Don’t judge Hong Kong judges – at least not all the time

We are urged by the Chief Justice not to level personal attacks on judges who make decisions we disagree with, a request with which I have no quarrel. His Lordship also points out, correctly, that many complaints about judges come from people who disagree with the result in a particular case.

Well sometimes the results in particular cases call for complaints, in my opinion, but it is certainly true that there is plenty of blame to go round and there is no reason why judges should be the sole recipients of it.

Let us consider the Department of Justice. It is the department’s role to prosecute people, which is fair enough. Is it also the department’s role to fill our prisons with as many people as possible?

There are still 40-odd people in prison awaiting trial over the “pan-democratic primary” held last July. When the question of bail comes up judges are routinely referred to the bit of the national security law on the subject, which says that the accused should not be admitted to bail unless the judge is satisfied that they will not “continue” to infringe the national security law.

It seems to me, and this must perhaps be an amateur error because none of the lawyers involved has tried it yet, that the use of the word “continue” means that the judge must not allow bail if the accused is likely to go on doing the thing of which he or she is accused.

The interpretation offered by the Department of Justice is that the judge must be satisfied that the accused will not commit any national security offence, fruit to nuts, from plotting the assassination of President Xi to putting bubble gum in MTR stored value card slots.

The primary election crowd are evidently not going to continue with their plan to put a large group of members into Legco committed to using the procedure provided in the Basic Law to oust the Chief Executive. The election has been postponed and the rules changed.

Judges nevertheless continue to be urged to refuse bail on the grounds that these people are likely to infringe the national security law in some unspecified way. The defendants have tried a variety of ways to dispel this impression. Some have resigned from their elected posts, their chosen parties and any office they hold in them. Individuals have offered to refrain from politics, writing for publication or giving interviews.

So far to no avail. The department continues to object to bail and continues to provide evidence for its view that some unspecified infringement is still in the offing. 

Consider the case of Ms Claudia Mo. Look, said counsel for the refusal of bail, she exchanges Whatsapp messages with reporters from international news organisations! Quite why it was considered necessary to forage in Ms Mo’s messages he did not say. It certainly wasn’t to find evidence about the primary, which could hardly have been more public.

But what, in any case, is wrong with exchanging messages with reporters from foreign news organisations? Ms Mo used to be one herself – she worked for AFP – and is married to a foreign correspondent. She is a member of the club.

Was it the content that was the problem? There were accusations of “desperation and loss of human rights and freedom”. So it is an infringement of the national security law to be desperate, or to believe that Hong Kong rights and freedoms have diminished?

Or is it just an infringement to mention these opinions, which are shared by the majority of the population, to foreigners?

The new security law, said one message, and the spate of arrests “have worked as a scare tactic, probably fairly successfully – at sending a persistent political chill around the city”.

Well perhaps this is the government’s idea of false news. Actually, as we all know, the passing of the national security law provoked the most riotous celebrations in Hong Kong since the Japanese surrender. People danced in the streets, crowds gathered outside Government House to cheer the Chief Executive, and total strangers copulated in doorways. Don’t know how I missed it all.

Then we have the case of Ben Chung, who did not run in the primary but was one of the organisers. The prosecutor said that Mr Chung was in charge of financing. and that some of the arrangements followed a typical pattern of “layering” found in cases of money laundering. But Mr Chung is not charged with money laundering, which is in any case not a national security offence.

The prosecutor cited a Youtube video as showing that Mr Chung had a “determined and resolute attitude”. But not determined enough, apparently, to fulfil his avowed intention if freed to drop out of politics and spend more time with his family.

It does not seem to have crossed the department’s mind that this eagerness to keep people behind bars does not make it look strong and patriotic. It makes it look vindictive. The department is not obliged to oppose bail. It does it because it can.

The fact is that the legal case against the primary organisers is shaky. Even some pro-government lawyers did not believe the primary was illegal. The result may come out one way or the other. Quite possibly whoever loses will appeal and the whole circus will finish in the Court of Final Appeal. This could, assuming the proceedings continue at the usual speed, take a couple of years.

And if, at the end of those two years, the defendants having been detained for all that time are acquitted, what then? Will they get compensation? No. Will anyone resign? Also no. Just another triumph for the rule of law with Chinese characteristics.

Let us now turn to another problem for those of us who would like to think well of the local legal system. When it was announced that there would be a special list of judges for Nat Sec cases the general expectation was that in practice the usual list would be pruned of foreigners and the rest of the judges would take their turns in the usual way.

What actually happens is that the approved judge appears only on the day of the trial. It seems that this provision is used to justify the prosecution in effect choosing the judge it wants for each case.

Well I know all judges are supposed to be equal and the selectors are looking only for learning and such like qualities. But this is hardly the way it appears to the lay observer, who is bound to entertain the suspicion that the selectors are looking for candidates who will willingly channel the late unlamented Lord Goddard, or better still the earlier but even less lamented George Jeffreys.

And having the same judge doing the same kind of case time after time does not inspire confidence that all arguments are being carefully considered by a fresh mind. Indeed, if the same defendants are coming up on similar charges there may be a suspicion that the presumption of innocence is being eroded.

More variety would be an improvement. Mesdames Woodcock and Toh may be wonderful judges but I think the person who decides these things should consider that they are in danger of getting into a bit of a rut.   

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