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Posts Tagged ‘rule-of-law’

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The motion was rescinded the following day, but this was not enough to head off a major reaction in pro-government circles and several students, including Mr Cheung, were arrested.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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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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