2011年6月9日星期四

升官制度

香港司法機構前日宣布高等法院法官朱芬齡(Carlye Chu)擢升為上訴庭法官,昨日(8/6)正式生効。朱法官一向官聲甚佳,由20多年前初出道為大律師,以至升上高院,都保持和藹可親的態度,沒有顯露任何官威,是所謂judicial temperament很好的人。這一次的升級,我覺得十分合理,她在高院默默耕耘了11年,總算獲得回報。對官職越高的人,標少越不敢高攀,與朱法官素無私交,在此深慶得人,是純屬個人客觀的評論。

標少一介草民,見識有限,不具振臂一呼,應者雲集的魅力,也做不出擲地有聲的文章,但對於法官的升遷卻有些意見。法官這種司法人員(judicial officer),並非公務員而是公職人員,但在很多制度上跟公務員差不多。法官的委任既要跟從公務員事務局的招聘程序,又要獲得司法人員敘用委員會的首肯,其他當然包括由警務署及廉署的背審查。一般公務員每年上級為下屬寫表現評核(appraisal),然後會面討論內容,司法人員卻沒有這種會面安排,所以老闆對你有何觀感,你一概不知。自己有甚麼值得讚許,或者不足之處,你也無從得悉。在這方面絕對需要改善,不能給人一種黑箱作業的感覺。

司法人員日常工作獨立性很高,上司下屬在審理案件上,並沒有從屬關係。以裁判法院為例,主任裁判官可編排工作給裁判官做,但不能指示裁判官怎樣判案,以保持司法獨立。司法人員這種工作性質,並不像一般公務員,上司可以從日常工作的處理方法和進度,從中了解下屬的能力。司法獨立卻妨礙了主任裁判官了解裁判官的能力,下屬自吹自擂,你信以為真,不作考核,便成了事實。如果那是一個女下屬,有一兩分姿色,三四倍的脂粉,飲得五六杯酒,就算審案亂七八糟,久而久之,她儼然變成一個十分出色,可以升職的人。男的也一樣可以諸多奉承諂媚,只要臉皮厚,廉恥薄,有甚麼幹不出。沒有一個完善的評核制度,怎能杜絕這歪風呢?

我認識不少有經驗,工作出色的裁判官,無論怎樣努力都不獲擢升。突然卻冒出幾個不明不白的人,乏善可陳,卻特快升級。司法人員的招聘和委任不像一般公務員要逐級升遷,未當過裁判官的人可以直接申請做區域法院法官及被直接委任為高等法院法官。這做法的背後理念,完全可以理解,但委任太多外間執業的律師做中上層的法官,對長期不獲擢升的下級司法人員,打擊已經不少,如果沒有合理的工作能力評核制度,讓那些只靠逢迎的人升級,實在使人氣餒。

為了減少逢迎上位的人可以得逞,也許是時候減少司法人員之間的聯誼活動,尤其是那些很容易做就投其所好的球類活動。本來是有益身心的活動如打羽毛球、網球及高球,要刻意奉承,佯輸幾球,討好上級,或者嬌媚百出,電光四射,最容易不過。當然就算一起祈禱讀經,一樣可以做成稔熟機會。這些客觀看來是十分正常的活動,本無不妥,不妥的地方是交誼之間,很有可能產生偏私的看法。譬如一個暫委的裁判官為了爭取受聘為常任裁判官,活躍於這種聯誼活動,爭取取悅總裁判官及主任裁判官的機會,使人留下深刻印象。可惜,要聘用的是司法人員而不是PR,適合作為司法人員的能力應該凌駕合群和活躍的條件。只有後者的活動而沒有前者的考核機制,怎能請到好法官呢?又譬如高等法院法官聽審裁判法院的上訴,原審裁判官是高院法官的球友,真的可以鐵面無私,公正不阿的作裁決嗎?標少講這些大不敬的說話,肯定會得罪人。老套講是愛之深責之切,坦白講這是小弟的性格,不畏權位,不擡花轎。身為司法人員,還是孤獨一點好,按捺不住,索性不要入行。司法機構的行政架構臃腫,應該是時候花點資源,研究怎樣改革司法人員的考核制度了。防微杜漸,以免姑息養奸。

