Putting house in order
Justice Kempster's Commission of Inquiry report into an aborted murder trial is forthright and thorough. It is a catalogue of bungling by three government departments - the Police, Correctional Services Department (CSD) and Legal Department and highlights a lack of communication within and between departments and sheer carelessness on a scale unacceptable in a society that prides itself on its adherence to the rule of law.
There can be no doubt about the sloppy and at times wilfully negligent behaviour of the departments involved. At the very least, the Attorney-General and his most senior staff, like the police, had a duty to verify the legal question of whether the witness could, as a detained Vietnamese asylum seeker, be offered a ''safe house'' with a little more thoroughness before assuming he could not. The witness received a number of threats and was not prepared to testify without an assurance of long-term protection. He was, to use Mr Justice Kempster's phrase, ''not surprisingly'' unwilling to testify when told he and his family would only be given shelter in Victoria prison for the duration of the trial and not beyond that.
The witness' motive was never raised by the prosecution as the reason for failing to offer evidence. Nor did this absolve the authorities from offering him protection. What the Kempster report describes as casting aspersions on a witness to mask the authorities' own shortcomings is no way to serve the cause of justice. A murder trial had to be aborted as a result. The accused cannot be charged again on the same count for which he has already been acquitted.
The question raised by Mr Justice Kempster, is the potential cost of providing safe houses for Vietnamese witnesses and the indefinite commitment involved if they are not to be resettled overseas. It is even stranger that the judge should describe this as a cogent objection. Witnesses' safety cannot be compromised on grounds of cost, especially when the safe house concerned is a prison cell.
The implications of the bungled case are much wider, of course. If the territory wants justice, it must be prepared to pay for it. It must also ensure equality before the law for all, regardless of race or whether the person concerned is a detention centre inmate. The consequences of not doing so are set out clearly in the report's own conclusions: intimidation will be seen to be an effective deterrent by criminals and potential witnesses alike; and justice will be thwarted as a matter of underworld routine.
Although the matter is more obliquely addressed, the report is testimony to a pervasive racial prejudice which assumes that if a witness is a Vietnamese asylum seeker, they must be unreliable, self-serving and therefore undeserving of protection from intimidation. The prosecuting counsel is blamed for accepting Police and CSD suspicions, and these are suspicions only, that the witness hoped to ''resume profitable dealings in dangerous drugs'' and to secure refugee status for his whole family. The lawyer - then a recent arrival to the territory - ''had already sensed that Vietnamese were unwelcome in Hongkong'' and had learnt from Legal Department colleagues that they often failed to make reliable witnesses out of fear. That statement alone is a clear pointer to the potential for prejudice in dealing with Vietnamese boat people by those in the disciplined services and legal departments.
Mr Justice Kempster rightly highlights the need for an independently funded centralised witness protection unit. The creation of such a body is to be supported, not only because it would remove from the police a responsibility they clearly find burdensome, but its duties and scope could be more clearly defined than is possible under the present seemingly ad hoc arrangement.
It is not, ultimately, how witness protection is to be provided or who is to be responsible for providing it that counts, but whether Hongkong society is prepared to ensure adequate protection for witnesses, who might otherwise live in fear for their safety, as a matter of principle. Preventing intimidation is a basic prerequisite of the rule of law. Exposing weaknesses in the three government departments, which failed to provide basic protection for one man, as the Kempster report has shown, is a start. The next step will be for the government departments concerned to review their procedures and ensure the system does not fail potential witnesses again. Hongkong still prides itself on upholding the rule of law and the Western concept of justice. Without it, thug-rule is inevitable - especially after 1997 when the rule of law may be an all-too-flexible notion.
