tim's experiment

This blog was not supposed to be a running commentary on the eccentricities of Hong Kong’s magistrates. But someone has to say it. Standards appear to have collapsed. I realize that cases with a political flavour put the impartiality of justice under a strain to which it may not be accustomed. But that is no excuse for abandoning basic standards.

So, here we have Eastern Court magistrate Lee Siu-ho, hearing a case of alleged unlawful assembly. The defendant, a sixth former now 18 years old, was apparently detected sitting on a central divider and throwing a plastic traffic cone into the road during an Occupy protest last October. Proceedings continued along the normal channels until defending counsel’s closing argument, which was that the prosecution had failed to prove a necessary ingredient in the offence. An assembly, lawful or otherwise, must comprise more than one person and the evidence only showed that defendant Law Cheuk-yan had acted alone.

A lay observer might suppose at this point that young Mr Law was ten minutes away from the standard interview on the courthouse steps, averring his undying faith in Hong Kong justice, and his gratitude to all concerned for a finding of not guilty. But this is not what happened. The learned magistrate then announced that he was going to change the charge to one of disorder in a public place. Mr Lee then convicted Mr Law of the new charge, and adjourned the case for reports before sentencing.

The law on this matter is quite clear, and indeed Mr Lee demonstrated his awareness of the point by citing the ordinance concerned, Section 27 of the Magistrates Ordinance. Section 27 says that a magistrate may amend defects and variances in complaints, information and summonses before him that are not material (my italics). In other words the magistrate is free to overlook misprints, errors in addresses or names, and similar trivia if they do not affect the substance of the matter before him. This does not provide carte blanche for the magistrate, having heard both sides of the matter, to delete the charge on which he would have had to aquit the defendant, and replace it with another more promising for the prosecution. Clearly if the defence has been that an essential element of the original charge was not proven, then it is highly material to replace the charge with one that does not have this requirement. After all the defence is entitled not only to make the defence it wishes, but also not to make others which in the circumstances are not necessary. If Mr Law and his counsel had known the charge would be disorder then they might have concentrated on other matters, considered other arguments, and sought other witnesses.

Authorities on these matters have different ideas about when in the proceedings the defendant should be told what is the charge he faces. But they generally concurr in the view that this point should come before the end of the presentation of his defence. Then there is the Hong Kong Bill of Rights Ordinance, which states that “everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal”. Mr Law may well feel that his treatment did not come up to this standard. Mr Law (an interesting name in the context) may feel that there is an ass involved here. And it is not him.