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The law protecting fair trials: an obituary

Posted in Uncategorized, tagged , , on September 4, 2025| Leave a Comment »

Readers may be fed up with me complaining about the erosion of the laws restricting the reporting of upcoming court cases. Well, some good news. The erosion has now reached the stage where there is nothing left. I shall not need to return to this topic again.

The law involved is rather unhelpfully labelled “strict liability contempt of court”. The “contempt of court” part means that your conduct is deemed to disturb the administration of justice. The “strict liability” bit indicates that the prosecution does not have to prove that you meant it, only that your publication could have affected the subsequent trial. Its purpose is to ensure that trials are fair.

Long ago the Law Reform Commission published a survey of the law in this area (along with some recommendations which, as usually happens, were ignored) which included this summary:

There are essentially four principal ways in which impartiality of the court may be impaired :

  • by commenting on the personal character of the accused;
  • by publishing an alleged confession by the accused;
  • by commenting on the merits of the particular case; and
  • by publishing a photograph of an accused person in such a way that he can be identified if the question of identity is likely to be in issue.

A website published by the UK government offering guidance to editors and writers gets right down to the basics:

For example, you should not:

  • say whether you think a person is guilty or innocent
  • refer to someone’s previous convictions

The case which offered an overwhelming temptation to some local media was the one involving a man who wooed a woman on the internet, invited her to dinner in a very expensive restaurant and fled after the meal, leaving her to face a bill for $80,000.

Clearly the idea of a meal worth the price of a small car was very interesting, and indeed the bill has been published on the internet. Most of the damage was incurred by the consumption of a very expensive bottle of champagne.

Still, that is no excuse for completely ignoring the law. A column in Dimsum Daily left little doubt about its intentions: “Man Wah $84,000 bill scandal lays bare inside perpetrator’s mind and Hong Kong’s loneliness trap.” Wait a minute. A man has been arrested and we’re going inside his mind?

We certainly are. In the first paragraph he is the “alleged culprit”, but you would not think so from the rest of the piece, which has his full name, a picture (!) details of his previous convictions and a discussion in the light of those details of whether the “alleged culprit” is a psychopath or not.

Would you, if you were facing a court appearance, like the reports of your arrest to include stuff like this?

According to court records *** (name) did not simply lie; he constructed entire worlds. He fabricated alter-egos with supposed triad ties and elite legal credentials, conjured the spectre of surveillance, and threatened women with exposure and harm if they did not comply … During his earlier trial, the court noted his dispassionate precision – threats delivered cooly, details supplied as if omniscient, a cruelty that felt engineered rather than eruptive.

And so on. Ironically at one point the writer asks ”Where does that leave justice?” Pretty knackered, if people are allowed to publish about freshly arrested suspects things like:

What, finally is in *** ***’s (full name) mind? Perhaps the answer is banal and chilling at once. He sees people as instruments, evenings as stages, truth as raw material. He is gratified by the gasp when the cork pops and the bill lands, by the moment his companion realises the script was never about her at all…

I do not see how a publication could put this out at all unless they were all so dangerously ignorant of the law that they should not be allowed near a keyboard, or they were completely confident that the law does not apply to them. Dimsum Daily is said to be a government-friendly publication.

As is the Hong Kong Standard, whose somewhat more circumspect approach – they only gave the defendant’s surname – was nicely encapsulated by the headline “Repeat dine-and-sash suspect may have planned scheme in advance” and a picture captioned “The suspect, surnamed ***, has a criminal record”.

So here we are. We do not have the rule of law. We have the rule only of laws the government likes directed at people it does not like. Integration with the mainland has reached the point where a trial is a mere formality: the formal endorsement of a conviction already announced by the police and reported in government-friendly publications.

I dare say Mr *** is a bad lot who has scammed women before. He is nevertheless entitled to a fair trial and he is not going to get it.

