Episode 46 - Ian McWalters

In this episode, we meet former Director of Public Prosecutions and later Justice of Appeal Ian McWalters, who looks back on his upbringing in Australia, adventurous days as a lawyer in Papua New Guinea, and four decades of stellar service in the Hong Kong legal profession. He speaks with our Senior Partner Colin Cohen. Stay tuned. 

 00:50 Introduction to Ian McWalters
 02:29 Early Life and Education
 04:14 Career Beginnings in Papua New Guinea
 08:11 Transition to Hong Kong
 10:22 Rise in Hong Kong's Legal System
 14:01 Director of Public Prosecutions
 18:53 Judicial Career
 28:48 Reflections and Future Plans
 35:33 Closing Remarks 

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

Transcript

[00:50:00] Colin: I am delighted to be joined by a distinguished guest and an old friend, Ian McWalters, a man with vast experience of our legal system. Ian came to Hong Kong from Australia almost 40 years ago to join the then Attorney General's Chambers, also known as the Legal Department. He was appointed as Government Counsel.

After rising gloriously through the ranks, he even served as Director of Public Prosecutions from 2009 to 2011. And after that, like all DPPs, bar one, joined the judiciary, going on to spend years in the judiciary, and elevating up to a Justice of the Court of Appeal before retiring in 2021. He is also co author of a highly influential book, Bribery and Corruption in Hong Kong, which has recently been updated with its fifth edition.

Ian, welcome to Law More. And as I always ask my guests, what's been keeping you busy recently?

[00:51:03] Ian: Thank you Colin, it's a delight to be here to be able to talk to you and meet up with you again. What has been keeping me busy recently is I suppose semi-retirement.

I'm now relocated to Australia living in Brisbane and in the process of renovating a house there. And at the same time, when there is work coming back to Hong Kong to act as a chairman of the Market Misconduct Tribunal and the Securities and Futures Appeal Tribunal, and both of these tribunals perform work which is emanating from the Securities and Futures Commission.

[00:51:39] Colin: Great. Now, let's go back in time a little bit, how you became involved in a legal career. Tell us about your schooling, your university, Australia. A bit of background information. 

[00:51:49] Ian: Alright, I grew up in Sydney, Australia. To middle class parents with a older brother and sister. I was the youngest in the family.

My education was to local public schools, which in Australia means state schools. And I went on to university not knowing really what I wanted to do. Both my brother and sister were teachers and I was confident that that was the last thing I wanted to be. I was hopeless at maths and science, so that left me with few options.

But family friends had gone into the law, and after discussing opportunities with them, I decided that the law might, not would, but might be a possibility. And because I wasn't confident of what I wanted to do, I decided to pursue an arts law degree. At that time in Sydney, the University of Sydney was the only university with a law faculty.

So I enrolled in an arts law course there, and gradually doing a bit of law with each year of my arts degree. By the time I finished arts, I was reasonably confident that law was probably the profession I wanted to go into, but I certainly wasn't overjoyed with every legal subject that I did.

[00:52:58] Colin: So you got admitted as a solicitor and barrister in New South Wales. 

[00:53:03] Ian: No, I was admitted as a solicitor, New South Wales is one of the States of Australia, which is not a fused profession. 

[00:53:08] Colin: I think it's now. 

[00:53:09] Ian: Oh, it may, well, I'm out of date. Now it is, is it? It wasn't in my day, but then as you said, that was a long time ago.

[00:53:16] Colin: So you were as a solicitor, but then you became a Barrister.

[00:53:19] Ian: No, I remained a solicitor in New South Wales. And I, after doing articles of clerkship with a firm of solicitors, I decided that there were fewer opportunities at that time in Australia. And I had a friend who was working in Papua New Guinea and had worked in an organization there known as the Public Solicitor's Office, which is the equivalent to the legal aid organization here.

It provided legal aid services to people in Papua New Guinea, and the bulk of their work was probably in crime. So I had an interview for a job there and was offered the job and proceeded to Port Mosby to commence a career in criminal law there.

[00:54:02] Colin: Now that's a very interesting decision to take because I remember going off a cruise ship and arriving in Port Moresby and given strict instructions that to watch what I was doing, even if we were playing a round of golf, they arranged to have guards on the golf course. And Law Order in Port Moresby was not very good.

