tim's experiment

What happened to all those people whose objection to Occupy Central was not that they disputed its objectives but that it was illegal? This was a recurring theme in anti-Occupy diatribes. It became a compulsory adjective in government comments on the protest. It also featured prominently in the attacks on HKU Law profs who had supported — or not opposed — it. A visiting Martian might have supposed that many Hong Kong people decided their attitudes to protests on the basis of whether the protest was legal or not.

Or at least he might have thought this until last week, when protesting hospital doctors occupied part of a public hospital as part of a campaign for better pay. Suddenly there was a complete shut-down of those mysterious legal antenna which allowed so many commentators to detect that occupying Central in the pursuit of democracy was illegal. People who discerned illegal protests as a dangerous attack on the Rule of Law stopped reading newspapers. Certainly they stopped writing to them. The leader writing department at the People’s Post, which has to write every day, managed to support the doctors without giving a moment’s thought to their relationship to the Rule of Law.

Let me make it clear that I am not against the doctors. I was not against Occupy Central either. The right to protest is important, and it is not compatible with a pedantic application of colonial laws restricting public assemblies, or for that matter with a pedantic application of the Common Law rights of owners of places to which the public is admitted. The Hospital Authority operates on the same lamentable lines as the proprietors of many local media organisations. You take on freshly qualified youngsters who want to get in the business and serve the public. You subject them to long hours and low pay until they reach the age at which a person wishes to have a job compatible in its demands for time and money with raising a family. They then leave and you replace them with a fresh batch. Happily doctors are easier to organise than journalists and they seem to be making some progress. Good luck to them.

Meanwhile, though, we must note a certain lack of frankness in those commentators whose objection to Occupy was, they said, that it was illegal. It is in my experience almost invariably the case, actually, that people who condemn the method of a protest really disagree with its objectives. This is not just because of that instinct for coherence which leads us to assume that handsome people will also be bright, or that scruffy people will be bad at precision engineering. It is more than that. It is a way of avoiding an argument you think you will lose. Occupy was a protest against an electoral arrangement. The electoral arrangement was indefensible. But the protest was illegal, so it could be condemned anyway. The doctors’ protest was also illegal. But we agree with them, so it does not matter.

It would be a good idea for people to develop a bit more self-awareness on this point. Legality is not an all-purpose external standard which can be applied effortlessly. Treating like cases alike when political passions are running high takes an effort. More effort than it is getting now, by the look of it. So we see a lady jailed (jailed!) for assaulting a policeman with her bosom, while a Superintendent who starred in a movie of him lashing out at protesters with a club is apparently not going to be prosecuted at all. And the law and order fan club takes a holiday while hospital doctors do what students are routinely condemned for.

Last week I finished reading “Torture Team”, by Philippe Sands. The book has been out for a few years – indeed it had been hanging around my bookshelf for a few years – and it starts slowly. But after a while it pulls you in and you have trouble putting it down. There are two interlocking stories: one is of how the Bush administration managed to convince itself that the War on Terror was not, legally, a war, so people captured as part of said war were not covered by the Geneva Convention, the international agreements outlawing torture, the US Constitution, or the US Army’s code for the treatment and questioning of prisoners. Interwoven with this is the author’s personal journey. He is, despite the curious spelling of Philippe, a senior English lawyer who became interested in the topic because he was defending a British soldier accused of mistreating prisoners in Iraq. One of the points made as part of the defence was that the British Army was pressed by the Americans to use more drastic methods of interrogation, which the Americans were already using themselves. Mr Sands then traced this back through Abu Graibh, to Guantanamo, and eventually to the White House, where large numbers of the administration’s legal advisers had happily signed up to the idea that “enhanced interrogation” was not torture and in any case the victims were not entitled to the sundry legal protections from torture available to US citizens.  So there is a sort of detective story, and some interesting interactions between the inhabitants of two legal systems which, despite their common roots, have very different cultures. Not everyone’s cup of tea, but an interesting book if you find the law interesting.

