There is something a little desperate about Hong Kong’s senior officials insisting that we still have an independent judiciary. It seems that other civic amenities have been written off.

We no longer have a vaguely democratic legislature, an accountable police force, or an elected executive. We have shredded the right to trial by jury, to bail, even to a trial in the jurisdiction where you committed the alleged offence. Our elections are fixed and our laws are made in Beijing. But by God we still have an independent judiciary. Isn’t that wonderful?

A photo taken inside the Court of Final Appeal during the Ceremonial Opening of the Legal Year 2021. Photo: GovHK.

Last week, two New York newspapers printed letters from Hong Kong officials defending the judiciary against accusations of bias. Nice timing. These epistles were closely followed by the case elegantly headlined in The Guardian “Court jails three on rioting charge despite no evidence of rioting”.

Well, the charge of judicial bias is, as Lord Justice Hale famously said of rape “easily to be made and hard to be proved, and harder to be defended by the party accused, though never so innocent.”

There is, to put it gently, some unease among practitioners. This is partly just because Hong Kong is a small place. It is difficult for judges to avoid social pressure entirely. It is partly, also, because unlike their counterparts in some other jurisdictions Hong Kong judges climb a promotion pole – district judges can become High Court judges, and so onwards and upwards. It is difficult to believe that upward progress is easy for those who fail to lend a sympathetic ear to counsel for the HKSAR.

Then there is an interesting link between the Department of Justice and some groups of barristers – or chambers as they call it. Though the department can call on the services of a large body of purpose-built prosecutors it still farms out a lot of cases.

Department of Justice. Photo: GovHK.

These go out on a “gig economy” basis, rather like a Uber for lawyers. The arrangement is cloaked, like Gibbon’s licentious passages, in the “decent obscurity of a learned language”. It is known as “prosecuting on a fiat”.

It is quite understandable that the department should favour people who have done a good job for it. The relationship blossoms and the department quite naturally supports the applications of those members of this charmed circle who wish to become judges. So, many judges are very experienced prosecutors. Few are very experienced defenders.

I hesitate to say that this produces bias, or at least any more bias than you get in other jurisdictions from the unavoidable fact that most judges are rich old men and have the predilections which go with that background. It may, though, explain why our judges are so gullible when offered dubious legal innovations by the Department of Justice.

My favourite example was the abuse of the law on dishonest access to a computer. I railed against this for years. Every lawyer I ran into said consolingly that they entirely agreed: the law was not supposed to criminalise use of your own computer or, worse, your own mobile phone, however scurrilous the purpose to which you put them.

Nevertheless, numerous charges were brought and convictions obtained in defiance of the clear meaning of the relevant law, until someone with the time and money to appeal took the matter to the High Court.

File Photo: Tookapic, via Pixabay.

A good recent example is, of course, the jailings on rioting charges “despite no evidence of rioting”. Presiding judge Ernest Lin was referred, I do not doubt, to a recent opinion of the Court of Appeal. That court was asked whether absence from the scene meant automatic acquittal. In a rather rambling and loosely worded decision the court said it did not. This should have surprised nobody.

In fact, the appeal was thoroughly pointless. In the original case, the judge had decided that since the defendants were not at the scene of the riot they could hardly be convicted of participating in it. This seems a fairly common sense view to take.

The Justice wallahs decided that they wished to establish (they are not allowed to appeal against an acquittal so this was a purely consolation-seeking exercise) that absence from the scene would not necessarily be a defence. Since that was the only question before the Court of Appeal its other musings were mere commentary. 

It is of course true that you can be convicted of a crime if you share a “common purpose” with the perpetrator, even if your part of the proceedings can be done in absentia. As Vanessa Place briskly puts it, “If I agree to help you rob the liquor store, I am liable if you cap the clerk, as that is the sort of thing which might naturally happen during a stick-up.”

Hong Kong citizens line up outside the West Kowloon Magistrates’ Courts on April 16, 2021 ahead of hearings for two 2019 unauthorised assembly cases involving high-profile pro-democracy figures. Photo: Candice Chau/HKFP.

If I may digress for a moment, Ms Place is one of those writers who leaves me feeling like Salieri in the presence of Mozart, a considerable achievement because the only work of hers with which I am familiar is a disquisition on the treatment of penniless sex offenders in the California justice system.

