Pearls and Irritations

Recently, a correspondent on Australia’s national broadcaster casually referred to Hong Kong as a “police state”. This ignores that the courts operate under common law rules. The role of the judge is key. They are not mouth-pieces of the central government. In HKSAR v Lai Man-ling & 4 Others, Hong Kong’s image overseas has been tarnished by a decision to convict people for writing a children’s book, a judgement which no one can understand and which was wrong.

Radio National is Australia’s national broadcaster, exercising wide influence.

In commenting on the outcome of the recent 20^th Party Congress whereby Mr Xi Jinping’s term as General Secretary of the Chinese Communist Party was extended for another five years, the correspondent casually referred to Hong Kong as a “police state”. This was not an isolated incident. Many Western media outlets, in commenting on criminal convictions by the Hong Kong courts in national security-related cases, have categorised those courts as mouth-pieces of the Central Government, ignoring the fact that the courts operate under common law rules and principles. To dispel such misconceptions – or to quash such bias – it is of importance that in reaching their verdicts courts should make their reasons clear, intelligible and transparent.

HKSAR v Lai Man-ling & 4 Others [ Criminal Case No.854/2021, 10/9/2022 ]

This brings into prominence the case where five university-trained speech therapists were convicted of conspiracy to publish and distribute seditious publications and sentenced to 19 months’ imprisonment. These were books of cartoons with accompanying commentary. The story line concerned wolves subjugating a village of sheep. The case has attracted worldwide attention. The District Judge’s Reasons for Verdict is 68 pages long, with 47 footnotes: dead on arrival for the average reader.

The reasons for convicting the defendants are enmeshed in irrelevant details and entwined with three distracting side issues, making it difficult to see why the defendants came to be convicted. No working journalist or commentator can be expected to work through such a document; hence, all they could do is look superficially at the outcome and give way to their bias against Beijing: “What! Books of kids’ cartoons held to be seditious against the state? The authors sent to jail? That’s ridiculous. The judge is a pawn of Beijing in suppressing freedoms in Hong Kong”.

The underlying statutory provisions

The statutory provision relied upon for conviction was s.10(1)(c) of the Crimes Ordinance, a statute enacted when Hong Kong was a Crown colony.

The three books of cartoons, together with accompanying text, were published between 4 June 2020 and 16 March 2021. The back page of each book said that it was meant for children aged 4 to 7 and parents were encouraged to explain to them the messages carried by the cartoons.

The Big bad wolf

Through the ages and across many cultures, in children stories and in adult literature, the wolf has had a bad name. Little Red Riding Hood’s grandmother got eaten by a wolf. In Byron’s poem “The Destruction of Sennacherib” the “Assyrian came down like a wolf on the fold, and his cohorts were gleaming in purple and gold”.

The political agenda

Although presented as children stories, the books had a political agenda. The foreword of the first book referred to the mass street protest in early 2019 against the so-called Extradition Bill. The books followed the events of 2019 as the early mass movement morphed into a violent insurgency aimed at the overthrow of the Hong Kong government. This eventually led to the intervention of the Central Government in the national security law, announced in May 2020. This was reflected in the cartoons as the big bad wolf descending upon the sheep village to suppress the happy carefree life of the sheep.

The Western media

The western media in commenting on the criminal convictions, looking simply at the outcome, portrayed them as acts of repression by an authoritarian government in Beijing. No mention is made of the fact that the convictions came from a common law court with its liberal traditions; nor the fact that, under the Basic Law, the court had a constitutional duty to protect freedom of speech and expression in Hong Kong.

But if there were commentators minded to spend time reading the District Judge’s Reasons for Verdict they would have found there a forest of words, wondering what system of law is practised in Hong Kong.

Reasons for verdict

Everything the defendants did was in the open. The case raised no disputed issues of fact.

Reasons for verdict are – or should be – focussed on the charge facing the defendants and the facts relating to the charge. Here, sadly, the judge’s Reasons for Verdict was not so directed: irrelevant details smothered any line of logic that existed and side issues raised by counsel fractured the focus. Had the judge adhered to the discipline of law, the Reasons for Verdict would not have been more than 5 or 6 pages long, without footnotes.

Side issues

From the Judge’s Reasons for Verdict it can be seen that defence counsel put forward three distracting points unrelated to the guilt or innocence of the defendants. They should not have appeared in that document.

( 1 ) It was argued that s.10 (1)(c) of the Crimes Ordinance was “unconstitutional”.

If this was so, the trial obviously could not have proceeded, and there was no question of the judge reaching a verdict, guilty or not guilty, on the charge.

