When injustice becomes law (part 3): HK's monolithic power structure includes the judiciary
Updated: Mar 30, 2021
In 2021 Hong Kong (HK) is ranked by the Heritage Foundation as the 107th freest economy in the world for very good reasons : To visit, reside or have anything to do with HK is to deal directly with the Chinese Communist Party's (CCP) monolithic power structure which includes HK's non-independent judiciary.
CCP's Emperor Xi Jinping is trying to become a 'living God' which he believes empowers him to take over the world : CCP is a nuclear armed, significantly militarized religious cult!
On 1 July 2020 nationalist CCP annexed HK using its National Peoples Congress (NPC) propragated, arbitrary, rule BY law, 'national security law'. The UK government says this was the third breach of UN international treaty - HK's Joint Declaration.
Today there is no independent judiciary in HK : There is no final adjudication.
CCP has not responded to two important UN documents: UN special rapporteurs letter on the national security law; 6 October 2020 Statement by German Ambassador to UN from 39 countries.
HK's annexation was a decision made by CCP's Emperor Xi Jinping supported by others, including HK Chief Executive Carrie Lam ('CLam'), who must be held accountable for their 'genocide' against HK people.
HK, like China, is a Chinese feudal plutocracy : HK is NOT a democracy with human rights nor the rule OF law.
The world must treat HK as being equivalent to any other 'dirty' Chinese city in China.
WTPOHK and HK protesters uphold the Joint Declaration. The aim of this blog is to be contructive and not destructive towards HK's judiciary - which is why we have written so few justice blogs to date.
Truth = rule OF law = justice
In seeking FACTS to find the TRUTH let's agree to call a spade a spade:
How judges became the last front line in the battle for Hong Kong’s freedoms
Justice Secretary’s Duty to Uphold the Rule of Law｜Yan Kei
High Court leaves police with bloody nose as Beijing unveils plans for ‘patriotic judicial reform’｜Jack Hazlewood
Hong Kong top court judge warns of compromise on city’s judiciary autonomy
Courts and violence｜Margaret Ng
Carrie Lam walks back on election pledge to make chief executive accountable under bribery laws
Judges views on HK's Judiciary
The words of The Honourable Mr Justice Tang P.J. in his retirement speech from the CFA (Court of Final Appeal, the highest Court in HK) in 2018 referred to 'Non-Permanent Judges (NPJ) as canaries in coal mines' : 'NPJ' are foreign national Judges from other Common Law jurisdictions. (Please read text of Justice Tang's speech below).
Bearing in mind that the first student protests on HK social issues took place in 1981 and significantly increased in 2003 : The words of Mr Justice Tang P.J. were hardly surprising to HK people - what was unique is that a respected senior member of the judiciary spoke out in public and gave a warning.
Mr Justice Tang PJ's words added credence to the sudden departure from the CFA of Australian Judge James Spigelman soon after CCP's National Peoples Congress (NPC) illegally propogated on 30 June 2020 HK's 'national security law'.
Justice must be seen to be done - it's not just about complying with laws - especially if laws are made by an illegitimate Legislative Council.
Under the CCP there are only lies in HK : there is only the rule BY law : there is only injustice.
The canary is dead. Now what?
Save the miners of course!
CCP's control over HK
SCMP on 4 September 2019 reported that Beijing has called on all HK institutions with public authority, including the judiciary, to fight “violent criminals” with no mercy to put an end to more than 13 weeks of anti-government protests and violence. The HK government, including the executive, legislative and judiciary branches, as well as all sectors of society must take ‘bridling turmoil and curbing violence’ as the city’s most pressing task and the overwhelming priority,” Hong Kong and Macau Affairs Office (HKMAO) spokesman Yang Guang said on Tuesday. “Especially to those key violent criminals and their backstage masterminds, organisers and agitators, [we] must show no mercy and pursue till the end.”
The 24 November 2019 District Council elections were won by a landslide majority in 17/18 districts by pro-democratic candidates! This win spooked CCP into action resulting in the 'national security law' - not for the benefit of HK people and the rule OF law - it is for the sole benefit of CCP!
HK is a police state controlled by CCP!
