The recently updated statistics on the enforcement of riot-related cases are quite concerning. According to the police, 10,265 people have been arrested for riot-related offenses, with ages of the suspects ranging from 11 to 84. But so far, only 2,743 people, or around one-fourth of them, have been brought to court for prosecution. Among those prosecuted, 972 were convicted whereas 298 were acquitted after trial. Over 1,400 people in 700 cases are still pending in court and among them, trial dates were set for as late as 2023, four years after the offenses were allegedly committed. This is clearly unacceptable by international standards.
This substantial backlog of pending cases has raised a number of serious issues. First, society has a valid expectation that those found guilty of riot offenses must be punished to the full extent of the law in view of the great harm they have inflicted on our society. It will also serve as a deterrence to others contemplating following in their footsteps. Second, it is unfair to those arrested who have been on police bail awaiting the result of the police investigation and with likely prison sentences hanging over their heads for two years now. Third, justice delayed is justice denied.
My experience as an anti-corruption consultant in the Philippines has allowed me to witness many such miscarriages of justice. There, most of the corruption trials were delayed for as long as 12 years, thanks to the variety of delaying tactics of the defense team and the backlog of cases awaiting court action. Aggravating the problem, during the long wait, key witnesses either died, suffered from weak memory, or became compromised. This led to a low successful prosecution rate for corruption cases in the Philippines at that time. Sadly, we find there is a similarity to this alarming state of affairs with the recent riot cases on trial in Hong Kong. All too often, the trial magistrate would acquit the rioters because the police witnesses were found to have discrepancies in their testimonies, which is not surprising when they are being grilled by an aggressive defense counsel on incidents occurring many months ago. One typical example is that of magistrate Wong Nga-yan at Eastern Magistracy. In all four cases tried by her on Sept 18, 2020, and Nov 24, 2020, and the following year on Sept 17 and Oct 19, she ruled that there were discrepancies in the evidence submitted by police officers and accordingly, she acquitted all defendants with the benefit of doubt.
One solution to these delays would be for the police, the Department of Justice, and the Judiciary to declare their respective public performance pledges
It is important to keep in mind the vulnerabilities of our magistrates who are human beings with their own biases and political beliefs, which they are unlikely to share publicly. And we must expect that such biases will, one way or another, influence their decision-making. This would have a telling effect when the defendant is from the yellow or blue camp. A blue-inclined magistrate is likely to accept that a certain number of discrepancies is understandable because of the lapse in time if the mainstream evidence is intact. Thus, he, or she, would still convict the defendant despite it. The yellow magistrate would have no hesitation in acquitting a defendant because of even a minor discrepancy in the police evidence, often followed by taking the police to task. Worst of all, these acquittals cannot be appealed as the magistrate is fully entitled to rule on facts, as he, or she, sees them and is the final arbiter whether the police are telling the truth. I have seen too many of these travesties of the law in my 35 years of prosecution-related work, which can be demoralizing to law enforcement officers.
One solution to these delays would be for the police, the Department of Justice, and the Judiciary to declare their respective public performance pledges. The police can undertake to complete a riot-related investigation within one year, and for those exceeding one year, they must explain why to the Independent Police Complaints Council. This is the long-standing practice of the Independent Commission Against Corruption, which has a performance pledge that at least 90 percent of its cases be completed within 12 months and the results published in its annual reports. For investigations taking more than one year, it must provide progress reports regularly to the ICAC Operations Review Committee. Such a flexible system would deliver rulings that are likely to instill public confidence in the police.
Similarly, the DOJ should promulgate its performance pledge, so that all prosecution files submitted by the police are dealt with within two weeks. The DOJ should publish monthly figures on the number of police files it has in its hands and how many of it have exceeded two weeks, one month, three months, etc. A joint police/DOJ senior officers committee should be formed to monitor the progress. If the DOJ does not have enough manpower to honor its performance pledge, it should farm out some cases to outside counsels, who of course should be proven patriots, to avoid the DOJ becoming a bottleneck in the legislative process, as alleged by many legislators.
In Malaysia, the judiciary has a performance pledge that all corruption trials, barring appeal, should be concluded within 12 months. This is a reasonable pledge that the Hong Kong Judiciary can adopt for riot-related cases. The last thing it should do is to agree to delay the trial to fit in with the calendar of defense counsels. This is hardly in line with the admonition that justice delayed is justice denied. What the Judiciary should do now is to urgently recruit more magistrates and judges and to introduce night courts, with fiat judges, to clear the backlog.
The delay in police investigations is understandable as one of the difficulties is the identification of the rioters who were covered up with face masks and shielded with umbrellas. There are also suspects who are hiding to avoid police arrest or have absconded police or court bail. To demonstrate deterrence, police should from time to time promulgate their list of wanted persons and appeal to the public for information of their whereabouts with the promise of reward money.
Although it looks like a big figure with the police arrest of over 10,000 persons, there are clearly many tens of thousands more rioters who are still at large but so far unidentified. In many riots involving thousands of participants, the police usually only managed to arrest less than 10 people each time. Informed guesses put the number of riot participants in illegal assemblies at well over 250,000. Many of them now regret being incited by anti-establishment politicians and radical activists. The question is whether, in due course, a partial amnesty should be declared, like the 1977 amnesty for corrupt police officers, thereby allowing the Hong Kong Police Force to turn over a new leaf to become one of the most respected law enforcement bodies in the world. The amnesty for riot suspects should be conditional, taking into account their age and passive participation. However, the hardcore rioters involved in arson, throwing petrol bombs and causing grievous injuries to others should be pursued to the bitter end.
The best time for any announcement of a partial amnesty would be at the inauguration of the next chief executive on July 1 next year, to show that Hong Kong has reincarnated, and is now more united and stronger than ever, having been tempered by fire!
The author is an adjunct professor of HKU Space and a Council member of the Chinese Association on Hong Kong and Macao Studies. He is a former head of operations of the ICAC and an international anti-corruption consultant.
The views do not necessarily reflect those of China Daily.