這是標少第100個blog,廢話講了不少,希望藉此拋磚引玉,吸引一些法律界人士的回應。

22 則留言:

  1. 來一個非法律界人士的意見,其實不論各行各業,升職跟能力不管有沒有評核基制都沒有理想的 correlation. 就算是有appraisal,也沒可能絕對公平. 手段多少總要使,至於程度嘛,那就是自己個人選擇. 食得鹹魚抵得喝. 假如有人很能幹又面面俱圓,我也情願 manage 這樣的人,而不是同樣能幹但社交手腕弱的人吧...

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  2. SPC

    You work in an investment bank. You bear a different stance. For a judicial officer, you cannot be too smooth. Judicial officers work independant of each other except the binding rulings from above. Solemnity prevails. The last thing the Judiciary needs is obsequious sycophant coveting for elevation.

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  3. 朋友問obsequious sycophant coveting for elevation作何解,大抵可譯作覬覦升級阿諛諂媚的馬屁精。歡迎指正。朋友又問為何以英文留言,各位有所不知,標少不懂打中文,只靠小蒙恬,一年多以來,寫了10多萬字,把蒙恬筆兩頭都寫斷了,短的留言用英文寫得較快而已。

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  4. I beg to differ. as I have mentioned to you before, I am opposed to judicial promotion as a rule rather than an exception. Corruption in its wider non-legal sense is insidious and can take any number of forms; nepotism for one, Mao, according to Kissinger, started a lot of his "struggles" because he found bureaucracy ideologically another form of corruption. Especially in the absence of check and balance (like democracy), judicial officers should stay where they are lest they get ideas and succumb to natural human frailties, thus maintaining a modicum of fairness and independence. My heart won't bleed for people who voluntarily take up jobs that are dead-ended. There are many such jobs without much social status or privileges, do I need to give examples?

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    1. Is that you Sterling Tsu?

      Pragmatically, judicial appointments are not supposed to be cul de sac driving. People can gain judicial experience and work their way up. Patrick Chan started as a District Judge and elevated to CFA. So far, only Andrew Li was directly appointed as CJ. Why should there a rule to prevent judicial promotion? Judicial promotion by itself is not corrupt prone. The lack of a good system to oversee it is the root of the problem.

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  5. Pragmatically, just by making a person take an oath (or baptism) will not by itself reverse our "selfish genes". If there is promotion as a rule, you are actually furthering motivation for propelling self-serving interests. Career jurist is not a good animal particularly when your "boss" is not himself held accountable but remains illusive. Remember the cliquey warfare ( I am already trying to be polite here) amongst the senior judges just before 1997? And has cliquynee gone since then? If not why not?
    To use your own example, who in your opinion is more independent and less self-serving: Andrew Li or T. L. Yang?

    (Yes, this is your favorite pig here, hehe and hihi)

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  6. For the younger people, T L Yang was the CJ before Andrew Li. His Chinese name was 楊鐵(歪)樑爵士. Apart from himself, I don't think anyone would believe he was promoted from a magistrate to CJ for his legal mind or skills. One thing though, if he was CJ post 97, there would not have been any incidence or need for 人大釋法.

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    1. My dear friend, long time no chat. Hope you are well.

      Realistically, no matter what the oath means at heart, judicial officer is a commission cum career. There should be a glimpse of hope for the able to be elevated, good genes bad genes. Promotion is not a rule, but a hope and desire of not only elevation but recognition. I do not know exactly what cliquey warfare you referred to pre 97. There is cliquey warfare too nowadays, it is only a matter of size and front.

      Citing TL Yang as example is not arguable at all. It was a different era. There was the element of localization. He is at best a District judge ability wise. Almost never see his judgement cited except for criticism. Yet, it is unfair to use him as example to deny the merit of promoting good people.

