LETTER OF THE LAW
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Judges take a kicking in various jurisdictions, including one in Hong Kong over jailing of seven police officers

Barrister Andrew Raffell says director of public prosecutions and judge in the trial of the ‘Occupy Seven’ would not have reached their conclusions lightly

PUBLISHED : Monday, 13 March, 2017, 4:13pm
UPDATED : Monday, 13 March, 2017, 7:52pm

Judges in Britain, the US and Hong Kong have been receiving quite a kicking from forces that normally would be extolling them as dispensers of law and order and even justice. The conservative press in Britain, the new US president and members of the police force, even at a high level, and the conservative establishment in Hong Kong.

What is going on? Why this outpouring of criticism? Has the Hong Kong Club been putting something hallucinogenic in the gin and tonics? No. In Hong Kong a good judge has reached a decision that is not liked by people who regard themselves as the guardians of all that is good and right about our society. The howls of protest are painful to the ears of anyone who believes in a truly free society and democracy.

33,000 gather in support of Hong Kong officers jailed for beating up Occupy protester Ken Tsang

For what it is worth I am and always have been of the view that lawyers are too deferential to judges here. There is none of the sometimes argumentative cut and thrust in Hong Kong courts that I was used to in England.

Judges, of course, should be treated in a courteous manner and with at least a semblance of respect. Even those who by their ability or manner do not really deserve it.

I confess I have at times been guilty of falling foul of this truism. Including with the judge who is now the bête noire of the angry, thwarted and frustrated forces of reaction. But, neither he, nor the decisions he reached in the case of the “Occupy Seven”, deserve the calumny now crashing down.

The same could be said of the senior judges described as “traitors to the people” by the Daily Mail and other organs of the gutter press in Britain.

I have appeared in front of Judge Dufton many times since the early 1990s. Both prosecuting and defending. I do not know him privately. I am told in private he is affable and good company.

It would be hard to describe him in the same terms in court. But even better, he knows the law; even better than that he knows how to apply it and even better than both of those he is extremely even-handed in his handling of criminal cases. He does not lean towards conviction and he will only convict if the evidence is strong and adequately persuasive. This is the standard required by law and is the duty of judges in the magistracies and the District Court.

I am afraid these standards are not universally applied. I have been asked to advise on possible grounds of appeal against conviction by Judge Dufton many times. I have never advised that there are even arguable grounds to appeal. He usually applies the law properly and analyses the evidence accurately, sensibly and accurately. What more do we want from a criminal judge?

Also, it should be understood that the case would not have been pursued by Director of Public Prosecutions Keith Yeung without considerable thought and discussion within his department.

Yeung is also a diligent and very able lawyer. The public interest, strength of the evidence and the likely sentence would have been the prime considerations in deciding whether to charge the seven officers. Such a decision would not have been taken lightly at all.

Normally, the authorities are criticised for not taking action against police officers and similar personnel in such controversial cases as this. I doubt if District Court judges were lobbying to take on this case. It was obviously a poisoned chalice. It was also difficult for the Prosecutions Division, which normally works closely with the police.

The Department of Justice and the judge made hard decisions and should be applauded for that. Whatever one’s view of the decisions.

As for the sentence, which seems to be the main focus of discontent, I will deal with that in a later column.

Andrew Raffell is a barrister who has practised criminal law in Hong Kong for over 25 years