MY TAKE
My Take
by

Common law also calls for common sense

PUBLISHED : Monday, 11 May, 2015, 1:11am
UPDATED : Monday, 11 May, 2015, 1:11am

The people who sent Shih Chiao-jen to jail remind me of the police inspector in Victor Hugo's Les Miserables who spent two decades pursuing the novel's hero for stealing a loaf of bread.

Surely justice demands theft must be punished. What if everyone starts to steal, surely that wouldn't do! Except such Kantian universality arguments don't cut ice when there is a clear case for mercy and compassion for the individual.

Shih, 73, is the security guard who used a fake ID card to pretend he was 11 years younger to keep himself employed because he didn't want to go on welfare. For his crime, he was jailed last month for four months. Last week, his appeal for a lighter sentence was thrown out of court.

"I don't understand why there is a public outcry. But that's understandable because they are not lawyers," the magistrate said, adding the court had already shown "an abundance of human sympathy" for Shih. The starting point for possessing a fake ID card to commit an offence is 15 months in prison.

The prosecutor said Shih duped multiple property managers. The magistrate said those employing Shih or being guarded by him would not be at ease if they knew a dishonest person was working in their buildings. Really? Perhaps before these people become judicial and legal specialists, they were human beings. The elderly man's faking his ID was not so much a matter of dishonesty as an act of desperation and survival.

Like many elderly in Hong Kong, Shih was too old to work but too poor to retire. Our welfare system condemns such elderly to ending their lives in poverty with the pittance they are given in welfare and old-age allowance. The magistrate in fact recognised this dark reality. Otherwise he would not have said: "The focus [of this case] is not about security guards working beyond 65. That's a social matter left to the pressure groups."

Well, actually it's a matter for the courts too, because he could have used his forum to draw attention to the issue if he didn't take so narrow a view of the function of the courts. As Charles Dickens had Mr Bumble say in Oliver Twist: "If the law supposes that, the law is an ass. If that's the eye of the law..., I wish that his eye may be opened by experience."