tim's experiment

Our police commissioner has no sense of irony. Remember the long-running struggle, during the 2019 disturbances, to persuade the police to obey the law which requires them to display an identifying number when on duty in uniform?

As far as I remember this ended in a non-legal, if not illegal, compromise in which the police argued that while their riot gear did not display the unique number issued to each police person, the helmet worn with it did have another number with which the identity of the wearer might be pursued, at least by connoisseurs.

Numbers are, however, now compulsory – not for police, but for demonstrators.

This emerged on Monday, following a weekend micro-march by residents of part of Tseung Kwan O. This was hailed in the media as the first “political” march since Covid, but it wasn’t very political.

The marchers were voicing their opposition to a government plan to put a reclamation in front of their homes, decorated with a cement plant and other items of the kind which we all know are necessary and we all hope will not be put in our front gardens.

The required letter of no objection was issued by the Commissioner of Police. It came with a long list of conditions. Numbers were capped at 100, which we may suppose was in the region of the organiser’s predictions, as 80 people in fact turned up. Reports differed on whether they were actually outnumbered by the police people present, so I suppose it was at least close.

There was no room for the usual disputes over how many people marched, because they were all required to wear a numbered tag. Marshals were also required to march carrying a big circle of what netizens tend to call “crime scene tape”. This circle designated a “protest zone” which moved along as the march progressed.

After the march started nobody was allowed into the zone – tough if you were late – which also excluded reporters. If the tape drooped marchers were instructed to pick it up.

All posters, banners and website material were vetted in advance by police. Marchers were forbidden to wear black clothes, or yellow raincoats. Shouted slogans should not include matter violating the law or endangering national security. Face masks could be worn only by marchers who could produce a medical certificate.

The number plates seem to have been regarded as particularly controversial. HKFP quoted a retired civil servant as saying that “I am here to join a march, not a shame parade.” Another protester described the restrictions as “ridiculous”.

The organiser said the arrangements were “strict”, but “better than being banned from expressing our views.” He did not say whether he had, like other recent organisers, been warned that if any condition was breached the letter of no objection would be summarily and instantaneously cancelled, and the whole event would become an unlawful assembly.

Also currently customary is a warning to organisers that they may be criminally liable if anyone breaks the law during their event. This is legally implausible.

So to Tuesday, when Chief Executive John Lee was asked if the number plate requirement for demonstrations was now a permanent feature. Demonstrations, he said, must be conducted “orderly, peacefully and in accordance with the law”. (Note from our grammar pedantry department: “orderly” is not an adverb).

The Commissioner of Police, he continued, had a duty to ensure that such events were held in an “orderly, safe and lawful manner”. (Grammar pedant: Yes!).

This is no doubt true. But it does not exhaust the police chief’s obligations in this area. Also on Tuesday Mary Ma – the pseudonym passed round the Standard’s office to whoever is writing the editorial of the day – pointed out that the obligations of the police chief in matters of this kind had been extensively explored by the Court of Final Appeal in a 2005 case: Leung Kwok-hung and others v HKSAR.

The CFA said that the right to demonstrate was a fundamental right, and one of those which lay at the foundations of a democratic society. Like freedom of expression it could be curtailed for a number of important purposes, which included public order.

However any restrictions imposed should, the court said, be “necessary in a democratic society” and “proportionate” to the danger being averted.

Ms Ma carefully avoided expressing an opinion on whether the restrictions imposed on Sunday’s event were proportionate. Marathon runners did not mind wearing numbers, she pointed out whimsically, but prison inmates no doubt did. She forbore from mentioning that police people also seem to be rather reluctant.

Mr Lee sounds as if he is working on the basis that the 2019 disorders were the result of lawbreakers turning up at peaceful demonstrations and turning them into something else, which is not the way everyone remembers that bit of history. But surely this tiny minority of troublemakers has been much depleted by jailings and emigration?

