tim's experiment

The news that 200 lawyers have been arrested could be considered a minor blip by China’s standards. After all over the years the Communist Party has killed people by the million. Many of the lawyers have been released, or at least released into “house arrest”. Some of them have simply disappeared; no doubt they will turn up eventually. Still this is a significant incident, because it draws attention to an aspect of “one country two systems” which our leaders constantly neglect. The attraction of the arrangement for China is that it preserves Hong Kong’s value as a place for economic and financial innovation. The attraction for those local super-patriots who for years were prepared to do anything for China except live in it, is that it unites us all with the motherland. But for the majority of the Hong Kong population the big attraction was and is that it allows us to satisfy the Mainland’s urge to expand its boundaries while sparing us the dubious pleasure of sharing in many aspects of life in the PRC.

This is the underlying problem with C.Y. Leung. The first two CE’s knew what was going on. They did not say it, which would have been tactless, but they did not lay on the prospect of greater integration with too much enthusiasm either, because they knew this would not be welcome. Mr Leung appears to be sincerely deluded on this point. One of the things which Hong Kong can do without is the experience of living under the Chinese legal system. The tactful way of saying this is that Hong Kong can continue to have the rule of law. The unspoken implication of this is that China does not. We are from time to time urged to respect the Chinese legal system – usually by some dim bulb like Elsie Leung. This is the local equivalent of that scene in 1984 when the hero is persuaded to agree that if Big Brother says 2+2=5 then 5 is the right answer. China does not have a legal system worthy of respect. Indeed it would probably be more accurate to say that it does not have a legal system at all. The structure which is called the legal system does not meet any of the requirements of its name. It neither reliably convicts the guilty, nor acquits the innocent. It fails alike to protect the weak or restrain the powerful. It does not even achieve the minimal requirement of ensuring that similar facts produce similar legal consequences. The latest wave of arrests, indeed, suggests that enthusiasm for legal methods has waned, at least as far as citizens charged with political crimes are concerned.  The lawyers’ offence is clearly to have supposed that their role in a trial was to explain and defend the conduct of the accused. This is not the way things are done in the PRC; the role of the defence lawyer in the Party’s view is to help and encourage the defendant in the drafting of his confession. The guiding spirit behind the legal system in China is not Confucius. It is Josef Stalin.

For this reason people in Hong Kong are very alert to any item of news suggesting that standards in Hong Kong are changing in an ominous direction, and this brings me to magistrate So Wai-tak. Mr So was presiding the other day over the trial of a protester convicted of punching a policeman.  Sentencing the miscreant to ten months in prison, Mr So reportedly said that he would not entertain some points made in mitigation by defending counsel, because to do so would “disrupt the police force’s morale”. This is an interesting innovation. I once listened to a great many sentencings. Sentencing is, judges maintain, an art not a science, and a variety of things are considered. There is the instinctive human feeling that the punishment should be proportionate to the gravity of the crime. There is the belief (wholly discredited by the evidence but warmly cherished by judges all the same) that harsh sentences discourage other people from like offences. There is the belief, also perhaps a bit optimistic, that the experience of punishment will turn its recipient into a better person. In some jurisdictions at least there is also some consideration of the feelings of the victims of the crime concerned. Experts in medicine and sociology are commonly consulted in an effort to dispose of a case in a way which is at once fair, humane and socially useful. There is a lot to think about. But I have never before heard it suggested that one of the purposes of sentencing was to increase happiness and good cheer in government departments.

Perhaps Mr So’s efforts were conducive to good police morale. But why should the police be the only recipients of judicial benevolence? Shall we see tax dodgers tarred, feathered and run out of town on a rail to cheer up the Inland Revenue Department? Will people who pose as bogus doctors be hung, drawn and quartered to boost morale in the Medical and Health Department? It also seems to me that Mr So is storing up some serious potential problems for his colleagues. Let us suppose, in a purely hypothetical way with no resemblance intended to real persons alive or dead, that seven policemen appear before a local magistrate, and are convicted of carrying a handcuffed protester away to a quite corner and beating the crap out of him. This is just a thought experiment; I realise that such an occurrence is highly unlikely. Will the magistrate then consider the morale of the police force in passing sentence? And if so, with what consequence? If our imaginary policemen do not get ten months in prison, there will surely be some among us who detect somewhere a violation of the old principle that justice should be done even if the heavens fall as a result. Mr So will find this phrase in the original Latin (fiat justitia ruat caelum) in any decent biography of the 18th century judge Lord Mansfield, and would do well to ponder on its implications before he is tempted to make a fool of himself again.