What Justice Seagroatt said by Gill Moodie on April 30, 2009 in Uncategorized Thank you for your e-mail of today with copy of James Myburgh’s article in ‘South Africa at a Glance’. Now I know that it is nothing to do with Am Kau Han’s case the picture is clearer. I have a keen recollection of my decision in the Lee Ming Tee case in which the Court of Final Appeal overturned my judgement (incidentally Mason, former C.J. of Australia, and a member of that Court delivering the leading judgement, was the leading judge in Jago v District Court of New South Wales). The C.F.A and I remain in fundamental disagreement and although I have some idea as to the prevailing notion behind that judgement, it would not be appropriate for me to comment further. Both Mason’s and my judgement need full reading in order to see the question of the prosecution’s duty and the matter of abuse of process in its full context. It may be that the C.F.A. was concerned to bring the abuse of process arguments and principles within the narrow confines of Hong Kong rather than adopt the broader common law implications. But that, as they say, is another story. By the way, I was surprised to note that James Myburgh referred to my decision as ‘an obscure ruling’. I was asked to deliver a paper on the legal issues involved at the International Bar Conference of 2003 in Brussels and it is still a ‘hot issue’ in Hong Kong (I am informed at a distance). You are, of course, not concerned with this and I will deal with your questions as best I can in view of the overall timing of events. How do you feel about one of your judgments being used without acknowledgment in such an important prosecutorial decision? 1) I would have expected proper attribution if only because of the professional legal tradition and convention. I have not seen the full text of Mpshe’s decision but relying on Myburgh’s schedule of extracts, where Mpshe has directly lifted sentences or paragraphs from my judgement, it would have been proper to identify the author. He correctly makes reference to principles enunciated by the respective judges in R v Derby Crown Court ex parte Brooks, Jago v District Court of N.S.W., Connelly v DPP, R v Latif, R v Martin, and R v Hui Chi Ming. Since the Acting National Director of Public Prosecutions structured his statement around my judgement – or so it seems on the basis of the extracts quoted by Myburgh – it was nonetheless sloppy and undisciplined to put the statement forward as emanating from his own reasoning. These days plagiarism is an oft-used word and discipline in universities, for example, has been lax. It is, however, tightening. Even an ’A’ level student would be expected to give proper attribution. When I was a student it was occasionally the resort of a bold historian to quote ‘imaginatively’ from an identified authority. In short, if a judgement is used, it should be properly attributed. Do you think it is plagiarism? Strictly speaking it is plagiarism, but lawyers do not get worked up over such things. An imaginative lawyer will often quote the language of another advocate/judge without adding the cumbersome ‘as X said in A v B’. However, a senior government lawyer making a statement in support of a decision of some importance should cite properly, cases or judgements used, if only to lend weight to his own. Mpshe may have thought that the scattered references to the cases cited and incorporated into the text of argument or ‘ratio decidendi’ were sufficient. As I have said, that was a sloppy approach which even a law student would be tutored against. Do you think it fitting that a leading legal mind would use another judgment without acknowledgment? 3) I think I have answered this in (1) above. What do you think about your case being used in another country’s (based on Roman Dutch law and British common 4) There is absolutely no reason why a common law judgement should not be used in another country’s system, be that Romano-Dutch or Common Law or any codified system. The principles hold good on a broad bas[truncated by WhatsApp] should not be used in another country’s system, be that Romano-Dutch or Common Law or any codified system. The principles hold good on a broad bas The principles hold good on a broad basis as the European Courts have exemplified. Is there anything else you would like to add? 5) I think I have said enough. I do not have a copy of my judgement to hand although my colleagues in Hong Kong can get a copy to me quickly if necessary. I would like to see the full text of Mpshe’s statement in case there is any other comment I can offer. Finally, if you quote me, I will appreciate it, if it is done in an unedited form and where I have indicated that my comment is subject to my seeing a full text, that it is so indicated. Lawyers/judges tend to have grave reservations concerning journalistic licence, and although I am retired, I remain alert to what goes on and dislike being quoted out of context or selectively. With kind regards, Conrad Seagroatt
Posted on: Thu, 04 Sep 2014 15:06:53 +0000
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