Plagiarism is a well-known problem in academia and creative fields, especially in an age when text is so easy to cut and paste. It is not, however, usually associated with judges. But concerns have been raised in several parts of the common law world about judges lifting large amounts of text from lawyers’ submissions and using them in their judgments. This has, understandably, been widely recognised as a bad practice. Last week, a court judgment revealed that a Hong Kong judge, Mr Justice Wilson Chan Ka-shun, had copied verbatim more than 98 per cent of the plaintiff’s arguments in an intellectual property ruling he delivered in 2021. It is a serious case.
The judge, one of those approved by the chief executive to hear national security cases, has rightly been reprimanded by the chief justice who found his conduct to be “totally unacceptable”.
A core feature of the city’s common law system is the delivery of reasoned judgments. Judges are expected to apply their minds independently to the arguments put forward by the parties in a case. The wholesale adoption of one side’s submissions, with only cosmetic changes, amounted to an abdication of the judge’s judicial responsibility, the Court of Appeal said.
The judge’s plagiarism has had serious consequences. An appeal against his decision was allowed on the grounds that it was unfair to the defendants, who argued that the judge did not engage with their lengthy submissions. A retrial was ordered, which will use valuable court time and bring additional costs and stress to the parties.
Hong Kong legal community urges more support for judges after chief justice criticism
Judges necessarily include parts of the submission of lawyers in their judgments. But they are expected to grapple with the legal issues and provide their own reasoning. It is a concern that similar complaints have been made about Chan in the past.
Chief Justice Andrew Cheung Kui-nung has instructed the Judicial Institute to improve judges’ awareness of the copying issue. Such a step is clearly required. Guidance should be provided to ensure there is no room for doubt. The case should also focus attention on the need for judges to be given adequate support and to ensure their heavy workload is manageable, an issue highlighted by members of the legal profession. Judges have been under pressure, facing a backlog of cases due to the pandemic, criticism over rulings in politically sensitive cases and a manpower shortage. There are 164 judicial officers, but 47 vacancies. More must be done to fill the gaps, while ensuring that standards remain high.
There is, however, no excuse for a judge lifting one side’s submissions for his ruling. As the chief justice said, copying of this kind undermines public confidence in the administration of justice. It must not happen again.
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