tim's experiment

Our Chief Executive. Mr John Lee, urged young people in a recent speech to “tell the world a good story about Hong Kong whenever possible.” Which is no doubt something much to be desired.

But Hong Kong’s problem with the world is not so much a shortage of good stories as a surplus of bad ones. I realise that it is hard for a Chief Executive, buffeted by events, “advised” by Mother and besieged by people who think their interests coincide entirely with those of the SAR, to do much about this.

But there are some things which are still under the government’s control and could reduce the flow of bad stories.

Let us start with a bad story which goes back 800 years. In 1215 the then King of England – another John by coincidence – was cornered by a bunch of rebellious barons and persuaded to sign a charter promising improvements in government.

Of course John repudiated it soon afterwards as having been extorted under duress, but it had his signature and seal on it so lawyers treated it as part of the law anyway. Most of the improvements concerned the rights and obligations of feudal vassals but a few fragments are still law.

One of them is the famous paragraph 39, which goes (translated from the Latin) “No free man shall be seized, imprisoned, dispossessed, outlawed, exiled or ruined in any way, nor in any way proceeded against, except by the lawful judgement of his peers and the law of the land.”

And from this arose the rule that a man or woman accused of a serious offence was entitled to a trial by jury. The other landmark – a case of unlawful assembly oddly enough – came in 1670. In what is known as Bushel’s case the jury acquitted the two defendants and the judge sent them to jail with orders to change their verdict. Mr Bushel, who was one of the jurors, appealed to a higher court and established that the jury has the exclusive right to return whatever verdict it thinks proper, regardless of the opinions of the judge.

There is rarely much discussion of jury decisions – it is actually illegal to interview a juror about what happened in the jury room – and while there are sometimes verdicts which appear a little inexplicable most lawyers regard juries as no more eccentric in their decision-making than judges, though in different ways.

It is known that juries are somewhat more likely to acquit defendants than judges sitting alone (the usual alternative in England) but this does not mean they are prone to error. Judges who hear a lot of criminal cases often develop a certain cynicism about the usual defences.

The right to a jury trial was duly exported to Hong Kong and was among those rights commonly supposed to be secured by the Basic Law. Under the National Security law it is no longer a right. If you are accused of a serious Nat Sec offence the government has the option of dispensing with the usual jury and replacing it with three judges of its own choosing.

In all the cases of this kind so far the jury has in fact been replaced in this way. This is the sort of story which “the world” tends to take rather badly. If a jury trial is good enough for your common or garden burglar, rapist, murderer or whatever, it is not a good look to rule it out for one category of defendant. And the picked judges bit looks a bit… shall we say Hungarian?

And this is not necessary. The Nat Sec law allows the jury to be replaced but it does not require it. The Secretary for Justice would no doubt be willing to heed a plea from his boss that this unlovely innovation should be sheathed for the time being. It may be that juries wil be reluctant to convict in cases with a political flavour and we shall have to think again. But a few surprising acquittals would look better than setting a new global standard for kangaroo courts.

We can also consider another of King John’s promises, which goes like this: “To no one will we sell, to no one will we deny or delay right or justice.” Now justice is not yet for sale, and you can argue about whether it is denied, but what cannot be disputed is that it is now delayed. Another avoidable “bad story” involves political figures – sometimes aged or ill or both – with no previous criminal record being remanded in custody for months, even years, awaiting trial.

This again is enabled, but not required, by the Nat Sec law. The presumption that defendants will have bail is reversed. There is however no requirement that the prosecution should on every possible occasion oppose the granting of bail, as it does. Nor is there a requirement that the prosecution should take its sweet time in preparing its case.

Prosecutors in the UK are strenuously discouraged from keeping defendants in custody for more than six months. In Egypt, hardly a human rights haven, a prosecution which has not begun after two years is summarily dismissed, which counts as an acquittal.

This is a matter of policy and priorities, not law. Keeping people on ice for years awaiting trial is another “bad story” which does not go down well in “the world”. Prosecutors in other countries manage to work at higher speeds. They should be emulated.

Then there is the matter of political pollution in police work. Typical “bad story” this week. A man was busking in the Tung Chung bus station. Police turned up. He was playing an erhu, which is not everyone’s cup of tea. There had apparently been a complaint.

In due course he was arrested and charged with playing an instrument “in a public street or road save under or in accordance with the conditions of a permit from the Commissioner of Police.” This is apparently an offence under the Summary Offences Ordinance and I have committed it more times than I can remember. Who would have thunk it?

