tim's experiment

Long delays in bringing criminal cases to court have been an unlovely feature of the Hong Kong legal system for a long time. Critics, including me, have tended to assume that this was mainly a problem affecting defendants with whom the government had a political beef.

Keeping defendants waiting for trial was particularly objectionable – and, if deliberate, effective – in national security cases, because the wait for a day in court was commonly spent in custody, not on bail.

Two recent cases suggest that the problem is more widespread, and also more harmful in its effects, than this simple narrative suggested.

Some background: pre-extradition bill case involving umbrella movement defendants, with an outline of international standards. Some figures. Recent horror story. The government’s defence and some comments on it: Connoisseurs of legal bullshit will particularly enjoy Mr Greville Cross’s reliance on a doctrine which never applied to criminal cases and was formally abolished by the English parliament in 1769.

Now to recent events: consider the case of Dr Franklin Li, a plastic surgeon who unwisely continued to practice after reaching an age at which the attractions of the golf course and the retirement home should have been irresistible.

In 2018 Dr Li, in a moment of negligence while performing a face lift, killed an investment banker. The doctor was then 86 years old. The legal wheels started turning, and they were still turning in 2022, four years later, when Dr Li, then 90, hit his head in a fall.

Late last year, now 92 years old, Dr Li finally appeared in the High Court charged with manslaughter, and was found to be so afflicted by dementia that he could not receive a fair trial. The case was accordingly dismissed. Justice was not served. The banker remains dead.

A curious little footnote: last week the Department of Justice (sic) was in action in the Kowloon City Magistrates Court, where Dr Li was supposed to face two counts of misleading a police officer and 12 of failing to keep accurate drugs records. The prosecution was allowed to drop the charges on the basis of the High Court’s decision that the doctor was unfit to plead.

And the lesson of this sorry story is that the passage of time changes things, and if six years elapse between alleged crime and prosecution then things can change a lot. The usual concern in complaints of this kind is that this may harm the defence; memories fade, witnesses disappear, evidence erodes… But the change may be bad news for the prosecution too.

Manslaughter is a serious matter with no political hooks. Presumably the investigation started promptly with the discovery of the dead victim. Why so long?

Business as usual, perhaps. Let us now turn to the case of Jeffrey Tam, also in court recently. Mr Tam was working as a police officer in 2019, when he had a hernia problem. This was successfully treated, but required some post-operative restraint in physical activity.

However Mr Tam told his doctor that he was a physical fitness trainer and could not avoid strenuous activity as part of his job. The doctor then provided a sick leave certificate covering 54 days, which Mr Tam duly took off work, with pay.

Magistrate Amy Chan took the view that Mr Tam was trying to avoid further participation in the tear gas festival which was in progress at the time, and sentenced him to six months in jail, where he will no doubt be warmly received, poor chap.

It seems the case against Mr Tam was boosted by a Watsapp conversation with his supervisor, in which Mr Tam admitted lying about his job to avoid the street fights. It is not clear from news reports when this conversation took place, but it is difficult to believe that the matter came up recently.

Anyway, Mr Tam is rather coyly described in news reports as a “suspended police officer”. I take this to mean that he was, as the Police General Orders put it “interdicted from duty”, while remaining on the payroll. This is a common arrangement in Common Law jurisdictions, and a cause of ongoing arguments.

The practice of suspending accused policemen while still paying them is defended as enshrining the principle that a person accused of an offence is innocent until proven guilty. Taxpayers groan that the system bestows a large amount of money on an officer who is not working for them and may indeed in some places actually take another job while awaiting trial.

What cannot be disputed is that a long wait for a case to come to trial does nothing for the rights of the accused policeman but costs the public funds a great deal of wasted spending, if the police person is eventually convicted.

Mr Tam was accused and convicted of fraud for collecting 54 days worth of pay. It would be interesting to know how much pay he collected perfectly legally for doing nothing while waiting for the prosecution to get its act together.

Mr Tam, I record in the interests of fairness, still maintains his innocence and plans to appeal. It may also be that sick leave claims in our beloved police force are often spurred by a desire for paid leisure. One of my police friends was for a while in charge of handling sick leave claims. The force is beset by continuing epidemics of two ailments difficult to diagnose: depression and lower back pain.