People trying to assess the health of the rule of law in Hong Kong tend, quite understandably, to look at those high-profile cases in which the government is trying to ensure that by the time Legco elections do come round — a year late — all the plausible opposition candidates will be either in prison, disqualified or both.
This will transition us painlessly to democracy with Chinese characteristics, in which anyone can vote but you cannot run for office without the Party’s approval.
But these conspicuous examples are quite remote from the rule of law as the man on the proverbial Clapham omnibus encounters it. Most of the legal action which concerns the grassroots takes place unreported and unnoticed in magistrates’ courts.
So how are things going down there? Well here are some bits of flotsam which came down the great river of news and suggest that the answer might be ‘not so good’.
Let us start with the case of Mr Patrick Cheng, who appeared the other day in the Eastern Magistracy, his honour Cheang Kei-hong presiding.
Mr Cheng was accused of “obstructing a public place”. The facts of the case were that on November 11 (when some people were on a city-wide strike) he threw a tin can onto a road. Apparently the can concerned was a bit bigger than the sort of thing your beans come in, being more in the way of a paint tin.
In mitigation Mr Cheng’s lawyer said that one item could not do a great deal to obstruct a road. But the learned magistrate would have none of this, saying the defendant had had an “enormous impact” on people who wanted to lead their normal lives.
This seems a regrettable piece of oratorical overkill. Look at it this way, if Mr Cheang has used up “enormous impact” on throwing a tin can into the road, what is he going to use to describe, say, blowing up a power station or poisoning the water supply?
Still Mr Cheang went on to deduce from the “severity of the offence” that a custodial sentence was necessary and gave Mr Cheng 55 days. Mr Cheng was allowed bail pending an appeal.
Now take a look at an appeal case. Defendant Lee Kai-fat had appeared before a magistrate, not named in RTHK’s report of the appeal, on a charge of possessing offensive weapons: a petrol bomb and a laser pointer.
He was jailed for eight months in June and had served four months behind bars before his appeal came up before High Court Judge Alex Lee. The judge ordered his immediate release.
He was told that the defendant, a 32-year-old-man, had the IQ of an 11-year-old. The magistrate had not considered this a factor to be considered before passing sentence. In some jurisdictions this case would never have been brought. It is difficult to see how a sane and awake magistrate could have thought that a disability on this scale was entirely irrelevant.
An innocent error? OK then try this real horror story. Chan Tung-sing was convicted of possessing offensive weapons and obstructing a public place.
The police prosecuting witness said he had not actually seen Chan do anything illegal. The “offensive weapon” — a set of allen keys — was an unlikely weapon.
But magistrate Norton Pang was not distracted by such trivia. The defendant, he said, “must have been involved in the protests because he was wearing the same black outfit as the others when detained.”
The distant rumble which careful observers could hear in the courtroom at this point was the sound of Mr Justice Geoffrey Lawrence turning in his grave. Mr Lawrence’s claim to fame in legal circles is his summary of the burden of proof in criminal cases, which goes like this:
“The possibility of guilt is not enough, suspicion is not enough, likelihood is not. A criminal matter is not a question of balancing probabilities and deciding in favour of a probability. If the accusation is not proved beyond reasonable doubt against the man in the dock, then by law he is entitled to be acquitted, because that is the way our rules work. It is no concession to give him the benefit of the doubt. He is entitled by law to a verdict of not guilty.”
Mr Pang has probably made legal history by convicting a man for wearing a black outfit. He compounded this error by refusing bail pending appeal, so Mr Chan is now serving three months in a “rehabilitation centre”. By the time his appeal reaches a higher court he will in all probability have served the sentence.
We are urged to be temperate in criticisms of judges, and temperate I shall try to be. But magistrates need, perhaps, to try harder to avoid giving the impression that considerations of fact and law — indeed possibly also of common sense — now take a subordinate place in their deliberations, behind the over-riding purpose of the proceedings, which is to consign protesters to prison in the largest possible numbers.
Recent redeployments in the magisterial ranks have, I realise, suggested that insufficient zeal in this important pursuit will lead to the judicial equivalent of a free transfer to a Division Two club.
It must also be said that some magistrates — I will not blight their prospects by giving names — continue to discharge their functions with an admirable care for the rights of the people arraigned before them, risking noisy abuse from Ta Kung Pao and silent frustration in the Department of Justice.
It does seem, though, that those humble miscreants who appear in local courts are partaking in a bit of a lottery. Will justice be blind … or dumb?
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