Every January, the legal world gathers at City Hall for the ceremonial opening of the legal year. Its leaders deliver speeches that are, for the most part, routine and predictable. This time, however, the speeches, delivered on Monday, contained real substance, and were, for the most part, reassuring.
As of Jan 2, the civil unrest had resulted in the arrest of 6,956 people involved in protest-related activity, of whom 1,051 were being prosecuted, with more to follow. Criminality on this scale significantly affects the judiciary, the prosecutors and the legal profession alike, and they have a shared duty to indicate the way forward. After all, a sustained assault has been mounted on the rule of law over the past seven months, which has included the torching of courts, the intimidation of judges, and the vandalizing of the Legislative Council Complex, and those responsible must be held to account.
As the chief justice, Geoffrey Ma Tao-li, explained, the constitutional rights that people enjoy include the freedoms of speech, association, assembly, procession and demonstration. However, the rights of everyone require respect, and nobody is entitled, in the exercise of their own rights, to trample on those of others. The existence of particular rights does not, said Ma, provide “any excuse to harm other people or their property, or to display acts of violence”.
Although such sentiments are pure common sense, they nonetheless bear repetition, given the levels of irresponsibility in some quarters. Indeed, certain public figures, including, bizarrely, Civic Party legislators, have either failed to denounce unequivocally the violence of the protesters, or else have tried to whitewash it, which is an abdication of responsibility. If even “pan-dem” lawyer-politicians are prepared to condone violence and, thereby, to undermine the rule of law, it is clearly necessary for Ma, who will be sorely missed when he steps down in 2021, to enunciate some basic home truths, not only for them, but also for those they have led astray. His words will hopefully resonate with even the most prejudiced members of the legal profession, as well as with anyone else who has sought to harm Hong Kong.
Quite clearly, those behind the protest-related crimes have various objectives, invariably nefarious. Whereas some of them have simply declared war on society and sought to destroy the rule of law, others have been openly subversive, and have pressed a separatist agenda
Ma’s message was echoed not only by the secretary for justice, Teresa Cheng Yeuk-wah, but also by the president of the Law Society, Melissa Pang Wan-hei. Whereas Cheng, having denounced mob rule, rejected the notion that one group of people can be allowed to band together to disrupt the activities of others, Pang emphasized that “obedience of the law is non-negotiable”. She added that civil disobedience provides no licence “to commit arson, damage property and injure people”, and no right-thinking person could disagree with that.
Cheng, moreover, given the groundless allegations of political bias that some people have flung at her prosecutors, went out of her way to emphasize how seriously her department takes its constitutional duty to control criminal prosecutions, free from any interference. She provided the assurance that, far from being biased, those who advise on cases provide “honest, independent and professional legal advice”. This was clearly welcome, as there have been sustained efforts by subversive elements and their apologists not only to malign courageous police officers, but also to disparage decent, hard-working prosecutors, and their lies must be called out at every opportunity.
In his own remarks, the chairman of the Bar Association, Philip Dykes, reminded everyone that many of those arrested for protest-related criminality are of previous good character, and that not all the offences are serious. He explained that even where there is strong evidence against particular suspects, it by no means follows that every case has to be prosecuted. By this, he meant that it may not be in the public interest to prosecute everyone who has been arrested, and this is reflected in the department’s own Prosecution Code. This, however, is not the end of the story.
It is certainly true that there are two limbs to prosecutorial decision-making. Once prosecutors decide that the evidence affords a reasonable prospect of conviction, they must then consider if it is in the public interest to prosecute. It may, for example, notwithstanding the evidence, not be in the public interest to prosecute someone who is either very young, very old, or very sick, or has committed a minor offence that can be most appropriately dealt with by an alternative to prosecution, such as a police caution.
If, however, the offence is serious, or if the culpability is great, or both, the public interest will invariably require that the suspect is prosecuted. Anyone who, for example, has deliberately defied the law, whether by joining illegal protests or otherwise, or has indulged in violence, arson, criminal damage or intimidation, or has made petrol bombs, or has sought to injure police officers or threaten their families, must expect to face the consequences. The public interest obviously requires that they be prosecuted with the full rigor of the law, irrespective of age or antecedents.
Quite clearly, those behind the protest-related crimes have various objectives, invariably nefarious. Whereas some of them have simply declared war on society and sought to destroy the rule of law, others have been openly subversive, and have pressed a separatist agenda. Some unpatriotic elements have even colluded with foreign powers hostile to China, hoping thereby to damage the national interest, and they must all, wherever possible, now face justice.
The early prosecution of those suspected of protest-related crimes must, moreover, now be a priority. Ma’s decision to create a task force to consider how the judiciary can best cope with its increased workload is, therefore, welcome. However, as he recognized, cases can only be expedited once prosecutors have got their tackle in order, and they must now receive all the support they require in the processing of cases, whether in terms of leadership, manpower or resources.
The author is a senior counsel, law professor and criminal justice analyst, and was previously the director of public prosecutions.
The views do not necessarily reflect those of China Daily.
