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Posts Tagged ‘crime’

Slow-motion justice: not just for political cases and not just a problem for defendants

Posted in Uncategorized, tagged , , , , , , on January 7, 2026| Leave a Comment »

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.

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Student leader’s case a grotesque parody of the Rule of Law

Posted in Uncategorized, tagged , , , , on September 26, 2024| Leave a Comment »

Lord Sumption, a retired British Judge and formerly one of our token foreigners on the Court of Final Appeal, was roundly denounced by the usual government spokesman when he marked his retirement from the CFA with an article in the Financial Times, complaining that the rule of law could no longer be relied on in Hong Kong.

“The rule of law is profoundly compromised in any area about which the government feels strongly,” his Lordship wrote. And this brings us to recent developments in the case of Mr Kinson Cheung King-sang. Before we get to the developments, though, some background.

Mr Cheung was the chairman of the Hong Kong University Students’ Union, back in the days when students were allowed such things. The union’s committee, in an ill-advised moment, passed a motion expressing sympathy for a man who had attacked a policeman and then killed himself.

The motion was rescinded the following day, but this was not enough to head off a major reaction in pro-government circles and several students, including Mr Cheung, were arrested. Three people were eventually charged: the proposer and seconder of the errant motion, and Mr Cheung because he chaired the meeting. When I was a student union chairman I was expected to be neutral when chairing meetings, so this looks a bit odd. But they’re not hot on democratic conventions in pro-government circles.

The three chosen ones were charged initially with encouraging terrorism, an offence under the Beijing-imposed National Security Law. After negotiations this charge was replaced with “incitement to wounding with intent”, an obscure but ancient and respectable limb of the Common Law. The three defendants then pleaded guilty. This enshrined an interesting legal notion, that the union’s motion had “incited” an act which had already happened when it was passed, and whose perpetrator was dead. Well, lawyers understand these things.

We must note at this point that Hong Kong now has in effect two legal systems. One of them, which we may call option A, is the traditional one, based roughly on the notion that, as the legendary jurist Blackstone put it, “it is better that ten guilty men go free than one innocent one suffer.”

The other one, option B, is for national security cases only, and dispenses with precautions – some of which go back to Blackstone’s time (1723-1780) – intended to reduce innocent suffering. Getting our ten guilty men behind bars gets a higher priority.

So the defendant no longer has the right to be brought promptly before a magistrate, the right to bail, the right to a jury in serious cases, the right to a judge not selected by the prosecution, or the right to the counsel of his choice. Reading national security cases one sometimes wonders if the presumption of innocence has been eroded a bit as well.

Another feature of option B is a limitation on the right of a convicted prisoner to participate in early release arrangements for prisoners who behave themselves in jail. This was not part of the gift from Beijing; it was a local inspiration incorporated in the Safeguarding National Security Ordinance. Inmates may be released early only if the Commissioner for Correctional Services is satisfied that such release will not endanger national security.

So here we have Mr Cheung, so far subject to option A, under which he was sentenced to two years in prison. He then appealed on the grounds that the sentence was too severe. The Court of Appeal agreed, replacing his two-year sentence with one of 15 months. The interesting consequence of this was that, assuming the usual discount for good behaviour, he was now eligible for release. The law works slowly these days.

But nothing happened. Mr Cheung was not released. He then applied to a High Court judge to order his release. At the first hearing the judge was sufficiently impressed to consider releasing him on bail pending full discussion of the matter, but was talked out of it by counsel for the government.

The following day a magical transition had occurred: Mr Cheung’s legal ordeal had been moved from option A to option B. The Commissioner for Correctional Services, apparently a fast worker, had accordingly considered whether Mr Cheung’s release would endanger national security, and decided it would.

The magical transition took the form of a decision of the National Security Committee, a gathering of government security bigwigs including an “adviser” who represents our landlord. The NSC had ruled that Cheung’s offence “involved national security” and that his early release would be “contrary to the interests of national security.”

Senior Counsel Mike Lui, representing the government, said “The development since the adjournment yesterday has been nothing short of momentous,” with which one can only agree.

The National Security Committee was set up under the National Security Law, which outlines its powers and duties as follows:

The duties of the National Security Committee are to analyze and assess developments in relation to the safeguarding of national security in the HKSAR, make work plans, formulate policies, advance the development of the legal system and enforcement mechanisms, and coordinate major work and significant operations.

Call me a legal pedant, but I do not see anything there which suggests that the National Security Committee has a role in adjudicating on individual cases, or that it would be proper for the NSC to issue detailed instructions to a judge hearing a case. The local Nat Sec law, on the other hand, says that:

The courts are to adjudicate cases concerning national security independently in accordance with the relevant provisions of the Basic Law and the HK National Security law, free from any interference.

I infer that the judge in this case had the cart the wrong end of the horse when she said that “No jurisdiction [in Hong Kong], including the Judiciary, shall interfere with the decision made by the [national security committee]. His detention is fully lawful.” Did it not occur to the learned judge at all that the NSC might be exceeding its powers, or are we now so cowed that the idea of a government body exceeding its powers has become meaningless?

In jurisdictions which enjoy the rule of law it is out of order for essentially political or administrative bodies to jog the elbow of judges actually adjudicating cases. The committee, or the legislature, may change the rules, but in the meantime defendants and convicts are entitled to know what rules apply to them. This case is a grotesque parody of the rule of law, the more unpalatable because the government seems to be motivated entirely by the spiteful inclination to nullify the Court of Appeal’s decision and keep Mr Cheung behind bars for as long as possible.

After all the implications for national security are trivial: Mr Cheung will be free in November anyway. I also note that the judge who granted Mr Cheung pre-trial bail (over-ruling a magistrate who had refused it) did not seem to think that Mr Cheung was a great threat to national security.

I met a lot of student union chairmen when I was one. Two of the creepier specimens eventually became government ministers. Nobody became a revolutionary. I am sure Mr Cheung will in due course become a respectable member of society … with, perhaps, some highly critical views of the Hong Kong legal system.

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