And also it wasn't, how could I say, the most attractive place to live. But you tell us, tell us about it. 

[00:54:24] Ian: No, that's true. But in the days that I was there, Law and Order was less of a problem.

I went there just before independence in 1975. And as a member of the criminal section of the public solicitor's office, I would go on circuit around the country with a prosecutor and a judge, as there were no juries at that time in Papua New Guinea. And so you would accompany the judge and his associate on circuit to go to various places within the particular

area of the country, representing anyone charged with criminal offences.

[00:54:59] Colin: Interesting, and quite unique. Any good stories of anything interesting that took place?

[00:55:04] Ian: It was a very adventurous experience and one which you wouldn't be prepared by training as a solicitor in New South Wales and being an article clerk in a firm which did conveyancing and probate and insurance work.

You would go to Papua New Guinea and there you would stay in the provinces with the the judge and the prosecutor. The courtroom facilities might be very primitive. So that on my first circuit to the Sipic area of Papua New Guinea, we had to go upriver to a small outpost. And we were performing our court duties in a thatched building with no walls.

In the middle of the wet season, so the rain was pouring down. You didn't have to wear wigs, but you wore bibs and a legal gown. And in those days, the rainy season and no walls around the building, you had mosquitoes coming in. You were sitting at a Formica table with a foldable chair.

The legs of the both the table and the chair were rusting, there was a fading photograph of the queen mounted on a post and as the mosquitoes came in and attacked you, you would try and kill them and you'd end up with your white shirts with little red dots on them. So it was quite an experience.

[00:56:24] Colin: So how long were you there for?

[00:56:26] Ian: I stayed for five years in the public solicitor's office doing criminal defense work and later as a deputy public solicitor in another city there called Mount Hagen in the highlands of Papua New Guinea.

And as a deputy public solicitor I did both criminal and civil work and that was my first exposure to civil work. I returned to Port Moresby to head up the civil section there

and then later I became a magistrate. Initially working in the Port Moresby, I was coroner for Port Moresby. And I was later transferred to a island called Rabaul in the New Guinea Islands.

And there I worked as a magistrate of a slightly higher level equivalent to our district court judge here. And there I went on circuit around the islands performing more important criminal work.

[00:57:14] Colin: And you started to become more of a criminal lawyer? 

[00:57:16] Ian: Yes, very much so.

[00:57:17] Colin: And, In Papua New Guinea, how did you end up in Hong Kong?

[00:57:21] Ian: Kong? Well, in the course of my work as a defense counsel, I met many prosecutors there, and one of them was a person called Bernard Ryan, who worked in Hong Kong. At that time, Hong Kong government maintained a recruitment office in Auckland, New Zealand, and it was through that office that many of the Australian and New Zealand counsel were recruited.

So, other counsel in Papua New Guinea who came here were Kevin Egan and John Cagney. So by the time I arrived, prosecutions Division of the Attorney General's Chambers already had Bernie, Kevin and John, and I just joined them as an extra hand.

[00:57:59] Colin: Had you ever been to Hong Kong beforehand? 

[00:58:00] Ian: I'd only been in Hong Kong whilst in Papua New Guinea on one occasion, en route to a holiday to Europe, and I called in to see Bernie Ryan and he told me to contact him, should I ever be looking for employment in Hong Kong and he would see what he could do to assist me. And so when I came to leave my name with the Auckland Recruitment Office, I mentioned to Bernie that I had made an application and in due course, I got an interview in Sydney and an offer of employment by contracting Hong Kong.

[00:58:29] Colin: And that was to be...

[00:58:31] Ian: Crown Counsel in the attorney General's chambers. 

[00:58:33] Colin: So In 1985, arrived in Hong Kong? Early impressions. I arrived in 81 a little bit before you, but what did he think of the place when you, when you came, we're a colony there.

[00:58:42] Ian: Yes, novel, exciting, different. Full of wonderful sounds and sights and smells.

And it was just such a change from what I had experienced in Papua New Guinea. It was a very, very exciting time for me in my career. I had to learn a lot of new law. The crime in Papua New Guinea was prosecuted under the criminal code which some of the states have in Australia and which Papua New Guinea had copied.

I had to become familiar with all the legislation in Hong Kong, which was often copied from the UK. 

[00:59:15] Colin: And the indian penal code. If you remember, loitering and our criminal procedure ordinance mirrored the Indian penal code far more than actually some of the legislation in England. Interestingly, that's typical civil service.