The common purpose idea is known in Hong Kong as “joint enterprise.” Internationally it is regarded as a tricky area because it is notoriously open to abuse. Note what the Court of Appeal did not say. It did not say that in the absence of proof of rioting you were guilty. It said that if you were absent from the scene the prosecution could still seek to associate you with the crime if you had been jointly engaged in the riot in some other capacity.

Where there is no evidence of you participating, though, that leaves the prosecution with the burden of proving that you were engaging in a joint enterprise. Mr Lin’s comment on this point was that “the presence of the three defendants had encouraged protesters who were confronting police officers”.

But this will not do at all. After all, it is a frequent complaint in the law and order business that the presence of the media encourages riotous behaviour, and I have no doubt that during this particular protest the usual crowd was there. This does not make reporters guilty of rioting. Indeed, for anyone to be guilty of rioting the prosecution must establish not just presence, but intention.

Photo: Kelly Ho/HKFP.

The Court of Appeal’s decision, as the court should perhaps have realised would happen, can easily be interpreted by prosecutors as abrogating the presumption of innocence altogether if the defendant was on the same street as a riot. It is a pity the judgement, while including some headline-catching phrases like “you could be guilty for clicking a like button” did not delineate more clearly the requirements that “joint enterprise” requires of prosecutors.

Let us now turn to another interesting innovation. During the siege of the Polytechnic University said university was surrounded by police, who said that everyone inside should emerge and would then be arrested.

Some of the people inside the university explored various means of escape. Some of them successfully left through the sewage system, although this route did not work for everyone who tried it. A short-lived alternative was to abseil down a rope from the Poly footbridge to the road below, where friendly supporters provided lifts out of the area by car or motorcycle.

Some of the cars containing protesters were stopped in Homantin. Last week their drivers appeared in court charged with “perverting the course of justice”. Really?

Photo: Tam Ming Keung/United Social Press.

Generally the essence of this offence is to disturb the smooth flow of legal procedure by such things as interfering with witnesses or publishing prejudicial material. This means that you cannot generally commit the crime until the machinery of justice has swung into action.

Unless the greyhound Procedure has set off from the trap in pursuit of the elusive electric hare Justice, there is nothing to prejudice or pervert. However in Hong Kong the offence is given a rather broad interpretation. “Case law suggests,”  according to a useful website, “that it is sufficient if such proceedings are imminent, probable or even possible at the time of the alleged wrongful act or conduct.”

So as well as the case of “Moon Bear” (who tried to discourage an ICAC investigation by dropping the name of Mr C.Y. Leung) we also have the case of Nicholas Tse (who persuaded someone else to take the rap for a traffic accident by masquerading as the driver when the police turned up).

How is this going to work with the Poly U siege?  I suppose the prosecution is going to say that anyone who was inside the university was a putative criminal. But it seems none of the escapees were prosecuted.

Actually, it is beyond the powers of a police office to make staying in a particular place a crime in itself. Oddly enough I discovered this many years ago when the London School of Economics, having been occupied by its student body for a weekend, decided to beef up its security with some steel gates. Some radical students then removed the gates.

Photo: Wikicommons.

The police, thinking erroneously that the culprits might be enjoying a post-vandalism celebration in the Student Union bar, surrounded it and refused to let anyone out. Some more or less sober law students were then deployed, and the senior policeman concerned admitted that he did not have the legal power to detain us all, so people could leave.

I infer that the threat to arrest everybody was not a judicial proceeding in embryo, but an abuse of power. Arrests should only be made on reasonable suspicion of a crime being committed. At the time the threat to arrest everyone was made the police did not actually know who was in the university or how many people there were. Clearly some of the “occupiers” had broken the law. Equally clearly, there were many who had not. 

At the time we had all been treated to livestreams of arrests which involved the liberal application of boots and batons, sometimes followed by rendition to a mysterious site in the New Territories where access to lawyers or medical help was refused or delayed. Reluctance to be arrested was entirely understandable, and can hardly be interpreted as an admission of guilt. If the courts can assume people are innocent until proven guilty, surely the rest of us can do the same?  

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Tim Hamlett

Tim Hamlett came to Hong Kong in 1980 to work for the Hong Kong Standard and has contributed to, or worked for, most of Hong Kong's English-language media outlets, notably as the editor of the Standard's award-winning investigative team, as a columnist in the SCMP and as a presenter of RTHK's Mediawatch. In 1988 he became a full-time journalism teacher. Since officially retiring nine years ago, he has concentrated on music, dance, blogging and a very time-consuming dog.