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A directive for the digital age

By Arthur Chan and Jasmine Kwong

Hong Kong, 8 June 2022: Over the past few years, tensions have been prevalent in Hong Kong society due to the city’s political situation. Although the role of the Judiciary is defined so as to remain impartial and unbiased, it is impossible to untwine politics and justice. Judges and their rulings are now put in the forefront of the public eye, landing them in a difficult position in the public realm.

Coupled the situation with doxxing – the public release of information identifying an individual or organisation, a growing online practice that is a true product of the digital age – the lives and livelihoods of judicial members and their families may be affected. The Judiciary has been intending to extend its protection to its members to uphold the judicial independence of our city.

The issue was firmly addressed in the High Court some 18 months ago by Mr Justice Russell Coleman. In extending a temporary ban on the doxxing and harassing of judicial officers and their families, he stressed the courts’ impartiality. “Few decisions taken by Judges and Judicial Officers in a contested case are simply a choice between black and white. But, no decision is ever made by a Judge or Judicial Officer making a choice between ‘blue’ and ‘yellow’,” he wrote in his decision.

“It needs to be understood that, in Hong Kong, Judges and Judicial Officers are not political appointees. No Judge or Judicial Officer is appointed because of his or her actual or perceived political point of view or sympathies. Judges and Judicial Officers are not engaged in the political process, and they do not decide political issues.”

Since then, Hong Kong has criminalised doxxing with the introduction last October of the Personal Data (Privacy) (Amendment) Ordinance, which also empowers the Privacy Commissioner to carry out criminal investigations, initiate prosecutions for doxxing-related offences and order the removal of doxxing messages.

So it is perhaps inevitable that the Judiciary has just revised its Guide to Judicial Conduct, which provides judges and judicial officers with clear directives for correct behaviour in and out of court. Updated for the first time since 2004, the Guide takes into account the massive advancements in information technology in recent years, particularly the use of social media in daily life, and addresses issues such as online abuse and doxxing.

The Guide notes that judges are free to use social media in their private activities and, indeed, lack of knowledge in this area might suggest they are out of touch with the modern world. But they need to be aware of the risks. In short, it recommends that judges should:

  • Not use social media in any way that would pose risks to themselves or compromise their standing and integrity.
  • Take reasonable care that their personal details do not enter the public domain, either via themselves or family and friends.
  • Refrain from commenting on cases, legal issues, litigants, witnesses or lawyers.
  • Be wary of “friending”, “liking” or “following” posts, individuals or groups where such association may undermine the perception of their impartiality.

It also advises that in instances of online abuse or doxxing, judges should refrain from responding directly to such vilification but, when appropriate, consult their Court Leader.

A separate section considers media criticism of court decisions and stresses a judge should avoid responding, such as writing to the publication or online portal concerned, or making incidental comments in court. “It is generally inappropriate for judges to defend their judgments publicly,” states the Guide.

In his preface to the Guide, Chief Justice Andrew Cheung acknowledges the need for Hong Kong’s Judiciary to keep in step with society given “the increasingly complex conditions” in which judging takes place and heightened public scrutiny. He concludes: “The resulting revisions to the Guide are very much a product of the times. We continue to be well served by the Guiding Principles laid down in 2004, but new additions to the guidance in this edition are reflective of the information technology era in which we live.”

The updated Guide offers welcome direction and clarification for judges and judicial officers as they seek to operate with discretion and impartiality in our increasingly complex digital world. It also serves as a timely reminder of the difficult and often thankless task they face.

Arthur Chan has been an Associate with BC&C since 2018. He deals with Criminal Matters while also covering Civil and Commercial Litigation and handles cases involving personal injury and employment issues. He can be contacted at Arthur@boasecohencollins.com.

Jasmine Kwong is a Trainee Solicitor with BC&C, having joined the firm in the summer of 2021. She gained her law degree and Postgraduate Certificate in Laws at City University of Hong Kong. She can be contacted at jasmine@boasecohencollins.com.

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