Hong Kong's Judiciary: Noble? Innocent?
Updated: Jul 19, 2020
Hong Kong's independent Judiciary - guaranteed under article 3(3) of the 1984 Sino-British Joint Declaration on the Question of Hong Kong - is in doubt more than ever.
On 12 January 1998 Hong Kong's Chief Justice, Geoffrey Ma, addressed an event marking the opening of the legal Year for the Special Administrative Region's judiciary. He said at the time:
"An independent Judiciary upholding the rule of law is a cornerstone of our society. The Judiciary is an institution of government, the institution that exercises independent judicial power. As such, it belongs to and serves the community by maintaining the rule of law. In this new era, what does and what should the community expect of its Judiciary?
The community expect and have a right to expect that their Judiciary has the supreme qualities of independence with integrity and professional competence. Let me assure you that these are and will remain our hallmarks. The law must be and will be impartially and competently administered."
That expectation has not changed, although life in the city certainly has.
Civil unrest in Hong Kong gathers strength following a proposal to change the city's extradition statutes in early 2019.
Across Hong Kong people join a broader social movement calling for better governance in Hong Kong, for greater democracy, and freedoms promised them under the Sino-British Joint Declaration. There are regular protest marches, rallies, and other actions. The protesters develop their wishes into the "FIVE DEMANDS" statement.
From time to time there are conflicts between pro-government or pro-Beijing people and those who side with the pro-democracy people. They mirror the tensions that occur within the Hong Kong government legislature (LegCo) insofar as exchanges are sometimes heated: progress is slow, frustrations abound, tempers flare, minds and bodies clash.
20 August, 2019 Some people distributing flyers and putting up posters on a Lennon Wall in Tseung Kwan O are attacked by a man wielding a knife. The victims are two females and a male (see the video below).
December, 2019 The attacker appears in court. He pleads guilty to three counts of wounding with intent, an offence punishable by life imprisonment but capped at seven years in the District Court. He apologises to his victims, the court and the community. Sentencing is delayed for a later court hearing.
23 April, 2020 The man who carried out the attack appears before the District Court and is sentenced to 45 months in prison:
"Tony Hung Chun, 51, attacked a newspaper reporter and two others with a 31cm (12-inch) beef knife in Tseung Kwan O after a discussion over current affairs inside a pedestrian tunnel – used by protesters as a so-called Lennon Wall – became heated in the small hours of August 20 last year.
"The frenzied knife attack left the three victims, aged 24 to 35, needing hospital treatment, with the reporter in critical condition after the blade pierced her back with a force that fractured a rib and bruised a lung.
"Prosecutors revealed that Hung was armed with a second weapon, a 29cm (11-inch) kitchen knife, which he had also collected from his home just before the attack.
"While District Judge Kwok Wai-kin observed that the defendant had committed a serious offence that warranted a punitive and deterrent sentence, he also expressed sympathy for Hung...
"The judge described Hung as “an involuntary sacrifice and a bloodstained victim hanging by his last breath” as the protesters had “ruthlessly trampled on his right to work, live and survive” and put the final nail in his coffin when they openly attacked mainlanders at the airport.
"The judge also weighed in on the protests, despite acknowledging that such views were irrelevant to sentencing, as Hung cried in the dock....
"Kwok remarked on how black-clad protesters armed with umbrellas – not for use against the elements – had ganged up like an army and fundamentally changed Hong Kong with extremist conduct reminiscent of the Cultural Revolution.
“It’s ironic that such ugly behaviour should come from those claiming to pursue democracy,” Kwok said.
"He further observed that protesters’ act of harming ordinary citizens whenever the government refused to accede to their requests was “in every bit terrorist conduct”, and called on them to rethink their intentions and have empathy for the common people.
"Hung, on the other hand, was praised for “showing noble qualities” when he wrote to the court expressing his wish that his punishment could help relieve what the victims had gone through.
"His victims later reported feeling fearful of tunnels, crowds or men of Hung’s age, and were diagnosed with post-traumatic stress disorder.
24 April, 2020 Comments on social media like Reddit suggest that many people are "outraged", "disgusted" and "disturbed" by the light sentence handed down to the defendant, and by the comments made by the judge.
Kwok was appointed a District Judge in 2012 and has heard a number of prominent protest-related cases including one involving nine defendants charged with rioting during the Mong Kok unrest in 2016. He also presided over a case relating to an incident where protesters surrounded police headquarters last June.
Pro-democracy activist Ventus Lau shared a post from online pro-democracy forum LIHKG which called for complaints to be lodged against Judge Kwok. “Rule of law is dead. Red judges are in authority… It is time to take action and resist against the unjust judiciary,” Lau’s post read.
Notable activist, Joshua Wong vented on Twitter, while former Bar Association chairwoman, Barrister Audrey Eu Yuet-mee and criminal lawyer, Stephen Hung Wan-shun also made public comments on the case outcome.
26 April, 2020 Pro-democracy legislator Lam Cheuk-ting urged the chief prosecutor to apply for a review of a ‘lenient’ 45-month prison sentence imposed on Hung, warning that the judge’s ‘biased' and 'partial’ comments could encourage more violence against protesters.
Previously in Hong Kong, Chief Justice Geoffrey Ma Tao-li has repeatedly stressed that judges only consider cases according to the evidence and the law, and politics and popular sentiment play no role in proceedings.
Perhaps people these days watch too many crime dramas on television, or follow headline stories like the O.J. Simpson one, so that they somehow feel better equipped to judge right and wrong than those appointed to act as the higher authorities in court proceedings. People in Hong Kong and elsewhere expect judges to be notable for their impartiality, fairness and political neutrality - not so in this case! Somehow the victims in this case are the ones who are at fault - and not just for Mr Hung's woes - for ALL the misery caused by civil unrest in the city.
People who are upset with the sentencing point out things like being premeditated in the act of violence, that Hung according to Apple Daily, had already posted many hateful Whatsapp messages against protesters and signalled his intent to perform violent acts a week before the attempted murder.
People wonder what kind of 'deterrent message' it sends about violence....that it's okay to assault or blame people at random when you feel wronged by a social movement. The ongoing civil unrest in Hong Kong has been fomented by the government itself that offers systemic structural violence to the people of the SAR, acts as puppet to the Chinese Communist Party, and is unable to offer a political solution.
Others claim that Judge Kwok's comments in this case totally contradict his comments made in the 2016 Mongkok unrest case when he is reported to have said that the legitimacy of political demands is not a matter the court should consider; the court shouldn't paint perpetrators of violence as victims.
There is anger that the victims in the Lennon Wall attack case were also being tried by Judge Kwok for their 'collective liability' as members of the pro-democracy movement.
As I mentioned at the start of this blog, life in this city has changed. The world is watching, and although this case is significant at this time, it is not the endgame. Importantly, any injustice erodes the rule of law: Hongkongers will respect the legal system only if it respects them.
Hong Kong, now suffering from the global pandemic and financial recession, still has the opportunity to present itself as a beacon of democracy, a place where freedoms and the rule of law are both upheld and respected.
25 May 2020, Chief Justice Geoffrey Ma warns judges against expressing “unwarranted or unnecessary political views” after a judge was relieved of handling protests-related cases due to his controversial sentencing remarks.
See our other blogs on matters related to the law and the judiciary:
18 July 2020, RTHK, "Losing UK judges would be disastrous for HK: expert" A Hong Kong legal expert has expressed alarm after the president of the UK's Supreme Court, Robert Reed, said its judges may no longer be able to serve in Hong Kong if the national security law undermines the city's judicial independence.