HKCT Review 2020: Legal Sector & Judiciary
Every sector of the city has undergone some sort of earthquake - this is particularly true in the legal sector.
Hong Kong National Security Law
Hong Kong entered a new era with the announcement and subsequent enactment of the National Security Law (NSL). The resolution for the law was announced in late May by the Standing Committee of the National People’s Congress (NPCSC) (https://www.facebook.com/hkcolumn/posts/2655135518037164) and it was swiftly drafted and passed in late June, notably completely bypassing Hong Kong's existing legislative mechanism. Proponents of the law say it will bring an end to the chaos and rectify the lack of Article 23 legislation, while critics panned the law as a breach of Hong Kong's legal and judicial independence. In its provisions, NSL outlaws sedition, secession, terrorism and collusion with foreign forces, expands the powers of the police, establishes a national security agency in Hong Kong, and gives the Chief Executive the power to designate judges to preside over NSL cases (https://www.facebook.com/hkcolumn/photos/a.1446445815572813/2679594178924631) While some are concerned about the city's independent judiciary, Lam called those raising such fears ignorant. Lam said it was not rare for the CE to designate judges to handle particular cases (https://www.facebook.com/hkcolumn/posts/2682673215283394).
On 1 July, the first day the law went into effect, police declared certain slogans and protest flags to be illegal under the NSL and made multiple arrests (https://www.facebook.com/hkcolumn/posts/2688480601369322, https://www.facebook.com/hkcolumn/posts/2688449334705782). Since then, NSL has effectively snuffed out the already-dwindling momentum of the anti-ELAB protests. In the second half of 2020, a number of additional high-profile arrests have been made under NSL, most notably Jimmy Lai and his associates, causing a chilling effect (https://www.facebook.com/hkcolumn/posts/2835758273308220). As a result, a number of high-profile political activists and protesters awaiting trial have fled or, made attempts to flee, overseas, including Ted Hui, Baggio Leung, Nathan Law, etc.
NSL was widely criticised by the governments of many Western countries. So far, 10 countries suspended their extradition treaties with Hong Kong (
https://www.facebook.com/hkcolumn/posts/2785550228329025, https://www.facebook.com/hkcolumn/posts/2712891555594893, https://www.facebook.com/hkcolumn/posts/2709786315905417, https://www.facebook.com/hkcolumn/posts/2703772416506807). The Five Eyes (US, UK, New Zealand, Australia and Canada) each suspended extradition arrangements with Hong Kong in response. Many European countries, including France, Germany, the Netherlands, Finland, and Ireland also suspended such arrangements. Many foreign companies and institutions, including Naver, the New York Times, and the American Political Science Association, decided to relocate part of their offices and workshop to other regions amid concerns over privacy, press freedom and academic freedom (https://www.facebook.com/hkcolumn/posts/2704429929774389).
Bar Association said NSL erodes high degree of autonomy and creates a parallel law enforcement system in Hong Kong (https://www.facebook.com/hkcolumn/photos/a.1446445815572813/2688712881346094/, https://www.facebook.com/hkcolumn/photos/a.1446445815572813/2682220568661992/, https://www.facebook.com/hkcolumn/photos/a.1446445815572813/2679344108949638/, https://www.facebook.com/hkcolumn/posts/2662836333933749, https://www.facebook.com/hkcolumn/photos/a.1489251731292221/2658231381060911/). In a symposium in July, Bar Association member Po Wing-kay said there is a conflict of interest when the CE is simultaneously the chairman of the Committee for Safeguarding National Security and the person designating judges. Po said under the new NSL, there is no more presumption of bail, meaning the arrestee's rights were undermined (https://www.facebook.com/hkcolumn/photos/a.1446445815572813/2690837877800261/).
Senior Hong Kong lawyers expressed alarm at plans for the city’s leader to select judges for national security cases, calling it the most serious challenge to the territory’s vaunted judicial independence since the 1997 handover to Chinese rule. (https://www.facebook.com/hkcolumn/posts/2680461402171242)
Meanwhile, Law Society's head sided with NSL. Law Society President Melissa Pang said that Hong Kong national security law involves the common interests and security of Hong Kong and the people of China. The general principle of the law stipulates that in safeguarding national security in Hong Kong, human rights should be respected and upheld so as to protect the rights and freedoms of Hongkongers under the Basic Law and international human rights treaties in accordance with law (https://www.facebook.com/hkcolumn/posts/2688343244716391).
