With more and more defendants in riot-related cases having absconded and fled overseas while on bail, one has to question whether the magistrates and judges concerned are negligent or politically motivated in granting them bail and allowing them to leave Hong Kong in the first place. At least they seemed not to have learned from previous abscondment cases.
Among the first to flee is Ray Wong Toi-yeung, the chief architect of the Mong Kok riot during Chinese New Year in 2016. The riot caused injuries to over 100 people, including 90 police officers. Wong had been wanted by police after the incident and was hiding in his friend’s place and police had to break in to make the arrest as he refused to open the door. Large amounts of cash were found on the premises. In such suspicious circumstances, it did not seem to make sense that the magistrate would still grant bail to Wong. Compounding the mistake, the magistrate also allowed him to leave Hong Kong on the pretext of attending an international conference. The result was that he took the opportunity to abscond and sought political asylum in Germany. His accomplice in organizing the riot, Edward Leung Tin-kei, was subsequently convicted of riot offenses and sentenced to six years’ imprisonment, reflecting the seriousness of the offense Wong also faced and the absurdity of the court in allowing such a suspect bail and permission to leave Hong Kong! But the responsible magistrate Peter Law Tak-chuen was never held to account for making such a grievous error in judgment, or did he do it out of his personal political convictions? Despite the severity of the mistake, it seemed to have never been taken on board by other magistrates and judges presiding over similar cases.
The legal principle in dealing with bail application is actually quite simple. The primary consideration is the defendant’s likelihood of absconding. Hence if the defendant is charged with a serious offense such as murder which carries a maximum sentence of life imprisonment, bail is never granted. Secondly, the magistrate should consider whether the defendant, if released on bail, may repeat the offense or endanger public safety. This explains why most drug and terrorism related cases will not be granted bail. The defendant’s or his supporters’ ability to finance his escape is also taken into account. Yet despite these basic guidelines on granting bail, defendants charged with taking an active part in last year’s violent social unrest continued to escape punishment through abscondment. It really makes a mockery of our reputation for judicial fairness.
As a result of the courts granting bail inappropriately, we have witnessed the recent arrest by Guangdong coast guard of the 12 fugitives who were intercepted in a speedboat trying to flee to Taiwan. Most of them had been charged with riot related offenses of the most violent nature, such as arson, possession of weapons including pistols, possession of explosives and bombs, with some known to belong to the so-called Dragon Slayers Team of radical rioters who intended to kill police officers! Clearly common sense would tell us that these accused have every likelihood to abscond. Yet they were granted bail by the four magistrates — Ho Chun-yiu, Bina Chainrai, Lam Chi-kin and Peter Law Tak-chuen and High Court judge Wong Shun-hau. A Web check on the riot related cases handled by the first three magistrates comes up with one common feature: They mostly awarded non-custodial and lenient sentences to those who pleaded guilty and acquitted others who pleaded not guilty. Quite a few of their sentences had already been overturned by the Court of Appeal as being manifestly inadequate, with the Appeal Court judges criticizing them for breaching basic sentencing principles. The cases clearly demonstrated that these magistrates and judges are either intentionally over lenient in sentencing those rioters, or they are influenced by their personal political bias.
Similarly, one recent case that has caused public outrage involved one of the aforementioned, Principal Magistrate Bina Chainrai. It concerns a protester charged with taking part in laying siege to the Legislative Council on July 1, 2019. He had been avoiding police arrest for many months but eventually was arrested after great police effort and brought to court before Chainrai. One would have thought that this particular defendant could not possibly be granted bail given the amount of police resources expended to apprehend him. But that’s what the magistrate did on payment of a small sum, even though the defendant refused to provide his residential address!
