Meaningless prosecutions waste the courts’ time as Hong Kong defendants face long wait for justice

According to the usual anonymous and unattributable sources the Secretary for Justice, Teresa Cheng, has decided to call it a day. Not being fired; she’s jumping for “personal reasons”, we’re told, as we usually are. Replacement? Nothing definite yet, but the rumoured front-runner is a pillar of the Independent Police Complaints Council, so don’t expect too much.

However, whoever it is, I hope he or she will do something about the speed at which the Department of Justice operates, which in some cases seems in and of itself to be a violation of defendants’ human rights.

I realise that persuading the members of a profession built on the concept of billable hours to treat other people’s time as valuable may be a struggle. Learned professions are generally prone to the illusion that their time is more important than yours.

But the occasional wait for a busy doctor or an absent absent-minded professor is nothing compared with the treatment you get from the courts, where everyone is instructed to turn up at 9 o’clock, the magistrate doesn’t start sitting until 10, and the matter you are involved in may not come up until the afternoon, if it isn’t moved to another day altogether.

For senior judges time to be served can be measured in decades, so keeping you in suspense for a month or two doesn’t count. However, prosecutors ought to be different. I will not bore you with a repetition of my previous complaints about the time it takes to get a case into court in Hong Kong. But, take it from me, it is by international standards a disgrace.

No doubt it would be a major task for a new Secretary for Justice to persuade his troops to work faster. But they could at least perhaps be persuaded to be a bit more discerning in the cases which they take to court.

themis rule of law Old Supreme Court — Statue of Themis on the Old Supreme Court Building. Photo: Wikimedia.

There is not much point, for example, in taking some political target into court when the outcome is going to add a few days to the multiple months he is already serving, or the years he is likely to be facing when the trial he is awaiting (in custody) finally crawls before a judge or three.

Recently, though, the trend towards meaningless prosecutions reached its logical conclusion: a prosecution which has no practical function at all.

This brings us to the case of Mr Ted Hui. Mr Hui was, in the old days when we had such things, a rather critical and disorderly legislator. He was also conspicuous in attempting to sooth irate protesters and police during the anti-extradition bill protests, and ate a lot of pepper spray as a result.

Nothing makes you a target of the law and order industry like being a victim of police abuse. So Mr Hui was one of the first victims of the post-2019 trawl through the previous lives of likely suspects for items on which a belated prosecution could be constructed.

When the number of counts charged reached nine (further items are still promised) Mr Hui decided that his future in Hong Kong would feature a long stint on the correctional M & Ms diet. Nothing in this piece should be interpreted as expressing an opinion on Mr Hui’s innocence or guilt of these or any later charges.

He seems to have come to the deluded conclusion that someone with his background could not expect a fair trial from the national security machinery. This is an unwarranted criticism of the national security machinery which, without fear or favour, provides unfair trials to all its victims. It was designed to make prosecutions easier.

National security law — A banner inside the Hong Kong government headquarters promoting the national security law. Photo: GovHK.

Well, like most suspects Mr Hui had been required to surrender his passport. However with the aid of two Danish fans he persuaded a Hong Kong court that he had been invited in his official capacity to attend an environmental gabfest in Copenhagen.

The prosecution complained that this did not look very official. A sympathetic Danish MP then added a timetable of official chats to the fictitious proceedings and Mr Hui flew to Denmark. After a few days to allow his family to leave Hong Kong he announced that he was not coming back, and went on to the UK. He later moved to Australia, where he still is.

So what was the point, one wonders, of inviting a Hong Kong judge to convict him, in his absence, of contempt of court… four counts, no less. Sentence adjourned for the judge to think about it.

The fact is that Mr Hui is neither stupid nor a masochist. There is no real prospect of his returning to Hong Kong, in the absence perhaps of some exotic mid-air emergency producing an unlucky emergency landing in a human rights haven like Turkey or Saudi Arabia.

Mr Hui is, accordingly, outside the jurisdiction of Hong Kong courts and outside the reach of Hong Kong policemen, to the great irritation of our new Chief Executive. Short of a cross-border kidnapping which would spark an international diplomatic explosion we must accept that we are going to enjoy, or suffer, a Hui-free Hong Kong for the foreseeable future.

If Mr Hui does come back he can of course be charged again with all the nine pending matters, as well as jumping bail and, if we must, contempt of court for misleading a judge. I am not sure that this is a normal reaction to people jumping bail, which they do all the time. Anyone who has been freed on bail has implicitly promised to turn up for trial but those who do a runner are not usually prosecuted for contempt.

Mr Hui can also be charged with whatever else the Department of Justice can come up with. In the meantime, though, surely government lawyers have more important things to do with their time than asking a judge to convict someone in his absence and pass a sentence which will in practice not be served?

Waiting for the unlikely return would free resources, both prosecutorial and judicial, for matters with immediate practical effects for the people concerned. It would also coincide neatly with the passage in the International Covenant on Civil and Political Rights Article 14 3 (d) on the rights of people accused of criminal offences, which includes the right to be present at their trial.

The judge in Mr Hui’s case said that his successful deception posed “a real risk that public confidence in the due administration of justice will be undermined.” Well, we can’t have that can we? So I would urge the public not to read the rest of the international covenant, which also includes the subversive notion that “It shall not be the general rule that persons awaiting trial shall be detained in custody.” Those were the days.

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