Currently HK has NO :
- compliance with Joint Declaration
- compliance with UN obligations UDHR, ICCPR, CRC, ICESC, CERD, CAT, etc.
- rule OF law
- Legislative Council (LegCo)
- District Councils
- Civil Service that answers directly through the Legislative Council to HK taxpayers
- separation of powers
- independent judiciary
- final adjudication
- human rights
- stability nor prosperity
- self-sustaining and thriving economy
The only asset HK ever had was its people - many of whom are now leaving or want to leave.
The Chinese people have always had a tragic relationship with their government. The people of HK make the place : ultimately CCP and its rule BY law will fail as replacements for democracy and human rights.
HK's 'monolithic power structure' under CCP's rule BY law includes the now non-independent judiciary
HK's, like China's, political system is part of a 'monolithic' power structure in which the 'ruler' is CCP's Emperor Xi Jinping and the minority of HK 'elites', individuals and companies, who at the 'top of command' are making all major decisions.
There is no separation of powers : This structure includes 'lawmaking' through an illegitimate Legislative Council (LegCo) and a non-independent judiciary.
In a "monolithic" power structure:
The ruler & elites make all the decisions & are at the top of command making
The ruler & elites depend on the obedience & goodwill of the masses of people to remain in power
The ruler & elites view their power as being durable, self-perpetuating & not easily destroyed
Weakens the masses of people - making the masses of people easier to "control." This is a form of "structural violence" in which peoples' UN human rights are violated
It is a "consent" based structure of power - if the masses of people do not give their "consent" the ruler & elites can not rule!
If masses of people do not obey, then the monolithic structure collapses!
Monolithic structures are weaker than pluralistic structures
Today most power structures in our world are monolithic
Every civil resistance movement in history is based on people no longer giving their consent to a monolithic power structure
Since June 2019 the majority of HK people no longer give their consent to be ruled by the Chinese Communist Party (CCP) and their minions the HK government.
CCP HK's monolithic power structure includes the non-independent judiciary : this is CCP's 'structural violence' against all stakeholders in HK including countries, investors, businesses, foreigners, HK people, visitors, residents, etc.
Without the Will and support of HK people there is no rule OF law : the majority of HK people do NOT support the NSL, CCP nor HK government
United Nations 'Universal Declaration of Human Rights' (UDHR) article 21 (format added):
"1. Everyone has the right to take part in the government of his country, directly or through freely chosen representatives.
2. Everyone has the right to equal access to public service in his country.
3. The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures."
The 24 November 2019 District Council elections - HK's only universal and equal suffrage elections - were won by a landslide majority in 17/18 districts by pro-democratic candidates who all ran on HK protesters platform of '5 demands'. After their victory Chief Executive never congratulated the new District Councillors - instead she choose to continue to support the losing pro-Beijing camp!
The joint action on 6 June 2020 of the majority (17/18) of District Councils in voting to reject the CCP's NPC's new National Security Law (NSL) means that under international law and HK's Constitution (Joint Declaration) this is the Will of the people of HK. A clear majority of HK people have formally rejected the NSL.
NPC's LegCo postponement; HK democracy denied. In the Basic Law it states that lawmakers are to be elected, not selected : this was breached pre-1997 handover to China by the Provisional Legislative Council, and now once again in 2020.
In his book "The Rule of Law" Lord Bingham suggests (page 8) "the core of the existing principle [of the rule of law] is, I suggest, that all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly made, taking effect (generally) in the future and publicly administered in the courts."
Communist HK's laws are not 'publicly made' : in communist HK there is no 'public', only the self-serving interest of the CCP and local elites who as a minority rule over the illegitimate 'Legislative Council'.
There being no Will of the people which is recognized nor acted upon as the authority of the HK government, so there is therefore in principle and effect no rule OF law in communist HK!
The current situation is untenable in that the non-independent judiciary, by its own actions, breeds contempt for the public who pay their wages via an illegitimate Legislative Council rubber stamping CCP's demands for access to HK's Public Purse in lawmakers kowtowing to the CCP and their elitie's view of the rule BY law : all the while the judges appear to be trying to keep their highly paid jobs under the watchful evil eyes of the CCP and the HK Chief Executive Carrie Lam (CLam)!
