I arrived in Hong Kong on 22 March 1966.
Riots immediately erupted.
A subsequent judicial inquiry into the cause of the riots found that there was no causal connection between the two events.
There was, however, a causal connection between my arrival and a subsequent event in court and between the riots and another event in court.
But, before either of those court events occurred, there was another which illustrates how justice, like God, can act in mysterious ways.
I arrived on a Friday night.
On Monday I sat in number one court at North Kowloon Magistracy with the Principal Magistrate for Kowloon, Chub Hayden.
On Wednesday Chub rang me to say: ‘Eric, I have a meeting with the Registrar of the Supreme Court on Friday. I’d like you to preside over number one court’.
‘Chub’, I said, ‘I’ve only been here a few days, how could I possibly preside over that court?’
Chub was an amiable fellow with an uncanny ability to assess people’s weaknesses. He had known me for only a few days but had accurately concluded that I was malleable in the hands of a flatterer.
‘Eric’, he said, ‘I wouldn’t have suggested it if I hadn’t been confident that you could handle it.’
With what I thought was cunning on my part, I agreed
My cunning thought was that in the number one court there were only two procedures.
If a person pleaded not guilty all that needed to be done was set a date for hearing and determine whether the person charged should be granted bail and, if so, on what terms.
If a person pleaded guilty all that needed to be done was hear what the alleged facts were, listen to any plea in mitigation and pass sentence.
From my experience on the Monday when I sat with Chub, I remembered that those who pleaded guilty had generally done the same thing before on many occasions so that the appropriate sentence was already exposed by the details of their previous convictions. So I was able to persuade myself that my inexperience with Hong Kong conditions would not be exposed if I simply did what all good judges do: namely, simply follow precedent.
And that I did.
Unfortunately, however, as the day went on I became proud of the way that my cunning was working. Pride, it is said, precedes a downfall.
My downfall came about in this way.
A man pleaded guilty to a charge of “loitering with intent to commit a crime”. He had 14 previous convictions for that offence. On the previous three occasions he had been sentenced to imprisonment for three months. In the former British Colony from whence I’d come the maximum term of imprisonment for a similar offence was imprisonment for 18 months. In the belief that the same maximum applied here, I decided that it was time that he should serve four months. And I ordered accordingly.
One day short of three months later I received a telephone call from the Superintendent of the Fingerprint Bureau of the Hong Kong Police Force. The Bureau was then responsible for keeping police records of convictions.
‘Mr. Barnes’, he said, ‘a mistake has been in a communication we’ve received from Noth Kowloon Magistracy about a conviction of a person charged with loitering with intent. The record says that you sentenced him to four months’ imprisonment. As the maximum is only three months that order can’t be right. Could you confirm for me what your actual sentence was?’
‘Certainly, superintendent’, I replied. ‘I’ll dig out the file and call you back’.
When I received the file I was horror-struck. By then I knew that the maximum was only three months and had no recollection of the sentencing incident until I saw the convincing evidence of my own handwriting that I had imposed such a sentence. My handwritten record recalled the circumstances under which I’d made such a horrible blunder but the real problem was: how do I correct it?
I rang Chub. He was, at the time, acting as Registrar of the Supreme Court. He was a very efficient man. It was during the morning when I rang him. By the afternoon he rang me back to tell me that affidavits had been prepared for the prisoner to sign so as to arrange his release that afternoon. It was very important, for the purposes of the administration of justice, that he be released that day. Prisoners sentenced to three months or less were not then entitled to any remission of sentence. So, if he were released that day, he would not have served any longer a sentence than if I had imposed a proper sentence in the first place.
Having prepared all the documents to secure the prisoner’s release that day, Chub rang me.
‘Eric’, he said, ‘is there any message you would like us to give the prisoner?’
‘Yes, Chub’, I replied, ‘tell him that if ever he comes up before me again that I owe him something.’
Some months later the then permanent Registrar of the Supreme Court held a dinner party at his home to welcome new magistrates. The late Henry Daniell and I were present. During the dinner , whilst I was relating my boo-boo in connection with this case the registrar, C.M. Stevens, nudged me under the table to keep quiet. People who know me know that once I’ve started a story a kick on the leg under the table is not enough to prevent me from continuing. So I continued.
Many more months later I received a phone call from Henry Daniell. ‘Eric’, he said,’ remember that story you told at C M Stevens’ dinner party about the guy you sentenced to four months’ imprisonment when the maximum was only three months?’
‘I remember it well’, I replied.
‘Well’, said Henry, ‘I had a guy up before me today who pleaded guilty to loitering with intent and when I asked him if he had anything to say he said: I was once wrongly sentenced to four month’s imprisonment and the magistrate said if I came up again he owed me something’.
‘What did you do?’, I asked.
Henry said, ‘Well, first I asked him: Who was the magistrate?’
“’Bar lee see’ was the reply”, Henry said.
‘What did you do?’, I asked.
‘Gave him an absolute discharge without a conviction being recorded’, Henry said.
The case poses two interesting questions:
(1) As the “victim” did not suffer adversely through my judicial blunder was he entitled to the benefit Henry bestowed?
(2) Was Henry’s decision – not justifiable, say, on the basis of “logical justice” – an acceptable public relations exercise to demonstrate that judicial blunders should be:-
- publicly acknowledged; and
- rectified beyond the requirements of “logical justice” with the aim of maintaining public confidence in the integrity of the judiciary?