The underlying theme of Mr Sands’ inquiry is about the obligations of lawyers generally. It seems that lawyers, especially lawyers appointed to posts in the gift of politicians, sometimes lose their bearings, and produce interpretations of the law which are eccentric if not perverse. The lawyers who justified the Nazi treatment of the Jews were eventually, in some cases at least, tried in a sort of special supplement to the Nuremberg war crimes trials. Mr Bush’s lot were roundly rebuked by the Supreme Court, though nobody has actually faced a trial. No doubt similar mishaps have happened less conspicuously elsewhere.

Which brings me to the day after I finished the book, when we were all presented with the spectacle of the Secretary for Justice, Rimsky Yuen, announcing that the first court appearances of the Magnificent Seven policemen alleged to have beaten up Ken Tsang, and the same Mr Tsang alleged to have committed common assault and resisted arrest, were on the same day. And this had been deliberately arranged by the Department of Justice in the interests of “procedural fairness”.

I do not suggest that Mr Yuen is in any way morally comparable with German lawyers in the 40s or White House lawyers in the aftermath of 9/11. But something similar in the way of self-deception seems to be going on here. Because procedural fairness has nothing to do with it. Fairness does not, and has never, required that offences committed on the same day should be tried on the same day. In any case the first appearance is merely a preliminary ritual. There are discussions about bail and trial dates. The actual trials will be in different courts and as Mr Tsang will presumably have to appear at both in different capacities they will need to be on different days.

What procedural fairness does require is that cases should proceed as fast as decently possible. Justice delayed is justice denied. The anxiety, stress and expense of facing an upcoming trial are not supposed to be part of the punishment. If Mr Tsang’s first court appearance was delayed in order to have it coincide with that of his seven alleged assailants then that was not an example of procedural fairness. Quite the reverse. As the case of the Seven has apparently been turned into a legal spectacular – DNA tests, opinions from legal star in London, 30 prosecution witnesses – while Mr Tsang’s appears rather minor and simple, we can I fear infer that the latter was deliberately delayed so that it would collide with the former. The convenience of this from a PR point of view is no doubt a coincidence.

Actually there is a most objectionable confusion being fostered here, because the underlying implication of linking the two cases together is that the alleged offence of Mr Tsang in some way provoked, justified, or at least can be regarded as mitigation of, the alleged offence of the Seven. And this is not the case.

The role of the police force is to arrest people suspected of crimes and bring them before the courts. Punishment by policemen is never on the menu. Tying a prisoner up and beating him cannot be justified by what happened first. Whether the victim sprayed the crowd with water, or indeed with machine gun fire, makes no difference. Whether the policemen saw him commit a violent crime or merely recognised him at the scene as someone wanted for tax evasion makes no difference. Whether his crime is awful or trivial makes no difference. In this sense when considering the guilt or innocence of the Seven it does not matter what Mr Tsang may or may not have done, and the suggestion that the two questions are linked in some way obscures an important principle. The rule of law applies to all of us. Including policemen. And the law says that punishment, however vile the offence, must be preceded by a trial.

The row over autonomy at HKU took a surprising turn last week, when the People’s Post published a long piece by one Tony Carty, who was described in the usual endnote as the Chair in Public Law at the University of Hong Kong. As it seems unlikely that the furniture at HKU is writing op ed items I take this to mean that Carty is a Professor, and a law professor at that. He is in fact (according to Wikipedia) two professors, as he holds down a similar job in Aberdeen.

Prof Carty led us through the background, in four paragraphs, and said that as he could not read the 350 hostile articles about Johannes Chan in the left-wing papers he had asked one of his PhD students to translate one. This could be considered a rather small sample but we are not in a social science class here so let that pass.

Prof Carty then lists three “criticisms” in the article: “Chan’s policy of having assistant professors without research degrees supervising mainly mainland PhD students; the faculty holding apparently academic meetings which are actually expressions of political activism; and appointing many senior Western academics who are not noticeably academically productive in research while in Hong Kong.”