Wandering around Hong Kong you see buskers all the time. I have never heard of any of them being prosecuted. The bagpipe is an outdoor instrument often practised in the street. Likewise no interest from law enforcement. Occasionally a practising group will produce a noise complaint and we are just politely asked to desist and move on, which we do.

So why, you wonder was 68-year-old retiree Li Jiexin introduced to the obscure corners of the Summary Offences Ordinance? Well magistrate Felix Tam (who acquitted Mr Li on the grounds that the prosecution had called no evidence of the absence of a permit, an essential ingredient of the offence) stressed that politics had nothing to do with justice and refused to allow any evidence of what tune Mr Li was playing.

Very good. Still it seems that the thing which distinguished Mr Li from other ordinary buskers unworthy of the attention of the police force is that he was playing the tune of Glory to Hong Kong, a popular protest song.

The weaponisation of obscure laws to suppress expression the government disapproves of is another “bad story” which allows critics to depict Hong Kong as a place where the law is a tool of tyranny, not a protection for the public. Once again this is an option, not a requirement. Tell your boys to behave themselves.

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This is the sort of thing which puts you off teaching media law in Hong Kong. In March last year when the 47 National Security group defendants first appeared in a magistrate’s court, there was some discussion in court as to whether reporting was allowed.

Reporting of committal proceedings – basically all the hearings before the start of the actual trial – is restricted to bare details of names, charges and decisions on bail. But the restrictions can be lifted under some circumstances.

Magistrate Victor So, one of our – or rather their – national security specialists, supposed he had complete discretion in the matter and announced that the usual restrictions on reporting would remain.

This was an error, and I wrote a piece to this effect a few days later. This is not an obscure or controversial matter. The law is of considerable antiquity and it is quite clear. If the defendant – or if there is more than one defendant any one of them – wishes to have the reporting restrictions lifted then they must be lifted. But of course national security judges should not be swayed by the scribblings of a non-lawyer like me, and nor were they.

All subsequent applications for reporting restrictions to be lifted were refused, most recently by another national security star, Principal Magistrate Peter Law. This is a small personal embarrassment, because I taught this stuff for years, and always included the bit about restrictions being lifted if the accused person wished it.

However one recent victim of the new policy, barrister Tonyee Chow Hang-tung, took the matter to the High Court by seeking judicial review of the decision. It appears that Ms Chow, unlike many of our learned magistrates, can read the Magistrates Ordinance and has done so.

The application was a complete success. Judge Alex Lee ruled that the magistrate had exceeded his authority by refusing to lift the restrictions. “The magistrate has no discretion but to lift the reporting restrictions at the instance of the accused,” said the judge, adding that the magistrate’s approach to the matter was “totally in opposition to the principles of open justice.”

Disgracefully, the magistrate’s arbitrary action was defended by counsel for the Secretary for Justice, who contended that “lifting the restrictions would frustrate the ultimate aim of doing justice.”

It seems that both Mr Law and the Department of Justice were under the impression, shared by The Standard’s reporter, that the restrictions on reporting are intended for the protection of prosecution witnesses. This is not the case.

The purpose of the restrictions is to protect the defendant. In the old days the prosecution evidence was given in great detail during committal proceedings, while for tactical reasons the defence said little. The unintended but inevitable result of this arrangement was that reports of the proceedings were heavily biassed against the defence.

So the idea of the restriction is to prevent the defendant from being disadvantaged at his trial. You can actually report all the committal proceedings after the trial has taken place, which is occasionally useful if the defendant pleads guilty and the prosecution evidence is not needed at the full trial.

Clearly this arrangement conflicts with the principle that justice should be public. So the defendant is given the choice. He or she may – if convinced that this will help, or not harm, the defence – ask for the committal hearing to be reportable as other hearings are. There are a variety of reasons why the defence might think publicity helpful, though discouraging prosecution witnesses is not usually given as one of them.

But the court has no discretion in the matter, however dubious the defendant’s decision may be. In one notorious English case a defendant was paid by an eager newspaper to get the restrictions lifted. And they were.

Actually in Hong Kong these days the restrictions on reporting of committal proceedings have become pointless. The prosecution submits its case on paper and witnesses are not heard.

Moreover the defendant has often already been prejudiced because soon after his arrest the police generally outline what is effect going to be the prosecution case in a press briefing. This used to be harmless, at least in theory, because names or other identifying details of those arrested were not included. Times have changed.

So all this is not going to make a great deal of difference. It does mean we shall be able to read reports of the prosecution’s limp excuses for not being ready for trial months or years after the date of the alleged offence.

I gather from a recent speech by the new Secretary for Justice that his department now recognises that this is a problem. This enlightenment also has been much delayed.

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