We are often told that national security judges are just like the other judges – same oath, same impartiality and all that. In the light of recent performances we must fervently hope that this is not the case.
Consider, for example, the latest outing by Judge Kwok Wai-kin. Judge Kwok is a generous source of material for writers of observations on the local legal scene, for which we are duly grateful.
His latest spot in the limelight involved four kids charged with conspiracy to commit subversion, an offence under the national security law. Their real offence seems to have been to be office-bearers or spokespeople for Student Politicism, a dissident group.
The prosecution complained of street booths in favour of causes like supporting the 12-man speedboat crew who were caught fleeing to Taiwan, and “resisting anti-Covid measures”, but we shall not explore this part of the case further because the four pleaded guilty, as one does these days if one wants to be tried before 2024.
Pleading guilty did not produce a great acceleration in this case, however. They pleaded guilty in July, sentencing in October. So it goes.
Judge Kwok’s first task was to classify the offence. National security offences come in three sizes, like McDonald’s fried potato portions: small, medium and large, with prescribed sentence ranges accordingly. This case was, the learned judge decided, in the minor category.
So far so good. He then went on to explain why, as seems to be the norm in national security cases, he was declining to be influenced by the points made in mitigation by the defendants’ lawyers. At this point the case involved “very serious crimes”.
And this, it seems to me, leaves Judge Kwok with a problem. Having used “very serious crimes,” for a minor offence what is he going to use for a major one? This is a mere linguistic difficulty which I shall leave with him but it could be very confusing for defendants. What bothers me is what came next. The defendants, Judge Kwok complained, had been promoting the concept of a “Hong Kong nation”.
“Since ancient times, Hong Kong has been a part of China, and Hongkongers belong to the Chinese nationality. ‘Hong Kong nation’ is only a concept constructed by those promoting Hong Kong independence, it has no historical or legal basis,” Kwok said.
This is a dip into a tricky area which judges do not need to enter and would be well advised to avoid. To start with, it is manifest nonsense to say that Hong Kong has been part of China since ancient times, if only because for parts of that long historical period there was no China to be part of. Either there were multiple Chinas in what we now consider China or China itself was part of someone else’s empire, as it was between 1644 and 1911.
There is also more sophistication in the idea of a “Hong Kong nation” than your average judge may be well up with. “Nation” in modern parlance may mean “nation state,” a political entity with a flag, anthem, government, army, UN seat, World Cup team and so on. Without the “state” bit, it is commonly used for groups which cherish a distinctive history, language, culture and perhaps religion, but have not acquired the political structure, or in some cases sought it.
Some “nations” have never translated themselves into states, like the Kurds. Some have had a patchy history, like the Armenians, currently a small state. Some are more or less happy parts of a bigger state but still regard themselves as nations, like the Scots.
The idea that a state should also contain a nation, rather than being the personal property of a hereditary monarch, really dates as an idea only to the 18th century, as a popular aspiration to the 19th and as a widespread arrangement only to the 20th.
It is hopelessly anachronistic to transfer the idea of the nation state, or citizens’ nationality, back to ancient times. Judges should beware of sounding like Vladimir Putin’s line on Ukraine.
This brings us to Mr Peter Law, Principal Magistrate, National security choice, and presiding genius in the trial of members of the organisation which used to run the Tiananmen Massacre commemoration in Victoria Park.
Mr Law had to adjudicate on a little procedural hiccup. Defendant Chow Hang-tung, who is defending herself but is a barrister so that’s OK, was cross-examining a witness from the national security police when she used the phrase “Tiananmen Massacre.” Prosecuting counsel objected to the wording and suggested “June 4th Incident” instead. Mr Law decided that “massacre” was too political for use in court and forbad its use.
He proceeded later to proscribe the use of “killings” as well.
This will be good news for some people. Fans of Herod the Great can rehabilitate the old tyrant as he only perpetrated the “Incident of the Innocents”. Members of the Clan MacDonald need no longer resent or avenge the “Glencoe Incident”. There may even be some hope for Adolf Hitler; shall we say 6 million involuntary suicides?
Observers who suspect that Mr Law’s procedural puritanism has its own political patina will wonder if he would also have objected to “Nanjing Massacre”.
Judges who have succeeded in not sounding like Mr Putin also need to avoid the example of the president of Turkey, Mr Recep (Armenian genocide? Never happened!) Erdogan. Stick to the law and do not dabble in history.
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