And the Prof goes on to say that “If there was to be a judicial review of these smears, I would expect any judge to say that they are “fair comment'”. Oh dear me. Let us not linger over the fact that Prof Carty’s writing skills do not include the use of the subjunctive. He is not exactly scintillating on the law either. Judicial review is a procedure in which a judge considers the propriety of an administrative decision. It has no place here, except perhaps to impress readers who are sensitive to legal mumbo-jumbo. “Fair comment”, comes from the law of libel and is the old name for the defence which has been called “honest comment” since the Court of Final Appeal’s decision on Cheng v Tse in 2000. This protects the expression of honestly held opinions. But the three criticisms which Prof Carty lists are not matters of opinion. They are matters of fact. The maker of the statement would be required to prove to the court, on the balance of probabilities, that it was true that there was a policy that assistant professors without research degrees should supervise mainland students, that apparently academic meetings were held for political purposes, and that Western academics were appointed and then did little research. If the newspaper established these facts, then the further inference that because of his poor taste in research supervisors, meeting agenda and visiting scholars Johannes Chan should not be appointed a Pro Vice Chancellor would be an honest comment. But a comment must be based on true facts to enjoy the defence. And it must be a comment, not an opinion about a factual matter. If you write a piece saying that X beats his dog and his wife, only to discover that he is a dogless bachelor, then the fact that you honestly believed the tale will not help you.

Alert to the possibility that this might be an interesting piece, I trudged on to Prof Carty’s account of the appointment of Chan’s replacement as law dean. The relevance of this is that the new dean does not apparently share Prof Carty’s horror at the idea of a law teacher participating in Occupy Central. There seems, however, to be another problem here. An alternative candidate, who was not selected, was “a leading world specialist in the common law, with the inevitably much deprecated PhD from Oxford in the philosophy of the common law…” Well actually he didn’t have a PhD, deprecated or otherwise, because in Oxford they call it a DPhil, but what is going on here? Could it be, one wonders, that Prof Carty has a PhD and feels it is not getting the respect it is due? Johannes Chan, as we all know, hasn’t got one, and neither does his replacement. Neither do I. The relative merits of a research degree or a career in a real job are a recurring problem in professionally-orientated departments.

Now we come to the heart of the matter. A nameless “law graduate” had written publicly to Johannes Chan, asking how a teacher of law could be a leader of Occupy. Chan’s reply seems to have run to some length. In the middle of it is the sentence “It is a classic debate in any jurisprudential class whether the laws asking the Germans to kill the Jews are law even when such law has been duly passed by Parliament.” Chan goes on to say that opinions about breaking the law as a protest are a “political choice” and a respectable academic institution should not “penalize someone simply because we do not agree with his political choice”.

Prof Carty pounces: “In other words, if a law professor in Hong Kong chooses to consider the Chinese government the equivalent of Nazi Germany and organizes mass illegal demonstrations to force the resignation of the chief executive, such is he personal political choice and not the concern of HKU.”

Hold on a minute. Nobody is saying that the Chinese government is “the equivalent of Nazi Germany”. The Nazis come up in discussions of whether it is ever wrong to break the law. They come up for one purpose: the refute the naive and simplistic idea that it is always wrong to break the law. Prof Carty seems to take a rather primitive view of the matter. The point is that there are circumstances in which it is clearly not wrong to break the law. That does not mean that it is always right to break the law. It means that in any particular case we have to consider the circumstances in detail. We cannot just jump to the easy conclusion that illegal = wrong.

It may also be useful for lawyers to bear in mind that the public has no difficulty in seeing variations in the seriousness of illegal acts. It is, for example, illegal to enter an MTR station for the purpose of protesting against the corporation’s luggage rules. But anyone who got huffy about that would be considered to be lacking a certain sense of proportion. Professors do illegal things all the time … and we pay our parking fines like the rest of the population. Most people consider quite reasonable the HKU line that a prof who meets his job obligations has a right to do pretty much what he likes out of the office. It seems that the government also takes this view with its own employees. The Development Secretary, Paul Chan Mo-po, lost a spectacular libel action last week. This would once have been considered a serious blemish on the honour of a public servant, requiring resignation. Not these days, apparently.