[Update] It strikes your author that the history of Britain's 'Common Law' was first applied to England as a 'standalone' and 'unthreatened' by any other jurisdiction's legal system, laws nor acts of aggression. It is a legal system that was birthed by the English King's monolithic structure : it's development across the world varies between jurisdictions.
HK, like most Chinese societies, is run by triads and CCP is the biggest, strongest and most violent well-equipped triad gang in the world : Because of CCP and HK government practices of coercion few amongst the judges, especially local HK Chinese lower level judges, are likely to be able to resist CCP demands for long.
This is the 'curious' case on 23 April 2020 of District Court Judge Kwok Wai-kin's inappropriate outburst in court against 'protesters' during his conviction and sentencing to only 45 months of Tony Hung Chun who attacked with a knife (he had 2 knifes) and hospitalized 3 innocent people including critical injuries to a female journalist subsequently diagnosed with PTSD.
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.
25 May 2020, Chief Justice Geoffrey Ma warned judges against expressing “unwarranted or unnecessary political views” after a judge was relieved of handling protests-related cases due to his controversial sentencing remarks.
It can be reasonably argued that a judge by supporting the prosecution is more likely to rise up through the judicial ranks which rewards 'professionalism' than one who bucks the instructions or intent of CCP : judges are paid by the Department of Justice.
China has an extraordinarily high conviction rate which HK judges will undoubtedly soon achieve if they want a well paying job in HK's judiciary.
The pro-CCP camp and their media have been publicly lambasting as 'pro-democratic' the decisions of some HK judges : with no support for an 'independent' judiciary under HK's rule OF law by Chief Executive Carrie Lam nor Secretary of Justice Teresa Cheung!
Secretary of Justice : 'Chief Persecutioner' using CCP's rule BY law
Current Secretary of Justice is Teresa Cheng. It is her duty to Uphold the Rule of Law.
Rather than leave the decision making on prosecutions to a civil service career professional - the Director of Public Prosecutions (DPP), as is the practice in leading democracies - Cheng has taken it upon herself to politicize the Department of Justice's rule OF law through her support of the CCP and their rule BY law.
HK's Secretary of Justice is a political appointee who, unlike in most democracies, decides on all prosecutions. Therefore logically, all trials prosecuted by HK's Department of Justice are illegal 'political' persecutions.
The first instance most HKers had of the twisted sociopathic mentality of Chung was the proposed extradition legislation that was the cause of mass protests started on 9 June 2019 which continued until the start of COVID-19 at the end of January 2020. The proposal for the extradition legislation may have originally come from Chief Executive (CE) Carrie Lam (CLam) - but would have been drafted and approved by the Department of Justice headed by Chung. Unsurprisingly - like with everything else these two have been involved with - it was complete and utter havoc!
14 November 2019 Cheng was the target of a protest in London, UK. Officially she hurt her elbow or arm : it was rumoured she wanted to resign her job and stay in UK. Unofficially the business dealings of Cheng's husband Otto Poon Lok-to includes Analogue Holdings, one of HK's largest electrical and mechanical engineering companies : one has to wonder how business is these days for Otto and where his income source is really coming from.
WTPOHK recommends in order to uphold HK's Joint Declaration, its rule of law and judicial independence HK's judiciary has to use a 'counter-interventionist' approach to HK's common law! i.e. HK's judiciary has to take every action possible which protects the rule of law, judicial independence and upholds the Joint Declaration.
HK's illegitimate Legislative Council (LegCo) controls the Public Purse
LegCo must be formed and performed according to the rule OF law : the underlying problem is that under CCP there is only the rule BY law.
Laws or actions 'passed' by an illegitimate LegCo (i.e. which is not according to HK law) are NOT laws nor actions which legally can be included in HK's 'rule OF law'.
For example, 'HK Bill of Rights' Cap.383 Article 21 right to participate in public life includes universal and equal suffrage which is not being acted upon by the HK government!
The minority HK elite's control the majority of HK people by not complying in LegCo with HK's law requiring universal and equal suffrage : this is through Functional Constituencies which allow elites more than one vote per person (i.e. non-equal suffrage).
