tim's experiment

Goodness, the power of the pen! Last week’s offering is already out of date. David Perry QC decided this week that he would not after all be coming to Hong Kong to lead the prosecution of nine pro-democracy figures for their part in a peaceful protest last year.

Actually the decision is of course nothing to do with me. Mr Perry gave two reasons for his decision: pressures in the UK and “the extension of quarantine”. Curiously, although the reaction from local pro-government figures to the comments in the UK were extensive, detailed and passionate – “ferocious attacks”, “despicable”, “very shocking” etc – nobody thought fit to explore the extension of quarantine.

So we still do not know who was plotting to arrange Mr Perry’s quarantine requirements or what they were up to. The fact is that it takes six weeks for us ordinary peasants to qualify to fly from the UK to Hong Kong these days and there is also a quarantine requirement going in the other direction. We cannot even say whether Mr Perry’s problem was that the rules were not being waived as much as he hoped, or whether he feared that having the rules waived at all would bring further complaints.

Still, it is interesting that half of Mr Perry’s reasons produced such detailed comments while the other half were left an unexplained mystery.

Some of the resulting complaints from the government’s legal supporters were entertaining. Mr Grenville Cross thought the cancellation very regrettable because having such a knowledgable figure prosecuting would ensure the defendants’ rights were protected. Far be it from me to dispute this prediction.

It is indeed a feature of the British legal system that lawyers are officers of the court, expected to put the interests of justice before the interests of their client, if the two conflict. This may be compared with the American system where prosecutors keep careful track of their “conviction rates”, at the cost of a tendency to try to win at all costs.

However it is difficult to believe that the Department of Justice decided to import Mr Berry from an excess of enthusiasm for the human rights of the defendants; I think they wanted him because they thought he would win.

Indeed Mr Cross’s interesting point does not appear in the Secretary for Justice’s comments on the situation, which appeared in the China Daily’s English version on Thursday. Unfortunately Ms Teresa Cheng’s version of the complaints has some serious deficiencies.

The case, she said, “has nothing to do with the National Security Law or any offences relating to it. The nine defendants were charged with two offences under the Public Order Ordinance (legislated before 1997) for organising and … taking part…etc.”

The bit in the brackets is the problem. The Public Order Ordinance was certainly originally passed long before 1997, in fact in 1967. On the other hand in 1991 the Hong Kong Bill of Rights Ordinance was passed and it then became apparent that the POO in its then current form was incompatible with the rights enunciated in the Bill of Rights. A revised version of the POO to meet this objection was passed in 1996.

The new version was condemned by the NPC Standing Committee as a violation of the recently drafted Basic Law, and after much dispute another revised version was passed by the Provisional Legislative Council and came into force on July 1 1997. So the suggestion that this ordinance is a colonial bequest is seriously misleading. One expects better from senior officials. Or at least one hopes for it.

Ms Cheng complains that a UK politician thought the prosecution was “ under the really questionable law that was produced at the behest of China,” and takes this to be an erroneous reference to the National Security Law. Perhaps it was, but it may be a correct reference to the Public Order Ordinance, which is both questionable and produced at the behest of China.

Ms Cheng stresses the “determination of the Department of Justice to fairly and objectively deal (what is it about lawyers and the split infinitive?) with each case based only on the evidence and applicable law without fear or favour,” which is nice.

Mandy Rice Davis achieved undying fame, at least for people in my generation, when asked to comment in the witness box at the Old Bailey on the fact that another witness had denied having an affair with her. She said “He would, wouldn’t he.” But I digress.

The part of Ms Cheng’s article which really annoyed me was the last paragraph, which goes like this: “As legal proceedings are on-going it is inappropriate for anyone to comment further on the case as it is a matter of ’sub judice’. Comments that create a public discussion which may lead to a trial by the public as opposed to an established judicial system are to be avoided.”

My first reaction to this was unprintable and frightened the dog. I have been complaining for something like 20 years about the fact that there is actually a law against media comments on on-going legal proceedings, but the Department of so-called Justice, which Ms Cheng heads, makes no effort to enforce it.

I have tried complaining in print. I have tried sending the department copies of egregious violations. I have tried asking them what the hell I am supposed to teach aspiring journalists: that the law says this but because it is unenforced nobody follows it?

In the end I gave up teaching media law. I also tried to give up complaining about it, but if Ms Cheng is going to raise the matter the question of her role in the problem arises.

In fairness this problem did not start with Ms Cheng’s regime. It has been going on much longer than that. Also it doesn’t only concern the “sub judice” situation. Other similarly neglected rules cover the reporting of cases involving juveniles, cases involving sex and cases involving divorce.

If you complain the Department of Justice says it only considers prosecutions if they are referred to it by the police. The police are neither qualified for nor interested in monitoring the media for infringements, a task which used to be done by the Legal Department, as it modestly called itself in colonial days. Many of the infringements actually come from the police themselves, as anonymous leaks or, sometimes, official announcements.

The result is that prejudicial comments and reporting are rife. If Ms Cheng reads the China Daily as well as writing it she will have seen, for example, some ripely prejudicial offerings on Jimmy Lai. Ta Kung Pao is worse. The Beijing press is not published here, but it is read here, at least by a few people. That used to be enough to attract at least a warning. I remember talking the then Legal Department out of prosecuting one lady who had sent a story clearly labelled “not for use in Hong Kong” to her employer in Oz, only for three copies of the offending item to crop up in the Mandarin Hotel newsagent shop.

Since the turn of the century there has been one newspaper prosecuted for contempt of court. Do you need three guesses? Of course you don’t; it was Apple Daily.

It seems to me that Ms Cheng either needs to muzzle the pro-government attack poodles, or resist the temptation to preach about the potential evils of public discussion. The remedy is in her hands, not ours. The rule of law is not supposed to mean the rule of selected laws.