Rather surprisingly Prof Carty comes to the conclusion that the decision not to appoint Johannes Chan was political, and it is “only to be expected” that the government’s appointees and supporters “will avail themselves of the advantages which they have, under the colonial-style constitution of the council, to resist Chan’s appointment.” So it’s political, but he’s OK with it, because Chan is part of the worldwide pro-democracy, anti-China conspiracy.

This is all rather disappointing. It seems to me that Prof Carty has an unfortunate habit of taking quotes out of context, interpreting them in a way which is clearly unfair to the speaker, and as a result coming to a rather sensational conclusion. This is perhaps the sort of thing which journalists do, but then journalism is, as Max Hastings puts it, “a profession for cads and bounders.” Professors, on the other hand, are supposed to be gentlemen and scholars.

The function of tragedy, according to Aristotle, is to inspire terror and pity. Recent goings on at Hong Kong University fill the bill nicely. The usual “search committee” settled on the idea that Johannes Chan should be a pro Vice Chancellor (PVC). Mr Chan was then subjected to a barrage of abuse — literally hundreds of articles — in the PRC’s poodle press. The University Council decided to postpone the matter while the question of who did what over donations to Occupy Central was clarified. This was done. Then the council found another reason, and postponed the matter again. This reason (wait for appointment of new Provost) having collapsed in a heap they tried another one. This week the excuses ran out and the council rejected the appointment altogether. The council has clearly taken leave of its collective senses.

Many years ago, owing to some quirks in the constitution of the University of Lancaster, I was a member of that university’s Council for a total of five years. Nothing remotely like this ever happened. There are good reasons for this.

Contrary to what some members of the HKU version apparently believe, it is not the job of the University Council to run the university. Power in universities is deliberately divided between the Senate and the Council. The Senate is an academic body whose members are engaged in teaching and research. These matters are the main purpose and function of the university and they are properly a matter for the Senate and its off-shoots. There are, however, matters involved in the management of a university which do not involve teaching and research as such. Scholars are supposed to be unworldly creatures who should not be left by themselves to deal with members of notoriously shady professions like building and banking. The purpose of the Council is to provide the input of lay people – who in academic terms are amateurs – on practical matters. It should ensure that the university is not bankrupt, is adequately housed, conforms to the law and responds appropriately to external conditions like the demand for particular kinds of graduate in the labour market.

The requirement that senior posts be endorsed by the council is supposed to ensure that the number of expensive appointments is not unreasonable in the light of the university’s needs and resources. It is not intended to allow lay members of the council to make their own personal assessments of the merits of individual candidates, and impose them on the university.

This is particularly the case when the search was presided over by the Vice Chancellor. The V-C is the full-time specialist administrator responsible for running the university and while I can recall Council members expressing misgivings about particular policies or ideas, I can recall no occasion when the V-C’s clearly expressed views were contradicted or ignored. Indeed this is so unusual that I am rather surprised the Vice Chancellor concerned has taken it so calmly. In such a situation many people would be considering resignation. If the council makes it impossible for anyone else to run the university without interference they will soon find that a “search committee” — supposing anyone is prepared to waste his time by sitting on it — is not finding anyone worth hiring.

The ensuing discussion of the veto has been illuminating, mainly because the student rep on the Council, one Billy Fung, decided that it would be of some public interest if he disclosed what was actually said in the meeting. This produced much huffing and puffing about confidentiality, but there is, as they say, a time and a place for everything. There have also been some disputes over the accuracy of Mr Fung’s recollections. So let us not go into exquisite details. Clearly, though, some of the discussion revealed more ignorance than enlightenment. They also revealed an interesting contradiction. If this is an academic appointment, requiring particular qualifications or a substantial research background, then that is not a matter for the Council. They are not themselves academics. The composition of the search committee should reflect the requirements of the job, and their view on the matter should prevail. If on the other hand this is an administrative post, then the matter of qualifications, experience and publications should not arise. There is no need for administrators to be scholars. When I was a student at Kings College London it was being run, with great success, by a gentleman whose previous appointment was as the General Commanding the British Army of the Rhine. Most administrators in those days had chosen it as a career after graduation, started as departmental administrators and worked their way up. They did not have PhDs. I think this is still the case in many places and I was rather surprised to find so many PhDs in university administration in Hong Kong. I do not think this has anything to do with the job requirements. Academics like producing PhDs because every research student is also a teaching assistant. So there is a surplus.

