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Friday, March 15, 2019, 10:19
Recent judicial decisions defy common sense and justice
By Tony Kwok
Friday, March 15, 2019, 10:19 By Tony Kwok

Only five months ago, there was a public uproar when the Court of Appeal quashed the conviction of former legislator Wong Yuk-man for hurling a glass at the then chief executive Leung Chun-ying in the Legislative Council chamber, and awarded Wong the legal costs. Many members of the public were baffled to learn that among the reasons given by Justice Judianna Barnes Wai-ling for the acquittal was the fact that Leung was not hit by the glass and that Leung looked calm and was not frightened!

People with any common sense would have great difficulty understanding how someone throwing a glass in a public place with every possibility of causing serious bodily harm could get away with being unpunished simply because the objective was not achieved!

Now we have another case which is similar. An opposition activist Avery Ng Man-yuen was originally convicted in 2017 for throwing a dead fish sandwich in the direction of the then chief executive Leung Chun-ying, but it hit his bodyguard instead. Ng was sentenced to three weeks in prison. But on March 6, his conviction was quashed in the Court of Appeal.

One would have thought that this is a stronger case than the earlier one as the object did hit a person. But Justice Joseph Yau Chi-lap found the conviction unsafe. His rationale was that “The sandwich would have had to ... cause (the bodyguard) to worry that he might be exposed to immediate and unlawful use of force.” The judge noted that in the news footage, the officer continued to walk calmly after his hand was struck by the sandwich.

It’s hard to believe that anyone would be persuaded by such an illogical deduction. It is a well-known fact that in the elite protection profession, bodyguards are trained to shield their client with their own body against any hostile missiles, be that a bullet, a dagger or a sandwich! The fact that he looked calm is only a manifestation of his professionalism, as he was expected to in order to react speedily even when confronted with danger.

The judge also questioned the decision by government prosecutors for bringing a wrong charge in this case. He claimed that they should charge the defendant for assaulting Leung instead of his bodyguard. But if the previous precedent is any guidance, the case could well be dismissed on the grounds the object failed to hit Leung. It is a no-win situation for the prosecution. If they proposed the charge of “assaulting Leung” which resulted in acquittal because the object failed to hit him, the prosecutor will then be criticized for not laying the charge of assaulting the bodyguard who was actually hit!

Indeed there was a similar case in 2015 when another activist Derek Chan Tak-cheung, who threw eggs at the then financial secretary John Tsang Chun-wah during a 2013 political forum. At that time, Tsang was sitting next to the then chief executive Leung and it is apparent that Leung was more likely the target than Tsang. However, Chan was convicted of assaulting Tsang and sentenced to three months imprisonment. His appeal against conviction was dismissed by Justice Derek Pang Wai-cheong. It seems to be a case of similar scenario but different verdict.

This reminded me of a case in the 1970s when a group of police officers in Mong Kok Police Station were prosecuted for syndicated corruption offenses in protecting vice establishments. The prosecution lined up a number of witnesses, and understandably, most of them were vice establishment operators who testified that they had paid protection money to the syndicate. Their evidence, despite minor discrepancies, was validated. But the trial judge acquitted all the defendants, on the grounds he had dismissed the evidence given by each and every one of the vice operators. He believed they were all tainted witnesses, and despite their number, it would be like “a pile of rubbish putting on top of another pile of rubbish and in the end they are all rubbish” (sic). I can only borrow an old Chinese aphorism in describing this nonsensical state of affair: “Judges have two mouths!” It seems that any competent judge is capable of convicting a case with sensible arguments and can also acquit the same case with seemingly persuasive arguments. The key is whether he is committed to carrying out natural justice. In the case of Wong and Ng, it gives the impression they are more concerned with legal technicalities than natural justice.

What is of greatest concern is that Justice Joseph Yau further commented, “If prosecutors made this decision to avoid summoning Leung Chun-ying as a prosecution witness because he was chief executive at the time … then the authorities have made a prosecutorial decision that appears to defy common sense,” the judge said. “This practice is obviously debatable and upsetting.” It seems to me that such speculative comments are very irresponsible. Perhaps one can try the same approach on the judge himself.

If the judge genuinely believed the prosecutors made the decision in order to avoid summoning Leung as a prosecution witness, then he was negligent for failing to do his homework first. If he had done so, he would have known Leung had no hesitation giving evidence in court in both Wong’s and Ng’s trials. The judge should know that such comments would undoubtedly be sensationalized by the media, providing further ammunition to the opposition parties to accuse the prosecutors and chief executive of collusion. This is a very serious allegation of perverting the course of justice. If he had failed to consider the serious consequences before making such irresponsible comments, he appears to be reckless or too naive.

The judge had previously worked in the Legal Department and later left for private practice before joining the bar. If he was criticizing the prosecutors out of personal grudges against his former employer, that would be a serious abuse of power.

If the judge had close connection with the opposition political parties and decided to be sympathetic to the defendant, it would be a serious breach of a judge’s ultimate commitment to be impartial and objective in the execution of his duties. In the circumstances, he is also in danger of being culpable to a charge of undisclosed conflict of interest, and could well be guilty of the criminal offense of misconduct in public office.

Of course I do not believe for one minute nor do I have any evidence that the judge fits in any of these hypothetical scenarios. I just wanted to demonstrate that judges should avoid making irresponsible and unwarranted speculative comments.

In recent months, we have seen a series of controversial court decisions. These include the 13 activists who caused severe damage and injuries in their violent protest outside the Legislative Council Complex and were released from their original custodial sentences; the student activist Joshua Wong Chi-fung and two of his comrades, having their convictions quashed over the illegal “Occupy Central” campaign. Together with the Wong and Ng cases, the sad outcome is that such precedents could have a long lasting negative effect on our society and especially the younger generation by inciting them to greater violence. Equally disconcerting is that such judicial decisions which defy common sense can only cast doubt on the true independence of our heretofore well-respected judiciary.

The author is an Honorary Fellow and Adjunct Professor of HKU Space and Council Member of the Chinese Association of Hong Kong and Macao Studies.

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