The law's delay: how Hong Kong's sluggish prosecutors lag behind their overseas counterparts

Judges, or at least the more junior ones, are to be subjected to an annual performance review by more senior colleagues. This is described by enthusiasts as a response to complaints.

justice delayed — File photo: Wikicommons.

You will notice that although most of the complaints came from government supporters wishing to see protesters hung, and preferably drawn and quartered as well, none of those complaints was actually substantiated. So in search of an example of a real complaint the Standard was reduced to citing the case of the judge who expressed sympathy for a man who in a moment of patriotic fervour had knifed a non-violent protester, an innocent bystander and a lady reporter.

We were also told the way this was handled: the judge was kept on a restricted diet – no politicals – for a year or so and has now been reinstated as an all-purpose wig-warmer. Nice.

Well, let us hope that the performance reviewers get on to one matter in which Hong Kong is dragging well below international standards, and that is the amount of time it takes before cases are concluded.

As it happens we have some recent data on this, thanks to a LegCo question by Tik Chi-yuen, the only blemish in an otherwise uniformly pro-government chamber. The Secretary for Security, Chris Tang, responded.

His reply, which included a great deal of fluff, culminated in this: “Operational experience from some 90 anti-EAB (anti-extradition amendment bill) cases concluded at the District Court (DC) over the past two years indicates that the processing time from their date of first appearance at the Magistrates’ Courts to the date of conclusion at DC generally ranged from 300 to 400 days or so, which is about 30 per cent longer than other criminal cases.

“The median time it took for cases to be dealt with by the Magistrates’ Courts was about 100 days. The median time taken for cases that were transferred from the Magistrates’ Courts to the District Court was 21 days.

“At the District Court level, it took a median of around 200 days for cases to be concluded for defendants who pleaded guilty. For cases that went to trial, the median time was approximately 380 days.”

It would perhaps be churlish to complain that this did not actually answer Mr Tik’s question. He asked for the average and the maximum times taken. This is a pity, because it means we cannot compare with the figures for England and Wales. According to Britain’s National Audit Office, for example, the average time between first appearance before magistrate/s and trial in Crown Court was 123 days, which does not compare well with a “general range of 300 to 400 days or so”.

Why did Mr Tang offer a barrage of medians? A short statistical digression is in order here. There are three standard ways of compressing a range of values – height, intelligence, number of monkeys on Monkey Hill, number of cars illegally double parked in Pedder Street at 5 pm – into one figure. They are the average, the mode and the median.

The average, known technically as the mean, is the one we are all familiar with: add up the numbers, divide by the number of cases. The mode is the most popular number, so if we are considering the number of wheels on vehicles going through the Cross Harbour Tunnel the mode is four. The median is the number which has the same number of cases above it as below it.

Let us say there are nine people in a bar, average income HK$20,000 a month. If Elon Musk replaces one of them the average income will immediately zoom up like one of Mr Musk’s rockets. But it will be meaningless. It will be grossly in excess of the incomes of the nine originals and much less than Mr Musk’s. So if you are considering whether you should stock six types of champagne the median – the income of the fifth patron in order of wealth – will be more helpful, and it will still be about HK$20,000.

This is the advantage of the median: it insulates you from extreme values. This is helpful in our bar case. In Mr Tang’s, on the other hand, it allows him to conceal the fact that some cases take much longer than 400 days.

In recent days, for example, we had Leung Kwok-hung convicted of disorderly behaviour in LegCo, an offence committed in 2016. Time from magistrate to final decision: six years, which comes to 2,100 days … or so.

Also in Bleak House territory we have Mr Benny Tai, in court last week to plead guilty to an election offence, also committed in 2016, which consisted of advertising his “Thundergo” plan for tactical voting. The judge in his case expressed some polite dismay that the proceedings had only started last year. The prosecutor replied that the Thundergo plan was a large one and it took a long time to gather evidence.

Which is bullshit. When the offence consists of placing large advertisements in newspapers the investigation is the forensic equivalent of a penalty kick with a blindfolded goalkeeper. It is difficult to suppress the suspicion that at some time last year a decision was made somewhere to throw any handy legal implement at the government’s critics.

Consider the case of Lee Cheuk-yan. Mr Lee is a venerable (he is 65) landmark of our political scene, already serving a sentence for taking part in an unlawful gathering. Last week he was in court again, accused of releasing a balloon in Central and obstructing a policeman who wished to arrest the balloon.

The outcome of this trivial triumph for the law (which was late as usual – offence committed in January 2021) was that Mr Lee was fined for releasing the balloon and sentenced to 30 days in prison for the obstruction, 20 days to be served concurrently with his present term. So he serves an extra ten.

Mr Leung was slightly less lucky. He got an extra 14 days.

With prosecutors busily engaged in this sort of thing, it is hardly surprising that major cases take for ever. The long wait for a court decision is a palpable infringement of the human rights of the defendants concerned, whether or not they are – as they generally are these days – kept in custody pending the trial.

It this all seems rather abstract, let us consider the arrangements now used in English trials, which revolve round a thing called Custody Time Limits. The basic idea is that people should only be kept in custody pending trial for a limited period, 56 days for a trial before a magistrate and 182 days (an odd number? Six months) for a Crown Court trial. If the prosecution has not got its ducks in a row by the end of that time the defendant is entitled to bail, regardless of the reasons why it was refused in the first place.

There are the usual legal bells and whistles – exceptions, definitions, which days count and so on. Summary for lay people: “All trials are listed within the Custody Time Limits. If the trial, for whatever reason, has to be adjourned to a date beyond those limits the prosecutor must publicly apply to extend the CTL to ensure that the defendant remains remanded until the new trial date. The legal test for extending the CTL requires that the court must be satisfied that the prosecution has acted with ‘due diligence and expedition and that there is good and sufficient cause…’”

Failure to observe the time limit is regarded in prosecutorial circles as a major embarrassment. So you may not be surprised to hear that prosecutors in the Crown Prosecution Service, under-funded and understaffed though it notoriously is, generally manage to get their cases started within the limit.

The conclusion we can draw from this is that those cases which took “300 to 400 days” here would have been completed in about half the time elsewhere. The “median time for cases to be dealt with by the Magistrates Courts” was roughly twice the maximum usually allowed in England.

There is no prospect of a formal time limit being introduced here, but there is clearly scope for a good deal of acceleration, if judges can bring themselves to require it.

jimmy lai — Jimmy Lai. File Photo: Kelly Ho/HKFP.

Also in the court pages recently we had the Director of Public Prosecutions appearing in person to further the case of fraud (using part of a factory building as an office) against Jimmy Lai. This case first appeared before a magistrate in December 2020; the trial started this week. Par for the course.

Actually this case shouldn’t be a high priority, given that Mr Lai is already up to his ears in enough legal excrement of the national security variety to keep him in prison for the rest of his life.

It might be useful if the DPP left the pursuit of Mr Lai to some junior person and concentrated on putting a rocket under her subordinates.

I do not subscribe to the view, reported to be widely held among residents of the Lai Chi Kok Detention Centre, that long delays pending trial are a deliberate ploy to encourage guilty pleas. But the alternative explanations are not much more attractive: indifference, indolence or incompetence.

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