THE case of Harry Hui Kin-hong has produced a collision between two values which are crucial to the nature of Hong Kong society, to its self-image and to its international reputation. These are the preservation of civil liberties and the maintenance of a social order untainted by corruption. Both underpin, in different ways, a system in which people are free and secure. Yet they can be in conflict and the clash has been highlighted by Judge Muttrie's Bill of Rights ruling on Wednesday and Mr Hui's re-arrest yesterday. Mr Hui is a retired Lands Department surveyor who had been charged with enjoying a standard of living out of keeping with his earnings as a civil servant. This charge, under Section 10(1)(a) of the Prevention of Bribery Ordinance, is used by the Independent Commission Against Corruption (ICAC) in prosecuting civil servants suspected of corruption. In the District Court this week, Judge Muttrie held that this section was inconsistent with the Bill of Rights, as it placed upon defendants the burden of proving their own innocence - a reversal of the normal onus of proof. He quashed the charge against Mr Hui. The Attorney-General yesterday lodged an appeal against the ruling and Mr Hui was re-arrested under Section 83(b) of the District Court Ordinance, which lets police arrest a discharged defendant while waiting for an appeal to be heard. This is also an extraordinary power, the use of which tramples on civil liberties - particularly in this case, where a judge has ruled that the 'crime' does not legally exist. Senior ICAC officers rightly worry they will be hampered in their investigations and will find it more difficult to bring cases to court if the 'standard of living' charge is invalid. Having lost one prosecution against a civil servant who had more than $1 million pass through his accounts, the ICAC now fears it will be unable to prosecute other cases. But making it easy for the ICAC to trap its prey, desirable though that may be, is not the only consideration for the courts. For it is a key principle of the Common Law, as well as of the Bill of Rights, that a person is innocent until proven guilty. It is reasonable for the ICAC to argue in defence of the law that most large sums of money suddenly turning up in an official's bank account should be simple to explain if they are legitimate. Winning the Mark Six, after all, is both legitimate and easy to prove. Judge Muttrie pointed out, however, the receipt of a legacy from Rwanda or Bosnia might be harder to document. But this is not the critical point. The crucial issue is whether the presumption of guilt has any place in the laws of Hong Kong. It is, and always should be, up to the Crown to gather sufficient evidence to prove its case, not down to the victim to provide the evidence of his innocence. That, however, cannot be the end of the argument. Making it tougher for the ICAC to bring charges against those it is convinced are corrupt weakens the forces trying to rid Kong Kong of corruption and this would cause much public concern. This is, after all, the same provision under which the corrupt government lawyer Warwick Reid was brought to justice. Without it, the ICAC would have found it difficult to prove his guilt. He might, even now, have been beavering away perverting the course of justice at the highest levels of the Legal Department. Reid brought the rule of law into disrepute. Calls to provide him with the protection of the law would have aroused little interest, even among the most ardent civil libertarians. Yet here is the dilemma with which the courts - and possibly the Government and legislators - are faced: the presumption of guilt is inconsistent with the basic principles of civil liberty, yet without them it may be impossible to bring a conviction. Nevertheless, the presumption of innocence, however inconvenient it may sometimes appear, is a precious right which must not be taken away for the sake of expediency. If it is ceded by the courts now, it may all-too-easily be removed in other spheres later.
