers and the litigant sat in the first row, and one of the clerks left the courtroom, using a door on the raised judge’s platform.
A moment of silence was followed by a quiet knock. Everyone came to order. Three loud knocks were heard, and everyone stood up. The judge, a Chinese man in his 60s wearing a business suit, came out and walked to his chair. He stood in front of his chair for a moment and bowed, at which point everyone in the courtroom bowed. We all sat down. There was no pledge of allegiance or other introductory ritual.
“My clerk informs me,” the judge said in British-accented English, “that you have settled the case and would like me to sign and read the Consent Judgment into the record.”
“Yes, my lord,” said one of the lawyers.
“And do you, sir, agree to end this lawsuit by entering into this agreement,” the judge asked the defendant. A woman with a court I.D. badge stood next to the defendant and translated.
“Yes, my lord,” said the defendant.
“Very well,” said the judge, who then spent five minutes reading an English-language settlement agreement into the record. The judge leaned forward and spoke directly into a microphone, which was connected to an unseen recording system. No court reporter was present. The translator did her job (although I'm sure the judge could have translated the agreement as he read).
The crux of the case was that the defendant was an industrial supply salesman who had started his own company. His former employer believed that the salesman was pitching to their client list and brought suit for infringement of trade secrets. In the settlement, the defendant agreed not to use the client list and to return any copies, and the plaintiff agreed to drop the case in exchange for monetary damages in an amount to be decided later. It was a garden-variety customer list case. When the judge was finished, he stood up, everybody bowed, and he exited the courtroom by his door.
No one was wearing robes and wigs! Neither of the lawyers were, and neither was the judge. Feeling vaguely robbed, I returned to the Daily Cause List to find me a proper barrister.
“Motion For Interlocutory Injunction.” That looked great. An injunction hearing is usually high drama, as the moving party tries to shut down the other side’s operations. I wondered off to the designated courtroom.
This case was farther up the legal food chain than the trade secrets dispute. The courtroom was filled with lawyers, mostly Chinese men, with a few Chinese women. No Anglos. Everyone was wearing business suits.
The attorneys had rows of black binders in front of them. Also arranged on the counters were several law books, all in English, including one titled “Hong Kong Civil Procedure.”
The case was a piece of civil litigation which arose from an alleged fraud upon the Bank of China. The civil case had about 20 defendants, which explained all the lawyers.
An older Chinese couple, who looked like the most harmless people in the world, sat in the cage at the back. They were Defendants 16 and 17, a husband and wife, and they were currently in prison relating to the criminal charges. Four court officers sat with them, which seemed like overkill. Before the proceedings, the court officers laughed and joked among themselves, while the couple looked lost and pathetic.
Three knocks. Everyone stood. A judge, wearing a business suit, came out and bowed. Everyone bowed back.
The senior Chinese lawyer addressed the Court in English about the proposed injunction order, which was more in the nature of a scheduling order than a blood-and-guts, close-the-bad-guys-down injunction. The criminal cases were working their way through the judicial system, and the moving parties were requesting that certain proceedings in the civil case be stayed until the criminal cases were completed. The various lawyers argued for twenty minutes about scheduling issues. It was as dreary as it sounds.
The judge asked the incarcerated couple in the cage, who were representing themselves, if they had anything to say. The man spoke Cantonese from a prepared text, which was translated into English (although I’m sure everyone in the courtroom other than myself understood him).
The man’s statement was mercifully short by the standards of self-represented defendants, but it made the classic mistake of pro se pleading: It began with a litany of complaints and waited until the end of the speech to make a request -– the order should be the reverse. After discussing the quality of the treatment he was receiving in prison and his impoverished circumstances, he requested that a deadline in the draft order be extended from 45 days to 65 days. The judge granted the request and ended the hearing.
No wigs! No robes! Chinese lawyers speaking Cantonese to each other and the court clerks and then presenting their cases in English to judges who no doubt speak Cantonese. What was going on?
As for the lack of wigs and robes, it appears that I fell through a procedural crack. The two hearings I watched were each categorized as a “Chambers Conference (Open To The Public),” while the ultra-formal clothing appeared to be reserved for hearings categorized as “Open Court.”
As for the strange use of English in disputes where everybody is Chinese and speaks Cantonese, the "language issue," as it's called, is one of the peculiarities of Hong Kong law. The common law of England applies, and the common law is written in English, so Hong Kong barristers and judges speak English in court. As a nod to reality, proceedings in some of the lower courts are now conducted in Cantonese with opinions written in Chinese (citing British law), but the High Court and the Court of Final Appeal operate in English.
By 11:30 a.m., almost all of the courtrooms were dark. No, the High Court judges were definitely not overworked. My morning on the hunt for a robed and bewigged barrister had failed. But, as Scarlett O’Hara said, tomorrow is another day.
TO BE CONTINUED