Under the Basic Law, Hong Kong enjoys many advantages, none more important than the rule of law. The rights and freedoms of its residents are constitutionally guaranteed, and they are upheld by its judiciary. The judges “exercise judicial power independently, free from any interference” (Article 85), and, upon assuming office, they undertake to “administer justice, without fear or favor”.
The former president of the UK Supreme Court, Lord (David) Neuberger, who has been a nonpermanent judge of the Hong Kong Court of Final Appeal since 2009, said recently that “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”. Since 1997, therefore, the judiciary, by providing a level playing field, ensuring just outcomes, and inspiring confidence, has been fundamental to the success of the “one country, two systems” policy.
Those wishing to undermine Hong Kong realized long ago that the best way of doing this was by striking at its judicial system, and they adopted various strategies. These included intimidation, pressure on overseas judges to resign, attacks on court buildings, and efforts to malign the administration of justice by denigrating judicial officers. If any of these strategies were to succeed, the judiciary would face destabilization, and the city’s prosecutors have played a vital role in protecting the legal system against significant perils.
In order, therefore, to provide the judicial system with maximum protection, prosecutors need to be flexible, identifying offenses that are best suited to particular situations and will have the greatest deterrent impact, such as a sedition charge designed to safeguard the administration of justice
After the insurrection erupted in 2019, courts were firebombed, individual judges were threatened, and the judicial process was disrupted. In January 2020, for example, the fanatics targeted Justice Anthea Pang Po-kam, because of the sentences she imposed on the Mong Kok rioters, and she was vilified online and denounced in crude street graffiti. In December 2020, Chief Magistrate Victor So Wai-tak received a bomb threat after remanding 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 imprisoning Lai and nine other people for having participated in an unauthorized assembly in 2019.
In July 2021, moreover, 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.
Upon learning of Judge Chan’s revelations, the Department of Justice announced it would not “tolerate any act of harassment against judges while performing their duties”. If 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”, and this was exactly the right response.
The threats, however, did not abate, and, in November 2021, letters containing highly corrosive substances were sent to Magistrate Pang Leung-ting at Shatin Law Courts and, for the second time in a week, to Deputy Judge Kathie Cheung Kit-yee at West Kowloon Court, with both judges having recently imprisoned rioters. In the same month, following their sentencing of various defendants for protest-related crimes, two judges — Johnny Chan Jong-herng in the High Court, and Clement Lee Hing-nin in the District Court — received threatening messages, apparently identical, accompanied by meatlike substances.
On Nov 19, 2021, Chief Justice Andrew Cheung Kui-nung said “any attempts to exert undue pressure on judges and judicial officers will violate the rule of law spirit and deal a blow to the principle of judicial independence, which shall be severely condemned”, and prosecutors, working with the police, have done everything possible to hold the culprits to account. Although the judiciary, with its constitutionally guaranteed independence, is firmly entrenched, it cannot be taken for granted, and even the most resilient of institutions is vulnerable to undermining. Those responsible, therefore, must expect to have the book thrown at them in terms of both charging and sentencing, and law enforcers cannot flinch in their defense of the city’s legal system.
Once judicial safety is threatened, or judges are abused, or court proceedings are disrupted, there are wide ramifications, with the rule of law itself being imperiled. Prosecutors, therefore, need have no qualms about mobilizing their heavy artillery, by bringing the gravest charges possible against the culprits. This will not only attract the highest penalties when offenders are convicted, but also send out a clear message that any such conduct is intolerable in a civilized society.
After two individuals, Garry Pang Moon-yuen and Chiu Mei-ying, disrupted a court hearing involving an activist, Chow Hang-tung, a former vice-chair of the group that organized the June 4 vigil, on Jan 4, they were charged with sedition for uttering seditious words, contrary to the Crimes Ordinance (Section 10), and this surprised some people. The crux of the prosecution case was that, by shouting provocatively from the public gallery, they verbally confronted Magistrate Amy Chan Wai-mun, who had prevented Chow from making a “political speech” in mitigation of sentence.
When Pang and Chiu were tried by Magistrate Andy Cheng Lim-chi (WKCC 928/2022), the evidence showed that, when Chow was being sentenced, four spectators from the public gallery had to be ejected after applauding her mitigatory submissions, and warned against disrupting the proceedings further. Instead of departing quietly, Pang and Chiu staged an inflammatory disruption in open court that was, by any yardstick, highly disrespectful of solemn proceedings.
On Oct 27, when Magistrate Cheng convicted the two defendants of sedition, he decided that Pang (who was also convicted of another unrelated sedition offense), had, in a courtroom of approximately 100 people, clapped and accused Magistrate Chan of “threatening to silence” people, and had also told her she had “lost your conscience”. Pang’s belief that the magistrate was failing to give Chow justice, and that he was entitled to rectify her errors by interrupting the trial, was clearly no justification for what he did. Cheng concluded, therefore, that Pang had “demeaned the magistrate” by openly criticizing her in her own court in front of others.
As for Chiu, Cheng found that she had chanted derogatory phrases, accusing Magistrate Chan of “non-compliance with the law, deciding the case arbitrarily, out-of-line behavior, and delivering unfair judgment”, allegations that were clearly outrageous.
In these circumstances, Cheng did not accept that the “statements or words uttered (by the defendants) had anything to do with ‘conscience’ or remedying the wrongs of judges”, and concluded that their remarks could not simply be explained away as a mere “slip of the tongue”. Instead, he decided they knowingly and intentionally made remarks that were seditious, in the sense of bringing hatred and contempt upon the administration of justice, and this was the nub of the matter.
Under the Crimes Ordinance, a seditious intent comprises such things as bringing the administration of justice into hatred or contempt, raising discontent or disaffection (disloyalty) among the population, and promoting feelings of ill-will among different classes in the community, as well as inciting people to violence. The defendants’ comments, therefore, were not simply spontaneous cries of anguish, but provocative affronts intended to demean the magistrate and cause everybody present to be disrespectful of the judicial process.
This undoubtedly explains why prosecutors, instead of treating what happened as just another run-of-the-mill contempt of court issue, viewed the case with great seriousness, seeing it as a threat to the integrity of criminal justice itself. And Magistrate Cheng, who imposed 3 months’ imprisonment on each defendant, clearly agreed with their approach, which was why he rejected a defense argument that the case should be stopped as an abuse of process (Pang received a sentence of 12 months’ imprisonment for his other sedition offense, with both sentences to be served concurrently).
In recent years, the judiciary has faced huge threats, sometimes to its personnel, sometimes to its infrastructure, and sometimes to its values, and it requires every protection. The judges cannot do this by themselves, and they need every support from the prosecutors, as well as the police. In order, therefore, to provide the judicial system with maximum protection, prosecutors need to be flexible, identifying offenses that are best suited to particular situations and will have the greatest deterrent impact, such as a sedition charge designed to safeguard the administration of justice. This exercise, however, is not, as one London-based academic has suggested, indicative of “overkill”, but it shows instead just how determined prosecutors are to do whatever is necessary to uphold the rule of law.
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.
The article has also been published on Orange News.