A review of ‘The Dance of Folly: or how theatrics have tarnished the rule of law in Hong KongJul 26, 2021
A series of acute points are made by Henry Litton in his new book, The Dance of Folly. These typically pivot on his observations of how judges, across various courts in Hong Kong, have been drawn away – by lawyers – from what he argues is the essence of well-grounded, common law reasoning towards playing dubious games with legalized expressions and theory-based arguments. The result is that dangerous stress has increasingly been placed on the operation of the One Country Two Systems (OCTS) framework, which governs the relationship between Hong Kong and China.
Some will disagree with the central arguments made. But where they do, most will still find themselves thinking deeply about what is being argued in this robustly readable work.
As I read the book, it prompted significant reflection – and a particular memory
Over four decades ago, as I was completing my LLB at the University of Melbourne, I began attending various courtrooms to see the law actually being applied. Armed with my new legal-classroom understanding, I found I could follow what was going on. Rather like when one learns the rules of football; watching any game afterwards becomes far more engaging.
On one occasion I was fortunate enough to happen upon a murder trial, in the Victorian Supreme Court, where the facts were exceptionally lurid. The two accused, a wife and her lover (call them “X” and “Y”), were charged with murdering her husband (“A”). The evidence showed that all were no strangers to the professionally criminal way of life. Apart from myself, a number of X and Y family members were in court paying close attention.
The husband and wife, A and X, had a hilly countryside allotment in the well-timbered, modest mountains bordering Melbourne to the east. By arrangement, Y had arrived one damp day, to coordinate with X in order to murder A. Husband A was rendered unstable by a blow to the head and fell heavily. Mr. Y then ran over A with his motor vehicle more than once. Subsequently, X and Y, discovered that husband A was still drawing breath. A small calibre rifle was fetched and Y shot A, finally killing him.
After all this was established, the barrister for Y, asked to lodge a new defence to the charge of murder. To do this mid-trial is unusual. The judge agreed to a voir dire (a separate hearing within the trial) to allow the barrister to make his application. The jury was sent from the courtroom so they would not hear the argument unless the judge said it was admissible.
The barrister for Y then advised the judge that his client now wanted to plead self-defence. The judge asked the barrister what the basis for this argument could possibly be. The barrister explained that, although husband A was significantly injured prior to being shot, it must have been the case that he was also extremely angry with Y, by that stage, and thus, had he been able, he would certainly have been minded to kill Y and Y, thus, shot husband A dead in order to defend himself. The judge shook his head slightly in what looked like disbelief and smartly told the barrister that this argument was improper and would not be allowed to be put to the jury.
I had heard how lawyers could argue that black was white, but here I saw that sort of ability applied in real life for the first time.
The judgments in the cases analyzed by Henry Litton do not involve vividly lethal facts to compare with those just outlined but they do rely on putting legal arguments to work, unfittingly in Litton’s view, in ways which have adversely shaped the operation of the common law system in the Hong Kong Special Administrative Region (HKSAR).
Chapter 4 of this new book is entitled, “Do Judges Run Prisons?” Henry Litton provides a withering review of a case involving certain personal hygiene and appearance procedures applied within prisons in Hong Kong.
In March 2012, Leung, Kwok Hung was convicted of a criminal charge before a magistrate. Leung was, for an extended period, a Member of the Legislative Council (LegCo). He was widely known as “Long Hair” in recognition of the way he had worn his hair over many years. After exhausting the appeal process, he commenced his sentence of four weeks in 2014. His hair was cut short in accordance with long established prison regulations (page 39).
After some indecision about appealing against this hair-cutting decision because it was discriminatory – women prisoners in separate prisons are not ordered to have short haircuts in the same way – Leung lodged an appeal to the High Court, which was heard in April and May, 2015. A declaration was given in Leung’s favour in a 39 page judgment delivered 18 months later in late 2016. The Court of Appeal (CA) reversed this outcome in another prolonged judgment in April 2018. In November 2020, the Court of Final Appeal (CFA) overruled the CA and restored the original judgment, once more explaining why at length. The entire process took over five years. It transformed what Henry Litton powerfully argues was clearly (and justly) a matter best left to be decided (as it had been for many years) by the prison administration, into an immensely elongated discussion of equality rights, which now complicates custodial discipline measures (pages 39 – 49).