I suppose the police could argue that the CFA’s views on the matter are now out of date, since Hong Kong no longer aspires to be a “democratic society”. We have elections designed by people who don’t like elections, why not also have demonstrations regulated by people who don’t like demonstrations? That, in fact, seems to be what we’ve got.

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Chui Chun-man, who was sentenced to ten months in prison last Monday for sedition, must be among the least likely convicts to attract sympathy.

Mr Chui, who was a policeman himself at the time, greeted the death of a marine police colleague with some thoroughly ill-chosen words, including the suggestion that the victim “deserved to die” and that “it’s not enough to see only one dog official dead.” There may have been other equally objectionable stuff; news stories were understandably sparing with quotes.

Mr Chui, who did not help himself by explaining to the magistrate that he was “grumpy” at the time and did not really believe what he wrote, will I fear have an interesting time in prison, avoiding people who disapprove of his former job (he has resigned from the police force) and other people who disapprove of his offence.

However, it is an old axiom that official abuse of the law always starts with the least sympathetic victims, and spreads to the rest of us later. Accordingly though we may feel Mr Chui is now where he belongs, we may still feel some misgivings about how he got there.

The law on sedition forbids attempts to “bring into hatred or contempt or to excite disaffection against” the Hong Kong government. Disaffection is a rather technical word which does not mean the opposite of affection. As we can see from the separate section of the Crimes Ordinance on “incitement to disaffection” it means attempting to persuade someone who owes a duty of obedience to the government – soldiers, policemen and such – to repudiate their allegiance.

We lay people are left with hatred and contempt. Further down the ordinance we also have to avoid encouraging social change by illegal means, encouraging violence or law-breaking generally. The administration of justice has had special protection since 1970.

Mr Chui’s remarks, deplorable though they may be, look difficult to fit into this framework. The learned magistrate thought there was a danger of them inspiring violence against police people, which is a bit of a stretch. The law is supposed to protect the reputation of the government in general, not parts of it. The Police Force, wonderful though it may be, is not the government. Or is it?

As a practical matter, anyway, it seems that potential enemies of the force are unlikely to be much influenced by a serving member thereof. And somebody who was trying to start a violent insurrection would hardly raise his first flag on the Police Facebook page, which is where Mr Chui put his literary efforts.

It does appear, though that sedition cases – for decades unheard of – are suddenly being produced in large quantities. This sits uncomfortably with another part of the relevant law, which goes like this:

Legal proceeding (1) No prosecution for an offence under section 10 shall be begun except within 6 months after the offence is committed (2) No prosecution for an offence under section 10 shall be instituted without the written consent of the Secretary for Justice. 

Very little discussion has been reported of what these items were intended for – they are rarely found in other ordinances – or what they tell us about the intentions of this part of the law.

The time limit has on the whole been observed. In one case the prosecution introduced evidence of offences before the six month limit, and claimed when this was queried that the items concerned were not part of the charge; they were merely introduced as evidence of the defendant’s state of mind. Once a rebel, always a rebel, apparently.

The bit about the Secretary for Justice came up in one case, and was roundly dismissed by the presiding judge as “meaningless” because all prosecutions are brought by the secretary or people acting on his direction and behalf.

This particular judge is not one of the brightest candles in our local judicial chandelier and this observation was well down to his usual standards.

The drafters of this piece of legislation were well aware of the role of the Secretary for Justice (or the Attorney General, as he then was) in running his department, deciding its prosecution policies and lending his title to some case names, which appear in the calendar with him as the prosecuting party. So why would they stipulate that he must approve prosecutions personally?

This condition is rare, but not unique. It is inserted when prosecutions will need to be evaluated on a broader basis than the traditional test, which is whether there is a reasonable chance of success.

The Secretary for Justice is not a purely legal figure. He also has one foot on the political side of the fence. He participates in policy deliberations and has regular contact with senior political figures. He is called upon to authorise prosecutions when non-legal considerations are legitimately entertained.

