It is nice to know that we still enjoy the rule of law, as we are constantly reminded. Still, there are some important differences between the rule as practised in Hong Kong and what happens in other places.
This was brought home to me last week by reports of the legal problems of Sam Kerr. Kerr is a footballer of extraordinary gifts who plays for Chelsea Women and Australia, the country she comes from. Last season’s output here – this year she has been sidelined by a knee injury.
Kerr went out with friends and team-mates to celebrate her team’s victory in the Women’s FA Cup last year and had a few – well perhaps more than a few – drinks, leading to a dispute with a taxi driver and an ensuing dispute with a policeman.
The sequel to this rather routine sequence of events illustrates the different treatments accorded to the normal man in the street, famous footballers, and famous female footballers, when they succumb to the effects of alcohol.
When I was a court reporter people who got drunk in public places were routinely charged with what we called “D and D,” or drunk and disorderly.
People who got drunk in public places were either itinerant street sleepers who drank in public because they could not afford to get plastered in a pub with the respectable alcoholics, or holidaymakers who drank in public because they did not want to stop when the pubs closed for the afternoon break which was legally required in those days.
Trials proceeded more as a ritual than a debate. The arresting officer would recite from memory the traditional description of the arrest: “The defendant was shouting and waving his arms about. When I approached him he smelled of alcohol. His eyes were glazed, he was unsteady on his feet and his speech was slurred. I concluded he was drunk.”
The arresting officer would then read out the defendant’s reaction to being arrested, which was often rude though occasionally amusing. I cherish the memory of: “Go away and leave me alone or I shall call a policeman.”
The defendant, usually lawyerless, would then offer some mitigation or explanation, with a pledge of future sobriety. After one particularly eloquent promise of future abstinence the presiding magistrate said, quite gently: “Yes. That is what you said last time.”
The defendant would then be sentenced to a small fine, which meant if they were penniless, as they usually were, a few days in prison for non-payment.
If the person concerned was more famous, naturally, this harmless ritual may or may not be changed. Male footballers, like male politicians, are generally expected to be enthusiastic drinkers and would generally have to do something quite attention-grabbing to set the legal wheels in motion.
The situation of women is rather different. After long deliberation, the prosecutorial machinery decided that Kerr should be charged on the basis of “causing racially aggravated harassment, alarm or distress to a police officer.” It may be – the prosecution and defence differ on this point – that she called him a “stupid white bastard.”
Perhaps I am getting old, but I do not remember policemen being so sensitive when I lived in London. In Australia “bastard” is almost a term of endearment, I presume the policeman was not shocked to discover that he was “white” and stupidity is in the eye of the beholder. Kerr may well be sensitive about race; she has Indian roots.
Anyway this was not the feature of the case which had me rolling on the floor laughing. The odd feature of the case was that her legal team was planning to claim the charge should be dismissed as an “abuse of process” because she was not charged for a year.
Good grief! A mere year? How unlike the life of our own dear justice system. A year in Hong Kong is nothing. In 2022, the secretary for security told legislators that the time for a number of protest-related cases to work their way from first appearance before a magistrate to conclusion in District Court “generally ranged from 300 to 400 days or so.”
A team of researchers from the University of Georgetown commented in 2023 that defendants in Hong Kong protest cases “must wait an exceptionally long time to reach trial.”
“We found that more than 41.8 per cent of protest cases take more than a year to complete, with an average wait of 343 days, but this number almost certainly underestimates the true situation as it only includes counts that have completed; those with the longest wait times have now been waiting for well over two years,” they said.
And some of them continued to wait. Trials relating to the storming of the Legislative Council and disorders at the Chinese University of Hong Kong, both in 2019, came up last year. A man charged with posting subversive Facebook messages in 2020 was tried only last week. The famous 47 democrats, after first hearings at which most of them were refused bail in March 2021, are still awaiting a verdict, as are the former editors of Stand News – a case which began with their arrests, also in 2021.
Probably the current record-holder is Benny Tai, who was charged in July 2021 with election offences committed in 2016. But the competition is lively. The latest prosecution arising from the Yuen Long incident was brought only this year. Of the more than 10,000 people arrested at one time or another in 2019, there are still around 8,000 who have not yet appeared in court.
These inordinate delays should not have come as a surprise. Senior barristers warned in 2021 that the justice system could not handle the volume of cases brought to it by a policy of leaving no suspect unprosecuted and no pound of flesh uncollected. They suggested that prosecutors should not pursue cases in which no violence was involved.
This suggestion was not well received. So here we are. Legal delays are not so much feared as expected. The director of environmental protection was recently asked if the government feared its latest development brainwave would be challenged in court. He said: “Every judicial review will bring harm to the whole of society. No matter who wins or loses, it will take a long time, often years, to complete.”
Well, it takes years to do anything. We have already had one case in which the convicted defendant walked free at the end of the trial because their time already spent in custody exceeded the prison term to which they was sentenced.
Part of the problem may be that Hong Kong judges are used to working rather slowly. They take long breaks. Hearings start later and end earlier than most peoples’ working days. At the end of the trial, the judge or judges may take months to produce a decision.
This owes something to the prosecutors’ evident aversion to juries. In a jury trial, the question of guilt or innocence is answered by the jury and the judge goes straight on to passing sentence. If there is no jury, they must not only determine guilt but give written reasons for doing so. These will be carefully examined by the defence and, possibly, the Court of Appeal. So, some care is understandable.
Still, there is someone responsible for all this, and that is the Secretary for Justice Paul Lam. Lam recently assured us all that we are free to criticise the government so he will presumably not mind my saying that he is presiding over a disaster area. Faced with a shortage of capacity in the justice factory he has failed either to expand the staff, speed up the production line or reduce the production quota. As a result, the unfinished work is piling up.
The Department of Justice’s Prosecution Code says that: “The prosecutor must be alert 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 [my italics] under Basic Law Articles 25, 35 and 87 (Bill of Rights Articles 10 and 11).”
Is that requirement really satisfied if the defendant can fit in a four-year degree between arrest and verdict?
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