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Commenting on, or criticising, court cases is both legal and helpful

Posted in Uncategorized, tagged , , , , on March 10, 2025| 1 Comment »

It is nice to know that the Secretary for Security reads Ming Pao. Think of the alternatives. Sadly however the secretary, Chris Tang, often does not appear to enjoy his reading.

The last item to arouse Mr Tang’s ire was an op ed on the latest legal instalment of the Yuen Long incident, by law professor Johannes Chan. “The author, who is a law professor, has once again published a biased article,” Mr Tang complained, “deliberately ignoring the fact that some white-clad people have already been brought to justice, misleading readers with a warped perspective that the court has made an unfair judgment regarding either party, shaking the public’s confidence in the court system, and undermining the rule of law in Hong Kong, which must be condemned.”

Mr Tang went on to say that the afterword, commonly added to opinion pieces these days, saying there was no intention to incite hatred of the government, did not discharge the obligation on the editor to ensure that his publication was “fair, objective and unbiased.”

He concluded “It is hoped that Ming Pao will not continue to be exploited by people with ulterior motives to use this platform to spread confusing remarks, to poison the community, and to create conflicts.”

Now I propose to ignore some of this. Opinion pieces are not supposed to be fair, objective and unbiased. They are expressions of opinion. Moreover if Mr Tang wishes to campaign with any credibility for unbiased media he needs to avoid the impression that he has some unique problem with Ming Pao.

I shall also pass by the bit about white-clad people being brought to justice, which strictly speaking is entirely irrelevant. Injustice to one defendant cannot be balanced by justice to another.

More interesting is Mr Tang’s claim that the offending piece misled readers into the “warped perspective” that the court had made an unfair judgment, and that this had “shaken the public’s confidence in the court system”, thereby undermining the rule of law.

This is, alas, nonsense. The rule of law has never required the public to believe that judges are infallible. In 1793 the then Chief Justice, Lord Kenyon, said that “In the hurry of business, the most able Judges are liable to err.”

More recently we can consider the view of Lord Denning:”We do not fear criticism, nor do we resent it. For there is something far more important at stake. It is no less than freedom of speech itself…Those who comment can deal faithfully with all that is done in a court of justice. They can say that we are mistaken, and our decisions erroneous, whether they are subject to appeal or not.”

Or there is the rather more literary, oft-quoted, opinion of Lord Atkin (more famous as an innovator in business law), which goes in part “The path of criticism is a public way. The wrong-headed are permitted to err therein… Justice is not a cloistered virtue; she must be allowed to suffer the scrutiny and respectful, even if outspoken, comments of ordinary men.”

I infer that Mr Tang is offering the courts a protection which they have never sought and do not need. If a judge makes a statement about the law it is open to criticism and comment. Similarly if the judge is sitting alone and has to make findings of fact, they may also be scrutinised. The rule of law is fortified, not weakened, if the activities of the courts can be discussed and debated.

He may also care to consider that freedom of the press is not furthered by threatening words from officials in the law and order industry, and if the government wishes to offer a running commentary on media output this might be better left to the information specialists.

Mr Tang’s repeated insistence that appending “this piece is not intended to inspire hatred of the government,” or words to that effect, is not an effective bar to prosecution, is unnecessary. We all know that. It’s like starting a novel with the usual stuff about “no resemblance to real persons, living or dead”. This will not keep you out of the libel courts if your lead villain is an erratic politician called Ronald Frump.

Mr Tang may be a happier reader if he bears in mind the wise words of the American judge Robert Jackson: “The price of freedom of religion or of speech or of the press is that we must put up with, and even pay for, a good deal of rubbish.”

And if tempted to rush to the defence of some official masterpiece he might also bear in mind another observation from the same judge: “Who does not prefer good to ill report of his work? And if fame — a good public name — is, as Milton said, the “last infirmity of a noble mind”, it is frequently the first infirmity of a mediocre one.”

