Law & More: The Boase Cohen & Collins Podcast

Episode 3 - Michael Hartmann

July 26, 2021 Niall Episode 3
Law & More: The Boase Cohen & Collins Podcast
Episode 3 - Michael Hartmann
Show Notes Transcript

In this episode, our Senior Partner Colin Cohen meets former Court of Final Appeal judge Michael Hartmann.

In their wide-ranging discussion, Michael recalls his days as a solicitor in his native Rhodesia during its transition to Zimbabwe, talks about his career in the Judiciary and reveals his hopes for the future of Hong Kong. 

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Host: Colin Cohen
Director: Niall Donnelly
Producer and VO: Thomas Latter

Colin: welcome to Laura Moore and thank you so much for joining us. it's always good to see you. I arrived in Hong Kong in 1981, a little bit before you, and I know you're retired nowadays, but what are you involved in at the moment?

Michael: I'm semi-retired, I think the best way of putting it. I was busier in my first four or five years of retirement than I think I was when I was sitting permanently as a judge, I've done two commissions of inquiry. I chair a couple of statutory boards. And I was also, until recently, chairman of the body that examines solicitors who want to get higher rights of audience.

And in addition to that, because of my background in family law, I've, I've done a lot of private family law matters, mediation private adjudication, and that sort of matter. So yeah. Kept pretty busy. Thank

Colin: that's great. Cause you are the man to go to in family mediations. And all our mediations. There's always your name who comes up first when we try to get to mediations. Well, anyway, let's go back a little bit and to your background. I know it's very interesting. Cause in Australia, you were born when you went to the UK when you ended up in Rhodesia.

give us a little sort of potted history. What got you to Rhodesia, Zimbabwe, and how you became a lawyer? Because I know you write a little bit as well.

Michael: Yeah. The getting to Rhodesia. Now, Zimbabwe is a complex story that can be told in about 20 seconds, which is that my mother was Australian, after the war, we settled in Australia. My father was English. He didn't like Australia. So we went to England, but my mother being Australian didn't like England.

So they had to split the middle, which they did and went down to friends in Rhodesia as it then was. And that's where my parents settled. I finished my education in England. And after that, I came to Rhodesia 

Colin: And, how did you get into law?

Michael: My mother. I wanted to be a journalist to start. And I was a journalist for about two years. that was pretty exciting. It included, for example, getting recruited as a Congo mercenary, when they first started the recruitment exercise and I was sent in the cover as a dissolute young Englishman to get recruited.

 But it became quite clear to me fairly quickly that you have to be very good to be a top rate journalist.

and to earn a reasonable living at it over your lifetime. My mother always wanted me, a good Jewish mother, always wanted me to be a lawyer or a doctor 

Colin: Or an accountant like mine.

Michael: or an accountant. Yeah. So I did law at the local university. 

Colin: Great. And then I always remember appearing before you where you were very proud to tell. we did a case, a jury trial, and you told us you remember your time as a solicitor and how these sort of stresses of being a solicitor. So you went straight as a solicitor in private practice.

Michael: I was a solicitor. Yes. but quite quickly, I think the fact that I enjoyed court work more. Was well understood by everybody. And I became our sort of in-house counsel. The bigger matters went to the barristers, but I did the smaller matters. And then, when the profession's fused so that barristers and solicitors had a single qualification in Rhodesia or Zimbabwe as it then was, then I became effectively in-house counsel. 

Colin: And I read very recently Clive Grossman's memoirs and he said he was in private practice. Did he ever deliver any briefs to you or did you deliver briefs to him?

Michael: oh, yes. Yeah, yeah. Clive And I were very good friends. and in fact, in a way, it was Clive who brought me here. I got into a lot of trouble in Zimbabwe representing the wrong clients in a case where they were charged with treason for blowing up fighter aircraft. So I won't go into all the details of that, but it became a very big, difficult case.

I got arrested myself as an agent for a foreign power. And there were a lot of stresses there. I'm very happy to say that in the end, by the way, all of the people I represented were acquitted. but I was told in no uncertain terms that if I stayed in Zimbabwe, my future was going to be limited in the sense that the government saw me as becoming a center for Contra cases and wanted me to leave

Colin: And the lure of Hong Kong in 1983 

Michael: and the lure of Hong Kong, which brings me back to Clive Grossman, because he was the one we went around there on a Sunday. To have tea. And he said that another Rhodesian who's still in Hong Kong, a chap called Frank Stock. He's just been through on a holiday. And he recommends Hong Kong. They're looking for people.

So about four or five months later, my family and I arrived in Hong Kong. 

