Since 2009, Lord (David) Neuberger has been a nonpermanent judge of the Hong Kong Court of Final Appeal, dispensing justice to all and sundry. When, as president of the United Kingdom’s Supreme Court, he delivered the Tom Sargant Memorial Lecture in 2013, he explained that, at its most basic, the rule of law “connotes a system under which the relationship between the government and citizens, and between citizen and citizen, is governed by laws which are followed and applied”.
There is, however, as Neuberger pointed out, more to the rule of law than that. It requires, firstly, that the laws of the land are freely accessible, meaning they are as available and understandable as possible. Then, secondly, the laws must enforce law and order in an “effective way while ensuring due process, they must accord citizens their fundamental rights against the state, and they must regulate relationships between citizens in a just way”. And, thirdly, the laws must be enforceable, meaning that “unless a right to due process in criminal proceedings, a right to protection against abuses or excesses of the state, or a right against another citizen, is enforceable, it might as well not exist”.
These are the values that Neuberger, and his fellow judges, have faithfully upheld in Hong Kong in recent times, and its legal system ticks all his boxes. Everybody, for example, is treated equally by the courts, irrespective of beliefs, connections, status or wealth, and the fairness of trials is a fundamental principle. If, moreover, people do not like a particular law, they are free to challenge it in court, or else to seek its improvement, and the Law Reform Commission ensures that laws are kept under review and modernized when necessary.
A vital part of the rule of law is a fair and objective system of public prosecutions. If suspects are to be prosecuted, it can only be on the basis that there is sufficient evidence, and it is in the public interest. There can be no tolerance of arbitrary prosecutions, not least because, if cases are taken to court without sufficient justification, they will inevitably fail. At trial, an accused person enjoys a battery of fundamental rights, and is entitled, for example, to be presumed innocent until proved guilty, to defend himself through counsel, and to have a fair hearing. After 1997, Hong Kong has gone the extra mile to uphold these essential concepts.
In 2001, the Department of Justice’s Prosecutions Division joined the International Association of Prosecutors (IAP), the first and only world organization of prosecutors, and it is guided by its “Standards of Professional Responsibility and Statement of the Essential Duties and Rights of Prosecutors”. These, among other things, require prosecutors to “protect an accused person’s right to a fair trial”, to “serve and protect the public interest”, and to “perform their duties without fear, favor or prejudice”. Although Hong Kong’s prosecutors have traditionally subscribed to these values, it is reassuring for the community to know they are now formally signed up to them at the international level, which contrasts with the position before 1997.
During British rule, moreover, prosecutorial independence was only ever a matter of convention, devoid of concrete protection. After 1997, however, this all changed, and the Basic Law stipulates that the Department of Justice “shall control criminal prosecutions, free from any interference” (Art 63). In practical terms, this means that prosecutors, for the first time, enjoy constitutionally entrenched independence, and they can act as they think fit, without political or other improper or undue influence.
There are, however, some criminal suspects in Hong Kong, usually those accused of endangering national security or protest-related crimes, who portray themselves as victims to foreign audiences. They delight in feeding myths to China’s critics, who, without fact-checking, eagerly regurgitate them. They claim, for example, that they are being prosecuted for political reasons, that the evidence against them does not stack up, and that Beijing is calling the shots. Such claims, however headline-grabbing, are the stuff of fantasy, and their purpose is to provide ammunition to those wishing to undermine Hong Kong.
Although those wishing to harm China have sought to undermine Hong Kong by traducing its legal system, the rule of law remains as vibrant as ever. Whereas they have undoubtedly fooled some people, objective observers have kept faith with the city. This is why, for example, the World Justice Project’s Rule of Law Index (the world’s leading source for original, independent data on the rule of law) has consistently rated Hong Kong highly
As the culprits appreciate, the West’s Sinophobes, including in the media, deeply resent China’s resurgence, and will happily resort to any type of slur or chicanery to hinder its progress. They are constantly on the lookout for sensational stories that can be weaponized against Hong Kong, and they have no interest in understanding how its criminal justice system actually works, let alone in putting the minds of people around the world at rest.