The offence, sedition contrary to s.10(1)(c) of the Crimes Ordinance, has been in the statute book long before the constitution for the Hong Kong SAR – the Basic Law – was promulgated. When it came into effect on 1 July 1997, Article 160 of the Basic Law adopted the Ordinance, as it did many other statutes, as part of the “laws of the Region”.

The threshold for a constitutional challenge is therefore necessarily high.

Furthermore, over the past 25 years, there has been much agitation and turmoil in the community over the fact that the provisions of Article 23 of the Basic Law have not been met by the Hong Kong government: this required laws to be passed prohibiting, amongst other crimes, “sedition”. And here is s.10 of the Crimes Ordinance criminalising sedition, existing in the statute book when the Basic Law took effect. How could it possibly be unconstitutional?

The “constitutional challenge” took up 23 paragraphs in the Reasons for Verdict. It had simply no place there. Assuming it be arguable, it should have been dealt with as a preliminary issue, or been reserved for argument later on should the defendants be convicted as charged.

( 2 ) Counsel argued that the charge itself was bad because it did not refer expressly to “the Central Authorities”. This point was clearly bad. Section 3 of the Interpretation and General Clauses Ordinance says that “state” includes the Central Authorities of the PRC. This argument should have been dismissed out of hand: the judge devoted 20 paragraphs to this point before rejecting it.

If the point was valid, the charge could simply have been amended. The defendants were in no way misled. It could never have derailed the proceedings.

( 3 ) It was argued that the prosecution was time-barred. That point is equally bad. The charge against the defendants was conspiracy which was a continuing offence. If this was a valid point no trial could proceed and there could not have been a verdict. And yet this was chewed over in the judge’s Reasons for Verdict. The judge took 7 paragraphs to dismiss it.

All these were distractions. They were among six issues which the judge listed in para 52 of the Reasons for Verdict for his determination. If he had been sitting with a jury, those distractions would never have formed part of his summing-up. The only issue he could have put to the jury was the guilt or innocence of the defendants as charged.

The situation is no different when the judge is sitting alone, acting as judge and jury.

“The common law intention”

The judge’s approach to the case was diverted into a blind alley by a point – said to be “argued strongly by counsel for all defendants” ( para 81 ) – that, in addition to an intention within one or more of the limbs stated in the Crimes Ordinance for the definition of sedition, there was an additional element “formulated by case law in various common law jurisdictions”. That additional element was violence, to be proved by the prosecution, to make the statutory crime complete.

This was rightly rejected by the judge; it was no part of his function to add an element to a statutory definition. Moreover, as he pointed out, in a case arising out of the 1967 riots –Fei Yi Ming & Lee Tsung Ying v R, [ 36 HKLR 133 ] – the Chief Justice appears to have rejected the suggestion that violence was a necessary element of the offence.

In chasing after these phantom issues, the judge lost sight of the core issues of the case, and his primary function which was to determine the guilt or innocence of the defendants as charged.

The defendants’ intent (mens rea)

Everything the defendants did was in the open. There is no doubt they intended the books of cartoons to carry their own political message, the core of which was this: there was a grassroots democratic movement in Hong Kong, starting in early 2019, which the Hong Kong government, acting as proxy for the Central Government in Beijing, sought by use of the police force to suppress. In para 124 of the Reasons for Verdict, for instance, the judge said that Hong Kong’s Chief Executive was depicted in the books as a wolf masquerading as a sheep “at the direction of the wolf-chairman”.

Assuming that be the intent as revealed in the books, wherein lies the criminal mind? The commentaries going with the cartoons expressed one view of the political situation facing Hong Kong in the second half of 2019 and early 2020. The defendants might be totally wrong; they might have turned a blind eye to the mayhem in the streets and ignored the danger facing the community as the insurgency threatened the total collapse of law and order. But there is no suggestion that they had in any way taken part in the insurgency or had given support to those taking part in it.

Criminals or bigots?

They clearly thought the imposition of the national security law by the Central Government was unjustified, an overreach, tyrannical. They were wrong. But does this suggest a criminal mind? Might it be a case of naivety, obsession with an ideal, unwillingness to accept reality? As history tells us, many idealists are bigots.

The crime lies in the pictures and words in the books (together with the efforts they took to promote them). Were they doing anything more than to say, in effect: the Hong Kong government, together with the Central Government were wrong, or even oppressively wrong? If the answer by a jury were to say: “We’re not sure, maybe that was their intent” then this leaves a lurking doubt regarding their mens rea and they must be acquitted.

The criminal act (actus reus)

As the judge himself said, section 10(1)(c) “qualified as an offence endangering national security” (para 61).

Sedition is not an offence against the person or property. It is a crime against the state. The judge never asked himself this question: had the prosecution shown by evidence, beyond a reasonable doubt, that the state was harmed or, at the least, there was a high likelihood of harm? This was another core issue. It was not satisfied by simply saying that the defendants intended to excite disaffection against the government. What is more, the matter must be weighed against the constitutional right to free speech and free expression, and values such as tolerance and moderation inherent in the common law system.