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A constitutional innovation: Never mind the Basic Law, consider the context

Posted in Uncategorized, tagged , , , , on December 27, 2024| 1 Comment »

Well I don’t suppose that it has anything to do with me, but we now have a response to the idea that planning to veto the government’s budget was not a crime, but a legitimate constitutional recourse outlined in the Basic Law.
This comes in a China Daily piece by one Richard Cullen, an adjunct professor (part-time – don’t call us, we’ll call you) in the HKU Faculty of Law.
Mr Cullen concedes that the idea that articles 50-52 authorise refusal to pass the budget as a way to secure the resignation of the Chief Executive is “accurate, as far as it goes.” But, he goes on to say, this ignores the “wider contextual considerations”. It is “methodically literal”, and seeks to establish a “legalistic, rarified zone” for interpretation of the law.
In my experience “legalistic” is a word used for legal arguments which lead to destinations the user does not like. A “rarified zone”? The law is often described as an artificial system of reasoning intended for the particular purpose of resolving disputes between citizens and between citizens and the state, in which the pursuit of fairness and justice has to compete with the need for predictability and consistency. The interpretation of statutes is a suburb of legal reasoning and has its own rules, in which the “wider contextual considerations” do not feature very much.
We must, though, note that Mr Cullen seems to spend more time writing for the China Daily than he does teaching law, and he clearly has no problem avoiding legalistic formal language in his usual output, which comprises rousing denunciations of American foreign policy.
His exploration of the context leads to some strange places. Lawyers in the common law system have, he says, often ignored context, with sad results. We then explore the history of labour and factory legislation in the US and UK.
This was often, Mr Cullen says, and I agree, drafted with scant realistic consideration of the context. Legislators tended to treat labour relations as a voluntary contract between two equal parties, and ignored the reality that the employer’s need for another worker was usually less pressing than the applicant’s need for a job. Bad law and injustice resulted.
But this does not help Mr Cullen’s case with regard to interpretation of the Basic Law at all. The ignorance of context was in the original labour legislation. Judges interpreted it as it came to them. Historically judges have often lamented that the effect of the legislation they were enforcing was unjust in some, or even most cases. But changing it was a matter for parliament, not something to be done in court in the name of “context”.
Mr Cullen observes, correctly, that the Basic Law does not authorise the full “Laam gau” programme, and also – less relevantly – that Yash Ghai, writing in 1999, thought the budget veto procedure might be used to resolve disputes over taxation or public spending, not to seek major changes in government policy.
This last prediction betrays a curious lack of imagination. After all the budget veto procedure would be a major step into unknowable territory, involving serious hazards for both sides. Legislators first have to risk their seats; the risks to the Chief Executive come later but are as serious. The spectacle of a legislature and executive at loggerheads would be unbecoming. This is the nuclear option of political conflict. It would be surprising if it were used for anything other than major disputes over policy.
Mr Cullen thinks that the procedure was not intended to allow a “very powerful indirect means of coercing radical policy changes.” What else could it be for?
We then move on to the context in detail, and here I have to say that I begin to wonder if Mr Cullen is a person from whom I would wish to buy a used car. Because he says, “the LegCo was rendered inoperable because of massive, riot-driven vandalism for about three months from July 1, 2019”. And that is not true.
In the first place, a legislature cannot be rendered “inoperable” just because its usual meeting place is closed, for whatever reason. A council meeting is not like a heart transplant or a Catholic wedding, which can only take place in a building designed and dedicated for the purpose.
In 1789 the French National Assembly famously responded to a Royal eviction by meeting in a tennis court. In 1941 the British House of Commons had its usual home vandalised by the Luftwaffe. Politics continued in alternative venues until the building had been restored, which took until 1950.
In the second place, the Legco was not rendered inoperable for three months because it customarily takes a long break in the summer whether its chamber is usable or not. After July 1 the chairman simply cancelled the last meeting of the session and everyone went on holiday.
If Mr Cullen is unreliable on the fiddly detail he is not much better on the big picture. The events of 2019 were an “insurrection”, he says, and adds with approval a quote from Henry Litton dubbing it an “insurgency”. This is a gross abuse of language and also rather insensitive.
Insurrections and insurgencies involve the use of lethal force to overthrow the regime. It is not a happy experience and usually involves the shedding of much blood, most of it innocent. It is the sort of thing now being endured in Sudan, Burma and San Salvador. Highjacking the word to describe our street scuffles is an insult to the sufferings of people in such places.