The other interesting revelation produced by Mr Fung’s indiscretion is provided by the diligence of reporters asking council members who voted against the appointment what they had to say on the matter. Quite a lot of “no comment”, of course. Arthur Li came out squirting venom – “This guy is a liar” – as is his personal habit. Also revealing a nasty side was Leonie Ki Man-fung, who combined her “no comment” with a vicious personal attack on Mr Fung, who apparently, among other sins, has “no integrity”. Coming from someone who can look back with pride on a long career in advertising and PR this is a bit rich.

What the councillors did not say was as interesting as what they did. Nobody, apparently, at any point mentioned the word “occupy”. Clearly they think we’re all very stupid…

Look at this way. If Mr Zhang Xiaoming, chief of the central government’s liaison office in Hong Kong, had stood up at a public function and said that the Occupy Central movement was organised by little green men as a preparation for a Martian invasion, we would all have giggled. But the Martian invasion theory cannot be dismissed as totally off the planet, as it were. Absence of evidence is not evidence of absence. We may feel it is a long shot but it cannot be positively disproved. Perhaps there was a Martian connection.

What Mr Zhang did say at a recent celebration of the 25th anniversary of the Basic Law, on the other hand, was not just unlikely but palpably and demonstrably wrong. The Chief Executive of the SAR, according to Mr Zhang, “possesses a special legal position”. For this reason he was above the executive, legislature and judiciary … “his power is not limited to leading the Hong Kong administration”.  Mr Zhang’s first error was to include the word “legal”. Of course we may well suppose that the CE does enjoy a special position – he enjoys the protection and advice (usually bad) of the Liaison Office. If he is in real trouble he can call on the support of the PLA. But we cannot deduce his legal position from observations of this kind. His legal position derives from the law, specifically in this instance from the relevant articles of the Basic Law, which specify his powers and role, as well as those of the other parts of the government. Mr Zhang’s fundamental error is to suppose that the law is whatever he says it is. This is the way things work on the mainland, but it is not yet the way things work here.

Let us suppose that you are accused of a crime. Let us further suppose that the Chief Executive publicly orders the court to convict you. This is a clear breach of Hong Kong law. The court will disregard the order. The CE will be prosecuted (albeit, the way things are done these days, very slowly). If it is argued in his defence that he enjoys a special legal superiority over the courts, conferred by the chief of the Liaison Office, then the defence will fail. Legal authority in the Hong Kong system derives only from the law, as interpreted by judges. Mr Zhang’s pronouncements enjoy no special status and indeed if he breaks the law himself he will be arrested and (extremely slowly) prosecuted. At least in theory. This is what the rule of law means, among other things.

Not content with annoying the simple by elevating the CE to godlike status Mr Zhang proceeded to irritate the constitutionally sophisticated by chatting about that mysterious beast, the separation of powers. The separation of powers was invented in the 18th century by the French political theorist Montesquieu, who picked up a moderate version of the idea from Blackstone and, as French intellectuals tend to do, carried it to its logical conclusion. The power of government commonly takes three forms, according to the theory – to run the country, which is executive, to make laws, which is legislative, and to adjudge disputes, which is judicial. Montesquieu claimed that the English system owed its success to the fact that the “three powers” were separated. In his defence we should perhaps note that the alternative political model in 18th century Europe was absolute monarchy, in which the powers were not separated at all. Still, it is now generally agreed that the three powers were not actually separated in the 18th century. Nor are they now. The idea had much influence on the framers of the American constitution, but it is impractical. Some overlap cannot be avoided. Even in America the President appoints some judges and his approval is required for legislation. Congress has unavoidable power over policy because it controls the purse strings.

So when Mr Zhang says, as he did, that “Hong Kong is not a political system that exercises the separation of powers — not before the handover and not after the handover — ” What can one say? No shit, Sherlock, perhaps. Or Doh!