Recently we are treated to the latest spectacle of a high-profile former legislator and member of the Democratic Party, Ted Hui Chi-fung, joining many of his fellow opposition activists such as Nathan Law Kwun-chung, Sunny Cheung Kwan-yang, Wayne Chan Ka-kui and Sixtus Leung Chung-hang in fleeing Hong Kong to escape the prosecution he had to face in three court cases involving nine criminal charges. It is perhaps no longer coincidental that it is Peter Law Tak-chuen who granted him bail and allowed him to leave Hong Kong, the same magistrate who allowed Ray Wong Toi-yeung to flee. He should have known that the likelihood of Hui absconding is even greater than Wong as many Western countries had suspended the fugitive surrender agreement with Hong Kong. When Hui tendered his resignation from LegCo, the prosecution went to the District Court to seek a specific review of the magistrate’s decision, and submitted an application for the surrender of travel documents on the ground that Hui was no longer a LegCo member. But the application was turned down by the Chief District Judge Justin Ko King-sau, who reconfirmed the magistrate’s approval of Hui’s overseas trip and provided the golden opportunity for him to escape justice. One has to wonder if this is just an unintended comedy of errors of the judiciary or actually a series of carefully devised strategic decisions to give guilty opposition politicians a new lease of life.
It is interesting to see the righteous public indignation in response to Hui’s escape. Some had dug out his old Facebook entry displaying a family photo over which he vowed categorically that he and his family would never leave Hong Kong and would stay together with all the activists to fight for their “noble cause” to the bitter end. But he has done just the exact opposite, deserting some 10,000 arrested rioters who would be facing jail whilst he himself has fled Hong Kong with his whole family, apparently through careful planning beforehand! Even just hours before Hui’s announcement of his intention to go into exile, the chairman of the Democratic Party, Wu Chi-wai, assured the public that he was told by Hui that he would return to Hong Kong on schedule, showing Hui had intentionally lied even to his own political party leader. Another member of the public posted Hui’s private crowd-funding campaign to call for public donation to enable him to launch civil legal action against so-called “police brutality cases”. Hui succeeded in generating public donations of HK$3,514,290 ($453,363) but people now questioned whether he had brought the fund with him to the exile.
Actually, Hong Kong people are not upset over Ted Hui’s escape. Like many other opposition politicians and activists before him, he simply could not hide his hypocrisy any more under pressure. They are nothing more than crooks, traitors and cowards who promoted their self-interest under the cover of “idealism” or revolutionary zeal. They caused nothing but serious disruption and economic loss to Hong Kong. Let’s hope they would all leave Hong Kong for good!
It is clear that Hui’s escape involved extensive careful planning beforehand and foreign support. Police should investigate anyone suspected of aiding or abetting his escape. In the meantime, the SAR passports of all those fugitives should be canceled, and all their properties in Hong Kong frozen pending a thorough financial investigation into possible offenses of money laundering. Such restraining order on properties of fugitives are fully justified as a precautionary measure. It has been the standard practice of law enforcement agencies. In addition, all their names should be placed on Interpol Red Notice as wanted persons to ensure that they would be picked up whenever they attempted to travel to any countries that have rendition agreement with Hong Kong.
This case has unquestionably further damaged the previously good name of our judiciary which has come under widespread public criticism over the preposterous verdicts on riot-related cases. Some members of the public now see the judiciary, or at least some of its magistrates and judges, as part of the conspiracy to allow those rioters and activists to escape justice by granting them bail and permission to leave Hong Kong.
The Chief Justice (CJ) should no longer turn a blind eye on all these travesties of justice. As an immediate remedy, he should issue a CJ directive to all judges and magistrates to rationalize the processing of bail applications to avert further abscondments. He should quickly order a review of all current cases to see whether some of the bail should be rescinded and the defendants be held in jail custody pending trial, and that all defendants on bail should no longer be allowed to leave Hong Kong.
All magistrates and judges had sworn an oath to uphold the Basic Law and to perform their duties properly. If any of them has proved by action to be politically biased toward the rioters, it may well constitute an offense of misconduct in public office and they should be investigated by the Independent Commission Against Corruption and other authorities accordingly.
If the judiciary really cares about doing Hong Kong justice, a thorough review of its performance and relevance to the changing faces of Hong Kong is now overdue.
The author is an adjunct professor of HKU Space and council member of the Chinese Association of Hong Kong and Macao Studies.
The views do not necessarily reflect those of China Daily.
