I recall in the early days of the Independent Commission Against Corruption a case involving a number of police officers jointly charged with corruption for protecting vice dens. The prosecution presented over 10 witnesses who gave generally collaborative evidence against the defendants. However, at the end of the trial, all the defendants were acquitted. The trial judge explained that he could not accept their evidence because all the prosecution witnesses were either vice operators, prostitutes or triad members, and therefore tainted witnesses. He said that although the evidence was collaborated, it was simply “rubbish piling over rubbish and is still rubbish!” and he therefore dismissed all their testimonies and acquitted all the defendants.
This case demonstrates the vast unchallenged powers of a trial judge to adjudicate a case based purely on his discretion. If he chooses to disbelieve the prosecution witnesses, this is a point of fact which cannot be appealed, even if it is evidently dictatorial in its dismissal of relevant testimonies.
The same applies to some of the current trials arising from last year’s social unrest. We should remember that magistrates are just human beings. Like the rest of us in our divided society, it is not surprising that some magistrates may harbor political views sympathetic toward the opposition and would be reluctant to send any rioters to jail despite their obvious wrongdoing. In seeking excuses to release the defendants, they bent the facts and described the prosecution witnesses as “dishonest”, “aggressive”, “unprofessional” and “liar”, and therefore not credible. Such gratuitously offensive descriptions of witnesses may actually be in breach of the magistrates’ code of conduct. Worse still, it can bring the entire police force into disrepute and create a credibility crisis, causing serious harm to the rule of law in Hong Kong.
Examples of such ridiculous judgments abound. Most recently, they include the arson case where an ordinary pedestrian was set on fire by the mobsters and nearly lost his life. Two of them were charged with disorderly conduct in public. They were seen shouting abusive language to the victim, which incited the fellow mobsters standing next to them to set the pedestrian on fire. Their action fully fits in with the definition of “disorderly conduct in public place” and yet they were acquitted. In another case a person was stopped at the scene of a riot and a number of offensive weapons were found in his handbag. He was acquitted because the magistrate believed that he had the weapons for self-protection!
Clearly serious personal bias among some judges has worked its way into their decision-making process! If this deplorable trend were to continue, it would do irreparable harm to our vaunted reputation for judicial fairness and independence
And for those who had pleaded guilty to social unrest related offenses, many have received such lenient sentences as if the magistrates have completely ignored the basic judicial principle of imposing sufficient punishment as a deterrence against crime. There was the case of a youngster caught throwing a petrol bomb which landed on the window of a flat in the police married quarters. It is an arson offense that carries the maximum punishment of life imprisonment. Yet the youngster was let go with just a probation order, with the magistrate justifying the decision by saying the window was closed and thus caused no damage inside the flat! When the HSBC branch in Exchange Square suffered criminal damage caused by the rioters, one person at the scene was found to have in his possession a knife, lighter, laser pen, and petrol, all of which can contribute to the damage. He was handed a 100 hours community service order. A university student who painted the word “condom” on the wall of the police headquarters during a siege was given a probation order. In contrast, a mainland resident painting just a letter on the wall of the United States Consulate General was sentenced to four weeks imprisonment!
What is worse is that some of the magistrates seemed to have deliberately facilitated the escape of defendants. Without any valid reason, they had categorically refused the request of the prosecution to restrict the travel of the defendants while on court bail, and quite a few of the defendants have taken the opportunity to abscond. The latest defendant to do so is Wayne Chan Ka-kui, who is now taking refuge in the United Kingdom. Because of his widely publicized separatist stance, he should have been refused bail altogether but not only was he allowed bail, he was also allowed to travel freely.
Accordingly, it is not surprising to see the constant stream of negative, even profanity-loaded abusive social media comments against these integrity-challenged magistrates with some describing them as “dog judges”. It led to the demoralizing chants of: “police arrest, judges release”. Even some of the respected legislators and newspaper editorials joined the chorus of criticism of these ridiculous judgements, and urged the judiciary to take appropriate remedial action. Clearly serious personal bias among some judges has worked its way into their decision-making process! If this deplorable trend were to continue, it would do irreparable harm to our vaunted reputation for judicial fairness and independence.
But Chief Justice Geoffrey Ma Tao-li seems to have turned a deaf ear to this critical chorus. Some of his critics have since accused him of practicing double standards because he was quick to react to the opposition’s criticism of the District Court Judge Kwok Wai-kin for making favorable comments on the character of a pro-establishment defendant during sentencing. Judge Kwok has since been removed from presiding over any riot related trials. Yet despite the frequent media and social media criticisms against some of the magistrates for describing the rioters as “brilliant youngsters” and their actions as “noble ideals”, they were untouchable and continue to take up related trials.
It pains me to say that such blatantly biased court judgements usually can be seen only in some third world corrupt judiciary systems. But they are occurring regularly now in our once proud independent judiciary famed for its high-quality judgments. It’s sad to say that in my 54 years of law enforcement experience, I have never seen our once much respected judiciary become such an object of public opprobrium. One can only conclude that judicial independence has now descended to judicial dictatorship, without any public accountability.
The other problem is the backlog of social unrest cases. Police have so far arrested over 9,000 persons but only 2,000 have been charged. Additionally, there are over 600 outstanding cases awaiting trial, with some scheduled for as late as June next year. This shows that the judiciary does not seem to be bothered by the piling backlog and has ignored public demand to take appropriate action to expedite the judicial process.
So, what should be done?
Civil societies in Hong Kong should set up a Court Watch, which is very common in the US, Canada and Europe, to monitor the courts’ performance. Actually, former chief executive Leung Chun-ying’s initiative, the “803 Hotline website”, has already started the groundwork of putting all court records on social unrest cases on its website for reference. This makes it possible to find out quickly that one of the magistrates, Ho Chun-yiu of the Eastern Magistracy, has never handed down a custodial sentence to any of the defendants who pleaded guilty over a social unrest charge. His conviction record is zero percent which itself should have triggered an investigation into his performance and integrity.
The courts on the Chinese mainland are called “people’s court”. It is time for the local judiciary to see if it might be able to pick up some of its positive features. At the minimum, our judiciary should be more receptive of public feedback, if not criticism, from the very people it claims to serve. Like other government departments and public bodies, it should also abide by the code of public accountability. A good first step for it to take is to introduce an independent public complaint system.
More immediately, the CJ should set up a “magistrates accountability committee” to select a special pool of magistrates to take up the social unrest cases, similar to the list of specially appointed judges to handle the national security cases. The only difference is that the selection is done in-house by the judiciary, its most urgent task being weeding out those apparently politically biased magistrates from the social unrest case list.
This special list of judges can then concentrate on those outstanding cases to clear the backlog, similar to what the London courts did to deal with their riots years ago.
There is no doubt that the judiciary is facing a crisis of public confidence in its independence and professionalism. Its magistrates and judges must be seen to be willing to dish out punishment that fits the crime, and that sentences must be of sufficient severity to serve as a deterrence against possible future wrongdoing.
The author is an adjunct professor at HKU Space, and a council member of the Chinese Association of Hong Kong and Macao Studies. He is the former head of operations of ICAC.
The views do not necessarily reflect those of China Daily.