I suspect that Mr Zhang was not really addressing the Hong Kong audience at all. There seems to be a backstage tussle going on between those who think that Hong Kong’s problems can be solved by redressing grievances and reforming the system, and those who think they can be solved by repressing dissent. It is suggested — and when dealing with a secretive organisation I realise that this may be unfair — that the Liaison Office is pushing for repression and the Hong Kong and Macau Affairs Office in Beijing for reform and redress. This sort of controversy can run and run. A similar argument over Ireland preoccupied English governments for four centuries. Clearly any attempt to soothe rugged feelings by giving the people what they want will have to start with the thought that C.Y. Leung should be removed from the scene as soon as decently possible. But he is the Liaison Office’s pick. So any attempt to remove him from his pedestal would imply (quelle horreur!) a bad choice by them in the first place. Better to provide a higher pedestal. Personally I think the priorities in the Dump CY campaign are misplaced. It would be more useful to get rid of Mr Zhang.

Sit down children. We have been urged to learn the lessons of history but those lessons have been much mangled lately so let us straighten a few things out.

1. China did not win World War Two. In fact if it had been left up to the Chinese war effort we would all be speaking Japanese now. Chinese people suffered terribly, but the efforts made on their behalf were totally unsuccessful. They were rescued by the Russians, like the rest of us.
2. The atom bombs did not end World War Two. Never mind the argument about whether the Japanese were sincerely considering surrender before the bombs were dropped. If you look at the records of Cabinet meetings afterwards the atomic bombing was scarcely mentioned. The US Air Force had been incinerating Japanese cities by less technological methods for months. This was not a government to be discouraged by civilian casualties. The decisive point was that the Russians had declared war on Japan and would, as they did, rapidly “liberate” the occupied parts of China, and gobble a few fragments of Japan itself.
3. The Communist Party did not win the Civil War because of all that interesting metaphorical stuff about the fish and the sea, surrounding the cities with the countryside and such like. There were big setpiece battles and sieges of mediaeval ferocity. The Party’s advantage was that the Russians handed them an army’s worth of good conventional equipment. The Americans were less generous to the nationalists and their stuff was not as good.
4. Since the war the PLA has seen action in North Vietnam, India, Russia, Tibet and Korea. In that time Japan has had a pacifist constitution and followed it. The Chinese constitution is rewritten every ten years or so and nobody follows it anyway. Who would you regard as an uneasy neighbour?
5. Parades for Peace???

This blog was not supposed to be a running commentary on the eccentricities of Hong Kong’s magistrates. But someone has to say it. Standards appear to have collapsed. I realize that cases with a political flavour put the impartiality of justice under a strain to which it may not be accustomed. But that is no excuse for abandoning basic standards.

So, here we have Eastern Court magistrate Lee Siu-ho, hearing a case of alleged unlawful assembly. The defendant, a sixth former now 18 years old, was apparently detected sitting on a central divider and throwing a plastic traffic cone into the road during an Occupy protest last October. Proceedings continued along the normal channels until defending counsel’s closing argument, which was that the prosecution had failed to prove a necessary ingredient in the offence. An assembly, lawful or otherwise, must comprise more than one person and the evidence only showed that defendant Law Cheuk-yan had acted alone.

A lay observer might suppose at this point that young Mr Law was ten minutes away from the standard interview on the courthouse steps, averring his undying faith in Hong Kong justice, and his gratitude to all concerned for a finding of not guilty. But this is not what happened. The learned magistrate then announced that he was going to change the charge to one of disorder in a public place. Mr Lee then convicted Mr Law of the new charge, and adjourned the case for reports before sentencing.

The law on this matter is quite clear, and indeed Mr Lee demonstrated his awareness of the point by citing the ordinance concerned, Section 27 of the Magistrates Ordinance. Section 27 says that a magistrate may amend defects and variances in complaints, information and summonses before him that are not material (my italics). In other words the magistrate is free to overlook misprints, errors in addresses or names, and similar trivia if they do not affect the substance of the matter before him. This does not provide carte blanche for the magistrate, having heard both sides of the matter, to delete the charge on which he would have had to aquit the defendant, and replace it with another more promising for the prosecution. Clearly if the defence has been that an essential element of the original charge was not proven, then it is highly material to replace the charge with one that does not have this requirement. After all the defence is entitled not only to make the defence it wishes, but also not to make others which in the circumstances are not necessary. If Mr Law and his counsel had known the charge would be disorder then they might have concentrated on other matters, considered other arguments, and sought other witnesses.