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The law’s delays continued, and some public figures

Posted in Uncategorized, tagged , , on November 6, 2024| Leave a Comment »

Well well. Government spokesmen of various kinds have been commmenting defensively on the slow-motion prosecutions which have left two thirds of the people arrested during the 2019 disorders still awaiting trial. I would not dare to attribute this to my nagging on the subject, but it seems there is some unease behind the scenes. As there should be.

According to the the latest figures, of the 10,279 people arrested 2,974 had been or were being processed in September, leaving about 7,000 still awaiting a decision.

First up was Secretary for Justice Paul Lam, who told Sing Tao that there was no statute of limitations on criminal cases in Hong Kong. This is inaccurate and irrelevant. There are in fact statutory requirements that prosecutions for some offences should start within six months of detection.

In any case the absence, if there were an absence, should perhaps be remedied. As a legal scholar put it: “legislatures implement a statute of limitation out of necessity to protect defendants from defending against purported injuries that challenge faded memories and lost records. The aim of statutes of limitations is not to set the guilty free, but to serve justice by ensuring that plaintiffs do not bring claims against which a defendant cannot properly defend.”

Mr Lam also said that he did not understand why people were complaining because those awaiting trial were free to “travel, work and study.” Well good luck with starting a career when you have the possibility of a four-year furlough in Stanley hovering over you. Travel is a tempting thought, though. I am not sure exactly how Mr Lam put it – the interview was in Cantonese – but he may need to work harder to avoid giving the impression that officials rather hope all these ungrateful malcontents will emigrate rather than face trial, sparing us a “bad story about Hong Kong” and leaving space for a replacement crew of compliant mainlanders.

Next up was Secretary for Security Chris Tang, in a briefing for selected media. Mr Tang said the delay in prosecutions was “not unfair” because the police needed time to gather evidence. He also said it would be against the rule of law principle if prosecutions were subject to a time limit, and gave the example of someone who murders his wife and flees the jurisdiction. If he returns 20 years later he should still be tried, Mr Tang believes.

As do we all, but this example has two deficiencies. It is an example of the most serious possible crime (well … unless you’re really hung up on national security) and of a delay entirely caused by the defendant, who could have had his trial promptly if he had not left town first.

Mr Tang said that if anyone was not prosecuted it would be making something legal which was illegal, an odd way of putting it. But there we are.

Neither of these gentlemen offered any alternative to continuing as at present. There were no ideas for reducing the workload or speeding up the work. The government is apparently happy to continue on its present course, which will lead to continued prosecutions hitting the court sheet until about 2035, by which time the defendants will have been waiting for 16 years.

No doubt they will then be consoled with a repeat performance from Grenville Cross SC of his piece in the China Daily recently, reassuringly headlined “Delay in protest cases is legitimate and unavoidable”.

This opens with some of the usual platitudes about the decision to prosecute, and continues to a fine example of the sort of legal argument which leaves lay people baffled and frustrated. Mr Cross introduces the “ancient common law doctrine” that “time does not run against the Crown” as indicating that prosecutions are not invalidated by delay.

This doctrine is indeed ancient. It would be unfair to describe it as a dinosaur. It is a fossil. Historians trace it back to the time of Willliam the Conqueror. Being ancient it was of course originally expressed in Latin: nullum tempus occurrit regi. In accordance with the ancient legal principle that proceedings should be as incomprehensible as possible to non-lawyers this is usually referred to simply as “nullus tempus”.

In the Middle Ages it did not apply to criminal matters, which were disposed of in a drastic and summary way. The question of delay did not really arise. Defendants facing serious charges were kept in jail until an itinerant judge charged with “gaol delivery” arrived and after brief hearings they were freed (if acquitted), mutilated or executed. Prison as a punishment did not appear until the 19th century.

