Opinion | Judicial independence: Protecting judges with heavy artillery

By Grenville Cross

Hong Kong, under its Basic Law, enjoys many advantages. It is, for example, highly fortunate to have a sizable body of non-permanent judges from other common law jurisdictions sitting on its Court of Final Appeal, of whom there are currently 12. They include the former president of the UK Supreme Court, Lord (David) Neuberger, whose wisdom is legendary and who has sat since 2009. He said recently that "the role of the judiciary is to uphold and further the rule of law; more particularly, judges impartially identify and apply the law in every case brought before the courts".

Neuberger's words are particularly apt in the Hong Kong context, as the rule of law has always been fundamental to its success. At its epicenter lies the judiciary, which provides a level playing field, ensures just outcomes, and inspires confidence, both locally and abroad. The strategy of anti-China forces, therefore, has been to try to harm the judiciary, as this would weaken Hong Kong, and this has been pursued on two fronts.

At the international level, they have made repeated attempts, particularly in the UK, to engineer the withdrawal of the overseas judges in the Court of Final Appeal. So long as eminent judges from other common law jurisdictions are helping to dispense justice in Hong Kong, it is very difficult for them to claim, as they enjoy doing, that the rule of law is on its last legs.

Their efforts, however, have come to nothing, despite the best efforts of, for example, the former Conservative Party leader, Iain Duncan Smith, the Labour Party's Asian affairs spokesman, Stephen Kinnock, and the criminal fugitive and convicted felon, Nathan Law Kwun-chung. The overseas judges, who understand how the legal system works far better than any bigoted politician in London, have refused to be pushed around, and this, of course, is what judicial independence is all about. Indeed, as their terms of office approached a conclusion in 2021, five of the overseas judges, including Neuberger, made their position abundantly clear, and took up new three-year appointments. This obviously bodes well for the future of the rule of law.

It would, however, be a mistake to assume that the judiciary is now safe, as domestic threats remain. Although the fanatics behind the protest movement and its armed wing suffered a hammer blow when the National Security Law for Hong Kong was enacted on June 30, 2020, remnants are still at large, and remain dangerous. Sometimes, when their acolytes are punished for their roles in the insurrection, they reemerge to threaten the judiciary with reprisals, just as they have done since 2019.

On Nov. 9, 2019, for example, when the insurrection was at its height, a Molotov cocktail was thrown into the yard of the Shatin Law Courts, with one protester advising the media that the magistrates were regarded as unfair. Thereafter, on Nov 13, 2019, after it had become clear that the threats were not working, an arson attack was mounted on the same court, and this came immediately after the High Court refused to prevent the police from taking enforcement action at the Chinese University of Hong Kong.

Once they realized the judiciary was standing firm, the protesters' high command decided to up the ante. On Dec. 8, 2019, following street violence, they firebombed the entrances of both the Court of Final Appeal, in Central, and the High Court, in Admiralty. Once again, the outrages yielded no results, so tactics changed, and it was decided to go after particular judicial officers.

In January 2020, Justice Anthea Pang Po-kam, who had sentenced the Mong Kok rioters, was vilified online, and then condemned in street graffiti. In December 2020, the chief magistrate, Victor So Wai-tak, received a bomb threat after remanding the Next Digital owner, Jimmy Lai Chee-ying, in custody in a fraud case. By May 2021, it was the turn of District Court Judge Amanda Woodcock, who received three intimidating and insulting phone calls after sentencing Lai and nine others to terms of imprisonment of up to 18 months, for having participated in an unauthorized assembly in 2019.

Next in line was District Court Judge Stanley Chan Kwong-chi, who, on July 8, while conducting a protest-related trial, revealed that he had been receiving harassing phone calls and faxes, and that other judges were suffering in the same way. Thereafter, on Nov 16, letters containing highly corrosive substances were sent to Magistrate Pang Leung-ting, at Shatin Law Courts, and, for the second time in a week, to Deputy Judge Kathie Cheung Kit-yee, at West Kowloon Court. Both Pang and Cheung had recently imposed sentences of imprisonment on rioters and others guilty of assaulting police officers, and this undoubtedly provides the context.