[00:59:28] Ian: Yes. So there was a lot to learn and I thoroughly enjoyed that. I was working in general prosecution, just doing anything that came along, doing police advisory work. But within a year, I had my first exposure to ICAC work when I was appointed as a junior to Kevin Egan in one of the early race fixing trials.

[00:59:49] Colin: Now, just to help our listeners, the ICAC is the Independent Commission of Corruption that was established to deal with, starting off with the, as I said with our previous guests who've been on the pod, dealing with, corruption in the police, which was very endemic And then has since grown into its own department dealing with specific cases.

So enjoyable to do the ICAC work? 

[01:00:11] Ian: Yes. It was just one case that I did at that time. Kevin needed a junior and I had helped out in some of the illegal advisory work.

The offense in the end wasn't an ICAC corruption offence. It was conspiracy to cheat with gambling but involved looking at various horse races and using jockeys as witnesses. Gary Moore was a jockey who was a witness and it was quite a high profile case in Hong Kong. So it was a wonderful experience for me.

But apart from that, I would just prosecute normally in the magistracy and in the district court, going to all the old, Courthouse buildings, which are no longer there, like Western Magistracy, Sanpo Kong Victoria District Court.

[01:00:51] Colin: That's great. I remember, I think we crossed swords a couple of occasions I was doing. Yes, I think you prosecuted a couple of clients of mine very fairly and very nicely. I mean, the good old days, I remember the late Gary Alderdice prosecuting and then defending and Gary Plowman.

I mean, it was, very, very congenial, put it that way. They were sort of done very, very nicely. Of course, handover in 1997, you were here, I was here. Then you moved over, started, working your way up higher and higher within the relevant departments. 

[01:01:21] Ian: After a stint in General Prosecutions, I was lured to go to commercial crime unit within the prosecutions division, then being run by the infamous Warwick Reed but I was to do intellectual property fraud for the customs and excise department and I enjoyed that very, very much. It was quite a change. 

[01:01:39] Colin: For our listeners, Warwick Reed was a very senior government prosecutor who then succumbed to the temptations of money from clients who paid him a lot of money to, how could I say, establish the outcome of the cases. Of course, he took the money, didn't do anything. But then he spent a long time locked up for doing that as well. And it brought a great deal of shame and difficulties. And, it's typical Hong Kong stories as well.

So, there you are, working your way up into the Department of Justice, and dealing with matters as well. And then You stayed in commercial crimes

[01:02:11] Ian: Yes, I stayed in commercial crime after a couple of years doing intellectual property fraud, which was copyright fraud, trademark fraud, trade descriptions, offenses peering mostly in the magistrates for those offenses. A vacancy arose in our ICAC section, which was then being run by Michael McMahon, who later became a district judge and was then elevated to the high court.

He was a very, very fine lawyer and a very, very fair prosecutor. I enjoyed thoroughly working under him, but on his appointment to the District Court I ultimately became responsible for ICAC work running the section there and later on became head of the Commercial Crime Unit, another promotion again.

And it was from The head of the commercial crime unit that I was ultimately appointed as director of public...

[01:02:56] Colin: Just again, we had a Grenville Cross was on our pod some time ago. He became a DPP and stood there for many years, and then he retired, and to do his own thing as opposed to becoming a judge. He said he was offered a post, but he didn't want to do that. And you became the Director of Public prosecutions. Now, as Director, how much of your time there was spending doing the actual administration, watching it, and how much time were you going into court?

[01:03:20] Ian: The bulk of the time was actually administration. And part of the reason for that was that at the time I took over, I had my own vision for how I wanted to organise the Prosecutions Division. So I made a number of quite different changes, creating, for example, the Office of the Director of Public Prosecutions.

Over time, we had found that we had to engage far more with the public. We would get complaints about prosecution decisions and prosecution work from the public. We'd get questions being asked by the media. So, part of the Office of Director of Public Prosecution would be responsible for handling media inquiries and public complaints.

And that became quite a big part of that office's work. And I saw that as being an enormous justification for setting up the Office of the DPP and Getting that office to handle a lot of the admin. 

[01:04:11] Colin: And again, it's very, very important for people to realize that the director's job, is independent, is to look at the cases independent from the government and to see whether it is sufficient evidence to bring the prosecution no matter who you are, how great you were.