Colin: Yeah, that's very interesting because I arrived in 1981. And at that time I got recruited from London because they were really short of Lawyers. I mean, I was probably under my net in the role of 900 lawyers at that stage. And there was a great shortage and the same in the department of justice. So you entered the department of justice, was it extradition the mutual legal assistance at the beginning?

Michael: I came into the department of justice as pretty much a standard rifleman. and I did what I was told to do. but quite quickly, I moved on to some other areas. Initially, I did a lot of advice to the police. and then I was put in charge of our, essentially, our international section dealing with extradition work and international liaison work, often with American agencies like the drug enforcement agency, I think. 

Colin: Cause I remember that I acted for, one of the longest ever extradition battles in London, Lorraine Holzman. 

Michael: Oh, yes. 

Colin: I, and I think I remember some correspondence at that stage because I think you got involved in that a little bit, on the peripheral side as well.

Michael: I then got involved. Which I really did enjoy a lot with 1997 coming up and the return of Hong Kong to the sovereignty of the mainland. I was given the task along with two others, including somebody from the white hall of negotiating, our new extradition treaties. 

Colin: Yes.

Michael: And so that, that was actually very good.

I enjoyed that. We were in San Francisco and then Sydney, Australia, and then Malaysia,

Colin: I think Wayne Walsh was involved in some of that a little bit later on.

Michael: a little bit later on after I'd joined the judiciary. 

Colin: Yeah, as well. So, I mean, there you are in the ponds justice rising up, and all of a sudden you become a district court judge. I mean, what made that move? I mean, it's interesting because Clive in his book says, well, he had a choice, he could have gone applied, but he didn't, he wrangled a job ahead of commercial crimes.

Then he went into private practice, not into a district court judge. What made you go to the district court?

Michael: To be honest, I had never actually thought of being a judge. And it sounds like a corny story, but it's true. the form arrived on my desk one day and I looked at it and I thought. Well, you know what this isn't a bad choice. I spoke to my wife about it and we decided, yep. I'd put my application in.

I never thought I'd get it. And I was actually on holiday, back in Zimbabwe and another person who was a Zimbabwean and we had quite a few from Zimbabwe at that stage bumped into me in the street and said, I've just heard from Hong Kong. You've been made a judge. So that's how I found out. 

Colin: Yeah. And so in the obvious district court is you were doing many criminal cases but did you do any city in the district. 

Michael: I started off the criminal. And then. they asked if I would go and sit in the family court, which was not a favoured place to go, but I had done a fair amount of family law back in Rhodesia, Zimbabwe days. And so I said, yes, I would. And that actually was an opportune moment for me because family matters had increased tremendously in the Hong Kong jurisdiction. Used to be a jurisdiction 20 years before I was there, where they just had about two or three matters on a Saturday morning.

Now we were getting thousands of matters each year, and our systems were very out of date. And so I was essentially over a period of time, put in charge of chairing various working groups too. Modernize and to try and speed up and to make our fairer and cheaper our systems.

Colin: And then started rising up the chain for ranks. You became a high court judge. You even did a criminal trial, which is quite a few criminal trials you were doing as well as doing matrimonial and doing judicial reviews. Very, very mixed. Either you're a criminal judge or a civil judge, and you had that balance of doing both and that was unusual.

Michael: that was very nice. I mean, I enjoyed it. I enjoyed the criminal trials, the jury trials very much. I enjoyed the matrimonial and in a way I enjoyed the civil, but I haven't done so much civil for a while. I looked at that with a degree of caution but quickly got into it. And then they moved me almost permanently into the constitutional law section 

Colin: Or the Judicial review.

Michael: Or the judicial reviews, which I hated the judicial review section there. 

Colin: At that stage, if I recollect there were a fair number, but not like the number of JR's which have been in the last few years.

Michael: Oh, no. it actually at one stage started to get out of hand and it was quite common at the opening of the new year. The parade and the formalities we have here for that, for the chief justice to say that judicial review was not a panacea, it was not a cure for everything. 

Colin: Yeah. And then you got promoted. You went into the court of appeal. 

Michael: Into the court of appeal. 

Colin: Yeah. I remember hearing everyone sort of enjoyed being before you. And then when you retired, you got appointed as a non-permanent judge of the court of final appeal.

Michael: Yes. Yeah, absolutely. Yeah. 

Colin: If you look at your track judges, who've got their way, not very many of you. It's a few, but not many.

Michael: No, no. I was lucky in many respects. I enjoyed the job. I enjoyed the work and, it just fell into place for me. I, I stayed in the quarter-final appeal for about four or five years. but I enjoyed very much after I retired, doing a lot of various work, especially sitting on statutory tribunals, such as our stock market disciplinary tribunals.

