Today, the Court of Final Appeal rejected Long Hair’s application for bail, which means that by the time his appeal is heard – if it is heard – he would already have served his sentence. Such is the nature of the system, not only in Hong Kong, that people can be locked up, even when there is no likelihood of absconding, before their appeal avenues have been exhausted.
In the meantime, Justice Derek Pang, the judge who sent Long Hair to jail in the first place, issued his reasons for deciding Long Hair had no grounds of appeal (this is a separate decision from the decision to impose a jail sentence and also separate from Long Hair’s appeal directly to the Court of Final Appeal).
While we wait for Justice Pang’s reasons for the original decision to send Long Hair to jail, his reasoning for deciding there were no grounds of appeal seems rather fragmented. Here it is in full length:
1. The following is my judgment on the matter.
2. There is a change in the wording of the question of law in the amended motion. In substance, however, the motion is still premised on the correct application or otherwise of the doctrine of joint enterprise.
3. Where joint enterprise is alleged, all the accused persons are co-principals. They are responsible for their own acts and where the appropriate conditions are fulfilled, also responsible for the acts of others. This doctrine brings within the reach of the law co-principals whose acts are less immediately apparent in forming the actus reus of the offence. It does not exempt from criminal liability a co-principal whose own act is sufficient to ground his or her conviction – in the event that the allegation of joint enterprise comes to nothing.
4. The appellant (D1) comes within the second of the above‑mentioned categories of co-principals. His conviction does not fall away because on appeal, the common design required to establish joint enterprise is found lacking in support on the evidence as regards the other accused persons (D2 to D5).
5. By up-holding the appellant’s conviction on Charge (3) and, for that matter Charge (4), this Court has not as alleged convicted him on a basis different from that in the trial. The point of law whose certification the appellant now seeks is misconceived. His application is dismissed.
Let’s start by looking at paragraph 1. While there is no perfect template for drafting a judgment, it is rather odd that the judge has failed to sum up in his own words what “the matter” is, i.e. what grounds of appeal Long Hair had put forward. We are thus forced to try and deduce this from the subsequent paragraphs.
Paragraph 2 tells us that Long Hair amended his application/motion but it does not tell us how. It merely conveys that the motion suggests that the doctrine of joint enterprise (that means when 2 or more people do something together) was misapplied.
Paragraph 3 tells us that even where 2 or more people are alleged to have been jointly involved in a crime, they can nonetheless be convicted for their own acts, notwithstanding that the joint enterprise aspect is not proven.
Paragraph 4 seems to lack the necessary context for understanding it. It is not clear which category of co-principal Long Hair is supposed to fall under. What the judge seems to be saying is that just because the charges related to joint enterprise did not hold up, does not mean that Long Hair cannot be convicted for his own acts.
Paragraph 5 finally shines a shred of light on Long Hair’s ground of appeal. The ground of appeal, although not really explained or even described by the judge, seems to be that Long Hair had argued that he was convicted of a joint enterprise at the Magistrate’s level and then convicted on another basis on appeal and that that is not allowable. Without a word of explanation, Justice Pang simply dismisses this ground as misconceived.
Judgements like the above are problematic in a common law setting, as the judge has failed to properly articulate not only the argument before him but also why he rejected this argument. For starters, this judgment is very very brief. Second, it fails to explain the issues at hand. Third, it fails to provide context. Fourth, it fails to gives a single reason for the decision made. All of these would have been important for this case to be one of the tens or hundreds of thousands of cogs that fits in the wheel of the common law. As it stands, this judgment is completely useless in the context of the common law as no one, neither litigants nor judges, in future cases will have any way of knowing what the judge was trying to say and, thus, they will be unable to utilise this judgment in any way. That is not how the common law works and that is why this is such an appalling example of judgment writing, which we sadly see more and more of in Hong Kong these days.
My guess is that the judge may not be entirely comfortable with his own decision, so rather than getting into convoluted or even flawed arguments, he decided to say pretty much nothing at all.