Bells are ringing over new game in town

Local | Henry Litton 5 Oct 2020

The first judgment on the national security law coming from the High Court - Tong Ying Kit v HKSAR - should send alarm bells ringing in the Judiciary. The chances are, they will ring unheard.

The case concerns the man who, on July 1, furiously drove his powerful motorcycle at police lines, eventually seriously injuring three officers. He was carrying a rucksack from which protruded a black flag, bearing a slogan in white "Liberate Hong Kong. Revolution of our times." He was arrested and faced two charges in the West Kowloon magistracy under the law: incitement to secession contrary to articles 20 and 21; and terrorist activities, contrary to article 24.

On July 6 the Chief Magistrate refused his application for bail pending the next hearing set for October 6.

On August 3 the defendant took out a writ of habeas corpus requiring the government to show cause why he should not be released from detention. The government showed cause by citing the Chief Magistrate's order of July 6.

As the High Court judges A Chow and A Lee said in their judgment: "There can be no doubt that the Chief Magistrate had lawful power or authority under section 102 of the Magistrates Ordinance to make an order remanding the applicant in custody pending the next hearing. Since the detention is pursuant to an order of a magistrate made in the ordinary discharge of his judicial functions, there can be no question of his detention being without lawful authority. The above discussion is sufficient to dispose of the present application."

If the judgment had ended there, it would have disposed of the whole matter, fully and effectively. The court had only one issue before it: the legality of the detention. The question of bail was the subject of a separate appeal. On this application, the defendant had no shadow of a case for relief.

But the judges went on: "Out of deference to counsel's careful submissions, we shall deal with the grounds raised by Mr [Philip] Dykes in support of the applicant's application for a writ of habeas corpus."

There then followed 25 pages of text with citation of cases from Canada, England, Mauritius, Hong Kong and also a UN publication on drugs and crime and a "guide on article six of the European Convention on Human Rights."

In paragraph 61 the judges referred to a 1967 Privy Council case from Ceylon - Liyanage v The Queen - which they said did not "assist the applicant;" and then devoted two pages to discussing it.

Counsel's main points were that articles 20, 21, 24, 42 and 44 of the security law were "unconstitutional." The ponderous arguments put forward on the defendant's behalf were met by equally ponderous refutations: thus giving oxygen to matters which should have been rejected summarily, out of hand, given no exposure: all out of "deference to counsel's careful submissions."

Counsel have, for the past 20 years, been playing forensic games with the Basic Law, leading first of all to the State Council's admonition in its White Paper of 2014 and ending ultimately with Beijing's present mistrust of the judiciary as expressed in article 44 of the law.

The Privy Council had, way back in 1993 - in Attorney-General v Lee Kwong Kut, Lo Chak Man and Another - warned against excesses of this nature. And yet here is senior counsel opening up a new game in town, upping the stakes, seeking to impeach national laws in the regional courts.

What does this court do? Discharge its prime constitutional responsibility and nip the mischief in the bud?

No. "Out of deference to counsel's careful submissions" it mapped out a new playing field for counsel: and, after very many pages of text, incomprehensible to the ordinary citizen, ultimately dismissed each of those "submissions" as totally without merit.

Perhaps the most outrageous of the points put forward by counsel was this: the security law was promulgated in the Chinese language only, and there is no official English version: just an unofficial translation. This led senior counsel to submit that the entire law - all 66 articles - was "inaccessible," with the implication that it had no validity in Hong Kong until the National Peoples' Congress standing committee came out with an official translation. And why was that so? Because senior counsel himself did not read Chinese.

Under the heading "Ground 4 - Inaccessible Law," the judges devoted three pages of their judgment in refuting this "ground."

Such is the total insensitivity of Bench and Bar to the principle of one country, two systems; such is the face of the common law system as presented to the world at large: a carnival of words, with no focus on the true issue; just forensic games now played with a national law.

The Chief Justice in his statement of September 23 said this:

"The community is able to see for itself whether fundamental principles are followed by the courts by observing court proceedings and reading the judgments of the courts at all levels to see precisely the reasons why a court has arrived at a determination Open justice and transparency enable the community to observe the judicial process in full, and to provide meaningful and informed comments, opinions or criticisms."

What is "open" and "transparent" in the Tong Ying Kit judgment is the lack of discipline in the court process and failure on the part of the court to discharge its essential constitutional function; to judge effectively, clearly, in a manner that the ordinary citizen can understand; ensuring the resolute, full and faithful implementation of the policy of one country, two systems.

Is this the system that can carry Hong Kong through to 2047 and beyond?

Henry Litton is a retired judge of the Court of Final Appeal

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