Court decision - slammed discourteously?
Hong Kong's court system became the battleground for settling many disputes and controversies that arose from the anti-ELAB protests. Many judges found themselves the subject of numerous complaints, harassment, even death threats, by people from both sides of the protest movement (https://www.facebook.com/hkcolumn/posts/2783242895226425, https://www.facebook.com/hkcolumn/posts/2822920404592007). Law Society condemned death threats towards judges (https://www.facebook.com/hkcolumn/posts/2824664004417647).
The Hong Kong Bar Association (HKBA) has demanded that Justice Secretary Teresa Cheng take action against pro-Beijing newspaper Ta Kung Pao over its attack on a High Court judge who last week ruled against the police practice of riot officers not displaying their ID numbers at protests (https://www.facebook.com/hkcolumn/posts/2813571615526886).
Months of anti-ELAB protests and numerous incidents of police misconducts resulted in the public clamouring for police accountability. Among the most common grievances were the widespread police practice of not displaying warrants cards and the Independent Police Complaints Council's (IPCC) lack of power to subpoena and investigate complaints. On 19 November, High Court ruled that police accountability mechanisms, namely IPCC and CAPO, are inadequate for investigating complaints against officers, and that front line officers' failure to display ID numbers violates the Bill of Rights (https://www.facebook.com/hkcolumn/posts/2810165149200866).
On 21 December, the Court of Final Appeal ruled that the ban on face masks at unauthorised protests and rallies was proportionate and no more than reasonably necessary to prevent violence; i.e. the pan-democrats lost their case while the government won (https://www.facebook.com/hkcolumn/posts/2834989970051717).
On 21 December, Court of First Instance dismissed the judicial review lodged by the Hong Kong Journalists Association (HKJA), which aimed to challenge the police's ill-treatment of the press at protests. The judge stressed that the ruling did not reflect whether the police have acted illegally in individual cases, which can only be determined by investigating specific complaints (https://www.facebook.com/hkcolumn/posts/2835297853354262).
On 21 August, Martin Lee, et al. lost the judicial review to challenge police inspecting the contents of their seized mobile phones (https://www.facebook.com/hkcolumn/posts/2730125867204795).
On the eve of the rally against the Government's amendment to the Fugitive Offenders Ordinance on 9 June last year, Justice Patrick Li Hon-leung of the High Court joined a petition on papers to opposing the extradition law amendment. The judiciary said Li was also not allowed to deal with cases related to anti-ELAB. As District Court Judge Kwok Wai-kin called the demonstrations for causing "insecurity" and "depression" in Hong Kong, praised the assailant as with "lofty ideals", and accepted the defendant's plea that he had lost control of his emotions due to economic pressure, Kwok was ordered not to deal with a case involving similar political background. Chief Justice Geoffrey Ma issuing a statement on 25 May, stressing that judges and judicial officers should refrain from expressing inappropriate or unnecessary opinions or political views in public (https://www.facebook.com/hkcolumn/posts/2660539597496756).
Gov decision controversial too
Dennis Kwok stalled for months the proceeding of electing a president for House Committee in LegCo for months in a bid to prevent Starry Lee to win the seat. After months of stalling, Beijing has spoken, including Liaison Office and HKMAO (https://www.facebook.com/hkcolumn/photos/a.1446445815572813/2623978197819563/). SCMA Erick Tsang even said HKMAO and LOCPG represent the Central People's Government in handling Hong Kong affairs and therefore it is normal for the two bodies to have supervisory powers over Hong Kong, and it is also legal and constitutional for them to exercise such powers (https://www.facebook.com/hkcolumn/posts/2667344550149594). When pressed by Citizen News, SCMA and SJ simply could not answer (https://www.facebook.com/hkcolumn/posts/2648998745317508). Bar Association said the remarks from 2 Offices breached BL A22 (https://www.facebook.com/hkcolumn/photos/a.1446445815572813/2630200313864018/). Law Society had no stance whatsoever (https://www.facebook.com/hkcolumn/posts/2641213352762714); they offered no further response afterwards. Secretary for Justice Teresa Cheng even said there was no need to "over-report" when the Hong Kong and Macau Affairs Office and the Liaison Office expressed their views (https://www.facebook.com/hkcolumn/photos/a.1489251731292221/2627419137475469/).
