On April 27, when the secretary for security, Chris Tang Ping-keung, answered legislative councilors’ questions on law-and-order issues, he provided some important insights, particularly regarding the processing of protest-related and national security cases. As always, the latest statistics were instructive.
Although, as of Feb 28, 10,277 people had been arrested for crimes resulting from the protests, only 2,804, or 27.3 percent, were actually prosecuted. This figure was clearly very low, given the scale of the devastation, the violence and the lawbreaking, and the huge financial costs, and it shows how prosecution has only been used as a tool of last resort. Of those prosecuted, 1,172 suspects had been convicted, which shows that justice has, for some at least, had the last laugh, while the proceedings of 939 others were still underway.
As regards national security, Tang disclosed that a total of 175 people had been arrested for “committing acts that endanger national security”. This shows, in contrast to the impression often given abroad, just how restrained the Police Force has been in deploying its new powers under the National Security Law for Hong Kong (2020). Of those arrested, 112 had been charged, with eight suspects having already been convicted by Feb 28.
In terms of the processing of criminal cases, Tang explained that the “median time” in the Magistrates’ Court is about 100 days, and this rose in the District Court to 200 days, where defendants pleaded guilty, and to 380 days, where they did not. Amid ongoing concerns over delays in the handling of cases, Tang highlighted 90 protest-related cases, and pointed out that the time between the initial appearance of defendants in the Magistrates’ Court and the completion of their cases in the District Court “generally ranged from 300 to 400 days or so”. This is concerning, not least because it shows that protest cases are taking around 30 percent longer than other criminal cases to process.
Apart from protest cases, national security proceedings are also experiencing delays. This has prompted the Court of Final Appeal to urge judges and magistrates to find ways of bringing them on for trial as soon as possible, if necessary, by reviewing procedural steps. Indeed, last month, Justice Esther Toh Lye-ping expressed her concerns over the “long delay” experienced by the 47 activists charged with subversion, who have been awaiting trial for over a year and who have still not been given a trial date, albeit that 11 will reportedly be pleading guilty.
Where delays arise, various factors are invariably at play, and it would not be fair simply to blame the judiciary. As Tang explained, many of the factors “are beyond the control of the judiciary,” and involve its criminal justice partners. He highlighted the investigation and collection of evidence by the Police Force, the appointment of lawyers and the obtaining of legal advice, and other pretrial formalities, not all of which can be timeously resolved by the crack of a court’s whip.
The judiciary, of course, has been alert for many years to the problem of delay, and various remedial measures have been adopted, including the use of deputy magistrates. On Jan 22, the chief justice, Andrew Cheung Kui-nung, having noted that there were still a “significant number of criminal cases pending before the District Court arising from the events in 2019”, pointed out that the “mega court” at the West Kowloon Courts had been renovated. New courtrooms were, he said, also being constructed at the Wanchai Law Courts, to facilitate the hearing of criminal cases involving large numbers of defendants, lawyers and witnesses. Although Cheung was at pains to explain that there could “be no compromise on the fairness of the legal process”, he expected that, once the courtrooms had a higher seating capacity and were used more flexibly, the trying of cases would be expedited.
Infrastructure apart, Cheung also appreciates that extra courts also require more judges. In the first four months of this year, one high court judge, two high court recorders, and two district court judges have been appointed, and there are reportedly other appointments in the pipeline. They must, however, be of the right quality, and nobody benefits if trials are not conducted by safe pairs of hands. If judgments have to be overturned on appeal because of judicial error, it can affect public confidence, and also cause unnecessary expense if retrials have to be ordered.
On May 3, therefore, the judiciary announced that, with an eye on quality control, annual review boards are to be introduced, and this will enable court leaders and judges from higher courts to discuss and assess the work performance and needs of judicial officers at all court levels. The reviews will be conducted in a “comprehensive, objective, systematic and integrated manner”, and the review boards, apart from assessing the performance and capacity of individuals to conduct trials and discharge administrative duties at a higher level, will also be deciding what exactly judges and magistrates need for their personal training and development.
This is clearly a step in the right direction, and the monitoring of the progress and needs of judicial officers is an essential component of any successful long-term judicial strategy. The reviews will be introduced this year in the seven magistrates’ courts, and extended later to the District Court and High Court. Once the system is fully functional, it should help to reassure the public, who will be able to appreciate that trials are only being assigned to people of the right caliber and possessed of the necessary skills.
The overall picture to emerge, therefore, is of a criminal justice system that is professional, enlightened and just, and keen to improve itself. It is seeking to address its shortcomings, and provide the public with the best possible service. Quite clearly, this can only be beneficial for the rule of law in Hong Kong in the run-up to 2047, and beyond.
The author is a senior counsel and law professor, and was previously the director of public prosecutions of the Hong Kong SAR.
The views do not necessarily reflect those of China Daily.