So in sedition cases the secretary can ask himself whether the proposed defendant, if convicted, will be widely regarded as a miscreant or a martyr. Will the practical consequences of a conviction be worth the reputational risks if the government appears to be using the law to suppress criticism of itself? Does the risk to public order justify trampling on a cherished freedom? Does prosecuting people for possession of a book bring back some unhappy memories?

The intention of the “legal proceedings” section, it seems to me, is to ensure that although the law is expansively drafted prosecutions will be rare and only undertaken in cases where there is a serious danger of immediate trouble.

This would bring it more or less into line with international standards. Most common law countries have either abolished sedition altogether or restrict it to advocacy of violence. Observers in those countries are unlikely to be impressed by the number of cases now cropping up in Hong Kong, or the rather imaginative connection with violence involved in some of them.

It is no good our government complaining that overseas writers or officials are “scandalising” our judicial system if its conduct is by their standards scandalous.

And while we are on the subject of Hong Kong reactions to overseas criticism could the writer concerned please note that there is no point in claiming that the SAR has no “secret police”. This may be true but it is also true that governments which do have secret police always deny their existence. If this was admitted then the force would no longer be secret.

A government denying it has secret police is like a millionaire denying he has a mistress. We realise that this may be true, but in the absence of further evidence…

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Article 27 of the Basic Law of the Hong Kong SAR states that: “Hong Kong residents shall have freedom of speech, of the press and of publication; freedom of association, of assembly, of procession and of demonstration; and the right and freedom to form and join trade unions, and to strike.”

Some of these freedoms have been looking a bit battered of late. They are of course all subject to some restrictions in various circumstances, and the right to process and demonstrate has for some years effectively been suspended in the interests of combating COVID.

Some suspicious observers will have detected symptoms of a limited affection for this particular freedom in the fact that the government’s endless tinkering with its COVID precautions had one resounding exception: the limit of four people on outdoor gatherings.

This looked a bit suspicious when the limits on indoor gatherings reached three digits. But no doubt it helped to keep us all healthy.

However this excuse – I beg your pardon requirement – is no longer relevant. So the question which now arises is whether the “freedom of assembly, of procession and of demonstration” will now come back to life or whether during the pause for the plague years it was quietly euthanised.

So far the diagnosis does not look good. The pioneering effort earlier this month was a march to be organised by the Hong Kong Women Workers Association, on the Sunday before International Women’s Day, which inconveniently fell on a Wednesday.

The rights of women workers are not a hot-button political issue in Hong Kong. Perhaps they should be. Nothing overtly subversive or rebellious was in the offing.

As various non-political events – New Year celebrations, fundraising walks and such like – had been approved without problems the women workers had reason to hope that their march would get the green light, and so it did. On the Thursday before, after what the police described as an “assessment” the required letter of no objection was duly issued.

Then on Saturday, the eve of the planned march, the women workers called it off. The announcement was made on their Facebook page and offered no explanation.

We were however treated to a police press conference, the main purpose of which appeared to be to warn anyone who might still have itchy feet that as the march had now been officially cancelled they would be participating in an illegal gathering.

The police orator, acting Senior Superintendent Cheng Wai-kin, offered the explanation that the “association had decided to cancel the event after considering the interests of all parties,” which does not help us very much. He also said that they had heard that “many people” were planning to attend the event, including some “violent groups.”

Alas we were not told who the violent groups were. One supposes that local triads would not be interested in demonstrating for women’s rights. I presume also that Mr Cheng was not referring to the chemical warfare department of his own Force.

It appears also that he was not referring to the League of Social Democrats, of which four members including the current chairman had been told on Friday – when the march was still legal – that they would be arrested immediately if they turned up.

Some hint as to what put the organisers off can be gleaned from the letter permitting the march, which according to HKFP included:

According to the conditions set out by the police, the association would have to ensure that the demonstration would be in compliance with laws including the Beijing-imposed national security law. The organiser also had to ensure that the protest and rally “would not be contrary to the interests of national security,” according to the police document.