Such an unfit LegCo meets no lawful purpose except to continue the charade of 'one country, two systems' so that CCP can continue, amongst other things, it's rape of HK's Public Purse and of our standing as an international finance and trade centre.
HK will soon be stripped of its best people, its cash, its resources and the existing conduits it provides will quickly become a 'burden' to CCP's China.
Under CCP's total control, communist HK's monolithic power structure includes the judiciary : this is CCP's 'structural violence' against all stakeholders in HK including countries, investors, businesses, foreigners, HK people, etc.
CCP's direct control of HK stems from an 'unholy trinity' of Police (HKPF), Department of Justice (DoJ) and Correctional Services Department (CSD)
This 'unholy trinity' is the core of HK's monolithic structure working directly for CCP : police arrest; DoJ prosecute; Judiciary convicts, sentences and hears appeals; CSD locks up people.
As with all things CCP, the unholy Trinity is replete with mis-information and lies!
Example: HK's colonial era legislation the 'Public Order Ordinance' (POO), which like many other laws in HK is not compliant with ICCPR, and has been widely used against protests and protesters alike.
Since 2019 protests CCP and HK government has a policy of criminalizing as many young HK people as possible : CCP fears youth and foreign interference because it was once a student movement heavily funded by the Soviets.
Arrests of 53 pro-democrats and threats to HK voters amounts to State torture and genocide. A recent example of the unholy Trinity are the 47 democrats arrested on 28 February 2021 (228) : see below article 'HK reduced to 4th world status'.
The CCP's NPC closed door deliberations and illegal enactment on 1 July 2020 of HK's national security law to annex HK was deliberately engineered to be incredibly destructive to the Joint Declaration, HK's people and their human rights, democracy, economy and the rule OF law.
HK's judiciary is tied together with the police and prisons (CSD) in their abuse of HK people. For example the case of HK's 'Captain America' Andy Wai Yip Yung who despite his autism and developmental issues was sentenced to the maximum of 3 years in prison!
Examples of conflict between the Joint Declaration's rule OF law and CCP's rule BY law includes :
HK's 'criminal' trials of pro-democrats are dressed-up 'political persecutions'
Under the common law system there are only 'civil' or 'criminal' trials: i.e. there are NO 'political' trials.
HK's Secretary of Justice is a political appointee who, unlike in most democracies, decides on all prosecutions. Therefore logically, all trials prosecuted by HK's Department of Justice are illegal 'political' persecutions.
There is no rule OF law in HK.
There is no equality before the law
Under ICCPR and HK Bill of Rights everyone is equal before the law : except, as always in HK, some people are more equal than others!
Prior to 2017 HK Chief Executive selection Carrie Lam's (CLam) campaign pledge was that she would ensure that the Chief Executive would be included within the Bribery Ordinance and no longer remain above the rule OF law. In 2020 CLam walked back on this pledge.
There is no rule of law in HK.
No bail under national security law
The presumption of innocence is a cornerstone of the ICCPR and the common law : therefore it is a right of the accused to be allowed bail. CCP's rule BY law is an exact opposite view.
There is no rule OF law in HK.
The right to be heard and judged by a jury is a key element of the common law. It is even more important considering the common practice of the CCP and communist HK government is coercion.
There is no rule OF law in HK.
+ Uphold the Joint Declaration including the rule OF law;
+ Hold a MBC multi-option preferencial referendum for HK people based upon '5 demands';
+ Take action according to the referendum.
Pepe, Jeremiah B. and CY.