Rule of thumb test, 50 percent of getting a conviction, looking at it as a tool, and then deciding to prosecute,

[01:04:31] Ian: That is so, but you do have to understand that there is no statutory guarantee of his independence because the director is in fact just another law officer within the Department of Justice.

And the Provision in the Basic Law which guarantees the independence is Article 63. And it talks about the Department of Justice. And so it's the head of the Department of Justice, and that is the Secretary for Justice, that actually is the person ultimately responsible for prosecutions. And the law officer of the Prosecutions Division, who occupies the title of Director of Public Prosecutions is effectively acting under the authority of the SJ on behalf....

[01:05:11] Colin: Who was the SJ when you were DPP? 

[01:05:13] Ian: Yan Lung. 

[01:05:13] Colin: Oh, he was a very good man,

[01:05:16] Ian: Thoroughly enjoyed working under him and have the highest regard for him. 

[01:05:20] Colin: One of the very, very good lawyers. I mean, he's pure civil. Very hardworking and very decent and a good man as well. Being in the public limelight, being in DPP, did you enjoy that?

[01:05:32] Ian: No, not really. , you had to balance sometimes the sensitivities of certain work. There was always an issue in relation to the demonstrations that were taking place in those days, which weren't nearly as difficult to handle as later protests, but you always were conscious that you had to have a balanced hand when it came to looking at what was taking place in the demonstrations, particularly the 1st of July demonstration, so there was that issue, but basically a lot of it was also to do with preparing the prosecution's division to be able to Handle the work that was coming its way and there were two issues which were of concern to me at that time. One was the training that we had to invest in in order to prepare our prosecutors. And secondly was to encourage our prosecutors to become advocates.

I had watched over the years as the advocacy role of within the Civil Division Department of Justice had lessened as many of the Council performing that role had left and were not replaced by Council who wanted or were able to perform that role. And I didn't want to see that happen to the Prosecutions The last thing I wanted was that the Prosecutions Division should become merely an advisory body to our law enforcement agencies. So I was able to have a large number of what they call D1 level positions created. Which I created specifically for advocates to encourage people to be promoted to that position and to feel as though they still had a career path.

unfortunately, the bureaucracy is often organised so that you have a role within a particular section of the prosecution's division, which may be, for example, advising the police on high court cases or on district court cases or magistracy cases. And so to have a career path and rise within the prosecution's division, required that you show managerial ability and leadership ability.

And those were not necessarily skills which advocates possessed, and there was a downplaying of the importance of advocacy skills. So, in order to overcome the bureaucratic problems associated with advocates not necessarily wanting to perform administrative work in running a section I created this special position so that there would be a career path for advocates and they would feel as though their skills were being recognized and rewarded. 

[01:07:59] Colin: They were not farming out so many cases to the private sector and having the efficacy within. Now in 2011, you then became a high court judge. Now, did you have any doubts about that? Did you talk to anybody about that? 

[01:08:14] Ian: No, I, I always, I always saw that as a natural progression for a person engaged in the law. And I certainly thought that I would enjoy the position of being able to be closer to the role of dispensing justice.

[01:08:28] Colin: So you became the High Court Judge, criminal, always criminal, you never dabbled. No, this is interesting, because you've got to sort of cleanse yourself. So since you're a DPP, you couldn't obviously do any cases which you advised on, and at the same time you could take no criminal work for six months at all, and you had to sit down doing a bit of family, or a bit of this, a bit of that.

[01:08:51] Ian: No, no family fortunately, but I did have to do civil litigation and that was all very new to me as well. I was very fortunate my chambers were adjoining those of Anselmo Reyes. 

[01:09:02] Colin: Well, a lecturer in Hong Kong University with me. I know Anselmo very, very well.

[01:09:06] Ian: Very bright guy and what's more, he was enormously helpful. I would be able to walk into his office at any time knowing that I could get assistance from him. And I'm quite indebted to him for the assistance he gave me during those six months. 

[01:09:20] Colin: After that six months, back to the coal face... 

[01:09:23] Ian: Criminal trial work. 

[01:09:24] Colin: Tell us a bit about that, lonely? 

[01:09:27] Ian: Yes, you have to form relationships with your fellow judges, but you only get to see them occasionally. There is a mess and judges would meet in the mess for morning coffee and that would be an opportunity to talk about your work with them and to just have a social occasion together with them.