Authorities on these matters have different ideas about when in the proceedings the defendant should be told what is the charge he faces. But they generally concurr in the view that this point should come before the end of the presentation of his defence. Then there is the Hong Kong Bill of Rights Ordinance, which states that “everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal”. Mr Law may well feel that his treatment did not come up to this standard. Mr Law (an interesting name in the context) may feel that there is an ass involved here. And it is not him.

Dear me, this is not the way it was done when I was a court reporter. Last month three men were convicted in the Eastern Magistrates Court of malicious damage and illegal assembly. The magistrate ordered them to do 150 hours of community service and pay costs. On Monday the whole case was reopened at the behest of the prosecution, which complained that the sentence was insufficiently stringent. The magistrate, principal beak Bina Chainrai, decided to take a different view of the matter, and sentenced them to three and a half months in prison.

There is no equivalent procedure in English courts, though the prosecution can appeal against errors in law to the High Court. Allegedly erroneous sentences, on the other hand, stand. The only reason why the Department of Justice is allowed a second bite of the cherry in Hong Kong is because this is a colonial relic. During the early days of colonialism in Hong Kong it was not necessary for a judge to be a lawyer. The first magistrate was a converted policeman. In the early 1880s there was some discussion as to whether it was necessary for a magistrate to be a lawyer, and the government concluded that it was not, and appointed a school principal to the job. Well into the 20th century the Harbourmaster exercised jurisdiction over offences committee on ships, and well into the 50s District Officers were expected to resolve legal disputes in their districts, though they were offered a short law course to help them. Under these circumstances there was clearly a danger that a magistrate would do something  nonsensical, and it was desirable to have a simple procedure whereby a proper lawyer could revive the case and invite the magistrate to think again.

But that was then and now is now. The learned magistrate in this case was neither junior nor unqualified. The prosecution had enjoyed every opportunity to put its case, both for the guilt of the accused and for condign punishment. No doubt there is always room for second thoughts, but there are worse things than the odd miscreant getting off light. The arrival of a government lawyer asking, and getting, a drastic change in the conclusion of a case which has already been decided looks disreputable. No matter how carefully the magistrate considers the matter there is an inevitable appearance of orders being given, and acted on. I see from the reports in one newspaper that Ms Chainrai said she could “see the severity of the offences from the video clips”. Were these clips not available at the original hearing? Justice mediated by video clips selected by the prosecution does not inspire confidence. Clips can be selected and edited to support many different points of view. You would think fairness would demand that the defence should be given the opportunity to view whatever video material is available before a biassed selection from it was put before the magistrate.  I suppose this did not happen.

This is not just a matter of injustice to the three men concerned, though that is serious enough in itself. Two basic principles of sentencing are being flouted at the behest of the Department of Justice. The first is that it is generally not considered a good idea to jail people for a first offence. The purpose of punishment is to discourage future transgressions. Merely being arrested and convicted is a traumatic experience for many first offenders. Alternatives to prison are cheaper and avoid disrupting those aspects of the criminal’s life, like his work and his family relationships, which will help him to avoid further crime. It is also generally considered wrong in principle to sentence people to terms of a few weeks or months. This causes maximum disruption to the convict’s life, while offering prison staff no meaningful opportunity to ensure that he leaves prison a better man than he was when he arrived. Short-term prisoners are likely to be resentful, suicidal or both. Their custodians have no time to build meaningful relationships with them, still less to embark on such things as psychiatric treatment, remedial education, job training, and such. Moreover since prisons are, as Peter Kropotkin put it, “universities of crime” it is quite possible that the short-term prisoner will be more corrupted than improved by his experience.

