Landmark judgment is a positive sign amid the gloom
- The ruling in a protest case demonstrates the continued willingness of judges to apply the law as they see it, using tried and tested common law principles
Hong Kong’s legal system has been engulfed by controversy in recent times as the courts apply a new national security law and decide multiple cases arising from civil unrest in 2019. These are challenging times.
But anyone looking for positive signs amid the gloom should read the Court of Final Appeal’s landmark judgment in a protest case on Friday. This long, technical ruling, with Latin phrases and arcane terminology, is a classic example of the city’s traditional common law approach.
The unanimous judgment is significant. It restricts the scope of an offence frequently used to target those present at scenes of unrest. Importance was attached to the wording of the law, a key feature of the city’s system. Limits were imposed on the ability of the courts to broaden laws to reflect changes in society. The ruling also revealed how mistakes in the Chinese translation of English laws can lead judges astray.
Much of this will, no doubt, be overlooked, amid the city’s political divisions. For many, only the result will matter. The court cleared property agent Chan Chun-kit, who had been jailed for 5½ months for carrying 48 zip ties with criminal intent at an anti-government protest in 2019.
Chan was present at an unauthorised assembly. He was dressed in black, the uniform of the protests. Police found him with a respirator and knuckle gloves as well as the bag of six-inch plastic ties. There was reason to suspect he was up to no good.
Zip ties had frequently been used by participants in the social unrest. A magistrate decided Chan intended to use them to build barricades to be deployed in armed confrontations or to block roads.
But suspicion is not enough. Suspects can only be punished if guilty as charged. In this case, the top court found the facts did not fit the crime. First the magistrate and then the Court of Appeal had applied the offence far too broadly.
The law in question was first passed in 1844. In its original form it outlawed possession of “any spear, bludgeon or other offensive weapon, or any crowbar, picklock, skeleton key, or other instrument fit for unlawful purposes”. The crime would only be committed if the possessor of such items intended to use them for an unlawful purpose.
Over the years, the law has been amended by the legislature and interpreted by the courts. The top court, after an extensive review, found that the crime is only committed if the item possessed by the suspect is of a certain type.
It must be an offensive weapon, an instrument for gaining unlawful access to something, or an object manufactured for physical restraint of a person. Zip ties do not fall into any of these categories. This is why Chan was not guilty.
The Court of Appeal had, partly by relying on an incorrect Chinese translation of the law, given it an extremely wide scope. Such an approach is wrong, the top court said, as it would mean the law could be applied to “many if not most” items of daily use that might be said to be fit for unlawful purposes. It would turn the offence into a “thought crime”.
Chan was the first protester to be jailed for possession of zip ties during the protests. The ruling has implications for many other similar cases. We can expect lots of appeals to follow.
The dramatic changes in Hong Kong in recent years have raised concerns about the future of the city’s legal system. The top court has upheld and extended the use of the national security law, while adopting quite a broad approach to the culpability of those present at the scene of riots. Its rulings in such cases will be closely watched.
But the zip-tie judgment demonstrates the continued willingness of the judges to apply the law as they see it, using tried and tested common law principles. Long may that continue.