But otherwise it can be a bit lonely. I think I, as a judge, don't get lonely. I've probably deliberately tried to limit my association with the prosecutions division because I didn't want to be seen to be too close to my former colleagues and so in keeping away from them and not associating too closely with other members of the bar, you are very much on your own.

[01:10:04] Colin: As a High Court judge, and I've mentioned this with other friends of mine who are High Court judges.

One issue I've always been concerned about is proper legal representation for the defendants. Majority of the cases, probably appeared before you were with people with very little means and hence the legal aid representation. Now Criminal legal aid has been good at one stage and but then has become now to do criminal legal aid over we do it It's very very badly.

Well, it's not well paid put it that way for solicitors and for the barristers as well. Did you have difficulties with cases as to representation or did you feel that everyone was just doing their very best? Of course, some of the people prosecuting were from the private sector as well.

[01:10:47] Ian: There's no doubt that there's varying standards amongst members of the prosecution division and amongst members of the bar. I think Most of the time, people were reasonably well represented. There were times when you might become concerned.

A judge, is in a rather difficult position. He has to balance the extent to which he interferes in the running of a case. So, if you felt that a defendant wasn't being assisted as much as you should have. You might try and raise the issue with his counsel or intervene and ask a question yourself, which you felt had to be asked. But you had to be very careful that you didn't go too far.

[01:11:22] Colin: You enjoyed the work?

[01:11:23] Ian: Very much so, of your cases, most of them, obviously it's jury trials all time, but of course, I mean, if you look at the statistics, the number of people who plead for every case that gets into the High Court is quite high, 

Well, the only problem for judges in the high court in terms of personal enjoyment and satisfaction of their work is that the bulk of the work is drug anything that's going to attract a sentence over seven years is going to go into the high court. And so all the international couriers that come through, what we might now regard as a reasonably small amount of a kilo of drugs, but it's going to attract a sentence which is 

So high that everything's in the high court.

I would think, and you would know better than I, perhaps 80 percent of the work of the High Court is drug matters.

[01:12:05] Colin: We offer our legal aid cases, which I get assigned, like quite a lot of cases assigned to perhaps, legal aid. No, we're a safe pair of hands in our practice here. 85 percent to 90 percent of all drug cases. Occasionally we get a commercial crime case, but very, very rare at the moment as well.

So, elevation to the Court of Appeal. Surprised, or...

[01:12:28] Ian: Yes, I was a bit surprised. I felt very privileged and honoured at the time. I wasn't at all convinced that I was ready. So I accepted the position with a certain degree of humility.

I was very fortunate at that time to have worked for a while together with Frank Stock. He had, in a sense, Mentored me. Before I joined the Court of Appeal. He had asked me to participate in some of the appeals they were doing as a puny judge. And so I did that.

[01:12:56] Colin: That's a puny judge. That means that High Court judges would sit on the Court of Appeal, that's quite common, 

[01:13:02] Ian: And so I did that for quite a while actually working with people like Frank Stock and Mark L. And I enjoyed that very much and I got a lot of assistance from Frank, the work we were doing and in the writing of judgments.

[01:13:13] Colin: Were you stressed in the court? I mean, I hear nowadays, sometimes we did one big case and it took a year for a judgment to come out and, the civil matters is a bit of a time lag on judgments at the moment. Did you find that or worry or...

[01:13:28] Ian: Yes, very much so. I'd had my first experience of it one of the civil cases I did in my first six months. I did a judicial review of a search warrant case and took me ages to write the judgment. It was the case itself. We heard evidence and it took some time.

So I had seen the difficulties that the judges face in the trial stage, when they have to write judgments. And I encountered that also doing criminal work when I had magistracy appeals to do. You had sometimes quite complicated magistracy appeals that you had to write judgments And then later in the court of appeal, yes, the work is quite unrelenting.

When you, when you're there full time. And you're sitting usually minimum of three, but usually four days a week. With only Monday as your reading you never have enough time And just as you think you might be ready to write the judgment on a case, you have to read into another case.

And it just goes on and on and on. And then They've considered at different times where there are better ways of doing things, but no proposal has ever been implemented. So the Court of Appeal judges do face quite a As opposed in the US system. 