In response, the judiciary, on Nov. 16, declared that "attempts to exert improper pressure on judges and judicial officers represent a direct challenge to the rule of law, and the principle of judicial independence". The police force, meanwhile, is pulling out all the stops in its efforts to locate the culprits, although this cannot be easy. On July 6, for example, it was reported that the force had foiled a plan by the suspected secessionist group, "Returning Valiant" to bomb both Eastern Court and Tuen Mun Court, and this points to high-quality intelligence on their part.

However, the threats to the judiciary have certainly not abated. On Nov. 23, following their sentencing of various individuals for protest-related crimes, two judges, Johnny Chan Jong-herng, in the High Court, and Clement Lee Hing-nin, in the District Court, received threatening messages, apparently identical, accompanied by meat-like substances. The bomb squad had to be called in, and police investigations are now continuing. These are proceeding in parallel with their inquiries into the incident at West Kowloon Court on Nov 11, when a suspicious white powder was received and the building had to be evacuated.

If the various investigations bear fruit, it will be for the secretary for justice, Teresa Cheng Yeuk-wah, to prosecute the suspects to the hilt, bringing her heavy artillery to bear. On Nov. 19, she described the intimidation of judges as "utterly intolerable", and made clear that "acts harassing or threatening judges are in blatant defiance of the law and offenders will face legal consequences", which will be music to the ears of everyone who values the rule of law. Depending on the evidence, she will have a choice of charges, some carrying substantial punishments, and her prosecutors should be as ingenious as possible.

If a suspect can be charged, for example, with attempting to pervert the course of public justice, under the common law, this would be salutary, as it is punishable with imprisonment of any term and a fine of any amount. Another possibility, under the Crimes Ordinance, is to charge criminal intimidation, the maximum penalty for which is five years' imprisonment.

Although, under the Summary Offences Ordinance, it is an offense to persistently make telephone calls without reasonable cause and for the purpose of causing annoyance, inconvenience or needless anxiety to the victim, this is only punishable with two months' imprisonment, and will deter nobody.

Traditional charges aside, prosecutors may also be able to deploy the National Security Law, with telling effect. It is certainly arguable that those who threaten the judges are interfering with the due administration of justice, and, thus, guilty of subversion, for having sought to undermine the functions of "the body of power of the HKSAR" (Article 22). Equally, and most likely as an alternative, a terrorist charge may also be viable, for having attempted to coerce the judiciary, as the judicial arm of government, and for having threatened serious violence against judicial officers, or else explosions and arson (Article 24). The potency of these charges lies in their maximum penalties, with culprits being liable to life imprisonment.

Quite clearly, once judicial safety is threatened, there are wider ramifications, with the rule of law itself being imperiled. Prosecutors, therefore, need have no qualms in bringing the gravest charges possible, not least to attract the highest penalties. Although, moreover, as a rule of thumb, cases are only sent to the High Court if the lower courts cannot impose a sufficiently tough sentence, exceptions can and do arise. One instance is where prosecutors wish to send out the message that particular conduct is intolerable, even though the ultimate sentence, on the facts, is unlikely to exceed the seven-year jurisdictional limit of the District Court.

On Nov. 19, speaking at the opening ceremony of the Law Society's Law Week, the chief justice, Andrew Cheung Kui-nung, said "any attempts to exert undue pressure on judges and judicial officers will violate the rule of law spirit and deal a blow to the principle of judicial independence, which shall be severely condemned", and his strictures must be heeded by everyone. Although the judiciary, with its constitutionally guaranteed independence, is firmly entrenched, it cannot be taken for granted, and even the most vigorous of institutions is vulnerable to undermining.

It is, therefore, the duty of the entire community, and not just law enforcers, to rally round in defense of the rule of law. Once those who threaten the judiciary are brought to account, they must be visited with sentences that prioritize retribution and deterrence. Only if punishment of this type is meted out will the moral culpability of offenders be properly acknowledged, and the abhorrence of society adequately expressed.

(Source: China Daily)

The author is a senior counsel, law professor and criminal justice analyst, and was previously the director of public prosecutions of the Hong Kong SAR.

The views do not necessarily reflect those of DotDotNews.

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