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  7. It is precisely the glimpse of hope ( and your argument for assessment) that is causing the evil in the system. The assessor/promoter is himself a ball player to have reached that position, how is he disposed to assess his juniors?
    Pre 97: TL Yang, Simon Li, Ben Liu jockeying for influence for post 97....
    T L Yang is a even better example when you bring in a policy at that time called Localisation, because the choice promotion will now be for someone who follows whatever the power that be has in mind,eg civil obedience,draconian interpretations of administrative laws re legco procedures..... you name it,man.

    Anyway, my dear dear friend, I am same old same old la. Still reading your blog as I have only recently found it. Missing our annual Chiu-chou lunch. Your girls are big la, esp, the rotten tomato.

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    1. Sterling, my dear friend, the glimpse of hope is a two edged sword. I cannot expect some one to go into the judicial and starts as a magistrate with no career path. I do not rule out sycophants manipulating the system. Is there a better system you can suggest?

      Localisation is now history. It did not only apply to the Judiciary. The folks you mentioned, well, they scrambled for personal gain without any doubt. Ability wise, none of them should sit higher than high court.

      My elder daughter is now working in HK but the "rotten tomato" is here, in her second year of work life.

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    2. My email is billlcsiu@gmail.com

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  8. Different level "judgemenship" requires different skill sets as you should agree. If one has judicial aspirations, one should apply at the appropriate level. Can you imagine Charles Ching be any good as a magistrate? Or Thomas be any good in CA, though he fancies himself presiding in The House Of Lords daily already.

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    1. Agree. I never say everyone should start from the bottom. A counsel can one day become a senior counsel. A magistrate can also one day be elevated to a senior level.

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  9. I am so glad to read the above interesting and persuasive arguments from Bill and Sterling. I really enjoy reading them. It reminds me the good old times when we were in the magistracies, chatting and laughing together.
    Having said the above, I would say that I had the honour to work closely with Carlye both when she was a counsel and a magistrate. When she was a lawyer, I could see her grinning face all the time. She had never had a harsh word on her clients. She would patiently explain every detail to her clients. That impressed me most.
    As a magistrate, I will say that she had the best judicial temperament among all the magistrates I had ever seen in my paralegal career. Many duty lawyers who had lost their cases before her came back and said that their clients were convicted with good causes. Of course, many duty lawyers also won a lot of cases when they were able to put forward a lurking doubt before her.

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  10. I am opposed to silkship too. Its like knighthood, its feudalistic. More later...

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  11. I whole-heartedly agree with your and Cheung Gor's comments re Carlye Chu. She really is outstanding.In fact, i agree with some of Bill's comment on some of the judges.

    There are two types of judges ; the law and order type (tend to be conviction minded) and the due process judges (tend to be acquittal minded). One of the hats that I wear is a tax payer who wants a orderly and safe society. Here I like the law and order judges. Another hat is that of a progressive believer. Here I believe judicial adjudication is our last line of defense in a civilized society.The due process judges help ensure the rules, which had been evolved to safeguard rights of individuals,are respected and practiced, and in longer terms help build a better and fairer society.For example standard of police work had gone up in general because of the latter type of judges; whereas spoiled officers will become one way or another versions of the thick-skinned Tsang Wai hung----the public might have been surprised by his Black Shadow theory, but how many times have we three heard such crap in courts (on oath) in our days?
    Honestly and obviously I prefer one type over the other but at least I can accept that both are trying to do public good.

    However this is really beside the point I was making earlier. Bill's argument in this articular falls into the fallacy I am trying to point out.We can and do have opinions regarding judges. As Lincoln said no one is good enough to govern another unless he has the latter's consent. As we know, there is usually one High Cort judge who oversees the recommendations of promotion and appointment of magistrates. Who is he? what are his credentials? why should his opinions matters more than his fellow high court judge next door?.....The JSC (Judicial Services Committee) is a farce and a political vase-- they can approach you but its a criminal offence for us to approach them to give our views !

