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Monday, November 23, 2020, 10:45
Reform needed to stem budding judicial bullying in the SAR
By Yang Sheng
Monday, November 23, 2020, 10:45 By Yang Sheng

Many Hong Kong residents expressed shock and disbelief after a local judge recently overruled all charges against eight defendants arrested for various criminal offenses during riots in Wan Chai on Aug 31 last year. Public criticism of the ruling was swift and scathing because people found the reason for that ruling flawed and extremely unprofessional by judicial standards. Many members of the public strongly urged the Department of Justice to appeal that ridiculous ruling as soon as possible to allay public distrust for the judiciary because of what many people saw as a disturbing pattern in court cases of this nature. The DOJ confirmed on Nov 9 it had appealed the acquittal of those suspects.

District Judge Sham Siu-man shocked numerous law-abiding citizens when he said in conclusion that those eight defendants were probably at the scene of riot just to “witness a rare historical moment.” Witness testimony and physical evidence, however, proved otherwise. All of them wore black clothing, goggles and industrial-grade gas masks issued to active rioters by the campaign organizers. And they tried to run away when police officers stopped them. It is very hard if not impossible to believe the eight defendants had gone through the trouble of obtaining those pieces of expensive standard-issue protective gear just to “witness a rare historical moment”. Besides, law-abiding citizens would never stand by the side of the rioters in action for any reason, least of all curiosity.

The great majority of Hong Kong residents absolutely despise the “burn-together” advocates and rioters; it is ridiculously far-fetched to theorize that they would dress up like rioters and join their illegal gatherings as “observers”. Some legal professionals have pointed out that by making “creative” conjectures in favor of defendants without convincing evidence, a judge risks compromising judicial credibility as well as their own professional integrity because they breach the legal principle that court rulings can only be based on facts, not imagination.

In fact, this was not the first time Sham let an alleged rioter walk free with such an unbelievable ruling. In a similar case in June, he acquitted a 20-year-old student charged with rioting in Wong Tai Sin, Kowloon East, on Oct 1 last year. The reason he gave in court for the ruling was that, leaving aside the testimony by the two police witnesses, the defendant’s attire and equipment alone could not convince him to rule out the possibility that the defendant was merely passing through the riot scene, which is why he dismissed the charge and set the defendant free immediately.

When conjectures such as “witnessing a historical moment” and “merely passing through a crime scene” can prevail and allow the suspects to easily get off the hook, and judges turn themselves into a “defense counsel extraordinaire”, Hong Kong’s criminal adjudication standard risks being redefined. No wonder multiple legal professionals have warned that excuses such as “the defendant(s) could be at the (crime) scene just to witness a historical moment” could potentially be used to acquit any or all defendants of charges such as illegal assembly and rioting.

How much political or ideological bias is needed to have led one to define the violent anti-government campaign “a rare historical moment”, which qualifies as the darkest moment (year) in the history of the Hong Kong Special Administrative Region? It is fair to call the “black revolution” a political scourge that caused nothing but deaths, destruction and despair. Sham has practically told Hong Kong residents he could not care less about how much they hate the “black revolution”, which he has fondly labeled “a rare historical moment”.

Even more alarming is that, with justice being mocked by such outrageous rulings, “judicial bullying” has been added to “judicial domination” and “judicial dictatorship” as what Hong Kong people loathe most these days.

The term “bully” refers to those who enjoy hurting others for evil satisfaction. For example, trade bullying refers economic powerhouses routinely exploiting weak economies for unfair advantage and excessive profit. As for “judicial bullying” in Hong Kong, it refers to some judges’ dismissal of strong public demand for judicial system reform, aside from repeatedly demonstrating unjustified leniency toward the rioters by ignoring all the testimony as well as opposite rulings by other judges in similar cases.

There have been so many outrageous rulings by certain judges in favor of “black revolution” participants despite damning evidence and witness testimony in recent months that people summarize them as a game in which “the police arrest and judges release” if the defendant is a rioter. And the judiciary so far has dismissed public criticism of questionable rulings and apparent political bias as unfounded.

Henry Litton, a retired Court of Final Appeal judge, has won public support and applause with his poignant criticism of the judiciary, which he described as heavily flawed. He has repeatedly asserted that the judiciary needs “urgent reform”. Ever since the establishment of the HKSAR, Hong Kong society has noticed a nightmarish trend in the way the judiciary consistently behaves as if it were an independent kingdom beyond public supervision and accountability, so much so that it has redefined judicial independence as judicial domination, judicial dictatorship, judicial activism and now judicial bullying.

This attitude is undoubtedly out of touch with reality and is an affront to the universal pursuit of open and transparent government, including the judiciary. As a matter of fact, common law societies such as the United States and United Kingdom underwent judicial practice reforms as early as the 1970s, such as adopting the concept of balanced and standard sentencing to limit judges’ flexibility in court decisions. Britain brought a grossly reduced version of its common law judicial system to Hong Kong one and a half centuries ago and hardly did anything to improve it, even though it has carried reforms of its own in recent decades. Hong Kong definitely can and should take a few pages from the UK’s judicial reforms.

The author is a current affairs commentator. The views do not necessarily reflect those of China Daily.

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