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Thursday, June 28, 2018, 10:45
Rule of law as strong as ever in Hong Kong
By Grenville Cross
Thursday, June 28, 2018, 10:45 By Grenville Cross

Grenville Cross stresses that violence is intolerable in a civilized society — irrespective of what perperators’ political views are

Hong Kong, 21 years after reunification, remains blessed with a legal system which is effective, open and just. Grounded in the common law and protected by the Basic Law, it ensures, for example, that prosecutions are fairly processed and trials properly conducted. Hong Kong people have benefited accordingly and this includes the business community, for whom the rule of law is paramount.

Every year, the World Justice Project Rule of Law Index measures adherence to the rule of law in 113 places, from the perspective of ordinary people. In the 2017-2018 Index, Hong Kong achieved a creditable 16th place — just behind the United Kingdom at 11th but ahead of the United States at 19th. Notwithstanding attempts by anti-China elements in the UK and elsewhere to besmirch Hong Kong’s legal arrangements, the rule of law is as vibrant as ever, as fair-minded observers acknowledge.

In April, the UK’s Foreign Secretary Boris Johnson commented that the “one country, two systems” formula “generally functions well”, and Hong Kong’s judiciary “remains in high esteem”. This was timely, as the judiciary has recently faced ill-informed criticism for its handling of sensitive cases. In fact, the judges have simply discharged their duties, as required by their judicial oaths, without fear or favor. That Hong Kong still has independent judges and prosecutors, prepared to do what they consider right, regardless of outside pressure or criticism, is a particular strength of its legal system.

Everyone, moreover, is equal before the law, and people who, for example, indulge in violent conduct, which causes injury or damage, cannot expect, because of their political views, to escape their just deserts. Justice, after all, is blind

Last year the Honorable Chief Justice Geoffrey Ma Tao-li explained that “in highly charged or high-profile cases, all parties are treated in exactly the same way by the courts as in any other type of case”. Everyone, moreover, is equal before the law, and people who, for example, indulge in violent conduct, which causes injury or damage, cannot expect, because of their political views, to escape their just deserts. Justice, after all, is blind. 

In cases of serious public disorder, such as the Mong Kok riot, courts have a duty to impose sentences which both punish and deter, and which demonstrate that, in a civilized society, such conduct is intolerable. Anyone dissatisfied by a judgment can, of course, appeal, and this right is regularly exercised. If, as recently claimed by a former Hong Kong governor Chris Patten, the riot law is imprecise and unfair, the courts could strike it down as unconstitutional, but this has not happened, and the claim is frivolous.

The English jurist Lord Denning once said that no matter how important an individual may be, “the law is above you”, and Hong Kong has shown just how true that is. Last November, for example, a former chief executive, Donald Tsang Yam-kuen, faced trial for alleged misconduct in office, although the jury was unable to reach a verdict. He has, moreover, appealed against a prior conviction for a similar offence and, should his appeal fail, he can then appeal again, to the Court of Final Appeal. Prosecutions of prominent individuals are possible because, under the Basic Law, the Department of Justice enjoys prosecutorial independence, and its prosecutors can decide freely on cases, irrespective of the status of any particular suspect.     

In Hong Kong, suspects are only prosecuted if, on the available evidence, there is a reasonable prospect of conviction, and a prosecution is in the public interest. Prosecutors are gatekeepers, ensuring only meritorious cases proceed, and their judgments are usually sound. In the court of first instance, for example, an impressive overall conviction rate of 91.1 percent was achieved in 2016.     

But however good our legal system may be, it cannot rest on its laurels. There is always room for improvement, and internal procedures must be constantly reviewed.

In the judiciary, there have been long delays in bringing cases to trial, with target times regularly missed. Last year, for example, defendants whose trials were placed on the court of first instance’s criminal fixture list had to wait an average 164 days for their trials, notwithstanding a target time of 120 days. There is, therefore, an urgent need to recruit more judges of the right quality, so backlogs can be cleared. Steps are now being taken to raise the retirement age of judges and improve their conditions of service; these will hopefully attract suitable people to the bench.

In the magistrates courts, where conviction rates in contested trials sank to an abysmal 49.4 percent in 2016, there is an urgent need for the Department of Justice to recruit more of its court prosecutors. They have successfully undertaken the bulk of summary prosecutions since 1977, yet their numbers have been allowed to dwindle. They have an establishment of 100 but there are currently 35 vacancies, and this has damaged prosecutorial standards as well as morale. The policy of briefing out the court prosecutors’ trials to newly qualified private lawyers has demonstrably failed, and the department must now get a grip on the situation.

Secretary for Justice Teresa Cheng Yeuk-wah must also galvanize the Law Reform Commission, which she chairs. Huge delays in the processing of its reports have developed, the worst example being its sub-committee on causing or allowing the death of a child. Established in 2006, it has failed, after 12 years, to produce its report on whether Hong Kong, like other places, should criminalize conduct which results in the death of a child, in circumstances where someone knows the child is at significant risk of serious harm, yet does nothing to prevent it. Drastic remedial action is required to move things along, including a change of mindset, but also perhaps a shakeup of personnel.

Hong Kong’s legal institutions are as fair and robust as ever but they must also embrace reform when necessary, not least because it can further strengthen the rule of law.

The author is a senior counsel, law professor and criminal justice analyst, and was previously the director of public prosecutions.


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