District Court judge Stanley Chan has a way of uncovering parts of the law that other judges don’t reach.
His latest innovation came in the sentencing on Wednesday of Tam Tak-chi, a democrat and former DJ, who had earlier been convicted on a variety of sedition charges.
When someone with a lot of friends who has been in custody for a long time has his day in court, the public gallery tends to be full. Hand signals, smiles are exchanged, possibly the odd oral message. National security judges, of whom Stanley is one, like to discourage this, in case it gets political.
Most others do not, though, go as far as he did, and ask the prosecution to set up surveillance cameras pointing at the public gallery.“ The court is the court, even if the judge is not inside the courtroom, it is still a court,” he said. He added that he would not allow any noise or “political promotion,” presumably even if he was not present.
This is not acceptable. From an architectural point of view, certainly, the court is a court, whether the judge is there or not, just as a stable remains a stable if there is no horse in it, and a sewer remains a sewer even if there is no poop floating down it.
From a legal point of view the situation is rather different. Judges are endowed with sweeping powers to keep order in their courtrooms. They can order instant arrest and unlimited detention. Senior judges are perfectly aware that this sort of summary procedure does not meet the usual standards and appeal courts have often urged restraint in its use.
The purpose of these powers is to ensure that the proceedings can go on in an orderly fashion. If the judge is not there then there are no proceedings taking place.
The implication of Chan’s remarks were quite clear. They were a threat. If the prosecution’s cameras revealed something to which he took exception he would use the power to commit for contempt. For “use”, read “abuse”.
It is difficult, though not impossible, to imagine a case where a judge might legitimately use the power to commit for contempt in connection with actions outside the court, and indeed outside the time of the hearing.
There was, for example, a case in England in which an alert court official spotted a man on the roof of the court engaged in trying to pipe laughing gas into the air conditioning system.
In the absence of this sort of technical innovation, though, people in a public gallery outside the time of the actual hearing are in the same legal position as they would be in the street. You cannot disrupt a trial which is not taking place. If lawyers in the courtroom – whether the prosecution or defence – take exception to what is said or done, their proper recourse is to call the police, not show the judge a video.
In fact is it normally unlawful to take video in a courtroom and I have some doubts about the propriety of a judge making an exception for his own purposes.
There is also the question what happens to the video afterwards. As our courts are under a great deal of international scrutiny these days it is important to avoid the impression that people attending a trial as spectators – as we are all perfectly entitled to do – are being discouraged by having their attendance recorded by government officials connected with the national security industry.
No doubt it could be argued on Chan’s behalf that a church remains legally a church, even if no priest is present. Sacrilege would still be sacrilege if the building was empty. This is because God is present. Judges are not gods, a point which Chan seems to have some difficulty with, because his all-seeing eye perceives things which were not, and indeed could not, be demonstrated by the evidence presented in his court.
Consider this comment on Tam’s political ambitions: “The defendant’s multiple grandstanding … there is only one purpose without a doubt, that is to enter the Legislative Council, enter Hong Kong’s administrative structure, and ‘enjoy’ the income, power, and social status given to him using government funds.”
Most of this is unexceptionable. Of course politicians in the old days when anyone could run for election hoped to get into LegCo, just as soldiers aspire to be generals and judges, we suppose, hope one day to sit in the Court of Final Appeal. But where did the “using government funds” come from?
I presume there was no expert evidence from a psychologist – or a government-friendly retired historian – as to the motivation for Tam’s political ambitions, so there was no reason to suppose that they are as venal as the judge implied.
The judge took a more modest approach to the defence’s claim that Tam had a “genuine ideology”. Citing excerpts from Tam speeches the judge said he “could not see where it included his so-called ideology”.
This is a dangerous way of putting it. Unbidden, the disrespectful mind contemplates answers like: not in that part of the speech perhaps. Or maybe some familiarity with political theory is required. Or intelligence.
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