And the problem there is that the ultimate court of appeal for that tribunal was the court of final appeal. So I really had to make my mind up. Do I stay in the court of final appeal, reduce the amount of work I'm doing. in the other varied tribunals or not. And I decided after discussing it with the chief justice, that I would retire from the court of final appeal.

And I'm still chairing some of our stock market tribunals today. 

Colin: Yeah. Now I'm going to ask you to sort of the elephant in the room here. I mean, you've been a staunch defender of the quality of the judiciary standards and process. you said it's world-class I do agree with you. 2021, there are tensions around, there are issues. And everyone's talking about the importance of the rule of law.

How good is our judiciary?

Michael: As far as I'm concerned, Having spent time, for example, in the army many years ago, this may sound as if it's not an appropriate comparison, but I think it is you see elite troops, those that are well-trained and they won't buckle no matter what I like to put our judiciary that way we may be a small jurisdiction, but the people who join our judiciary often come from top universities overseas.

Our best universities here. They have long training in a strong tradition of common law. And think no matter what some maybe a little faster than others, some may have a bad temper. Some may be better armed in that regard, but there's not one of them who doesn't have a strong sense of integrity and a strong sense of doing what is right for Hong Kong. 

Colin: Yeah. I mean, I think both of us agree that judicial independence is the cornerstone of the rule of law. Some people, however, are trying to say no, that's under threat. I don't think it is, but what's your 

Michael: I don't think it is. I think obviously because we've had some major changes here they will be those who perhaps will look or think twice before seeking to join the judiciary. That's natural when you've got any political turmoil in the background, but that said and done. I've spoken to a lot of judges who are still sitting. Their sense of independence. Their sense of integrity remains just as strong. And I'm very happy to see, for example, that the body which appoints and promotes judges is still appointing and promoting entirely on merit and not on any other basis. 

Colin: Yes. I mean, there's one area whereby I like to get your comments and views. Is that the most busiest people in the judiciary right now, if you have a number of cases in the numerous prosecution are the magistrates, they're under incredible pressure, I believe. And in the past, I just wonder whether they're given enough resources.

I mean, the incident recently, whereby bail applications wasn't great. The world perception of having cases going into the middle of the night and people fainting on the dock. it just wasn't great. That was because of resources. from your view, you know about resources, you've seen it you've been through it all is that an area for a type of reform?

Are we putting enough resources into the lower courts

Michael: I don't think so, I have never thought that we have been resourced as well as we should be. I think, for example, that judicial training, once you're appointed should be an ongoing thing for everybody. Literally from the chief justice down because law keeps changing and the demands of a law change.

So this is not a criticism of the judiciary itself, but like any large organization, it requires proper funding. The irony in a way with the cases you mentioned with the magistrate is that the magistrate is doing his or her utmost to try and make sure that the cases are heard and dealt with without delay, even if it means sitting into the night, that's highly admirable.

But of course, it can give the view as it does that, that shouldn't be necessary. There should be other judges available, other magistrates, available. 

Colin: Yeah, and there's gotta be proper training. I mean, I've been in practice now, 40 plus years, 81, I arrived and I have to do my 15 hours every year and I do it diligently. I look for interesting courses. I do get exemptions because I sit on committees that have a legal flavour, but, I am somewhat astounded at some judges, there's no training compared to what you get in the UK there are conferences, where you have to attend and do your hours.

And it doesn't seem to be that here. I just, I don't know why.

Michael: There has been a movement towards increasing judicial training. And I can't say that there's none. All I can say is that during my period of time the only judicial training I got was given by myself to myself in doing cases. And I think there's a limited amount of judicial training now, but to me, a top rate judiciary requires to be kept top rate by being abreast of the changes in the law. 

Colin: I think that's so important. I mean, some of my friends who become judges mentioned to me were just thrown in the deep end. and (inaudible) who was a judge. And then retired as an academic, he could give some lectures and help on the writing of judgments. And for example, I become an arbitrator and I had to go to a course and part of my course was actually writing arbitration awards.

Yeah. And it was helpful to them. So you become a better arbitrator as well. that's sort of shifting a little bit there. Are you in favour of a trial by free judges with no jury or one judge with no jury? 

Michael: That's a difficult one. very interesting question. My answer is, I have a great deal of faith in jury trials. I really do, but I think that with the best regard in the world, a panel of laypersons. and we're lucky in Hong Kong, we have very, very astute juries, often highly educated juries.

but I think there are certain areas, for example, complex commercial crime matters where perhaps we could look at Making sure that those kinds of cases proceed quickly, far more cheaply than they are at the moment. And to do that, they need to be dealt with perhaps by an expert panel, say three judges or perhaps... I sit for example, on two statutory boards with the stock market.