These matters are, it seems, not much discussed in Hong Kong. I am an avid consumer of legal memoirs. Some of their authors come across as really nice people (Kamal Bokhary, whatever you think of his opinions, is a sweet guy) and some of them don’t (no names here, for obvious reasons). The one thing that such books have in common is the complete absence of any discussion of the effects of sentences on the people subjected to them. The system chugs on, displaying a monumental indifference to the value of other people’s time and a distressing willingness to impose on minor criminal figures the sort of sentences which would be considered excessive for a murderer in other jurisdictions. Meanwhile the only contribution that government lawyers can make is to urge magistrates to take their sentencing cue from the op-ed page of the China Daily and other newspapers of that ilk, which have been complaining for weeks about the absence of custodial sentences for political protesters.

We are all urged to respect the law. Respect must be earned. We are supposed to have an independent judiciary and government lawyers could set us all a good example by behaving as if we had a judiciary independent of them.

Some well-justified praise for the legal machinery last week, when a man was convicted of murder under circumstances which tested the ingenuity and persistence of the prosecution team. There was no body, no scientific evidence of the kind which CSI has made so popular, and no sign of that staple of Hong Kong criminal proceedings, a confession. Nevertheless the defendant, a businessman accused of killing his mistress after his wife got wind of the relationship, was found guilty by the jury. No doubt this was what he deserved. It seems the prosecution relied heavily on the closed-circuit TV recordings of his comings and goings to the clandestine flat. This is not a completely unprecedented case. In the old Penguin Famous Trials series there was one case whose sole claim to fame was the absence of a body. It concerned a steward on a passenger ship who had what we would now call an “inappropriate relationship” with a lonely female passenger. She disappeared and investigators concluded that the steward had killed the lady when she threatened to reveal all. He then bundled the body out of a porthole. The steward was convicted and, after the barbaric custom of the times, hanged. The absence of capital punishment has taken some of the thrill out of murder trials but no doubt the latest Hong Kong one will merit at least a footnote in some history of such matters.

It leaves me wondering, though, why local prosecutors who can rise so splendidly to the occasion when required to make bricks without straw, make such heavy weather of matters which you would think were much easier. Look for example at the case of the Police Superintendent who was filmed taking a wild swipe at a cringeing member of the public; the video can be seen here: https://www.hongkongfp.com/2015/08/03/police-seek-advice-from-justice-department-on-superintendent-assault-case/

You would have thought that this case presented local legal eagles with the prosecutorial equivalent of a penalty kick against a blind goalkeeper. Nobody who has seen that video can be in any doubt about what happened. The victim is also publicly known and is apparently willing to give evidence. Yet no progress has been made on this matter at all. It has been considered at extraordinary length by the committee which oversees police complaints. The committee came to the entirely unsurprising conclusion that the superintendent had assaulted the protester concerned. But it is not customary for criminal proceedings to await the outcome of related police complaints. On the contrary defendants who have made a complaint usually come to trial long before the complaint has been unsubstantiated, as such complaints usually are.  What can be taking so long, one wonders.

Then there is the case of the Magnificent Seven, who appeared on television news beating and kicking a protester who was not engaging in any disorderly activity at the time but was lying on the ground bound hand and foot. The relevant footage, without commentary – judge for yourself – can be found here: https://www.youtube.com/watch?v=so1SdZmZuvc

Once again you would think that this presented something of a forensic sitting duck. There is no doubt who was involved, or what they did. The victim is willing to testify to his ordeal and I suppose the camera crew could also be recruited by a prosecutor who wished to take no chances. We have some hint as to what may be the problem here: according to the Secretary for Justice the matter is being considered by a Senior Counsel. This is apparently a time-consuming process and one has to wonder what the said counsel is taking so long over. Is he considering the argument, advanced in the superintendent’s case, that policemen on Hong Kong streets have a legal right to treat members of the public in a way which would be illegal if applied to a dog? Is he considering some exotic variation on self-defence, provocation, droit de seigneur?

In the absence of answers to these question we are left to wonder if a similar delay would have ensued had seven protesters been filmed beating the crap out of a policeman.