This was a theme also taken up by our Chief Executive John Lee in an interview quoted by Radio Free Asia:

Hong Kong Chief Executive and former police chief John Lee said the organizers of public events have a legal responsibility to ensure it doesn’t break the law. “Anyone who is not confident, is incompetent, or is worried about whether they can do this should not organize public activities, because they have to bear the legal responsibility,” he warned.

What are we to make of all this?

Firstly, it seems to me a flagrant abuse of police power to threaten specific individuals with instant arrest if they seek to exercise a freedom which the law confers upon us all. Members of political parties which the government or the police dislike have the same rights as the rest of us as long as they conform to the relevant law.

Secondly I do not believe that China’s national security is so fragile that it needs to come up whenever a political gathering is in the offing. All fish can swim, but not all animals that swim are fishes. Similarly we may hope that all acts which endanger national security are illegal under the national security law; it does not follow that all acts which can be regarded as illegal under that law do actually threaten China’s national security.

What are we afraid of here? Will people wave five fingers, chant “Hong Kong add oil”, hum the tune of Glory to Hong Kong? Would the state’s foundations crumble of somebody raised a yellow umbrella?

Thirdly it seems to me that, with all due respect to the Chief Executive’s extensive experience in extending the law to areas it did not previously reach, it is quite wrong in law to imply that the organisers of a march or protest are responsible for everything which happens while it is in progress.

The job of the organisers is to comply with all reasonably imposed conditions and encourage fellow marchers to do the same. The march should start where it is supposed to start, follow the approved route and finish at the previously agreed time and place, so far as that is within the organisers’ power. If large numbers of people are expected the organisers may be required to arrange marshals to ensure that participants know where they are supposed to go.

But at an event where anyone is free to turn up, it is neither a practical possibility nor a legal requirement that the organisers should control the activities and expressions of other participants. Keeping order on the streets during a protest is the job of … wait for it … the police! Just as it is the rest of the time.

Making organisers responsible for everything anyone does will simply make marches and processions impossible. Quite apart from the activities of over-zealous supporters, organisers will be vulnerable to deliberate attempts by opponents to sabotage the proceedings.

It would be deplorable if citizens were deterred from exercising their rights by legally imaginative bullying from the parts of the government which should be protecting our freedoms. We shall see.

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“Constant vigilance is the price of freedom”, we are told, though apparently this remark did not originate with the American founding father, hero, slave owner and rapist Thomas Jefferson. Still, this orphan quotation is highly spoken of, so in that spirit I would like to note that the Hong Kong Court of Appeal has just come up with a really bad idea.

The matter before their Lordships concerned two cases in which the presiding judge had ruled that the defence had no case to answer and aquitted the defendant off his or her own bat, as it were.

The appeal judges were asked by the Department of Justice to assess the correctness of these moves. This was not in the strict sense of the word an appeal because the verdicts were final. The successful defendants had in fact left the territory, which the judges seemed to feel was rather inconsiderate of them. But the accused were all from distant countries (both cases concerned drug smuggling) and one imagines that two years in remand custody in Hong Kong would cause in most people an acute case of homesickness.

Their lordships’ judgement is neither easy reading nor brief. Readers who survive the experience will have had a lengthy tour of the law on “no case to answer” in several jurisdictions and some decided local cases. Their conclusions may be summarised as: the two judges were wrong and the law is reasonably clear, but some recent statements of it were, no doubt unintentionally, ambiguous and confusing. Error was understandable.

The way this works is that in criminal cases the proceedings start with the presentation of the case for the prosecution. When the prosecution has done its stuff the lawyer for the defence may ask the judge or magistrate to rule that there is “no case to answer”. In other words the prosecution’s case is so weak that the defendant should be acquitted without further ado.

Judges who have brushed up on the latest from the Court of Appeal will only do this in two sets of circumstances. One is if the prosecution’s case incorporates a fatal error in law – if for example they have charged you under a statute which was not in force at the time of the offence. The other is if they have produced no evidence at all for some indispensable fact related to the case, that the white powder in your suitcase was actually a controlled drug, say.

