The Judiciary Published the 2022 Guide to Judicial Conduct

On 16 May 2022, the Judiciary published the 2022 Guide to Judicial Conduct (“the 2022 Guide“), which was an update to the 2004 edition (“the 2004 Guide“).

The 2022 Guide is largely similar to the 2004 Guide – both are led by the same Guiding Principles, i.e. Independence, Impartiality, Integrity and Propriety. There are, however, several new additions in the 2022 Guide. For example, some of the additions which are not included in the 2004 Guide are as follows:

  • Comments on persons (Paragraphs 34-36 of the 2022 Guide)

According to the 2022 Guide, unnecessary, irrelevant or unjustified criticism should be avoided in exercising the judicial function, and the legitimate privacy interests of litigants and third parties as well as the harm which may be done to a person criticised in public judicial remarks should be borne in mind. Remarks which are of a derogatory or discriminatory nature must be avoided as well.

  • Confidentiality (Paragraph 37 of the 2022 Guide)

According to the 2022 Guide, a judge must not reveal or use the information acquired in the course of performing judicial functions for personal gain or for any purpose not related to judicial duties.

  • The apparent bias test (Paragraph 57 of the 2022 Guide)

The apparent bias test  was  in the 2004 Guide – in gist, whether there is apparent bias depends on the view of a “reasonable, fair-minded and well-informed observer” in the specific circumstances. The 2022 Guide provides guidance on what counts as a “fair-minded and informed observer” – for example, he or she is neither complacent nor unduly sensitive or suspicious, and is not an insider in the judicial system.

  • Grounds for recusal (Paragraphs 76-80 of the 2022 Guide)

The 2022 Guide provides guidance regarding the grounds for recusal. For example, the 2022 Guide explains that just because a judge has publicly expressed views before appointment regarding an issue which he or she is now required to determine, is not necessarily a ground for recusal and would depend on the particular circumstances, citing ZN v Secretary for Justice & others [2016] 1 HKLRD 174, which concerns an application seeking a judge’s recusal from this case. Although the case involves a judicial review on the issue of human trafficking and that the judge has previously taken an active role in addressing the problem of human trafficking as the Director of Public Prosecutions, what the judge was being asked to decide in this case was essentially a question of law concerning a determination of the duties and obligations of the government under Article 4 of the Hong Kong Bill of Rights and whether there has been any failure to fulfil such duties and obligations, and yet he has never previously expressed any views in relation to such question. The application was subsequently dismissed.

  • Social Media (Paragraphs 91-93 of the 2022 Guide)

The 2022 Guide provides guidance on the judges’ use of social media. For example, judges should avoid commenting on cases on social media, having their private information enter the public domain unnecessarily, or having any social media association with any person, group or entity which may undermine the perception of their impartiality in a particular case.

  • Use of judicial equipment (Paragraph 99 of the 2022 Guide)

The 2022 Guide provides that judges should not use equipment (including IT equipment) provided by the Judiciary for official use  for other purposes which could bring them or the Judiciary in general into disrepute.

The changes shown in the 2022 Guide reflect how the legal field may often need to catch up with the development of information technology. Such changes also seem to provide more protection and fairness for litigants and third parties.

1 June 2022
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