Opinion | 2020 Policy Address: Rule of law highlighted in Hong Kong's future development

By Grenville Cross

On November 25, when the Chief Executive, Carrie Lam Cheng Yuet-ngor, delivered her fourth Policy Address, there was an appropriate focus on the rule of law. Entitled "Striving Ahead with Renewed Determination", the address was a clarion call for positive action, which identified the problems of the recent past and provided a vision for a better future. Underpinning all the plans, moreover, was a recognition that Hong Kong's legal fundamentals must be sound.

Referring to the social unrest of the past year, Lam acknowledged that the disciplined services are "highly trusted by the public". They were, after all, the key to the city's success in combating the armed insurrection, which broke out on June 9, 2019. Those intent on what Lam called "justice breaking" had set about damaging "social order and the rule of law", and they posed real "threats to people's lives and livelihoods".

Although some misguided individuals have called for the people who caused the mayhem to be granted amnesties, Lam very properly emphasized that nobody "has any privileges under the law". If somebody has committed a serious offense, he or she must expect, evidence permitting, to face prosecution. After all, political violence is no less serious than any other type of violence, and its victims are entitled to see its perpetrators held to account.

To turn things around, therefore, Lam recognized that "we must take stringent law enforcement actions". Over 2,300 of those arrested for alleged involvement in the disturbances have been prosecuted, and, with the processing of the initial trials, the lawbreakers are now realizing that actions have consequences. The rioters, for example, are having it brought home to them by the courts that they cannot attack police officers with petrol bombs or terrorize the streets with impunity. They are now regularly receiving sentences of imprisonment of between 4 and 7 years.

Of course, nobody likes to see very young people facing criminal sanctions, and Lam rightly drew attention to the Police Superintendent's Discretion Scheme, which is a mild form of diversionary justice. Under the Scheme, a police superintendent has a discretion to caution an offender aged under 18, as an alternative to laying a charge.

He or she is then placed under police surveillance for up to two years, or until they reach 18, whichever is sooner. The caution does not rank as a conviction, and does not need to be disclosed in, for example, job applications. A caution can only be used where there is sufficient evidence to support a prosecution, the offense is not serious, the offender admits the offense, and he or she agrees to this disposal, together with the parents or guardian. As Lam put it, a discretionary warning for juvenile offenders can be "conducive to their rehabilitation".

The roots of their offending must, however, also be addressed. The standards of teaching have, all too often, been severely wanting, which explains why children as young as 12 have been going out onto the streets to engage in violent activity or to call for Hong Kong independence.

The politicization of school campuses has brought endless problems in its wake, and, as Lam explained, this has drawn students "into political turbulence or even misled to engage in illegal and violent acts".

All too often, it has become apparent that young people involved in the social unrest know nothing of national pride, or civic responsibility, or their duty to others, and the education system has let them down. Quite clearly, the liberal studies program has been a disaster, and has contributed to warped thinking. Students have been growing up with an antipathy towards their own country, which their teachers have not rectified, and they often identify with its geopolitical rivals, which must obviously change.

Indeed, the National Security Law stipulates that Hong Kong must now "promote national security education in schools and universities" (Art.11). The students, therefore, will need to be taught about internal and external threats, and made to understand where their loyalties should lie. Going forward, teaching must also be used, as Lam put it, as a "platform to help students establish a sound foundation of knowledge, make connections across different subjects, and develop critical thinking skills". In other words, students will no longer be exposed to twisted sentiments which corrupt their minds at a tender age, and which can lead them into street crime, a fate which has already befallen too many young people.

In this process, moreover, the Department of Justice will have a crucial role to play. Lam has given her whole-hearted support to its recently unveiled 10-year initiative, "Vision 2030 for Rule of Law", which will result in more targeted public education activities. This will include efforts to teach the city's youth how the rule of law operates in practice, as well as the promotion of their law-abiding awareness, partly through research projects but also by contacts with the relevant stakeholders.

This apart, the address also focused on the Department of Justice's role in promoting Hong Kong's role as a legal hub for deal-making and dispute resolution services. Given the city's status as a leading financial center in the Asia-Pacific Region, these services will have a big part to play going forward. But what investors and others ultimately look for is an independent judiciary capable of providing a level playing field.

Lam, therefore, highlighted the rule of law's basic ingredients, which include due process and fair trials. As she pointed out, the courts "exercise judicial power independently, without any interference", something which is underpinned by the Basic Law (Art.85). At the same time, she emphasized that the parties to a case can challenge a court ruling with which they are dissatisfied, normally by an appeal or a review. A complaint, moreover, over the lack of impartiality or conduct of an individual judge, can also be lodged with the judiciary itself. Quite clearly, Lam was at pains to endorse the judicial system, and to show how its own mechanisms are capable of resolving public concerns.

The address was the longest that Lam has delivered to date, and it inevitably concentrated on the rebuilding of Hong Kong following political unrest, financial turbulence and COVID-19. This involves restoring order and promoting patriotic values, as well as reviving the economy. At the same time, the rule of law was given great prominence, and this undoubtedly augurs well for the future.

Grenville Cross is a Senior Counsel and Professor of Law, and was previously the Director of Public Prosecutions of the Hong Kong SAR.

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