The recent outbreak of serious disorder in Hong Kong has given way to an uneasy calm. Following an ostensibly bizarre decision by local police to withdraw and allow hundreds of protestors to occupy and then vandalise the Legislative Council (LegCo), the building has been sealed off as forensics teams gather evidence, including fingerprints on discarded yellow helmets and metal poles. The Hong Kong authorities have declared LegCo to be “a big crime scene”.
Some commentators believe that the strategic withdrawal from LegCo was a trap – a deliberate ploy to allow the situation to escalate in order to discredit and distract from the much larger number of peaceful protesters on Hong Kong’s streets.
Provoked into action by a proposed Extradition Bill, Hong Kong citizens have recently been marching in their millions, fearful of the consequences for the rule of law that such legislation would entail: criminal suspects extradited from Hong Kong to mainland China, would be sentenced (potentially to death) by judges who serve the interests of the Chinese Communist Party.
A large peaceful rally on 1st July, the third of its kind in recent weeks, was undermined by a much smaller group of predominantly young protesters who besieged and then stormed the LegCo complex, spray-painting anti-Chinese slogans, tearing down portraits of Beijing-supporting politicians and, most provocatively, raising a British colonial-era flag. But these actions may have played into Beijing’s hands: a pretext for China to tighten its grip on the governance of Hong Kong and clamp down on further protests.
Nearly 100 protestors have been arrested since the LegCo occupation – the youngest aged just 14 – as the hunt for other suspects has widened. A Hong Kong police statement said that they would “resolutely pursue the protesters for their illegal and violent acts”. Further mass arrests are anticipated. Meanwhile, these events have coincided with the suicide of a protester who jumped from a building, having left a message of despair about Hong Kong’s future under Chinese Communist rule. It is the fourth such suicide since the protests began.
“These serious illegal actions trample on the rule of law in Hong Kong, undermine Hong Kong’s social order and harm the fundamental interests of Hong Kong,” according to the Chinese government. “It is a blatant challenge to the ‘one country, two systems’ bottom line. We express our vehement condemnation against this.”
Under the terms of the Joint Declaration of 1984, which resulted in the 1997 handover from Britain to China, Hong Kong is governed under its own laws while special rights including freedom of speech, the right to protest and an independent judiciary are guaranteed until 2047.
How the courts deal with alleged offenders may be the ultimate test of the judiciary’s independence. So far, charges against them have ranged from criminal damage and forcible entry to disorderly behaviour in a public place and assaulting a police officer. “Our action might not be useful but it is symbolic,” said one protestor who entered LegCo. “We know we might get eight or 10 years for doing this, but I grew up here, I love the freedoms and the dignified life and I don’t want to lose them.”
China has urged the Hong Kong authorities to prosecute the “criminals” involved in the protests. So will the judges follow Beijing’s wishes by passing draconian sentences? Although Hong Kong’s sentencing guidelines do allow for such terms of imprisonment, it remains to be seen if they will be realised in practice.
An examination of Hong Kong’s judiciary presents an insight into problems that may lie ahead. The Basic Law of the Hong Kong Special Administrative Region (HKSAR) which came into effect in July 1997, was drafted according to the Joint Declaration of 1984, an international treaty which stipulates that the HKSAR is directly under the authority of the Chinese government.
The ‘one country, two systems’ principle, which is integral to the Basic Law, dictates that Hong Kong will retain its common law and capitalist systems for 50 years until 2047. The Basic Law also prescribes the system for safeguarding the fundamental human rights and freedoms of its residents and its judicial system.
Hong Kong courts exercise judicial power in the HKSAR by acting as adjudicators of all criminal prosecutions and civil disputes. According to the Basic Law, the judiciary is independent from other branches of the HKSAR government. A large component of Hong Kong law is made by statute: written ordinances passed in the Legislative Council.
The hierarchy of the Hong Kong courts progresses from the District Courts and the Magistrates’ Courts to the High Court and ultimately, the Court of Final Appeal (CFA). It is quite possible that those who are charged with the most serious offences may be tried at the High Court level since District Court judges, who sit alone without a jury, can only pass a seven-year maximum term of imprisonment.
Should the most serious protestors be convicted of offences and receive eight to ten-year prison sentences, as Beijing would no doubt prefer, then those sentences may well be subject to appeal. Here, the Court of Final Appeal will come into play.
CFA appeals are heard by five judges. Hong Kong’s Chief Justice, Geoffrey Ma, sits with three other permanent judges in the CFA – Mr Justice Ribeiro and Mr Justice Fok (both of whom read Law in England and practised at the London Bar), and Mr Justice Cheung – with one non-permanent judge completing the line-up.
The latter is drawn from a panel of 18 judges, nine of whom are distinguished current or former senior judges in England & Wales: Lord Hoffman, Lord Millett, Lord Neuberger, Lord Collins, Lord Clarke, Lord Phillips, Lord Reed, Lord Walker and Baroness Hale. Of the other five judges on the list, four are Australian and one is Canadian.
The ‘one country, two systems’ might be severely tested in a CFA appeal by one or more protestors who have been convicted and sentenced to many years in prison by a Hong Kong court. So would the CFA uphold an eight or ten-year prison sentence, or would they reduce it on the grounds that it is too harsh?
Since the likelihood of long prison sentences for public disorder and criminal damage being appealed to the CFA are quite high, these questions are far from hypothetical. And they would certainly be uncomfortable ones for a former English, Australian or Canadian judge sitting on the CFA to hear such an appeal.
It would put them in a position of having to determine whether a long prison sentence is fair and proportionate to the crime committed. In England, Australia or Canada, it would be unlikely for a custodial sentence to exceed 12 months for comparable offences.
Judges in each of those countries are fiercely apolitical when reaching their judgments and are known to dislike becoming involved in reaching decisions which are deemed political, or which are subsequently politicised. But in some cases, they have no choice.
The CFA may therefore have an important role to play in deciding whether long prison sentences are appropriate penalties for the types of disorder seen in Hong Kong. How the panel of five judges ultimately decide will be watched intensely, both by the citizens of Hong Kong and by the world’s media. Much may depend upon it.
Dominic Carman, journalist, writer and legal commentator. www.dominiccarman.com