So I sit in the middle as the judge and I have on either side of them. Persons who are chosen from a panel, each of them, that panel consisting of accountants, stockbrokers, and people of that kind. So anybody coming before those tribunals knows there's a legal body in the middle and two persons who are members of the profession on either side who are there to make factual findings. 

Colin: If that was mooted in England and it got rejected, there are some tribunals like that. I mean, when you did the commission of inquiry in the MTR, you had an expert engineer, I presume he was quite useful. A very eminent guy. I have to disclose I was acting for one person on that in any event.

But did you enjoy that, that a very long dry inquiry under scrutiny? I mean, last year we had two of them. I mean, did that, did that get the juices running? 

Michael: Yes it did. I mean, there's a lot of cases where you look at it and you think to yourself initially, before you know anything about it. oh, dear. This is going to be a long, heavy trawl for me. Once you get into all sorts of cases, where there are issues to be resolved, where questions of negligence or guilt are to be resolved where people's lives stake.

And here, for example, we had with the MTR one, we had an entire section of railway running 20 or more kilometres with all sorts of complex engineering issues, but beneath that were issues of people not doing the work the way they should do it. People are not writing reports the way they should. So we were getting down to basic issues of negligence, laziness, oversight, and things like that. Yeah, 

Colin: it was an interesting inquiry. Now away from the law. Many of our listeners may not know that you are a great author, plays, eight books, adventure thrillers, and even one became a film. I understand. Tell us about that side of your career why don't you know? Writing new books 

Michael: Well, it all started actually when I left boarding school in England and went out to Rhodesia as it then was. And I discovered that they had a really good social life at the local amateur theatre. and that's where I met my wife in fact, and they set up a playwriting contest and I wrote a play.

Won the contest. The play was put on. I enjoyed that wrote a couple more and had one of those put on and had one of them accepted for the mermaid theatre in London. In fact, 

Colin: Yes. 

Michael: Never actually got on in the end result, but the mere fact that I got a letter saying, yes, we'd like to do it was great And then I overstepped myself.

I wrote a very wordy sort of 'John Osborne type' look-back-in-anger play. And a journalist who was writing it said, this was far too wordy. And he should try and put some more action into things. And I thought to myself action. Yeah. I like that. I was stuck in the army in Rhodesia, and So, I wrote a novel. And sent it to London, it got accepted. It was called Game for Vultures. 

Colin: so are you doing any writing right now?

Michael: No, my writing stopped the minute I joined the judiciary because I was spending too much time writing judgments very difficult to jump from. Complex issue, for example, on contract and then put that down and then go into the next room and start writing some issue about, incest and divorce and stuff in some 

Colin: Very interesting. you and your wife, Melanie, I know you very well. You're long term residents of Hong Kong. You've been here almost as long as I have nearly coming up to 40 years. What's next for you both? What are you going to do? Moving forward?

Michael: This is our home now and it's become our home. We've got property here. We like being here. I'm involved in various matters here. I don't want to chase after my children. I think that'll be a mistake. 

Colin: Let them chase after you.

Michael: Exactly. there's a spare bedroom if they want it. And they know they can come back once COVID is over.

so yeah, Hong Kong from what was initially maybe three years has now become our permanent home. 

Colin: Same as me as well. I'm here forever and ever. And finally, your thoughts on the future for Hong Kong? I mean, that's a whole separate podcast on its own, but sum up.

Michael: summing it up. Well, I wouldn't be staying here if I didn't think that Hong Kong had a future. We've been through some really difficult times, many places do. I don't think that the Hong Kong that comes out of all of this is going to be the Hong Kong that began all of this. It will be changed in a number of ways.

Somebody said to me the other day that instead of being a European city attached to China, this will perhaps be a Chinese city with very strong European cultural attachments and dynamics, and I think that's right, but it doesn't make it any less appealing. And in my view, I think it's simply too strong to fade away.

Colin: I entirely agree with that. I can think of no better place for living to be here. And I think that, when things develop, we're going through some chaos and tensions obviously, and people want their say, but overall, I think the place works. 

Michael: It does. Absolutely. 

Colin: Michael. Thank you so much for joining us 

Michael: thank you, it's been a pleasure. 

Colin: I think you've really highlighted some matters.

So thank you so much and best of luck in whatever you do next. Thank you. 

Michael: Thank you.