Chui Chun-man, who was sentenced to ten months in prison last Monday for sedition, must be among the least likely convicts to attract sympathy.
Mr Chui, who was a policeman himself at the time, greeted the death of a marine police colleague with some thoroughly ill-chosen words, including the suggestion that the victim “deserved to die” and that “it’s not enough to see only one dog official dead.” There may have been other equally objectionable stuff; news stories were understandably sparing with quotes.
Mr Chui, who did not help himself by explaining to the magistrate that he was “grumpy” at the time and did not really believe what he wrote, will I fear have an interesting time in prison, avoiding people who disapprove of his former job (he has resigned from the police force) and other people who disapprove of his offence.
However, it is an old axiom that official abuse of the law always starts with the least sympathetic victims, and spreads to the rest of us later. Accordingly, though we may feel Mr Chui is now where he belongs, we may still feel some misgivings about how he got there.
The law on sedition forbids attempts to “bring into hatred or contempt or to excite disaffection against” the Hong Kong government. Disaffection is a rather technical word which does not mean the opposite of affection. As we can see from the separate section of the Crimes Ordinance on “incitement to disaffection” it means attempting to persuade someone who owes a duty of obedience to the government – soldiers, policemen and such – to repudiate their allegiance.
We lay people are left with hatred and contempt. Further down the ordinance we also must avoid encouraging social change by illegal means, encouraging violence or law-breaking generally. The administration of justice has had special protection since 1970.
Mr Chui’s remarks, deplorable though they may be, look difficult to fit into this framework. The learned magistrate thought there was a danger of them inspiring violence against police people, which is a bit of a stretch. The law is supposed to protect the reputation of the government in general, not parts of it. The Police Force, wonderful though it may be, is not the government. Or is it?
As a practical matter, anyway, it seems that potential enemies of the force are unlikely to be much influenced by a serving member thereof. And somebody who was trying to start a violent insurrection would hardly raise his first flag on the Police Facebook page, which is where Mr Chui put his literary efforts.
It does appear, though that sedition cases – for decades unheard of – are suddenly being produced in large quantities. This sits uncomfortably with another part of the relevant law, which goes like this:
Legal proceeding (1) No prosecution for an offence under section 10 shall be begun except within 6 months after the offence is committed (2) No prosecution for an offence under section 10 shall be instituted without the written consent of the Secretary for Justice.
Very little discussion has been reported of what these items were intended for – they are rarely found in other ordinances – or what they tell us about the intentions of this part of the law.
The time limit has on the whole been observed. In one case the prosecution introduced evidence of offences before the six month limit, and claimed when this was queried that the items concerned were not part of the charge; they were merely introduced as evidence of the defendant’s state of mind. Once a rebel, always a rebel, apparently.
The bit about the Secretary for Justice came up in one case, and was roundly dismissed by the presiding judge as “meaningless” because all prosecutions are brought by the secretary or people acting on his direction and behalf.
The drafters of this piece of legislation were well aware of the role of the Secretary for Justice (or the Attorney General, as he then was) in running his department, deciding its prosecution policies and lending his title to some case names, which appear in the calendar with him as the prosecuting party. So why would they stipulate that he must approve prosecutions personally?
This condition is rare, but not unique. It is inserted when prosecutions will need to be evaluated on a broader basis than the traditional test, which is whether there is a reasonable chance of success.
The Secretary for Justice is not a purely legal figure. He also has one foot on the political side of the fence. He takes part in policy deliberations and has regular contact with senior political figures. He is called upon to authorise prosecutions when non-legal considerations are legitimately entertained.
So in sedition cases the secretary can ask himself whether the proposed defendant, if convicted, will be widely regarded as a miscreant or a martyr. Will the practical consequences of a conviction be worth the reputational risks if the government appears to be using the law to suppress criticism of itself? Does the risk to public order justify trampling on a cherished freedom? Does prosecuting people for possession of a book bring back some unhappy memories?
The intention of the “legal proceedings” section, it seems to me, is to ensure that although the law is expansively drafted prosecutions will be rare and only undertaken in cases where there is a serious danger of immediate trouble.
This would bring it more or less into line with international standards. Most common law countries have either abolished sedition altogether or restrict it to advocacy of violence. Observers in those countries are unlikely to be impressed by the number of cases now cropping up in Hong Kong, or the rather imaginative connection with violence involved in some of them.
It is no good our government complaining that overseas writers or officials are “scandalising” our judicial system if its conduct is by their standards scandalous.
And while we are on the subject of Hong Kong reactions to overseas criticism could the writer concerned please note that there is no point in claiming that the SAR has no “secret police.” This may be true but it is also true that governments which do have secret police always deny their existence. If this was admitted then the force would no longer be secret.
A government denying it has secret police is like a millionaire denying he has a mistress. We realise that this may be true, but in the absence of further evidence…
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