• Wed
  • Sep 17, 2014
  • Updated: 8:23am

Free speech, but not at the expense of other rights

PUBLISHED : Monday, 16 August, 2010, 12:00am
UPDATED : Monday, 16 August, 2010, 12:00am

Former chief executive Tung Chee-hwa used to point to the fact that more demonstrations were being held after 1997 than under British colonial rule as proof that freedom of expression continues to flourish under Chinese sovereignty.

But what happens when the exercise of such a cherished right comes into conflict with a pillar of Hong Kong's free and open society - an independent judiciary?

That is the situation in the case of Amina Bokhary, a member of a prominent family who was convicted of slapping a police officer - the third time she had been convicted of assaulting an officer - but who has never been jailed. The magistrate placed her on probation for a year, fined her HK$5,000 for refusing to give a breath sample and an additional HK$3,000 for careless driving.

Some of the local media played up the fact that she is the niece of Mr Justice Kemal Bokhary, who sits on the Court of Final Appeal.

Last week, several hundred people dressed in black marched in protest against what they saw as an overly lenient sentence. Tens of thousands of other people signified on Facebook their dissatisfaction with the way the case was handled.

Demonstrations are part of Hong Kong's culture but protests against the judiciary are rare. Most are against the executive arm of government. That is as it should be.

Outside Hong Kong, there are occasional protests against the legislature, such as those against new legislation to deal with illegal immigrants in the US state of Arizona. In Hong Kong, where the legislature cannot initiate legislation, protests against unpopular measures, such as the 2003 national security bill, are also directed against the executive.

So rare are protests against judgments by judges or magistrates that the current episode is causing fear that the judiciary may come under political pressure and that the rule of law will be put in jeopardy.

The Hong Kong Bar Association and the Law Society of Hong Kong have put out a joint statement in an attempt to allay any misgivings. 'While the joint legal professions recognise the right to freedom of expression,' it said, '... any attempt made to bring public pressure on a magistrate or judge to change his or her mind upon a review of sentence is to be deplored.'

The Department of Justice also issued a statement urging the public to 'respect and protect judicial independence and the rule of law in Hong Kong'.

So, in this conflict, an independent judiciary is clearly considered more important than freedom of expression. Freedom of expression, after all, has to be exercised in such a way so as not to jeopardise other fundamental rights.

An independent judiciary is vital for Hong Kong and it would be disastrous if judges were to come under political pressure.

Ironically, what the case exposes are not so much flaws in the judiciary as in prosecution procedures, which are often determined by the police. In this case, the police, without consulting the Department of Justice, decided to invoke the Police Ordinance, which carries a maximum penalty of six months in prison and a HK$5,000 fine, rather than cite the Offences Against the Person Ordinance, which carries a maximum penalty of two years' jail for the same offence.

Conceivably, if the harsher law had been invoked, the magistrate involved could have meted out a different sentence and the public outcry could have been avoided.

The Department of Justice is now applying to the Court of Appeal for leave to review the sentence. That is as it should be. The case should be dealt with by the courts on its legal merits and not on the streets. The police and the Justice Department should sort out the law and agree on prosecution policy.

Frank Ching is a Hong Kong-based writer and commentator.

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