So are Liaison Office and HKMAO subject to BL A22 that stipulates organs under the Central Government are prohibited from interfering in Hong Kong affairs? Liaison Office said it's a NO (https://www.facebook.com/hkcolumn/photos/a.1446445815572813/2627648277452555/). HKSAR government's statement at the beginning said it's a YES, but later succumbed and changed its wording (https://www.facebook.com/hkcolumn/photos/a.1446445815572813/2628708530679863/).
In June, Johannes Chan, HKU chair professor of public law, said that if someone raises an objection to the National Security Law, this should not be regarded as a reason for disqualification for running for the LegCo elections (https://www.facebook.com/hkcolumn/photos/a.1446445815572813/2674569002760482/). Chan's point was noted, and thus the executioner became NPCSC in November - the reason being: 4 lawmakers were seen as obstructing LegCo meetings from proceeding normally. Administrative decision made to disqualify 4 lawmakers in November led to the resignation en masse by the pan-democrats, marking an end of a real One Country, Two Systems effectively. Bar Association showed huge concerns (https://www.facebook.com/hkcolumn/photos/a.1446445815572813/2804189283131786/). Philip Dykes criticised that the practice of NPCSC was like a king of the ancient times, who imposed the punishment directly, excluding judges and trials; the practice would not be tolerable in this time and age (https://www.facebook.com/hkcolumn/posts/2803654769851904). Law Society's statement said the government has to clear up people's concerns (https://www.facebook.com/hkcolumn/photos/a.1489251731292221/2804895253061189/).
CE Carrie Lam announced that the LegCo election that was supposed to be held this September will be postponed for a year due to COVID-19. Bar Association expressed grave concern regarding postponing the election, and said the government's request to ask Beijing to override the city's provisions "alarming" (https://www.facebook.com/hkcolumn/photos/a.1446445815572813/2714448998772482/).
Separation of Powers?
The separation of powers has become an issue again in September. Most Hongkongers were taught Hong Kong is running under the separation of powers, where we have the executive branch, judiciary and legislature. While Education Bureau has censored through lines of textbooks to ensure "separation of powers" was not used to describe the system in Hong Kong, CE Carrie Lam said some people had ulterior motives to exploit the issue to cause social conflicts. The truth, she said, is that Hong Kong's political system is executive-led, with the Chief Executive as the core, and she hopes it will not become a subject of speculation again (https://www.facebook.com/hkcolumn/photos/a.1489251731292221/2746105335606848/).
Pro-Beijing scholar Albert Chen said the separation of powers was usually used to describe a country’s political system, and Hong Kong as a regional administrative region, “national-level concepts may not be applicable to Hong Kong.” New People’s Party chairman Regina Ip described that the administrative, legislative, and judicial organisations in Hong Kong were “divided” and “separate”, each performing its own duties, but not a separation of powers (https://www.facebook.com/hkcolumn/posts/2828252810725433). However, in 2016 during an interview with Cable News on the oath-taking fiasco, Chen claimed that Hong Kong had a “separation of powers.”
Legislative Council President Andrew Leung said that lawmakers can question officials, while funding for the judiciary and the appointment of judges have to be approved by the LegCo, reflecting a mechanism of mutual checks and balances between the three powers. "Therefore, (the three powers) need to cooperate, but there needs to be checks and balances." (https://www.facebook.com/hkcolumn/posts/2749360945281287)
HKMAO and Liaison Office were so eager to make their stances heard on "no separation of powers" (https://www.facebook.com/hkcolumn/photos/a.1446445815572813/2745643612319687/, https://www.facebook.com/hkcolumn/photos/a.1446445815572813/2745596892324359/). The Bar Association is concerned about CE and Secretary for Education's stance (Education Bureau: HKMAO and LOCPG Statements Show Concern & Commitment to Youngsters) on the matter (https://www.facebook.com/hkcolumn/photos/a.1489251731292221/2741786656038716/).