This was not the way the judge approached the case. In para 52, he said: “From the submissions of the parties, I find that the following issues fall for consideration” and listed 6 issues. His primary responsibility was to determine if the prosecution had proved its case beyond a reasonable doubt. It was not to deal with “the submissions of the parties”. A judge is not the handmaiden of counsel.

The error of approach

In para 122 of the Reasons for Verdict the judge noted defence counsel as saying that the books “just represent the perspective of a section of the public, and the events may be exaggerated, but this form of writing is acceptable in all broadminded democratic societies, and that is so even if some readers may find the contents disturbing, shocking or even offensive”. As to which the judge said:

“I agree with counsel, but still, it depends on what has really been depicted”.

That goes part of the way but does not address the core issue: what harm has this done to the state?

Or, to put it differently: seeing that the first publication was on 4 June 2020 and the last on 16 March 2021, how much had social stability been restored by that time so that the publication of those books of cartoons could not be said to have harmed the state? How vulnerable was the Hong Kong government to real harm from a distorted allegory depicted by cartoon at that time? How fragile was public order in Hong Kong when the books appeared?

In dealing with the “unconstitutionality” point raised by counsel, the judge said this (para 104-5):

“Since the start of the Anti-Extradition Movement in mid-2019, HKSAR went through a lengthy period of mass riots and civil unrest, some of them were extremely violent and weapons and petrol bombs were used. While the exact number of people participating in these riotous activities will never be known, it can be said with certainty that there were over tens of thousands of them. What these people had demonstrated during this period of time was that they did not recognise the sovereignty of the PRC over HKSAR, and they did not support the policy of One Country Two Systems. There were calls for Hong Kong independence or self-determination. Although the situation in HKSAR had more or less calmed down after the promulgation of the national security law, it is clear that these people have little change in their attitude. They just go underground and the seeds of unrest are still there. The political situation appears to be calm on the surface but very volatile underneath”. 

Much of what the judge said about the period of “mass riots” can be taken on judicial notice. But had the rioters gone “underground”? Did “seeds of unrest” exist? Did volatility lurk “underneath” when public order had been clearly restored by the time these books appeared? These were not matters on which the judge could take judicial notice. The absence of evidence marred his conclusion.

The footnotes

It is difficult to understand why the judge should have peppered his Reasons for Verdict with footnotes. If he had been sitting with a jury, what would he have said about them? Take para 34 of the Reasons for Verdict as an example where he found, as a fact, that “on 24 March 2021, D2 and D4 held the first Parents-Children Reading Session”. This was followed by footnote 21 which said: “See paragraph 19(1) of the Admitted Facts ( Exhibit P1 )”. This was a pointless statement because the Admitted Facts Exhibit P1 was nowhere to be found in the Reasons for Verdict. Such futility is repeated scores of times over. Why were the footnotes there? Was he afraid that his finding of fact might be challenged on appeal? Was he so uncertain of his function at trial that he was looking over his shoulder at the Court of Appeal? These miniscule and multiple distractions, this huffing and puffing, all contributed to the loss of focus.

The sentencing

The approach to sentencing adopted by the judge makes it crystal clear that he never thought the state had been harmed by the books. At para 7 of his Reasons for Sentence he said that “the targets of these books are children, including those as young as 4 years old”. Then in paras 29-30 he said this:

“…..the sentence to be imposed must depend on the defendants’ culpabilities in the offence and the harm caused by them. I take the following matters into account.

First, the harm caused by the defendants as a result of their offence must be identified at the outset. The defendants are to be punished not because of the publications or for their words, but because of the harm or the risk of harm that was or would be resulted to the mind of children ….”.

Section 10 of the Crimes Ordinance is not concerned with the mental welfare of children. Its sole purpose is to protect the state. It is impossible to leap from acts damaging to children to acts harming the state.

Conclusion

As mentioned earlier, these convictions have attracted world-wide publicity. Looking at the bare facts, no-one can understand how the defendants could have been properly convicted and sentenced to 19 months imprisonment.

The judge had clearly taken great pains in dealing with this case; excessively so. The time taken to write his Reasons for Verdict (with 47 footnotes!) would have been phenomenal. He was, alas, ill-assisted by counsel. Had his mind been truly focussed on the guilt or innocence of the defendants, looking at the facts as a fair-minded jury composed of ordinary people would have done, he might well have entertained a lurking doubt as to their guilt.

As things stand, Hong Kong’s image overseas has been doubly tarnished, by convictions which no one can understand, and by a judgment which was wrong.