Rule of law in Hong Kong: Judicial safety and foreign hypocritesJul 15, 2021
In the Declaration of the High-level Meeting of the United Nations’ General Assembly on the Rule of Law at the National and International Levels, adopted in 2012, it is stated that “the advancement of the rule of law is essential for sustained and inclusive economic growth, sustainable development, the eradication of poverty and hunger and the full realization of all human rights and freedoms”.
Those sentiments have been acknowledged in Hong Kong since its earliest days, and the rule of law has always been fundamental to its success. This is why the Basic Law, enacted by the National People’s Congress in 1990, enshrines such things as equality before the law (Art.25), freedom of speech (Art.27), freedom of the person (Art.28), freedom of conscience (Art.32), and, crucially, judicial independence (Art.85). In addition, it stipulates that the International Covenant on Civil and Political Rights, which contains, for example, the fair trial guarantees, “shall remain in force” (Art.39), which is profoundly reassuring for those who treasure the city’s criminal justice system.
If, therefore, anybody plans to harm Hong Kong, they will seek to target the rule of law. If they can interfere with its legal processes, they know this would weaken the city and damage its global standing. As the custodians of the rule of law, the judiciary’s role is pivotal, whether in terms of conducting fair trials, resolving commercial disputes, or determining the legality of administrative decisions. As Lord (David) Neuberger, a non-permanent judge of the Hong Kong Court of Final Appeal, said recently, “the role of the judiciary is to uphold and further the rule of law; more particularly, judges impartially identify and apply the law in every case brought before the courts”.
On July 8, therefore, there was consternation when, in the District Court, Judge Stanley Chan Kwong-chi, who was presiding over a protest-related trial, announced that he had been receiving harassing phone calls and faxes, and that other judges were suffering in the same way. He called on the Hong Kong Bar Association and the Law Society to strongly condemn the illegal acts, and urged law enforcers to bring the culprits to justice. He hoped that the legal community, as well as “right-minded people”, would speak out for the judiciary, not least because such acts “are bound to undermine the judicial system”.
Upon learning of Judge Chan’s revelations, the Department of Justice immediately announced that the government “will not tolerate any act of harassment against judges while performing their duties”. If, it declared, there were “despicable” attempts to influence the outcome of court proceedings, no effort would be spared in bringing the culprits to justice “in order to safeguard the due administration of the judicial process and public peace”. The Secretary for Justice, Teresa Cheng Yeuk-wah, has, of course, always been proactive in defense of judicial rights, and, for example, on October 30, 2020, she obtained an injunction from the High Court to protect judicial officers from doxxing, threats and harassment. She will now again be reviewing her options, and, as Chan noted, the harassment he faced could amount to “a string of offences”.
One obvious offence, depending on the evidence, is attempting to pervert the course of public justice, contrary to common law, which is punishable with imprisonment of any term and a fine of any amount. Criminal intimidation is another possibility, and this is punishable under the Crimes Ordinance with up to 5 years’ imprisonment (Sect.27). It is, moreover, an offence under the Summary Offences Ordinance, punishable with 2 months’ imprisonment (Sect.20), to persistently make telephone calls without reasonable cause and for the purpose of causing annoyance, inconvenience or needless anxiety to the victim, although this is obviously very small beer, and no real deterrent.
Judge Chan’s ordeal, however, cannot be viewed in isolation. During the insurrection of 2019-20, the intimidation of the judiciary was a significant part of the protest movement’s strategy, and it was repeatedly deployed in order to challenge the rule of law. On November 9, 2019, for example, a Molotov cocktail was thrown into the yard of the Shatin Law Courts, with a protester telling “Stand News” that it was targeted because of the perceived unfairness of the magistrates. As the judiciary stood firm, the protesters mounted another arson attack at the same building on November 13, this time because a judge had dismissed an injunction application to prevent the police from entering the Chinese University of Hong Kong without a warrant.
As the judiciary still showed no signs of buckling, the protesters decided to up the ante. On December 9, 2019, after violent protest activity on the streets, they firebombed the entrances of both the Court of Final Appeal, in Central, and the High Court, in Admiralty. On July 6, moreover, it was reported that the police had foiled a plan by the secessionist terror group, “Returning Valiant”, to bomb both Eastern Court and Tuen Mun Court.
None of these outrages, however, affected either the smooth operation of the courts or the way in which the judiciary decides its cases. The protest movement, therefore, switched tactics, hoping to achieve its ends by terrorizing individual judges and magistrates.
In January 2020, they targeted Justice Anthea Pang Po-kam, because they disliked the sentences she imposed on the Mong Kok rioters, and she was duly vilified online and denounced in crude street graffiti. In December 2020, the Chief Magistrate, Victor So Wai-tak, received a bomb threat after remanding the Next Digital owner, Jimmy Lai Chee-ying, in custody in a fraud case. By May 2021, it was the turn of District Court Judge Amanda Woodcock, who received three intimidating and insulting phone calls after sentencing Jimmy Lai and nine others to terms of imprisonment of up to 18 months, for having participated in an unauthorized assembly in 2019.
But, despite being confronted with all types of threats and intimidation, the judiciary has continued to discharge its duties without fear or favor, for which it deserves great credit. What, however, has been extraordinary has been the failure of those in foreign parts to commend the courage of the judges and to denounce those seeking to overthrow the rule of law. Whereas the British Foreign Secretary, Dominic Raab, and the US Secretary of State, Anthony Blinken, will, at the drop of a hat, gleefully wax lyrical for hours about, for example, the National Security Law or Apple Daily, they have nothing whatsoever to say when judges are being targeted by subversives, or when the rule of law is being imperiled, and they are by no means alone.
On July 8, for example, the Parliament of the European Union found time to adopt an emergency resolution condemning the closure of Apple Daily, and calling on the “Hong Kong Government to immediately and unconditionally release and drop all charges against journalists”. This, of course, was a direct challenge to criminal justice, as it sought to place journalists above the law, regardless of the evidence against them. And as they were prepared, for political reasons, to pervert the course of public justice in Hong Kong, nobody should be surprised that the parliamentarians failed to mention, let alone condemn, the real worry, which is the organized assault on the city’s judiciary by the protest movement and its affiliates.
Also on July 8, the British Parliament’s Foreign Affairs Committee, chaired by the veteran Sinophobe, Tom Tugendhat, demanded action against China over the issue of Uyghur Muslims in Xinjiang. However, Tugendhat, who is best known for his efforts to undermine the Hong Kong Court of Final Appeal by removing its British judges, had nothing to say about the ongoing threats to the judiciary in Hong Kong, which should have been his prime concern. Instead of mischief-making, he could, just for once, have shown some statesmanship, by throwing the weight of his committee behind the rule of law in Hong Kong, instead of which, like his European Parliament counterparts, he chose to play his silly political games.
Although many in the West, in their eagerness to harm China, are not prepared to support the Hong Kong Judiciary or to speak up for the rule of law, they can be discounted as their hypocrisy debases them all. If they want to spend their days thinking up new ways of riling China, so be it, but they cannot expect to be taken seriously. But as Hong Kong’s greatest strength is the rule of law, everything possible must be done by those in the city to protect it, and to hunt down those who dare to threaten its judges.
The author is a Senior Counsel and Professor of Law, and was previously the Director of Public Prosecutions of the Hong Kong SAR.
This article has been republished from Orange News.