Critics of Hong Kong court judgments must at least stick to the facts – or be found guilty of playing politics
Ronny Tong says Chris Patten and other politicians who accuse our judges of making ‘political judgments’ in high-profile cases, like the recent sentencing of pro-independence activist Edward Leung, must take off their own tinted glasses
There is a burning question on a lot of people’s minds these days: why do politicians want to attack Hong Kong’s judiciary and undermine our rule of law?
Some say the answer is “simple”. Some politicians think that, to fight for democracy in Hong Kong, they must attack the system; to attack the system, they must break the law; and, since the judiciary is standing on the side of the law, the judiciary is standing on the side of the enemy. Since the enemy is evil, the judiciary must be, too.
That is the “logic” of their behaviour. One would have thought they should at least keep to the facts.
At the opening of the legal year in January, our chief justice, Geoffrey Ma Tao-li, warned that people with strong views on political and other issues were making “unwarranted criticisms” against Hong Kong’s rule of law.
At the recent appointment ceremony for senior counsel, Chief Justice Ma again reminded us that “it is the task of the courts to adjudicate on ... different points of view and they do so in accordance with the law, legal principles and the spirit of the law”. In so doing, “their views, political or otherwise, or any other aspect, do not enter into it”.
Watch: Chief Justice underscores importance of Hong Kong’s common law system
He was trying to explain to the world that the Hong Kong judiciary is independent from any political interference. These are strong, salutary remarks; but unfortunately, they seemed to have fallen on deaf ears.
Two days later, the High Court passed a sentence of six years’ imprisonment on Edward Leung Tin-kei, a young pro-independence activist who was barred from running in the Legislative Council election two years ago. Leung was convicted after a trial by jury of the offence of rioting, committed during the Lunar New Year holiday in 2016.
Immediately upon the sentence being passed, Chris Patten, Hong Kong’s last governor in British colonial days, said the law was open to abuse, and that it was “now being used politically to place extreme sentences on the pan-democrats and other activists”.
Sadly, what our last governor said was a travesty of the facts. Besides, he seemed to have conveniently forgotten that the statutory offence of taking part in a riot was enacted by the British colonial government in 1970, following the widespread riots in Hong Kong in 1967.
In fact, the very definition of “riot” under that statute was laid down not by the Hong Kong special administrative region government, let alone the central government, but was taken directly from English common law. In the leading authority of Field vs Metropolitan Police Receiver, where the modern law on the riot offence was settled, the English court referred to English authorities dating back to 1795.
This was the source of the law on riots in Hong Kong. There is nothing political about it.
What is more, Leung’s criminal act was caught live on television and immortalised on YouTube and elsewhere on the internet. Videos showed the same Leung, leading a group of young men, fully equipped with protective gear – including shields, goggles and masks – charging against police officers, some of whom were beaten to the ground.
During the riot in Mong Kok that night, bricks were thrown and fires was set. Many officers were injured.
Watch: Scenes from the Mong Kok riot in 2016
Leung, and others who took part in the riot, were tried by a jury. Leung was convicted on one charge but cleared of another after careful deliberation by the jury over three days. Such are the facts.
How do you “abuse” the law in these circumstances? No one forced Leung to do what he did. I hope Lord Patten is not suggesting that the news recording of the riot was fake; or that the judge, along with the jury, was bought by the SAR government or, worse, by the central government in Beijing.
Or is Lord Patten suggesting that the law should turn a blind eye when the whole world saw that peace had been breached, police officers had been hurt, and a crime had been committed? If giving proper effect to the law is an “abuse”, then is our rule of law a “crime”?
Furthermore, it is an affront to every upstanding Hong Kong citizen who respects the law to suggest that the law was being “used” to achieve a political end. By claiming this, Lord Patten was implying that either the judge and the jury were foolish enough to be manipulated as a political tool, or, worse still, they themselves were the political oppressors. Or perhaps the entire judicial system in Hong Kong was being “used”?
One cannot help but feel sorry for the judge and the jury in Leung’s case. On the world stage, they are but small people in a small place. To Lord Patten, Hong Kong is perhaps only a backwater of civilisation and our courts only kangaroo courts, so he could defame them at will. Who will defend our judges when they get ridiculed and wronged?
Politics is an ugly beast. In some politicians’ eyes, politics is everything, far more important than the rule of law. When it comes to Hong Kong events, everything is cast in evil terms, seen through the coloured spectacles of politics, even if there is no truth in it.
People who indulge in these misguided views may think they have won a small battle by belittling our judges, our jury system, and even our entire judicial system and running our rule of law into the ground; but, at the end of it, what have they won? Who is to gain? How will anyone benefit if there is no rule of law in Hong Kong?
Can democracy take root in a place where there is no rule of law? Can democracy survive where politicians are immune to the full force of the law?
Are our courts abusing the law? Or are politicians abusing their monopoly in shaping public opinion? You tell me.
Ronny Tong Ka-wah, QC, SC, JP, is a former chairman of the Hong Kong Bar Association, a member of Hong Kong’s Executive Council, and convenor of the Path of Democracy