tim's experiment

Before we get to the meat of this week’s diatribe, a word of apology. I understand that students of journalism in a number of local universities have been invited to consume my scribblings about journalistic commentary and the right to a fair trial. As a result I have made two columnists famous for alleged neglect of this important matter. This is not entirely fair to them because I have since discovered worse things going on in the China Daily. And I dare say readers of Chinese newspapers could also come up with interesting examples. None of them, I fancy, would be as terrifying as a recent burst of creativity by Mr Tony Kwok Man-wai, who is – rather worryingly – a former deputy commissioner of the ICAC.

Mr Kwok last week published an article on a pro-Beijing news website called Speakout Hong Kong in which he urged readers to “hunt down” the judge (strictly speaking a magistrate) who had allowed bail for Raymond Wong, when Mr Wong appeared before him on rioting charges. The object of the hunt was to “see whether there is evidence to prove [the judge] and his family’s relationship to pro-democracy parties”. This was, by the standards laid down by the Court of Appeal in the Oriental Daily’s scandalising the court case, a clear infringement of the law. Mr Kwok seems to have had some thoughts along these lines also, because this version of the article was soon replaced by a more diluted version, in which he called for the establishment of a “court watch” to record and publish the names of judges who gave “unreasonable” sentences. Mr Kwok explained that the early version was a draft which had been published by Speak Out HK in error.

I must admit to some difficulty in working out such an error might happen. If the early version was a draft, why send it to Speak Out HK at all? In the world of WordPress such a misunderstanding is avoided by having the word “publish” printed on the button which publishes your story. This button is a long way from the different button called “save draft”. I do not know what software Mr Kwok was using but some arrangement of this kind must surely be pretty universal. Never mind, digital latecomers like Mr Kwok, and me, must be allowed the occasional fat finger.

Mr Kwok then went on to explain that the tone of his earlier draft was influenced by the fact that he “really felt angry” that the judge had granted Mr Wong bail. He thought this was inappropriate as Mr Wong had been “hiding since the Mong Kok events” which led to the case. Woops. We do not know Mr Wong had been “hiding”. He had left home to stay with a friend. Staying in the address where you usually live is a right, not an obligation. People leave home for a variety of reasons: they may need a break from their voluntary work, they may wish to elude the media for a few days, they may feel in danger of a sudden irresistible urge to smuggle themselves over the border to help the mainland police with their inquiries for three months. We should not speculate. Mr Kwok’s words are clearly prejudicial.

His view of the matter is also based on a fallacy. The defendant who appears before a magistrate prior to his trial is entitled, as we all are, to be presumed innocent until he pleads or is found guilty. The request to remand the prisoner in custody accordingly is a request for an innocent man to be deprived of his freedom and should be refused unless clearly justified. Although “granting bail” sounds like a favour it should be the usual arrangement. The two circumstances justifying exceptions are where the defendant can plausibly be shown to be likely to flee, or to interfere with witnesses. A remand in custody is not supposed to be a punishment, or an expression of society’s disapproval of the alleged offence, or a vindication of the efforts of the forces of law and order. The magistrate in Mr Wong’s case was clearly entitled to the view which he took of the matter. As a retired senior security official Mr Kwok’s emotions are understandable. But surely someone with his background should know the rules?

He also really has a bee in his bonnet about this court watch thing. For in the latest SCMPost, there he is on the op-ed page, under the headline “Hong Kong should welcome trend of citizen-led court watchdogs”. This is a headline, so not Mr Kwok’s responsibility, but it summarises his effort quite well. Court watches are “very common” around the world, says Mr Kwok. Around the world, it turns out, means the US, with one example from Canada and one from Poland. The merits of court watches, he says, are that they enshrine the principles that “all judges, as public officials, [are] subject to public accountability”, and “it should also uphold freedom of expression”.

Mr Kwok points out, quite rightly, that we are all entitled to discuss the performance of judges. He then introduces the case of New York Times Co vs Sullivan, which is hardly relevant. “Although this US case law does not apply in Hong Kong,” says Mr Kwok, “it does set an international standard…” Which is nonsense. No other jurisdiction in the world is as expansive in its definition of freedom of expression as the US. But even the US does not now meet the standard of the Sullivan case, which was decided at the height if the civil rights movement and was so expansive that the Supreme Court has been making exceptions to it ever since.

This is not really the issue anyway. Nobody is suggesting that criticism of judges should be banned. Many observers will suspect, though, that the destination towards which Mr Kwok is inviting us to travel is a system of blue-ribbon vigilantes monitoring politically-tainted court cases and hurling public abuse at judges who do not share their politicised view of the matter. The overseas examples are rather different from this. Most of them are in the US, where the idea of judges being answerable to the public is widespread and indeed many judges are actually elected. This leads, perhaps, to rather high standards of judicial eccentricity and some monitoring may be justified. It must also be noted that most court watch organisations are interested in family law or domestic violence cases, and are motivated by the fact that this sort of case is often subject to a variety of reporting restrictions which commonly result in them not being reported at all. Unless some citizen volunteers take up the job, nobody is watching.

This is hardly the case in Hong Kong, where interesting court cases are still routinely reported. What is not routine in Hong Kong is the idea of public officials being subject to public accountability. On the contrary it is the routine experience in Hong Kong that public officials are not accountable to the public at all. Indeed in spite of the so-called “accountability system” it appears that they are not accountable to anyone, or at least not to anyone in Hong Kong. Mr Kwok seems to be perfectly happy with this arrangement. I wonder why he wants to make an exception of judges…