The “nullus tempus” rule applied to the ownership of land. The common law rule was that if you had occupied the plot for 60 years – as far back as anyone could decently be expected to remember – then it belonged to you. But this did not apply if the would-be owner disputing your claim was the King. If your land had once belonged to the Crown then it made no difference how long you had been sitting on it.

This was manifestly unfair and it was abolished by two Acts of Parliament known as the Nullus Tempus Acts, in 1623 and 1769. Their full names (I cannot resist this stuff) were “An Act for the General Quiet of the Subjects against all Pretences of Concealment whatsoever” and “An Act to amend and render more effectual an Act made in the 21st Year of the reign of King James the First, intituled An Act for the General Quiet of the Subjects against all Pretences of Concealment whatsoever.”

And that was really that as far as English law was concerned. English judges now routinely throw out cases if they feel the prosecution has not been carried out at a decent speed. However as often happened in the old imperial days laws passed in London did not always apply in colonies, and shortly after the second Nullus Tempus Act the American colonies declared independence with the old law still on the books.

Many states have since abolished or modified the common law rule, because – as one judge put it – “The fundamental injustice caused by the nullum tempus doctrine is that it renders the public forever vulnerable to a suit by the State for long past conduct or omissions.”

The principle also lurks, for similar reasons, in some parts of Canada. As Hong Kong adopted the English system in the 1840s, long after the two acts, it has nothing to do with us really.

Emerging from this grey area Mr Cross canters through the territory explored by Messrs Tang and Lam, with whom (mirabile dictu, as lawyers would say) he entirely agrees, and observes that the courts have the right, which they occasionally exercise, to dismiss prosecutions if manifestly unfair, and reduce the sentences of people whose ordeal in the legal digestive system has been prolonged.

Mr Cross opines that “It is invariably in the interests of justice that those who commit offences should face justice, even if it takes time.” Whether he regards 16 years as acceptable in this context is, alas, not explored. But he adds that the police are investigating in good faith and are doing their best to get the whole thing over with.

Actually I entirely agree with that last point. Because we have also had, since I last visited this topic, the result of District Judge David Cheung’s request for a time-line of the prosecution which had arrived in his court earlier this year.

According to HKFP’s intrepid reporter, he summarised the result as follows: “Cheung said police spent three months investigating the case, while the Department of Justice used two years and three months to give legal advice.”

Just in case you weren’t listening carefully I’ll repeat the most interesting part of that: “the Department of Justice used two years and three months to give legal advice.” What? No analysis of hours of video, no missing street cameras, no extended and detailed investigations? Nope. The police did their thing in three months.

The Department of Justice operated at a speed which beggars belief. It took them longer to produce an opinion than many writers consume over a book. George Simenon could have written two novels in that time. Precocious babies who were born when the file hit some government lawyer’s in-tray were talking and walking by the time it had crossed the desk to the out-tray.

The remaining two and a half years still unaccounted for were, I presume, consumed waiting for a court and a judge to be available. This shortage was entirely predictable and – thanks to the Department of Justice’s contribution – the government had two years to tackle the problem, which it did not.

Now look, the issue of unreasonable delay in proceedings is not a matter on which mediaeval lawyers had the last say and it is not a simple matter of saying that justice must take its course, even if it takes time. This is a matter of human rights on which there are international standards. Human rights instruments often include the requirement that trials should not be unreasonably delayed, and if they do not this is usually inferred anyway from the more fundamental obligation to provide a fair trial.

There will always be cases where this is difficult for good reasons. The British system managed to get some rioters into court in a matter of days recently. On the other hand the trials ensuing from the investigation of the Grenfell Tower fire in 2017 will not start until next year, about which there have been some bitter complaints. The public inquiry was put first.

But the principle is that defendants are entitled … not allowed to hope for, entitled … to a speedy trial unless there are good reasons for delay and the case is so important that a bad trial is better than no trial at all. Otherwise the remedy is, and should be, to drop the case altogether.