    Your arguments are akin to those who believe in the supremacy of The Benign Dictator.

    No doubt it would be harder at first to recruit with new rules for the game (unfortunately, I do find it more of a game than it is not a game). But new system of real universal suffrage will bring with it its huge share of problems too. Its a good system the counts at the end.

    Judgeship comes with a lot of privileges,not the least, a security of tenure.Isn't that a huge benefit in this world? Why are they given the security of tenure in this day and age? To ensure their fear of their superior does not become an impediment to their independent thinking.

    By dangling promotion in front of them is to remove the stick but provide a sugared carrot.

    Like you said in your article, they are 公職人員 and not 公務員. 公職人員 should have a sense of mission, they need not be selfless like red cross workers in Africa (Hotel Rowanda, very good movie). If they don't have a sense of service and mission, don't apply. They are not super human beings even by a little bit, they are just lucky to have the ability and opportunity to be lawyers in the first place. They already have the right to pronounce "I believe you, I don't believe you " and put strangers in prison. They are also well compensated, or at least they agreed to the agreed salary; It is NOT community service they are asked to perform.

    Ask any practitioner if they can count without using their toes the number of magistrates (where at the bottom there is most ambition) who are not selfish careerist?

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    1. Good to hear from Cheung Gor too.

      Sterling,

      I did not try to sell my view to anyone. I see it from my narrowed minded view same as all other blogs. I fully appreciate what you have said and in a way, I agree with most of them. A mission is very important whatever you do. Perhaps my writing of blogs is also a mission too.

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  12. One limitation my hubris will let me admit is my lack of writing skills--- Chinese is even worst, though I can recite 木蘭辭 and you can’t. I am not saying this out of false modesty, a kind of 軟皮蛇技倆 ie refusal to correct by being the first to admit, nor a reverse invitation for positive acknowledgement. It’s true. Otherwise I would have stuck at trying a civil practice longer and make some money. Maria, my teenage sweetheart now my old wife, calls my written English “Adrian Mole” ever since I’d failed my O level English and she’d passed (remember her? 北京樓 twenty years ago? BTW she says to say hi).
    I am saying the above because from your last reply you seem to be suggesting I am missing the point and you are ending this discussion.
    Though I use the computer a lot (mostly with just one hand above the desk), believe it or not, you are my Ist blogger, so don’t hesitate to tell me the decorum when the need arises. In fact when I try to subscribe to your blog by something called RSS, my outlook express started to load some 20,000 plus feeds. I turned off my computer and still can’t figure out what to do after 2 hours plus.
    Anyway by saying you did not try to sell your view to anyone is , to me, a little bit 瀬貓. Even if you are not hard selling it or even consciously selling it, I take the view that ALL our attempts to communicate with another is to a certain extent selling something. This is also somewhat reinforced by your feelings for a mission.
    I hope I am not being antagonistic.

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  13. My dear friend, you are not antagonistic but you just keep pushing what you tried to sell. Never one moment do I agree your humble admission of lacking writing skills. My languages are far from satisfactory to enable me to sell anything though my blogging never stops. I have not read Mole's books. So I do not know what exactly it means.

    I of course remember your pretty wife at the wedding and at the farewell dinner at Peking Garden. Your son was about 5 at that time. I remember our first encounter in San Po Kong before Majorie Chui who teased you whether you were Japanese when you gave example of how to pronounce your last name. Jolly good old days nostalgic stories. I remember our chiu chow lunches in Sheung Wan and Causeway Bay.

    I tried to end this particular discussion instead of ending our connections. At the outset, when I wrote this blog, I took Carlye's elevation as a pivotal point to lash out at the sycophants who unscrupulously selling their bodies and souls to try to get into the circle and simultaneously voiced my concerns that there was little opportunity for promotion. I am not suggesting a good system to revamp the existing promotion mechanism. I just pointed out the phenomenon. What is the best way to appoint judicial officer was never my attempt in that particular blog to canvass. I agree and disagree with you and I believe you do not just disagree with me in its entirety. You may say the writing of a blog is by itself a selling tactics. I cannot deny there is such an effect. What is more important is, who is reading and who I sell it to.

