In Hong Kong, the freedom of peaceful assembly and the freedom of speech are fundamental rights. They lie at the foundation of our free society, and they enable citizens to express their views, air their grievances and seek redress. Processions are a potent method of expression, and are common. Rights, however, are not absolute, and reasonable restrictions are recognized by the International Covenant on Civil and Political Rights, which applies to Hong Kong through the Basic Law (Art. 39).
In 2005, several activists, including Leung Kwok-hung, who had been convicted of involvement in an unauthorized procession, challenged the commissioner of police’s statutory discretion to restrict the right of peaceful assembly by objecting to a notified public procession involving over 30 people or by imposing restrictions, claiming it was unconstitutional. However, the Hong Kong Court of Final Appeal, presided over by the former chief justice, Andrew Li Kwok-nang, disagreed. It ruled that the commissioner’s discretion in relation to public order in the law and order sense was constitutional, as it was “prescribed by law”, and “necessary in a democratic society” (FACC 1 & 2/2005).
The court decided, however, that the commissioner must apply the proportionality test in exercising his statutory discretion to restrict the right of peaceful assembly. This meant that the restriction had to be connected to a legitimate purpose, such as ensuring good order and upholding public safety. A further crucial safeguard was the right of those aggrieved by the commissioner’s decision to challenge it before the Appeal Board, and also, if necessary, by judicial review.
Quite clearly, if the commissioner, on reasonable grounds, concludes that, for example, there is a serious risk of rioting erupting if he authorizes a particular procession, he will be fully justified in withholding his permission for it to proceed. He obviously cannot grant permission for a procession when his intelligence reveals that there is a real possibility of violence, perhaps leading to loss of life, injuries and criminal damage. This is why, therefore, those who disregard the commissioner’s restrictions, by organizing or participating in unauthorized processions, are considered to have committed a serious offence, punishable with a maximum sentence of five years’ imprisonment.
Whatever calumnies are spouted by Mo, Patten and their ilk, our criminal justice system, at the investigative, prosecutorial and judicial levels, remains in safe hands, and everyone can take heart that it will continue to discharge its responsibilities, according to law
On Saturday, the police arrested 15 suspects, some well-known and well-connected, for allegedly organizing, participating in, or publicizing three unauthorized assemblies between Aug 18 and Oct 26. As they will have sought legal advice from the Department of Justice before charging the suspects, the prosecutors, who have sometimes been criticized for delaying cases, have done well to process these cases expeditiously, despite their vast workload. They will, moreover, only have given the green light for the police to proceed after concluding that, as the department’s Prosecution Code puts it, “the evidence demonstrates a reasonable prospect of conviction” (para. 5.5), and a prosecution is in “the public interest” (para. 5.8). Quite clearly, if there is enough evidence, it is normally in the public interest to prosecute, unless, for example, the offence is trivial, or the suspect is ill.
Indeed, the Department of Justice, which enjoys constitutional independence in prosecution matters under the Basic Law (Art. 63), is a highly respected and long-standing organizational member of the International Association of Prosecutors (IAP), the first and only world organization of prosecutors. Its prosecutors adhere strictly to the IAP’s standards, which include the promotion of the “effective, fair, impartial and efficient prosecution of criminal offences”, and the exercise of “the highest standards of integrity and care”. The department is fortunate, moreover, in its Public Order Event Team (POET), to have a high-quality cadre of in-house prosecutors to advise on public order cases, and which can be trusted to act professionally, without fear or favor.
Once, therefore, prosecutors decided that charges were justified, their duty was clear. The status and connections of the suspects were no basis for treating them differently from suspects in any other case, and did not provide them with a shield from prosecution. Although some people have complained about the charging of the suspects, they need to understand that, in Hong Kong, a notable feature of our criminal justice system is that nobody is above the law.
The noisiest critic of the arrests is, once again, HK First lawmaker Claudia Mo Man-ching. Desperate for publicity, and sounding more like a hysterical banshee than an elected representative, she denounced the “reign of terror”, and the attempt to “terrorize the opposition”. Hyperbole is all very well, but if she overreacts like this every time one of her cronies is charged with flouting the law, she runs the risk of bringing the good name of stupidity into disrepute.
Hard on Mo’s heels came former governor Chris Patten, eager, as always, to stir things up. Unhappy to see some of his proxies arrested, the veteran mischief-maker fumed that “this is not the rule of law”, even alleging that “Beijing is determined to throttle Hong Kong”, while deliberately ignoring that the charging decisions had been taken by independent prosecutors. His long history of siding with lawbreakers, even when violence is involved, and maligning the forces of law and order, has, of course, long since torpedoed his credibility. In 2017, for example, after several activists were imprisoned by the Court of Appeal for their involvement in a violent unlawful assembly that left 10 security guards injured, Patten infamously barged in with a scurrilous attack on our legal system, designed to inflame tensions. Oozing sympathy for the lawbreakers, he had no words of sympathy for their victims, one of whom was off work for 39 days, which speaks volumes for his bona fides.
What, however, Mo and Patten should do is to ponder the words of perhaps the greatest British judge of the post-war era, Lord Denning, who said: “Be you ever so high, the law is above you.” Indeed, the commissioner of police, the inimitable Chris Tang Ping-keung, has made it clear that “we will arrest whoever breaks the law”, and that his officers will not be deterred by media smears or intimidation from doing their duty. So long, therefore, as Tang and people of his caliber are running the force, suspects with powerful connections and money will receive no preferential treatment, which is reassuring for anyone who values the rule of law.
The suspects have been bailed to appear at Eastern Magistrates’ Court on May 18. In the meantime, the Department of Justice will have to decide if the cases should be tried in the Magistrates’ Court, or whether, if the alleged offences are particularly grave, they need to be transferred to the District Court, with its greater sentencing powers. The accused persons may, of course, plead not guilty, as is their right. After trial, some may be convicted, with others acquitted, but, either way, justice will have been done.
The ball, therefore, is now in the judiciary’s court. Under the Basic Law (Art. 85), the courts “exercise judicial power independently, free from any interference”, while the suspects have “the right to a fair trial”, in which they are “presumed innocent until convicted” (Art. 87). Whatever calumnies are spouted by Mo, Patten and their ilk, our criminal justice system, at the investigative, prosecutorial and judicial levels, remains in safe hands, and everyone can take heart that it will continue to discharge its responsibilities, according to law.
The author is a senior counsel, law professor and criminal justice analyst, and was previously the director of public prosecutions of Hong Kong.
The views do not necessarily reflect those of China Daily.