In a forum in November, former Deputy Director of the Hong Kong and Macao Affairs Office Feng Wei also stated that the political system of Hong Kong is not based on the separation of powers, but those who hold legislative, executive and judicial powers operate in accordance with the concept of separation of powers. Deputy Director of the Basic Law Committee Maria Tam reiterated that when the Basic Law was drafted, some in the legal sector and some judges thought that Hong Kong operated on separation of powers, but it is in fact out of context. She added that Hong Kong's judges were too "romantic", giving the impression that the judiciary has a lot of power. She said she hopes judges will "take public interest into consideration". Elsie Leung Oi-sie, former Deputy Director of the Basic Law Committee, also stated that Hong Kong is "governed through 3 branches", and disagreed with the notion that the Judiciary was not a part of the government (https://www.facebook.com/hkcolumn/posts/2808576982693016). Feng also said the promise of "50 years of no change" after the handover refers to no change in lifestyle.
Devil's Advocate?
The Department of Justice (DOJ) has made a number of politically controversial moves. In June, Secretary for Justice (SJ) proclaimed the power to take over proceedings of private prosecutions, marking the beginning of obstructing justice [also see The Supreme Court in R (on the application of Gujra) v CPS [2012] UKSC 52] (https://www.facebook.com/hkcolumn/posts/2676238719260177) Philip Dykes also wrote about Ted Hui's private prosecutions (https://www.facebook.com/hkcolumn/photos/a.1446445815572813/2687064351510947/).
On 18 August, DOJ intervened Ted Hui's private prosecutions against the police officer who shot a protester in Sai Wan Ho in November 2019 (https://www.facebook.com/hkcolumn/posts/2727919444092104).
On 20 August, DOJ intervened Ted Hui's private prosecution against Cheng Kwok-chuen, the taxi driver who drove into protesters in Sham Shui Po in October 2019 (https://www.facebook.com/hkcolumn/posts/2729408370609878).
On 6 November, DOJ intervened Raymond Chan Chi-chuen's private prosecution against Kwok Wai-keung for assault during a scuffle in the LegCo Chamber several months ago (https://www.facebook.com/hkcolumn/posts/2798288333721881). Even Kwok was seen dragging Chan onto the ground in the Chamber, DOJ still offered no evidence and set him free.
DOJ did not just "act" - its "omission" was clear too. Since anti-ELAB cases were heard, there have been many episodes of self-contradiction in police statements, discrepancies from the live footage of the scene, etc. Many magistrates have sternly criticised police officers giving statements on the court for "lies over lies", "sophistry", "talking through the hat", "self-contradiction", "not due execution of duties", etc. Since the role of the court is rather limited, the responsibility to pursue the case on police officers giving false statements should fall on the DOJ. However, a former prosecutor said during an interview with Stand News that according to his understanding, the DOJ has no internal mechanism to follow up on these matters (https://www.facebook.com/hkcolumn/posts/2747159222168126).
Hodge In, Spigelman Out
In late October, a subcommittee of the Legislative Council discusses the recommendation of the Judicial Officers Recommendation Commission (JORC) for the appointment of Lord Hodge, the Deputy-President of the Supreme Court of the United Kingdom, as a non-permanent judge of the Court of Final Appeal. Lawmaker Junius Ho said he will abstain from voting. Ho questioned why the authorities did not appoint judges from Singapore, Malaysia, India and South Africa, and said they should widen the scope when appointing judges. He said that politicians in the United Kingdom had mobilised to stop Hodge from accepting the appointment, and he was concerned whether the authorities were aware of that and wondered why they still appoint Hodge.
Fernando Cheung of the Labour Party said that James Spigelman's resignation as a non-permanent judge of the Court of Final Appeal (in mid-September) might have something to do with Hong Kong's national security law and the Chief Executive's remarks that there is no separation of powers in Hong Kong, and that Hodge's willingness to take up the post reflects that there is still hope for Hong Kong and emphasises the importance of the rule of law.
Dennis Kwok supported the recommendation of JORC and believed that Hodge is a suitable candidate. Kwok hopes the authorities to keep looking for more senior judges from abroad to Hong Kong.
The Director of Administration said he would not comment on the reasons for Spigelman's resignation, stressing that the appointment had nothing to do with the resignation of previous judges. He said the independence of the Hong Kong judiciary and the right of the courts to adjudicate cases are clearly stipulated in the Basic Law (https://www.facebook.com/hkcolumn/posts/2789791144571600, https://www.facebook.com/hkcolumn/photos/a.1489251731292221/2624836187733764/).