    Never mind our disagreement. Friendship is not bound to agree without demur on everything. Friendship can be solidify by disagreements too. My blog is an open forum for discussion. I broaden my views from discussion too. Whatever the subject matter of the discussion it may be, there is always an end to it without conclusion. Hard selling or soft selling it may be, sometimes we have to move on after our views are clearly made.

    Don't ask me how to become a follower of the blog. I am not good at computer at all and don't know the problem you encountered. Always keep in touch and leave your insightful comments.

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  14. And what do you think of this: http://the-sun.on.cc/cnt/news/20111124/00407_026.html ?

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  15. 九龍城法院暫委裁判官陳家昇兩年前審理一宗警方反黑案時,出言「兇」一名對法庭不敬的被告人,陳官指自己做大狀時曾代表「龍頭阿哥」和「阿公」打官司,以警告被告不要囂張。此事成為案中被告上訴得直的其中一個理由,高院於半年前撤銷其中三人的定罪,案中另兩人用相同理據上訴,陳家昇這次先向高院「認衰」,高院昨再撤銷該兩人的定罪。

    警方於二○○六年派臥底滲入黑幫蒐證,於○九年結束行動,先後有二十二人被控,其中十六人在九龍城法院受審,包括提出今次上訴的兩名上訴人唐坤慈和蘇永棠,餘下六人在區域法院受審。唐、蘇兩名上訴人經審訊後,各被裁定一項聲稱是三合會社團成員罪成。

    稱代表過阿公打官司
    兩名上訴人於○九年在九龍城法院受審的第一日,裁判官陳家昇看到有被告對法庭不敬,遂向一眾被告說:「我都唔係第一次做黑社會,我亦都唔係第一次審黑社會,我做大律師嘅時候,我亦都代表過一啲龍頭阿哥,所謂個阿公,我都幫佢代表過,打過官司!」

    處理上訴的高院法官湯寶臣指,類似說話絕對不應出自正在審案的裁判官,這種說話會令旁觀者覺得裁判官認為被告是黑社會人士或與黑社會有關,由於被告的地位不及「龍頭阿公或阿哥」,故被告不應在他面前表現囂張。

    裁判官對辯方有偏見
    湯官於今年四月裁定,該番說話顯示裁判官對辯方有偏見,加上區院已裁定臥底證人證供不可靠,控方又錯誤引用案中被告何國柱過往涉及的一宗判例,披露何以往曾因涉及同類罪行而被檢控,故判何國柱及另兩人上訴得直。

    兩名上訴人得悉高院當時的判決後,也用相同理由上訴,陳家昇看過高院今年四月的判決書後,也同意應判兩名上訴人上訴得直。

    但控方反駁指,區院沒有否定臥底的誠信,只是質疑其證供不可靠,但臥底針對兩名上訴人的證供是可靠的,單憑陳家昇曾出言「兇」被告,不足以推翻原判。

    湯官昨頒發判決書指,裁判官自己也同意應判兩名上訴人得直,雖然控方有不同意見,但臥底證供的整體可信性已受法庭質疑,加上裁判官的不恰當表達引起他有偏見的問題,故判兩人上訴得直,撤銷他們的定罪。

    案件編號:HCMA 129 /11

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  16. Or this: http://hk.apple.nextmedia.com/news/art/20140326/18668847

    教會駐中學傳道人涉嫌藉詞性教育和檢查性器,九度非禮兩名中一男生案續審。案中兩名男生作供時,經常以俗語作為性器官代名詞,法庭昨天為此展開一場討論,其間發現主審法官林偉權從讀書時期開始,一直認為「膀胱」等同「春袋」。

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