Please read our justice related blogs:
When injustice becomes law (part 2): HK needs a 'counter-interventionist' common law
When injustice becomes law: importance of the rule OF law (part 1)
Injustice of HK's DoJ: no public prosecution and terminating private prosecutions
CCP please answer the following UN letters sent to you:
Apple Daily 19 February 2021 'A cheesy show with court wig and gown｜Allan Au Ka-lun'
Apple Daily 19 February 2021 'Editorial: Patten got it half right | Apple Daily HK'
Apple Daily 15 February 2021 'Hong Kong justice chief defends all-local panel of judges in Jimmy Lai case'
Apple Daily 13 February 2021 'Just Words: Rising temperatures for Hong Kong law｜Davyd Wong'
Apple Daily 12 February 2021 'CFA hails a new legal order｜Allan Au Ka-lun'
Apple Daily 11 Feb 2021 'Hong Kong’s top court admits it has no oversight power on national security law'
Apple Daily 11 Feb 2021 'Editorial: Once national security law was in, common law was out | Apple Daily HK'
HKFP 17 January 2021 'How Hong Kong’s national security law and common law system collided head-on'
Apple Daily 17 December 2020 'Apple Daily HK Legal Community on the Case of Jimmy Lai: Blind Men Groping an Elephant ｜K, Hong Kong Barrister'
HKFP 17 December 2020 'Laying down the law to Hong Kong’s judges is out of order for commentators'
RTHK 16 December 2020 'Public must hear my perpetual truths: Teresa Cheng'
Apple Daily 8 December 2020 'Sham rule of law, genuine violence of law｜Chung Kim-wah'
Farewell Sitting for the Honourable Mr Justice Tang PJ
on 22 October 2018 (Mon)
Speech by The Honourable Mr Justice Tang PJ
Chief Justice, Chief Justice Li, Solicitor General, Chairman of the Bar and President of the Law Society, Ladies and Gentlemen:
1. Thank you for your kind and generous words. I know it is customary to speak well of the person concerned and I was expecting no less nevertheless your very kind and generous words touched me deeply.
2. I am also deeply touched by the presence, this afternoon, of so many friends, relatives, colleagues and members of the profession.
3. After almost a half century in the law, the last 14 of which as a judge, it would not be true if I tell you I do not feel sad at leaving. The time has come but I am comforted by the thought that Mr Justice Andrew Cheung will be taking over.
4. I have been blessed in my career. I had the best pupil master anyone could hope for. I have been trying ever since to live up to the high standard of the late Robert Wei. I still remember vividly, the first day of my pupillage, when Robert Wei was led by Oswald Cheung QC, another great help and influence in my life.
5. I was also lucky in my career at the Bar, helped by many friends and colleagues and by my belief in the rule of law and that justice will prevail, which sustained me. I must also thank the many judges before whom I appeared as advocate, for their tolerance and patience. I confess I must have been trying as an advocate. If only I, as judge, have behaved as well as many of the judges I had appeared before, I would have done well. Unfortunately, I couldn’t. So I take this opportunity to apologise to my colleagues and advocates who had appeared before me for my impatience and occasional, I hope, only occasional, rudeness.
6. I have had great help in the judiciary and in private practice. They are too many to name individually. I will mention only those who have been with me the longest. Mendy Lee, my secretary at the CFA, a kind and caring person. IngridLam, my clerk, who came with me from the Court of Appeal, who has to take care of lovely twin daughters as well as to help me with my work. May Chan, Sister May, for her help and kindness. Wong Ka Hing, my driver, who is an unfailing source of useful information. I must also mention, Ms Agatha Lau, my personal secretary of many years, who continued to help me part time after I became a judge. She has been a great help in getting my new office ready and will continue to help me in my new career.
7. Above all else, I have been lucky in my personal life, I have been surrounded by love. My parents loved me dearly. My father who always supported me and my mother with her unreasoning faith in me. My brother and sisters and their families love me. Those who can, are here today.
8. My wife, Cissy, the best thing which has ever happened to me. Her love, care, support and honest criticism have been the mainstay of my life. I don’t know what I will do without her. Luckily, we don’t have to deserve our good fortune.
9. Our children, Hilary and Charles who are here today on their half-term. They are 14. They are happy, kind, loving,caring, thoughtful and sensible. They are also good students. Cissy must take all the credit, not least, because, she gave them priority over her practice and imbued them with her values. We are very proud of them. Now that they are in boarding school, Cissy is in full swing again.
10. I have been a judge for some 14 years, the last 6 in the CFA. I enjoyed them all, but the last 6 was special. Apart from its importance, being the highest court in the land, I also greatly enjoyed sitting with judges from other common law jurisdictions. Overseas NPJs bring with them great experience and specialist knowledge. They also help to ensure that whilst the common law in Hong Kong must develop according to local circumstances, we remained anchored in the common law tradition. Their contribution to Hong Kong is rightly acknowledged. Their presence also bolsters confidence in the independence of the judiciary and the rule of law in Hong Kong.