If, however, they did their homework, the foreign critics would make some happy discoveries. They would realize, for example, if they studied the Department of Justice’s “Prosecution Code” (often described as the “prosecutor’s Bible”), that suspects can only be prosecuted “if the evidence demonstrates a reasonable prospect of conviction” (Para 5.5). They would also know that prosecutors are required to have regard “to the rights of an accused which are relevant to the prosecution process, including equality before the law, the rights to have confidential legal advice, to be presumed innocent, and to have a fair trial without undue delay” (Para 3.15).
In other words, the city’s prosecutors approach their duties professionally and in exactly the same way as do their counterparts in, for example, Australia, Canada, and the United Kingdom, and they are wholly aligned to common law traditions.
Once, moreover, a suspect faces trial, the result is not, as some have shamelessly suggested, a foregone conclusion. Before a court can convict, it must be sure of guilt, and Hong Kong, like the rest of the common law world, applies the high test of “proof beyond reasonable doubt” as the basis of conviction. If conviction rates are high (and, for example, in 2021, in the Court of First Instance of the High Court, the overall conviction rate was 82.1 percent), it shows that prosecutors are carefully vetting cases at the advisory stage, and are ensuring that only meritorious prosecutions ever proceed to court.
Although a scandalous campaign has been mounted to vilify the judiciary, and even to persuade its judges to resign, this has not succeeded. The city’s judges, like its prosecutors, have, since 1997, enjoyed constitutional protection, with the Basic Law providing they “shall exercise judicial power independently, free from any interference” (Art 85). Irrespective of what sort of case they are handling, whether national security-related or otherwise, the judges approach their task in exactly the same way. Throughout proceedings, they adhere to their judicial oath, which requires them to serve Hong Kong “conscientiously, dutifully, in full accordance with the law, honestly and with integrity, safeguard the law and administer justice without fear or favor, self-interest or deceit” (Cap 11, Sched 1).
One remarkable feature of Hong Kong’s post-1997 settlement (deliberately ignored by its critics) is the prominence accorded to the International Covenant on Civil and Political Rights (ICCPR). It is now an integral part of the city’s legal landscape, by virtue of both the Basic Law (Art 39), and the National Security Law for Hong Kong (Art 4). However uncomfortable this must be for the Sinophobes, its significance is profound, not least for criminal suspects.
Whereas, for example, the ICCPR incorporates into the city’s legal system the right to “a fair and public hearing by a competent, independent and impartial tribunal established by law” (Art 14.1) and the right “to be presumed innocent until proved guilty according to law”, it also underpins a defendant’s right to the “minimum (fair trial) guarantees” (Art 14.3). Day in and day out, these essential rights are faithfully upheld by the city’s judiciary.
Although those wishing to harm China have sought to undermine Hong Kong by traducing its legal system, the rule of law remains as vibrant as ever. Whereas they have undoubtedly fooled some people, objective observers have kept faith with the city. This is why, for example, the World Justice Project’s Rule of Law Index (the world’s leading source for original, independent data on the rule of law) has consistently rated Hong Kong highly.
In the WJP Index 2022, released on Oct 26, 2022, Hong Kong ranked 22nd out of the 140 countries and jurisdictions surveyed. Quite clearly, this was no mean feat, particularly in the wake of the failed insurrection of 2019-20, and it highlights the resilience of the city’s legal system. To place Hong Kong’s achievement in its overall context, although it came behind the United Kingdom (15th), it ranked higher than the United States (26th), and ahead of a slew of European Union countries (some of which are Hong Kong-critical), including Spain (23rd), Portugal (27th), Cyprus (28th), Malta (30th), Slovenia (31st), Italy (32nd), Slovakia (35th), Poland (36th), Romania (38th), and Greece (44th).
As the EU, the UK and the US contain disproportionate numbers of people who spend their days maligning Hong Kong, the WJP Index 2022 will, hopefully, if not resulting in their repentance, at least give them pause for thought. Although Hong Kong’s legal system may not be perfect (none is), everybody can now see it is streets ahead of many others.
It is sometimes said that there are none so blind as those who will not see, and this is particularly true of the West’s Sinophobes. If, however, they ever dare to open their eyes, they will realize that the rule of law in Hong Kong has never been more secure, overseen as it is by jurists of the highest quality, some local and others, like Lord Neuberger, from other common law jurisdictions. Even if they do not undergo Damascene conversions, they will at least be able to appreciate just how much they have been misled by scheming malcontents, bent on pursuing their own political agendas.
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.