He finds the outcome absurd. He says the Judge at First Instance failed to accept his basic, judicial gate-keeping responsibility. The judge should have stopped the original case from proceeding in the interests (inter alia) of good governance. Subsequently, the disarray was compounded when the CFA failed in its leadership role by giving the procedural (access to judicial review) aspects of the case “not an ounce of thought”, simply following where it was led by counsel (page 50).
Litton concludes by observing that: “The judges, at all three levels of the courts, seem drawn to overseas case law as moths to a flame: apparently brushing aside the inconvenient truth that the common law system operates under the principle of One Country Two Systems. Such a mind-set spells disaster in the long run. It is not a formula for the long continuation of the common law in Hong Kong” (pages 50-51).
The book is conspicuously based on the penetrating analysis of a series of high profile cases – mostly cases seeking judicial review. These include (apart from the case above) the court-based review of: the election of the former Chief Executive C. Y Leung (2012); procedures under the Complaints Against Police Ordinance (CAPO) and police identification (2020); the Face-Covering Case (2020); and a bail-procedural case related to the new National Security Law (NSL) in 2020 (chapters 1 to 8).
Litton perceives – and documents in detail – the clear failure in many such judgments to come to terms with the substantive factual evidence as they each detour into “forensic games” typically played by discussing abstracted interpretations of the Basic Law and most recently, the NSL, both of which are nationally enacted fundamental laws applying in the HKSAR (chapters 1 to 8).
He repeatedly notes the failure to stop improperly based applications for judicial review (many of which are publicly funded by legal aid) proceeding at all.
The criticisms leveled are sharp but they are typically argued, step by step, with clarity. In his analysis of the Face Covering Case, Litton makes one perceptive point after another (chapter 3). At the outset he notes that judicial review is meant to aid those with a real grievance in the public law field and not “a mere agitator” (page 28).
Litton explains that all the applicants seeking a review of the new, emergency face-covering regulations (made under the Emergency Regulations Ordinance (ERO)) applied on October 5, 2019 by the HKSAR Government, were LegCo members, apart from one who was a former LegCo member. Litton asks the question which the court did not: were the applicants “legislators or agitators”. Why come to court – why not argue these matters within LegCo (which, as it happens, had largely been rendered non-functional by these same LegCo applicants). Litton goes on: “Were the applications made in good faith – or were [the applicants] just pursuing a political agenda?”(pages 28-29)
In an extraordinary judgment, the two High Court Judges hearing the case at first instance declared that the ERO was unconstitutional and they also struck down most of the regulations, themselves. This was a plainly dangerous on at least two levels. First, it badly handicapped the Hong Kong Police who were in the midst of managing the most difficult crisis they had faced in decades: trying to bring an end to the immensely violent and destructive multi-month insurrection which began in June 2019. Second, it openly challenged the fundamental constitutional role of the sovereign. Beijing explicitly reviewed the laws of British Hong in February, 1997 and then adopted most of those laws, in general. Next, a list was provided of particular laws which were not adopted because they contravened the Basic Law. The ERO was not on this list. The judgment also singularly failed to consider the vital nature of the public interest as an existential threat to the social and constitutional order of Hong Kong unfolded (see Cullen, Richard, “Ruling on mask ban a reminder of centrality of public interest”, China Daily, March 1, 2021).
The CA overturned the ERO declaration and restored most of the regulations. Finally, the CFA dismissed every ground relied on by the applicants – restoring all the regulations. By this time, the judgments, described in the book as a “carnival of words” ran to over 320 pages, in total. Litton trenchantly notes that: “It should have been blindingly obvious that counsel’s arguments that the [ERO] was unconstitutional verged on the absurd. Why was it given oxygen by the judges?” He summarizes the final outcome in these words: “After so much huffing and puffing, what has been achieved? The answer is zero, except to show how the law can be made ineffectual when the discipline is ignored” (page 32).