11. Lord Neuberger of Abbotsbury has likened overseas NPJs to canaries in coal mines. I agree. However, I might add canaries can warn but cannot save the miners.
12. I believe the independence of the judiciary and maintenance of the rule of law must depend on the local judges. The buck must stop at us. Happily, we, the Hong Kong judges are fully aware of our duties and responsibilities. We are aware that faith in the judiciary once lost, can never be regained. We know we must be independent and be seen to be independent. I was until recently a member of the Judicial Officers Recommendation Commission so I know that judges are chosen on merit and not for political reasons.
13. As I retire from being a permanent judge, I can say with confidence and in good conscience, judges are independent and the rule of law is strong in Hong Kong.
14. But that does not mean we should let our guards down.
15. We have lived under the rule of law for a long time. It is often said the rule of law lies at the core of our society and I know that is not a mere slogan.The odds are good but judges cannot do it all on their own.
16. Nor is the fact that we use the common law in Hong Kong enough. Common law can be used oppressively. Its protean power, unless adequately controlled by the proper application of human rights law, can be misused.
17. I therefore say, although judges are prepared to uphold the rule of law as it has always been understood and applied in Hong Kong, the community must be willing to support them.
18. In what form the support should take? I think the support should be all embracing.
19. If the judiciary is unfairly attacked, you should hold firm and stand up for them. But, support should not only be events driven. That is not enough. It may be too late. You should endeavour to nurture an atmosphere friendly to the rule of law. We have a free press and free elections in Hong Kong. Make your voice heard and your vote count. Believe me, the price of freedom is indeed eternal vigilance. Above all else, do not give up or underestimate your strength. If we as a community insist on the rule of law, it cannot be taken from us easily. Do not make it easy.
20. As this draws to an end, I want to say how happy I have been in my career. How grateful I am to all those who have helped me. Time does not permit individual acknowledgment but they have not been forgotten, to each and all, and to you who are here today, a big thank you.
HK reduced to ‘fourth world’ status
Taipei Times 19 March 2021 by By Yu Jie 余杰
It was no accident that Hong Kong officials chose Feb. 28 to conduct a mass arrest of 47 pro-democracy advocates. Feb. 28 is an important national holiday in Taiwan, called 228 Peace Memorial Day, which commemorates the thousands of innocent Taiwanese who were massacred by Chinese Nationalist Party (KMT) security forces on Feb. 28, 1947.
Beijing wanted Hong Kongers to associate the arrests with the massacre.
The message is clear: The Chinese Communist Party (CCP) is prepared to use 228 as a “model” to terrorize Hong Kongers into obedience and silence.
The treatment of the 47 suspects by Hong Kong’s police and judicial authorities has been nothing short of shocking. During successive days of interrogation, the defendants were reportedly allowed only brief periods of sleep, and were not given food nor allowed to wash or change into clean clothes.
Denied even basic hygiene, some defendants fainted or were taken to hospital for treatment after feeling unwell.
Hong Kong barrister Johannes Chan (陳文敏), chair of public law at the University of Hong Kong, has said that the Hong Kong government, including the Department of Justice and the Correctional Services Department, are duty-bound to protect the fundamental rights of the 47 arrested individuals.
“During the interrogations, things have happened that would be considered remiss in a third world country. It is utterly deplorable,” he said.
Chan added that it is difficult to overestimate the extent of the crisis in Hong Kong: It has been reduced to the status of an authoritarian “fourth world” territory — and has actually been part of the “third world” for some time.
The term “third world” generally refers to developing nations. Mao Zedong (毛澤東) once said that he aspired for China to become the leader of the third world, but this idea has clearly had its day, since China has become a neo-totalitarian rising world power.
The majority of third world nations gradually transitioned into democracies; only a small number maintained authoritarian systems of government, taking on different forms such as the military junta in Myanmar or the monarchy of Saudi Arabia.
China, on the other hand, together with North Korea, Iran, Cuba and Syria, have broken away from the third world to become “fourth world nations,” united by their total rejection of the rule of law.