If the government cannot bring itself to stop the flow of cases and leave some pouinds of flesh uncollected then there really needs to be some serious thought about how we can stop the whole saga from running uncontrollably into the next decade.

In the old days Hong Kong magistrates’ courts had a way of handling hawking offences in bulk. The day’s crop of suspects would be lined up at the back of the court. The clerk would read out their names and announce that these defendants would be fined $10 if they pleaded guilty, which of course they all did.

I suppose many of our 7,000 waiting suspects would be quite happy to be invited to plead guilty before a magistrate, whose sentencing powers are much less than those of a district court judge. That would overload the prison system so we may also need to revive some alternative punishments. The Italian government has built a camp in Albania which the courts will not allow it to use for asylum seekers. Bring back transportation?

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In the UK a year’s delay is a possible abuse of legal process. In Hong Kong it’s business as usual

Posted in Uncategorized, tagged , , , on May 22, 2024| Leave a Comment »

It is nice to know that we still enjoy the rule of law, as we are constantly reminded. Still there are some important differences between the rule as practised in Hong Kong and what happens in other places.

This was brought home to me last week by reports of the legal problems of Sam Kerr. Ms Kerr is a woman footballer of extraordinary gifts who plays for Chelsea Women and Australia, the country she comes from. Last season’s output here – this year she has been sidelined by a knee injury.

Ms Kerr went out with friends and team-mates to celebrate her team’s victory in the Women’s FA Cup last year and had a few – well perhaps more than a few – drinks, leading to a dispute with a taxi driver and an ensuing dispute with a policeman.

The sequel to this rather routine sequence of events illustrates the different treatments accorded to the normal man in the street, famous footballers, and famous female footballers, when they succumb to the effects of alcohol.

When I was a court reporter people who got drunk in public places were routinely charged with what we called D and D, or Drunk and Disorderly. There were cases most weeks but we did not have to report many of them because the defendant was usually from outside our circulation area.

People who got drunk in public places were either itinerant street sleepers who drank in public because they could not afford to get plastered in a pub with the respectable alcoholics, or holidaymakers who drank in public because they did not want to stop when the pubs closed for the afternoon break which was legally required in those days.

The trial proceeded more as a ritual than a debate. The arresting officer would recite from memory the traditional description of the arrest: “the defendant was shouting and waving his arms about. When I approached him he smelled of alcohol. His eyes were glazed, he was unsteady on his feet and his speech was slurred. I concluded he was drunk.”

The arresting officer would then read out the defendant’s reaction to being arrested, which was often rude though occasionally amusing. I cherish the memory of “Go away and leave me alone or I shall call a policeman.”

The defendant, usually lawyerless, would then offer some mitigation or explanation, with a pledge of future sobriety. After one particularly eloquent promise of future abstinence the presiding magistrate said, quite gently, “Yes. That is what you said last time.”

The defendant would then be sentenced to a small fine, which meant if he was penniless, as he usually was, a few days in prison for non-payment.

If the person concerned is more famous, naturally, this harmless ritual may or may not be changed. Male footballers, like male politicians, are generally expected to be enthusiastic drinkers and would generally have to do something quite attention-grabbing to set the legal wheels in motion.

The situation of women is rather different. After long deliberation the prosecutorial machinery decided that Ms Kerr should be charged on the basis of her “verbal” on being accosted by the arresting cop with “causing racially aggravated harassment, alarm or distress to a police officer.” It may be – the prosecution and defence differ on this point – that she called him a “stupid white bastard.”

Perhaps I am getting old, but I do not remember policemen being so sensitive when I lived in London. In Australia “bastard” is almost a term of endearment, I presume the policeman was not shocked to discover that he was “white” and stupidity is in the eye of the beholder. Ms Kerr may well be sensitive about race; she has ancestors from India.

Anyway this was not the feature of the case which had me rolling on the floor laughing. The odd feature of the case was that her legal team was planning to claim the charge should be dismissed as an “abuse of process” because she was not charged for a year.

