Rule of Law
Secretary for Security Chris Tang Ping-keung appears to have a poor grasp of the Basic Law, the rule of law, and the common law system, if his remarks at a recent media interview are anything to go by. Bearing in mind that his policy portfolio covers all the disciplined services (police, customs, immigration, fire etc) which are responsible for keeping order in our society, that would seem a pretty fundamental defect.
Moreover, his remarks taken on their face will be seized on by the various anti-China and anti-Hong Kong organisations overseas such as Hong Kong Watch (UK) and the Committee for Freedom in Hong Kong Foundation (US). We all know they have their own hostile agendas and narratives, but there is no need to give them fresh ammunition to use against us, albeit inadvertently.
The Basic Law says that the legal system previously in force in Hong Kong, that is the common law, shall remain in force. It is significant that in his hallmark speech on 1 July 2022 during his visit here, President Xi Jinping referred twice to the common law system and stressed the importance of maintaining it.
As it applies to commercial cases, the common law is one of the factors that makes our city so attractive as a place to do business because it provides for a level playing field and enforceability of contracts. As it applies to criminal cases, the common law is based on a number of simple principles: all are equal before it; a person is innocent until proven guilty; nobody can be detained against their will except in accordance with the law; justice delayed is justice denied, and so on. Above all it is built around the concept of what is reasonable and fair. In any given set of circumstances, what would a reasonable person think or do.
Tang’s interview dealt with persons arrested during the social unrest in 2019 and early 2020. He provided some useful numbers: just over 10,000 people of all ages had been arrested and nearly 3,000 had been processed through the legal system. That left around 7,000 cases outstanding. These were persons who had been arrested but not yet charged.
When an individual is arrested he is being deprived of his freedom. An arrest is therefore a very serious matter in Hong Kong or any other common law jurisdiction but can be justified in the wider public interest if there are reasonable grounds for suspecting the arrested person is involved in a crime. If the evidence already in police possession is sufficient to justify immediate laying of charges then the suspect must be brought before a court of law within a reasonable time (generally 48 hours) and a member of our independent judiciary takes over monitoring of the case. Clearly in the cases in question, there was not sufficient evidence.
Common practice in such circumstances is to allow police bail under section 52 of the Police Force Ordinance. The arrested person is allowed to walk free for the time being subject to his entering into a recognizance, with or without sureties, for a reasonable amount. The suspect must agree to report back to the police, or turn up at court, at a specified time. Various other restrictions can be imposed as a condition for granting bail, such as a requirement to report regularly to the accused’s local police station, surrender of travel documents, not permitted to leave Hong Kong etc.
A person on police bail carries a stigma and a set of practical restrictions, which can carry over to the rest of the family and even affect social life and marriage prospects. That trip to Thailand? Sorry, John can’t join. Marry him? Where would you go for the honeymoon? How will he get a job to support you and the family?
Tang didn’t say how many of the 7,000 remain on police bail. The suspicion must be that most of them are. The police remain rather coy on this subject: some months ago I filed a formal question asking how many people on a set date had been on police bail for more than a year. The official reply was “Police do not maintain the requested figure.” Of course the information is available and could be easily collected and collated. An email from Tang to the police commissioner at 9 am tomorrow, and one from him to all police stations at 9.05, would produce an answer before lunch. So the official reply is accurate but designed to cover up the truth rather than reveal it.
Tang gave the interview to answer public calls from various parties to “draw a line under the social unrest”. He equated this as a request to stop investigating the cases and to legalise illegal acts. This is what people in debating circles call putting up a straw man, that is deliberately misstating your opponent’s argument in order to demolish it more easily.
We can draw a line without ceasing the investigations. These can continue until the cows come home and if extra evidence does emerge, the persons concerned can be taken to court to face the full force of the law.
But there is no justification for keeping on police bail thousands of young people in the interim. Their freedom is being restricted even though they have not been found guilty of any offence. The law should be amended to set a reasonable time limit, say one year. Five years represents an abuse of power.
The practice is unreasonable, and therefore a breach of common law.