I have been reading “Fake Law”, by an English barrister who operates under a pseudonym to avoid accusations that writing books about the legal system is a way of advertising his services.
In it he laments the widespread ignorance of the finer points, or indeed many of the less fine points, of the law among journalists and politicians, and the resulting circulation of false or misleading ideas about how the legal system works.
I do not know how long it took him to collect the examples of this trend in England. Most of the examples offered concern issues which have not come up here, like the effect of economies on the Legal Aid system, the circumstances in which a court may rule that medical treatment is not in the interests of a dying child, or the role of juries in rape cases.
Still, if he ever runs out of material in England he will find a copious supply of odd legal comments in Hong Kong. Some examples from earlier this month or so come to mind.
Let us start with Mr Ho Lok-sang, who pens pieces at the rabid end of the pro-government spectrum for the China Daily’s English-language edition. Mr Ho is upset that Ted Hui escaped to Denmark, having concluded as the eighth summons dropped through his letterbox that someone in Hong Kong was out to get him. Mr Hui was on bail.
“The legal principle when dealing with bail applications is quite simple,” says Mr Ho. “The primary consideration is the defendant’s likelihood of absconding.”
That is totally wrong. The primary consideration when dealing with bail applications is that the applicant has not been convicted, is presumed to be innocent until a trial decides otherwise, and that consequently should be left at liberty unless there is a strong case for keeping him in custody for some reason – one of which might be the likelihood of absconding.
This is the correct approach and if it is adopted there will inevitably be occasions when the defendant manages to disappear. That is not a reason for piling on the magistrate concerned.
On this erroneous basis Mr Ho proceeds to some vigorous judge abuse.
Three magistrates and one judge are explicitly accused of political bias. Mr Ho offers an entertaining contradiction by asserting at the beginning of one paragraph that there is “righteous public indignation in response to Hui’s escape” and at the beginning of the next that “Hong Kong people are not upset over Hui’s escape.”
Nevertheless, apparently, “some members of the public now see the judiciary, or at least some magistrates and judges, as part of the conspiracy to allow these rioters and activists to escape justice by granting them bail and permission to leave Hong Kong.” And they should be investigated by the ICAC.
Mr Ho is in some danger of discovering that it is still a common law offence to impute corrupt motives to judges. But then perhaps he isn’t, because this is the sort of law which is rather neglected where the pro-government press is concerned.
For an altogether more polite and upmarket form of judge abuse we can turn to Mr Henry Litton, who has turned his retirement into a one-man campaign for shorter judgments of a kind which he agrees with.
Like Mr Ho, Mr Litton starts with an obvious error. Last year the police force, he says, was “the target of extreme violence.” Dear me, no. I have a master’s degree in extreme violence. The course was called War Studies.
This is also basically irrelevant. We do not have collective punishment and we should not have collective excuses either. Whether any particular police action represents an appropriate use of force depends on the individual circumstances.
You may have supposed that Mr Litton’s occasional appearances in print were aimed at rectifying some error in the way Hong Kong judges approach matters concerning the Basic Law and the PRC constitution. No such matters arise here. The case concerns whether the police force should be required to display individual numbers so that they can be identified by members of the public, and whether the existing system for dealing with complaints about the police is satisfactory.
The judge decided that the police should display numbers and that the system was unsatisfactory, which will strike many observers as common-sense conclusions. Mr Litton disagrees. There is much dissection of parts of the judgment. Mr Litton complains that it is 66 pages long.
Well, judgments are printed in a very wasteful way, and lawyers generally do not have the gift of brevity. Mr Litton, alas, took up so much space on more important matters that he did not have room to expound on the dangers and merits of having very senior retired judges commenting on cases which are still open to appeal.
Curiously it seems that besides the judgment’s contents – “the stuff of comic strips, of fairy tales” – his most cherished objection is that the Commissioner of Police will ignore it. This is a plausible prediction but hardly the judge’s fault, one might think.
Mr Litton proposes a few simple rules to avoid future outrages, the last of which is that “The courtroom is no place for debate with lawyers.” Really? What are lawyers for if not to perform in courtroom debates? We may be heading for a system in which the only role of defending counsel is to help the prisoner at the bar to draft his confession. But let’s not rush it.
Now we come to the strange affair of the Duty Lawyer Scheme noticeboard. The controversial corkboard is located in the Shatin Magistrates Court. A website called “Save HK” printed a picture of said notice board, complaining that it had “pro-protester items pinned on it, including one entitled Hong Kong Protest ABC.”
This provided an opportunity for DAB lawmaker Holden Chow to leap into action, asking for “disciplinary action in light of the breach of neutrality inside court buildings.” Putting up posters which support illegal protests with inflammatory slogans was “a despicable action which damaged the reputation of the Judiciary.”
Well there is no such thing as a rule on “neutrality” in court buildings. We expect the judge or magistrate to be neutral. The police, prosecution and defence are not. The Duty Lawyer Service is not part of the judiciary and it is not expected to be neutral because its role is to help defendants who cannot afford a lawyer.
Many recent defendants have presumably been protesters so you might think it a good idea for the Duty Lawyers to have some idea of what the protests were about and what the protesters thought they were doing. Still, the service is funded by the government so the posters were removed. A spokesman for the service said the “individual staffer involved was severely reprimanded.”
Looking at the actual posters it is difficult to see what all the fuss is about. The “protest ABC” is a cartoon-like joke: A is for Angry, B is for Be water, C is for Crowdfunding, D is for Demonstration, E is for Extradition Bill and so on. Each letter has a little sketch: the Extradition Bill for example has what appears to be a dead duck.
There are a lot of functional notices on the board and two red bannerets of the kind people put on their doorposts at Chinese New Year, which I cannot read. And there is one poster on which the only clearly legible phrase is “Freedom was a basic human right.” Is that “deemed subversive” now, I wonder? Has “free” become a dirty word? This is going to be a problem for publishers in the future. Free is a four-letter word beginning with F. But F*** already means something else.
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