Editorial | Key ruling bodes well for the future of the city’s common law

Hong Kong’s common law legal system is set to continue long into the future. It received backing from President Xi Jinping during his recent visit to the city to mark the 25th anniversary of the city’s return to Chinese sovereignty and is underpinned by the Basic Law. But the legal profession is facing many challenges as the courts apply a new national security law and handle cases arising from civil unrest in 2019. Britain withdrew its serving judges from the Court of Final Appeal in March. Meanwhile, there are calls in the US for sanctions on the city’s prosecutors.

Amid all this noise, a key ruling by the top court earlier this month provided welcome evidence the judiciary continues to independently apply well-established common law principles. The case concerned a property agent, Chan Chun-kit, who was arrested at the scene of an unauthorised assembly in 2019. Like many protesters at the time, he was dressed in black. Chan was found to be in possession of 48 zip ties. It was this that led to him being jailed for five months and two weeks for possessing an instrument fit for unlawful purposes.

But there were questions about whether his conduct fell within the scope of that crime. Plastic ties were often used by protesters to form barricades to block roads. They are, however, everyday items. Chan’s lawyer said he had them for an innocent purpose. Chan’s guilt or innocence depended on the scope of the relevant law, first passed in 1844. It has, over the years, been subjected to legislative amendment and judicial interpretation. The top court’s five judges, including one from Australia, unanimously ruled that zip ties fell outside the ambit of this law. The lower courts had applied it much too broadly. The law only covers offensive weapons, items used for trespassing, or objects made for physical restraint.

Their detailed judgment applied a long-standing legal principle restricting the scope of such laws. The judges placed much importance on the wording of the legislation. Their approach was consistent with the city’s common law traditions.

The court also pointed out that a misleading Chinese translation of the relevant law had led judges into error. This is a danger the courts must be aware of and careful to avoid in the future.

Many observers, amid the city’s political divisions, will base their opinion only on the outcome of the case. Chan, arrested in suspicious circumstances, was ultimately acquitted and the ruling will have implications for similar cases. But the court’s decision should provide reassurance to those concerned about the future of Hong Kong’s system of justice. The law was applied freely and fairly. Legislation should not be interpreted too broadly. The ruling bodes well for the future of the city’s common law.