Judiciary targeted
On 23 September, Chief Justice Geoffrey Ma released a statement warning against "politicisation of the Judiciary", saying criticism against courts and judges "must be informed, solidly based and properly made. Otherwise it would be detrimental to public confidence in the administration of justice and ultimately to the rule of law" (https://www.facebook.com/hkcolumn/posts/2759006394316742). CJ Ma is set to retire in early 2021. He will be replaced by Andrew Cheung Kui-nung.
In November, Elizabeth Quat and Holden Chow pushed for a sentencing commission as well as a supervisory committee to monitor the performance of judges, citing sentencing "mistakes" made by judges in protest related-cases (https://www.facebook.com/hkcolumn/posts/2795371417346906). The pro-democracy camp slammed this as “settling scores” of the judiciary, they questioned the pro-Beijing camp of escalating the issues to blame judges and attacking the judicial system. In September, Jasper Tsang Yok-sing, the former chairman of LegCo, believed that the suggestions would affect judicial independence. Tsang said, "I think it really affects the independence of the judiciary. The supervisory committee has ordinary citizens participating in the supervision and exerting pressure on the judges. I think it is very difficult to match with the concept of judicial independence." (https://www.facebook.com/hkcolumn/posts/2761432980740750)
In September, Carrie Lam said there are views on the establishment of a judicial supervisory committee and a sentencing commission, and hopes that the public will not comment on the cases arbitrarily. CE also has the responsibility to ensure that the Basic Law is fully implemented, which states that court trials are free from any interference, especially at this time of political turmoil and polarisation (https://www.facebook.com/hkcolumn/photos/a.1489251731292221/2746105335606848/).
Even the People's Daily in China joined the force to target the judiciary here. People's Daily publishes a commentary article entitled "How can Hong Kong's Judiciary become an 'Independent Kingdom'?" on Weibo. The article pointed out that the judiciary is the last line of defence for upholding social justice, and that only when the Judiciary voluntarily accepts social monitoring can judicial and social justice be better realised (https://www.facebook.com/hkcolumn/posts/2764015520482496).
Other bad news
In Apr, Vivien Chan Man-wai, the barrister of the prosecution in Au Nok-hin's police assault case, is suspected to have made a number of inappropriate comments on Facebook, including publicly commenting on Au's act at the material time in the case, and insulting the judge as "worse than a dog" (https://www.facebook.com/hkcolumn/posts/2619668078250575); she was later found claiming to be a UK lawyer while she was not one (https://www.facebook.com/hkcolumn/photos/a.1446445815572813/2640624459488270/).
On 1 December, a Pakistani lawyer recounted police abuse and mistreatment against him while he was representing an arrestee inside Tsim Sha Tsui Police Station (https://www.facebook.com/hkcolumn/posts/2820013971549317).
In late December, the French police said that Karim Ouali, France’s most wanted man, was in Hong Kong, and would likely commit ‘another gruesome criminal offence’. Ouali was accused of murdering a colleague with an axe (https://www.facebook.com/hkcolumn/posts/2834753376742043).
Good news
Winning the chairman seat of HKBA in January, Philip Dykes said he hopes that the Department of Justice to use public interests as its starting point of any prosecution, considers the severity of the crime and age of the prosecuted before the prosecution and criminally charges only the felons. Dykes also believes that law-breaking police officers should face legal sanctions. Otherwise, the rule of law will be utterly ruined (https://www.facebook.com/hkcolumn/posts/2557688527781864). That month, HKBA also wrote a long letter to Carrie Lam to set up a commission of inquiry to heal rifts in the community after the anti-ELAB movement in 2019, but as always, Lam turned a deaf ear to such advice (https://www.facebook.com/hkcolumn/photos/a.1446445815572813/2549518531932197/).
The American Bar Association (ABA) awards the International Human Rights Award this year to former lawmaker of the legal constituency and Civic Party member, Margaret Ng, to acknowledge her exceptional contribution in defending Hong Kong’s human rights and rule of law. Ng told Ming Pao that she believed this award is awarded to lawyers in Hong Kong, because international society still cares about the human rights situation in Hong Kong, understands the severity of Hong Kong’s situation and that they need more encouragement (https://www.facebook.com/hkcolumn/posts/2694687050748677).
Fu Hualing, a legal scholar deemed open-minded by a student leader, will be the new dean of HKU's law faculty, being the first PRC scholar to take up such post (https://www.facebook.com/hkcolumn/posts/2785509788333069). Fu studied in Canada before while another PRC candidate did not study at a common law jurisdiction and failed to meet the yardstick.
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