[01:14:35] Colin: As opposed in the US system, all court of Appeal judges have associates and they're full time and they help out with the writing during the drafting.

Even in the Supreme Court, the associates are the people who draft and then the judges look at it and then obviously amend, etc. Now, as your time as, Justice of Appeal, any memorable incident, any memorable case that stands out in your, distinguished career?

[01:15:00] Ian: Yes, I assisted in a judgment on a public interest immunity.

I wrote the public interest immunity part of that judgment. The other judgments I wrote on, the constitutional issues relating to telephone interception. And there are a few cases like that, which were particularly difficult to write. And the money laundering cases, there were a number of cases which went to the Court of Final Appeal. And I wrote some of the judgments on those, which were ultimately overturned because the CFA went in its own direction on those cases. So, probably money laundering, constitutional issues, and public interest immunity were the main cases where I felt challenged.

[01:15:37] Colin: What about now? I mean, it's one issue which I am concerned about is as we said, drugs is the most important. If you look at even the Court of Appeal cases, the biggest turnover of a drug cases. Most of the drugs coming into Hong Kong is by the mules.

People from South America who are very, if they're not educated well, they're asked to carry it in, they get caught, and the sentencing, because as you said before, so many kilos, you're getting 25 to 30 years, and there's very little discretion. I mean, there's no sign, you advise your clients.

This is the way. This is it. Overseas. Enhancement. As well. And yet, I looked at some matters recently and I was doing some work for the Long Service Supervision Board for clients of mine who got caught for murder. You could find yourself having a longer sentence being a mule for a drugs case, than on murder.

Your release of 20, 25 years for the murder cases. Isn't there something wrong with that. On the face of it? And compared to England, Australia, everywhere in the rest of the world, no one has these stringent high sentences.

[01:16:37] Ian: I mean, the high sentences have a history, a long history in Hong Kong. And I suspect there's such a large body of law on it now that it may need the intervention of the CFA in order to correct it. But we have got to the stage now where the sentencing starting for couriers is far too high, and there's a disconnect between that starting point. And the starting point that you will get for people bringing in large amounts of drugs, or for people who are more senior within the food chain.

Because the bulk of the drug trafficking offences that are prosecuted in the High Court are really only of international couriers. Some you get are local couriers because they were during COVID.

Parcels were being sent through the post so you would often get people picking up parcels. Occasionally you would get a drug manufacturing case.

But bulk of it was just international couriers. During COVID that changed because nobody was traveling. So you were getting drug importations coming in by sea. And that was literally container loads. So instead a courier bringing in a kilo to a kilo and a half, you might have someone bringing in hundreds of kilos. So where do you start with a sentencing for that 

[01:17:45] Colin: It is very strange at the moment, and it needs to be dealt with as well. Now, that's moving a little bit away you've finished it, you've got your gold bahenia star, a great gong for your service, which is wonderful. I'm interested in your book. Bribery and Corruption in Hong Kong is well known, it's co authored with Andrew Bruce, very eminent and local silk, and I sat as a judge, did a case where we were before him for many times until the jury had to be discharged on the 60th day, which you probably know all about. How did that come about?

[01:18:16] Ian: Well when I was running the ICAC section, of course for years I'd been giving legal advice on the prevention of bribery ordinance and the ICAC ordinance. And so I became, fairly familiar with the law relating to those two ordinances. And there are quite a few occasions when I'd be invited to speak at conferences overseas.

And so I gradually built up a lot of presentation, conference paper notes. And I thought, well, why don't I turn these into a book? Of course, it was a lot more daunting than that. once I started on the project, I realized that in fact, some of the stuff I'd written in my conference papers were nowhere near being detailed enough to cover all the areas of the two ordinances that I was addressing.

So it took me many years, in fact, to finally write the book. And when it did come out, it came out at a time when the two ordinances were coming under a lot more scrutiny by the Court of Final Appeal, particularly for constitutional reasons. And so the powers of the ICAC were receiving a lot of attention, as was what was becoming a very popular but was a fairly new offence and that was the common law offence of misconduct in public office. So it quickly became apparent that a second edition would be needed and that required actually a lot more editing work than I initially realised because of all the changes brought about in the law by decisions in the Court of Appeal, in the Court on those major two areas.