Good grief! A mere year? How unlike the life of our own dear justice system. A year in Hong Kong is nothing. The Secretary for Security recently told legislators that the time for a protest-related case to work its way from first appearance before magistrate to conclusion in District Court is “generally from 300 to 400 days or so”.

A team of researchers from the University of Georgetown commented in 2023 that:

Defendants must wait an exceptionally long time to reach trial. We found that more than 41.8 per cent of protest cases take more than a year to complete, with an average wait of 343 days, but this number almost certainly underestimates the true situation as it only includes counts that have completed; those with the longest wait times have now been waiting for well over two years.

And some of them continued to wait. Trials relating to the storming of Legco and disorders at Chinese U, both in 2019, came up last year. A man charged with posting subversive Facebook messages in 2020 was tried only last week. The famous 47, after first hearings at which most of them were refused bail in March 2021, are still awaiting a verdict, as are staff of Stand News, a case also started in 2021.

Probably the current record-holder is Benny Tai, who was charged in July 2021 with election offences committed in 2016. But the competition is lively. The latest prosecution arising from the Yuen Long incident was brought only this year. Of the 10,000 people arrested at one time or another in 2019 there are still at least 8,000 who have not yet appeared in court.

These inordinate delays should not have come as a surprise. Senior barristers warned in 2021 that the justice system could not handle the volume of cases brought to it by a policy of leaving no suspect unprosecuted and no pound of flesh uncollected. They suggested that prosecutors should not pursue cases in which no violence was involved.

This suggestion was not well received. So here we are. Legal delays are not so much feared as expected. The Director of Environmental Protection was recently asked if the government feared its latest development brainwave would be challenged in court. He said “Every judicial review will bring harm to the whole of society. No matter who wins or loses, it will take a long time, often years, to complete.”

Well it takes years to do anything. We have already had one case in which the convicted defendant walked free at the end of the trial because his time already spent in custody exceeded the prison term to which he was sentenced.

Part of the problem may be that Hong Kong judges are used to working rather slowly. They take long breaks. Hearings start later and end earlier than most peoples’ working days. At the end of the trial the judge or judges may take months to produce a decision.

This owes something to the prosecutors’ evident aversion to juries. In a jury trial the question of guilt or innocence is answered by the jury and the judge goes straight on to passing sentence. If there is no jury he must not only determine guilt but give written reasons for doing so. These will be carefully examined by the defence and, possibly, the Court of Appeal. So some care is understandable.

Still, there is someone responsible for all this, and that is the Secretary for Justice, Paul Lam. Mr Lam recently assured us all that we are free to criticise the government so he will presumably not mind my saying that he presiding over a disaster area. Faced with a shortage of capacity in the justice factory he has failed either to expand the staff, speed up the production line or reduce the production quota. So the unfinished work is piling up.

The DoJ’s Prosecution Code says that, “The prosecutor must be alert to the rights of an accused which are relevant to the prosecution process, including equality before the law, the rights to have confidential legal advice, to be presumed innocent, and to have a fair trial without undue delay (my italics) under Basic Law Articles 25, 35 and 87 (Bill of Rights Articles 10 and 11).

Is that requirement really satisfied if the defendant can fit in a four-year degree between arrest and verdict?

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Your right to a lawyer: another domino falls?

Posted in Uncategorized, tagged , , , , , on December 30, 2023| 2 Comments »

We hear little of what goes on behind the scenes in the national security part of the police force. So small snippets of evidence are interesting. A couple of recent offerings suggest that an important right is being eroded.

The right to unfettered access to a lawyer is not disputable. It is mentioned in the Bill of Rights Ordinance which states at Article 11 (2) (b) that everyone charged with a criminal offence has the right to “adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing.”

The Basic Law has Article 35: “Hong Kong residents shall have the right to confidential legal advice, access to the courts, choice of lawyers for timely protection of their lawful rights and interests or for representation in the courts, and to judicial remedies.”

