Top-down government leaves no room for reform

If Hong Kong's laws are to move forward we need a sympathetic, vigorous political system

PUBLISHED : Tuesday, 28 January, 2014, 4:58am
UPDATED : Tuesday, 28 January, 2014, 6:30am

In November I attended a conference sponsored by the new director of public prosecutions and organised, very well, by his department. The conference heard papers on four topics that were considered to be within the sphere of potential reform and/or improvement. The speakers were distinguished judges and lawyers from Hong Kong and other jurisdictions, from what might loosely be called the "prosecution side" and the "defence side". I was impressed by the high quality of the debates and the individual contributions. What was the outcome? Nothing yet, as far as I know. What will be the outcome in the long term? Well, I suspect very little or nothing.

Hong Kong is a very hard place to reform anything. Reforming the law is especially difficult. This was highlighted by an article in the Post by Cliff Buddle ("Ripe for repeal", October 24) and a letter by Geoffrey Booth ("Unfair laws can take a long time to be changed in HK", March 31). These were about the draconian money laundering laws in Hong Kong and referenced similar concerns raised earlier by (Phillip Bowring and Jake van der Kamp). Reform of money laundering was one of the topics at the conference. The surprising thing for me was that few participants were prepared to defend the current money laundering laws. Even those from prosecutions were cautiously, but fairly and very intelligently, critical. Two distinguished silks, one of whom was instrumental in drafting the relevant legislation, were brilliantly articulate in their criticism of the prevailing laws. One, very able, judge even inquired whether the present laws were a "thought crime".

A "slam dunk" for reform, one would have thought. We will see. If I could gamble freely in Hong Kong, I would bet no, or not likely. Why not? Law reform needs a sympathetic and vigorous political system to bring about any meaningful and lasting change.

Many reforms to the criminal justice system in other parts of the world were the result of grass-roots activism, personal commitment on the parts of individuals and/or groups of legislators and research into problems caused by certain substantive criminal laws or rules of evidence and procedure. We have very few of these things here. We have a top-down political system in which, if the government is not interested it does not happen. We have political stasis, which always leads to stagnation and deterioration in all parts of public life. A system in which nothing moves forward is going to become decadent and not fit for purpose eventually.

I hope to contribute my own views on necessary, desirable reforms and improvements within our criminal justice system over the coming months. One of the main problems is that law has become a monopoly for lawyers; never a good idea in a society that is or strives to be free, open and democratic.

Andrew Raffell is a consultant at Chinese University and has been a practising criminal barrister in Hong Kong for 26 years