[01:19:44] Colin: That's very, very interesting. Now, obviously, you're here in Hong Kong for a very, very important occasion, and you'll be performing tonight, and this is a little taste for our listeners. This pod will come out a little bit later, but we're having a fireside chat tonight. But your main, main sort of performance will be the Hong Kong University and the Bose, Cohen and Collins Law Lecture once a year.

Been very eminent guests in the past, ex Chief Justice, Geoffrey Marr, Geoffrey Robertson, Clare Montgomery, Ed Fitzgerald, it's going to be an interesting performance.

[01:20:16] Ian: Well, I'm a bit intimidated by the eminence of all my earlier colleagues who have spoken on your behalf, but the lecture I'll be doing will be one that focuses on the discretion in the criminal justice system and how important that is to providing flexibility and humanity and compassion in the criminal justice system. And I address that in a number of areas.

One, I'm going to be looking at whether or not the, Secretary for Justice should be employing the cautioning system for adults. As you may know, we do have cautioning as option available to the police in respect of juveniles, and it is employed also for minor POBO offences for adults. But it's not otherwise used generally, and I'm very concerned that that is a very useful tool for prosecutors to have and it's not available to them. I also talk about the failure by prosecutors on many occasions to provide more detailed reasons for their refusal of a request by a defense counsel to accept a bind over or to accept a plea offer. So often the response of the prosecutor is simply to say they've applied the provisions of their prosecution code and they're unable to accommodate the offer that's being requested.

And that doesn't leave Defence Council with much information on why a very detailed submission by them has been rejected. And so I make comments about that. And finally, I make comments about our drug trafficking sentencing regime and the guidelines that have been promulgated by the Court of appeal 

[01:21:54] Colin: And I promise all our listeners that your lecture will be published and it will be on our website. So anyone who is interested, they can obviously read it.

We're looking forward to the lecture this coming Friday. Now Hong Kong, we all know, has been going through some difficult times. You're in Australia, obviously you read what's going on at the moment. There are always tensions here, but for the judiciary, the judiciary is the fundamental, basis of our rule of law, etc.

Your comments on your faith in our system? You've been in Hong Kong a long time, though you're no longer here.

[01:22:29] Ian: Every system has problems. I think the biggest problem facing the judiciary is recruitment of judges. But the judiciary shouldn't be seen as the sole body responsible for this problem. The judiciary and the Secretary of Justice I see as stewards of our justice system. But there is a third arm and that is the legal profession.

The judiciary over the years has become gradually a promotion judiciary. And this is most so in respect of criminal law.

So that people get appointed to the magistrate, they then get promoted to the district court, they get promoted to the high court, etc. This has been necessary from the earliest of days, but it was never Totally a promotion judiciary.

There was always opportunities for prosecutors to be promoted and there was always regular appointments from the civil bar to the High Court. There have never been many appointments from the criminal bar there have been Mike Lunn and Andrew McRae, but most of the time they've been prosecutors.

And I see that as a problem, the criminal bar is not able or willing to provide candidates for a High Court appointment. And from what I've been told in recent times, the civil bar is not enthusiastic about joining the Now, the High Court, the Chief Justice and the recommending body, the JORC, can only appoint people who are willing to serve.

And the legal profession, I believe, has to see service in the judiciary as not just something that takes place at the end of their career for a few years. But is a career they should pursue earlier on as a service to Hong Kong. Of course, I understand that the legal profession is realistically there also to earn money. But it's a business which has very special privileges and comes with a very special responsibility. And I would like to see members of the Criminal and Civil Bar offering themselves to become High Court Judges. Because it's only then that we can have fresh, new minds coming to join Judiciary, who can bring with them all the experience they've had at their respective bars.

[01:24:43] Colin: Ian, it's been a great pleasure to chat with you. You've given us plenty of food for thought, and thank you so much for joining us on Law & More.

[01:24:53] Ian: It's a pleasure.

[01:24:54] Colin: Thank you. 

[01:24:55] Thomas: Welcome to Law More, the podcast from reward winning Hong Kong law firm, Bose, Cohen Collins, that explores issues in the legal world and beyond. In this episode, we read from Director of Public Prosecutions and later Justice of Appeal, Ian McWalters, who looks back on his upbringing in Australia, adventurous days as a lawyer in Papua New Guinea, and four decades of stellar service in the Hong Kong legal profession. He speaks with our senior partner, Colin Cohen. Stay tuned.