These rights are explicitly confirmed in the national security law, which states at Article 5 that “A person is presumed innocent until convicted by a judicial body. The right to defend himself or herself and other rights in judicial proceedings that a criminal suspect, defendant, and other parties in judicial proceedings are entitled to under the law shall be protected.”

There is nothing in the national security law’s Article 43, which deals with police powers, to suggest that any new right is being conferred to deprive defendants and others involved in legal proceedings of their right to counsel.

This is something of a global consensus. At the risk of provoking local defenders of the law and industry who dislike international comparisons, the position of the European Court of Human Rights has been summarised as: “Restrictions on access to legal advice are permitted: (i) only in exceptional circumstances; (ii) must be of a temporary nature; (iii) must be based on an individual assessment of the particular circumstances of the case; and (iv) must have a basis in domestic law, which must regulate the scope and content of any restrictions.”

The UN’s declaration on the Basic Principles of the Role of Lawyers (you find all sorts of odd things on the internet) opens with “All persons are entitled to call upon the assistance of a lawyer of their choice to protect and establish their rights and to defend them in all stages of criminal proceedings.”

In more homely terms, as Vanessa Place puts it in a book about her work as a lawyer for nasty people: “Fellow cons will be the first to volunteer to crack a rapist’s skull, but will never question the scumbag’s right to a defence.”

And the government’s official advice, offered on its webpage, is that “You have the right to free legal advice (legal aid) if you’re questioned at a police station. You can change your mind later if you turn it down. You must be told about your right to free legal advice after you’re arrested and before you’re questioned at a police station.”

This is the legal situation. It seems to me to be rather at variance with details which have emerged about two conspicuous cases. The first concerns Agnes Chow, a former political figure of some consequence who was on police bail, though not charged with anything, until she made a curious deal with the national security police.

She would attend a day trip to Shenzhen, featuring educational visits and a lot of photography, and sign a letter of regret and contrition. In return for this she could have her passport back, and sign up for a degree course in Canada.

In due course she arrived in Canada and then announced that she was not coming back. Multiple interviews followed, naturally, and the one with AFP included this background detail: “I was told by the police not to tell any people… not my lawyer, not my family, not any of my friends,”

I take it from this that throughout the negotiation and implementation of the arrangement Ms Chow had no access to a lawyer whatsoever. It may be that there are some circumstances in which national security requires suspects to be discouraged from reporting the details of their cases to friends who may also be suspects, but “not my lawyer”?

It is particularly disturbing that this absence of legal advice continued through the signing of the letter. I was politely chided by the HKFP’s meticulous subediting department for describing this as a “confession” in an earlier piece, but the fact is that it was drafted by a policeman and not vetted by a lawyer, so it was at best a dangerous document. Presumably the expressions of regret included some description of what was regretted, and this may well have involved admissions which could have landed Ms Chow in further trouble.

I now turn to another recently famous interviewee, Mr Tony Chung. Mr Chung was in a slightly different situation. He had served his time for a national security offence, was released early, as well-behaved prisoners usually are, and as usual in these circumstances was still under “supervision”.

This is done in other places by a probation officer, but in Hong Kong is apparently a matter for the Correctional Services. Mr Chung obtained permission to visit Japan for a holiday, and fled to the UK, where he intended to apply for political asylum.

The CSD people are understandably a bit aggrieved that their sincere efforts to ease Mr Chung back into society have been spurned. But it seems he was also under the supervision of the national security police, who periodically interviewed him with a view to gathering information about his friends.

Once again it seems clear that there was no lawyer present at these interesting interactions, which Mr Chung found rather stressful. Again we have a background snippet, this time from the BBC: “A confidential declaration he signed before his release from prison restricted him from disclosing the interactions with the national security police to any third parties, including lawyers, he said.”

This will not do, in my opinion. I realise that police people tend to regard lawyers as an irritating obstruction to the pursuit of public peace. But the law is the law. People involved in involuntary interactions with the police are entitled to have a lawyer present. Requiring them not only to engage in such interactions without counsel, but also not to consult a lawyer afterwards, is oppressive. And, I suppose, illegal. Quis custodet?

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