Likewise, and even less often, the judge may decide after hearing the defence that the prosecution’s case has been so comprehensively demolished that there is no need to trouble the jury with it. If, for example, the alleged murder victim appears alive and kicking in the witness box, the presiding judge will conclude that this case is never going to fly and hoof it off the runway himself.

So far we have merely a restatement of what most people thought the law was anyway, more or less. Those of us who like to think of judges as human may wonder if the two judges concerned would have been less prone to error if they were not feeling some subconscious resistance to the local policy of sentencing the small potatoes of the international drugs trade to decades in prison, despite such sentences being both inhumane and demonstrably ineffective.

However the Court of Appeal did not stop at correcting error. It added the suggestion that if a defendant was acquitted under these circumstances the prosecution should be allowed to appeal against the ruling, as it can in England and Wales.

This is a reference to the Criminal Justice Act of 2003, which is a monument to the proposition that no principle can be too basic or ancient to be violated by a Labour government keen to present itself as “tough on crime”.

The principle concerned is that you cannot be tried for the same offence twice. An acquittal is final. This is so old that it is known by a squirt of Latin, not because mediaeval lawyers liked to display their linguistic skills but because it was actually a part of Roman law: “non bis in idem”. The equally incomprehensible mediaeval contribution is a “plea of autrefois acquit”.

Anyway you get the message. Once the case against you has been dismissed you can confess to the reporter on the courtroom steps with complete impunity. Well almost. Someone who did this recently was charged with perjury because of the evidence he had given in his own defence, but the original case was a dead parrot.

In the early 2000s the Blair government felt itself under pressure over two murder cases which had ended in acquittals. Both hit hot buttons with the tabloid-reading public, concerning respectively race and pedophilia. So 2000 years of legal history was binned and it was decided that in a range of the more serious cases the prosecution could appeal against an acquittal (whether by judge or jury) subject to the requirement that the Director of Public Prosecutions certifies that the appeal is in the public interest, and that there is “substantial and compelling new evidence”.

This was controversial at the time and has remained so, though actual cases have been extremely rare. While attention was concentrating on this innovation, though, the draftsmen also included a new procedure for cases in which some rulings were handed down which the prosecution might not welcome. The prosecution could, subject to stringent conditions as to speed, appeal the ruling – decisions that there was no case to answer were specifically included – to the next layer of courts up.

As far as I can discover very little use has been made of this. The Guidelines for Prosecutors in England and Wales (which are on the internet, like everything else) are explicitly discouraging. Prosecutors, after all, have many advantages already. If the case was so feeble as to attract a “no case to answer” ruling it is likely to end badly for the prosecution anyway.

And the question which then arises is whether this would be a good idea in Hong Kong, and my suspicion is that it would not. Hong Kong is a much smaller jurisdiction. Cases of interest would be rare. Is it worth abandoning the principle that an acquittal is an acquittal because of the fear that one or two miscreants may be freed in error?

The object of court trials is not just to punish the guilty; it is also to protect the innocent. Adding new facilities for the prosecution can appear as an attempt to nudge the scales of justice in a particular direction. In a jurisdiction where faith in the administration of justice is, to put it mildly, fragile, this is not a good look.

It must be said also that prosecution policies in the UK may feature a level of restraint that we do not find here these days. Many lawyers prosecuting cases in English courts also work as defence lawyers in other cases. They are attuned to the idea that the prosecutor is an officer of the court whose first loyalty is not to prosecutorial statistics but to enabling the achievement of justice.

The Department of Justice’s “leave no stone unthrown” approach to prosecution does not inspire confidence in any innovation sold on the basis that it will rarely be used in practice.

Local judges who would like to import some items from the UK should look elsewhere. Can we not, for example, have limits on the time people can be remanded in custody pending trial? There, they raised the “Custody Time Limit” from six to eight months temporarily during COVID. Here, a two-year wait for trial passes without comment.

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