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Thursday, August 22, 2019, 19:07
Our courts must play a key role in ending HK violence
By Tony Kwok
Thursday, August 22, 2019, 19:07 By Tony Kwok

So far, police have arrested a total of 753 people implicated in the recent spate of protest violence in Hong Kong. Among them, 117 have been charged with riot-related offenses such as participating in illegal assembly or rioting, assaulting police officers, causing criminal damage, possessing offensive weapons and explosives, etc.

It is most surprising to note that the first conviction out of this lot was a mainland tourist who was sentenced to four weeks’ imprisonment on Aug 19 for defacing the wall of the US Consulate in Hong Kong. Despite his claim that he was merely trying to show his discontent against foreign meddling in the city’s recent anti-government protests by spray-painting the rather harmless slogan “China will win” on the front gate of the consulate, Principal Magistrate Bina Chainrai stated, “That is really not a justification for the damage. It is not acceptable in this court,” and sentenced the defendant to an immediate custodial sentence of four weeks’ imprisonment.

I have two observations on this case. First, it completely refuted the allegations made by the anti-government lawyers groups that accused the Department of Justice of “double standards”, in that those arrested in the riot were quickly charged and taken to court, whereas those accused in gang fights in the Yuen Long station were only arrested but not prosecuted. The distinct difference is that those involved in the riot were caught red-handed in the course of committing the crime, similar to the mainland tourist who was stopped at the scene before he could complete his graffiti. Hence, there is more than a prima facie case to take the violent rioters to court immediately. This is also a demonstration of the proper exercise of the rule of law, in that offenders should be brought to court as soon as possible, in respect of the “justice delayed is justice denied” principle.

The Independent Commission Against Corruption regularly processes similar cases. If in an ambush it arrested a suspect on the spot for taking a bribe, the offender could be taken to court the following day. As regards the Yuen Long gang assault, police were only able to commence their investigation afterward. So far, they have taken prompt action to arrest 28 suspects, but understandably, it takes time to collect sufficient admissible evidence against them, e.g., the need for undisputed evidence of their identities; the need to identify the victims, as well as to take evidence from them, some of whom might well be reluctant to cooperate; and tainted witnesses. The point is that anti-government criminal lawyers like Martin Lee Chu-ming know this constraint on law enforcement officers fully, yet they would still make unfounded allegations to stir up public hatred of the police.

Our judges and magistrates should realize that it is part of their sacrosanct duty to help Hong Kong overcome the current violent turmoil and reclaim our former peace and tranquility by ensuring that violent rioters get their just deserts before the courts. They ought to have learned a hard lesson from “Occupy Central”, where most defendants got away with extremely light sentences quite disproportionate to the gravity of their offenses

The second observation is that the magistrate should be publicly commended for setting a proper precedent for future trials in similar offenses. We have seen the rioters spray-painting graffiti on buildings and public places in the territory in the last 10 weeks, even on the walls of police stations, government offices, and the liaison office of the central government, as well as the Golden Bauhinia Square. They may think that spraying a few words of discontent on these places is no big deal. Now they should be worried and realize that they could be in jail and carry a criminal record for the rest of their lives for vandalizing with graffiti. Maybe police should highlight this case in their daily press briefing to enhance its deterrent effect.

One point that worries me most is that out of the 117 people charged, almost everyone was released by the court on bail pending their next court appearances. This would have been unthinkable in colonial times, e.g., the 1967 riot cases, where everyone without exception was detained in custody the moment they were charged, with most receiving a heavy custodial sentence at the end.

The current practice seems to defy some basic legal guidelines when deciding on releasing a suspect on bail. The three important considerations are the seriousness of the offense, likelihood of absconding, and likelihood of repeating the crime while on bail.

First, the offenses these street rioters were charged with are all serious offenses, such as 10 years’ imprisonment for rioting. It defies common sense that even those charged with possession of explosives and offensive weapons are released on bail. These offenses are punishable by up to 14 years in prison.

Second, there is every likelihood that these suspects on bail may abscond. The Wong Toi-yeung case is a typical example, when the magistrate allowed him bail, knowing that he was the main culprit in the Mong Kok riot and had been trying to evade police arrest by hiding in his friend’s place. There is absolutely no justification for the magistrate to give him bail. And what happened? He has absconded and is now enjoying his “political asylum” in Germany.

In the current cases, we have already witnessed the leader of the rioters who stormed the Legislative Council building taking the first flight afterward to abscond to the United States. His 30-odd followers immediately sought asylum in Taiwan. At least two charged with riot offenses have jumped bail. Hence, there is every likelihood that these accused people would abscond.

Third, on the likelihood of the suspects repeating the offense, we have noted a recent case in which one person who was on bail for assaulting a police officer in the Sha Tin riot was rearrested for assaulting a mainland visitor at the airport. Fortunately, the magistrate was sensible enough not to allow him bail on this occasion.

Our judges and magistrates should realize that it is part of their sacrosanct duty to help Hong Kong overcome the current violent turmoil and reclaim our former peace and tranquility by ensuring that violent rioters get their just deserts before the courts. They ought to have learned a hard lesson from “Occupy Central”, where most defendants got away with extremely light sentences quite disproportionate to the gravity of their offenses. What’s more, some of the main culprits, such as Chu Yiu-ming, Lee Wing-tat, Tanya Chan Suk-chong and Eason Chung Yiu-wa, all received suspended sentences, while Tommy Cheung Sau-yin was sentenced to 200 hours of community service. To add insult to injury to our judicial system, they publicly expressed no remorse over what they had done! Such inordinately light sentences must have been on the minds of the radical rioters, expecting no unbearable consequence to their anti-social deeds over the last two months.

There is no doubt that some of the magistrates and judges are sympathetic to the self-proclaimed “noble” causes of the rioters. We have also recently witnessed a high court judge joining a signature campaign to oppose the government's proposed fugitive rendition bill, completely ignoring his obligation to remain apolitical. Hence, I propose a special court be set up to deal with all the riot-related defendants, with judges and magistrates carefully selected on the basis of their commitment to remaining apolitical. There are precedents in many countries where they set up special courts to deal with special categories of offenses, such as corruption.

The public should also consider launching a “court watch” on the internet, to monitor all these cases and publish their results, with reference to the respective magistrates and judges. This is a proven effective practice in the US, Canada and Europe as a way to make the magistrates and judges accountable to the public.

The court has lost a lot of its credibility over its handling of the “Occupy Central” cases. There was a saying at that time: “Police arrest, judges release!” Hopefully, this folly is not repeated when dealing with the current riot cases.

The author is an honorary fellow and adjunct professor of HKU Space, and was the first local head of operations of the Independent Commission Against Corruption.

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