The book also includes a chapter that provides an overview of the new NSL (chapter 7). Litton first outlines the history of the failed attempt by the HKSAR to enact new a National Security Law in 2003 pursuant to the requirement to do this spelled out in Article 23 of the Basic Law. He then concisely summarizes the terrifying extent and impact of the lengthy 2019 insurgency and the paralyzing of LegCo. He also notes how this massive dispute in Hong Kong was used, inter alia, as a means to advance geopolitical interests aligned against China. In these circumstances, the need to upgrade national security protection became urgent (page 71).
In a paper written by Paul Harris, a leading Hong Kong Senior Counsel and now Chair of the Hong Kong Bar Association, it is said that NSL Article 43 (listing police powers), “goes far to create a police state”. Litton says that this claim is a “gross exaggeration”. He goes on to argue in detail and convincingly against this paper – and a related paper on the Joint Declaration by the same author (pages 77 – 85).
The concluding chapter deals with the “35 plus primaries” organized by the Pan-Democrat opposition in July 2020 (after the NSL was proclaimed) to prevent vote-splitting and to find the candidates most likely to be elected in the (then approaching) September, 2020 LegCo elections, who would use their LegCo powers to apply new constitutionally disruptive pressures on the HKSAR Government (chapter 9).
Litton argues that what was sinister about this scheme was that it was designed “to implement a wider plot called “ten steps to mutual destruction” which had been outlined in a pro-democrat newspaper, Apple Daily on 28 April, 2020”. He explains, convincingly, based on the outlined plan, that, if the 35 plus majority had been secured, the new legislators were committed to using their powers to create chaos (page94).
More recently, the author has written a related, influential article. Published in early July, 2021, it reflects on the first year of operation of the NSL in the HKSAR. It is entitled “A Close Run Thing” – drawing on a remark made by the Duke of Wellington after winning the Battle of Waterloo, against Napoleon, in 1815. Litton states, definitively, that in 2019, “What Hong Kong faced was an insurgency, the overthrow of government, nothing less:” another close run thing. In the conclusion to this article, he briskly notes how inadequately protected – compared to the NSL – potential defendants are under the measurably harsh text deployed within the US national security regime.
This sort of clear comparative analysis provides one foundation which shows how repeated Western claims of freedoms being stifled in the HKSAR under the NSL are starkly and purposefully detached from reality. Litton agrees with Mr C. H Tung that Hong Kong has been systematically used as a proxy within a wider power conflict.
The central message of this book can be summarized as follows:
- Hong Kong is inalienably and fundamentally part of China;
- As the HKSAR, it enjoys remarkable special, constitutional, political, economic and social privileges and opportunities within China under the OCTS framework;
- But it also owes deep obligations to China, under OCTS, to protect national security within the HKSAR and within China;
- This obligation has been singularly amplified by the increasingly hostile efforts by the US (and heavily-encouraged-allies) to confront and contain the rise of China, which threatens American superpower hegemony more seriously than at any time since the end of World War II;
- The key to maintaining OCTS so that it operates to the best advantage of Hong Kong through until 2047 and beyond, is building and sustaining a level of fundamental trust between Hong Kong and Beijing;
- The Judiciary in the HKSAR is uniquely placed and has a special responsibility both to maintain the essential principles of the common law and to maintain that trust;
- There have now been too many instances, within the judiciary, of a “carnival of words” unfolding where there is a lack of “focus on the true issues [while] forensic games [are] played with a national law”;
- This has led to an increase in mistrust of the HKSAR Judiciary in Beijing;
- This is a grave current problem which needs to be addressed candidly and effectively.
Prior to the decision in the Face Covering Case, one might have argued that these concerns, though real, were rather strongly stated. After that decision, however, it is hard to disagree with the basic tenor of where Henry Litton says we now find ourselves, judicially, and why – and why this has led to a measurable undermining of cross-border trust. A central and difficult concern presents itself, which the judiciary in Hong Kong has to address.
This review has been republished from The Legal Scholarship Blog (LSB) in the Faculty of Law at HKU.