Opinion | Policy Address 2023: Prioritizing criminal justice and providing protections

By Grenville Cross

On July 31, the government of the Hong Kong Special Administrative Region launched its public consultation for the chief executive's 2023 Policy Address. Over 30 consultation sessions are being conducted, with the views of legislative councilors, community representatives and the general public being solicited. Once the process is complete, Chief Executive John Lee Ka-chiu will deliver his Policy Address on Oct 25, and he says, "Together, let's make Hong Kong a better home."

In criminal justice, various reforms are required, some long overdue. In key areas, Hong Kong has fallen behind other places, and this has been to the detriment of the vulnerable, the marginalized and the minorities. Although some of the reforms are relatively straightforward, useful models exist elsewhere when they are not.

Even if the details are not unveiled in the Policy Address, the outstanding national security legislation, notably concerning sedition, treason and espionage, as contemplated by the Basic Law (Art.23), will need to be enacted shortly. They will also hopefully, given their dangers, include fake news and internet abuse, not least because malicious reporting and fallacious messaging have significantly harmed Hong Kong. They have been used to divide society, promote hatred and encourage lawlessness, and a response is necessary.

Indeed, the National Security Law for Hong Kong requires the government to "take all necessary measures to strengthen … guidance, supervision and regulation over matters concerning national security, including those relating to … the media and the internet" (Art.9).

National security apart, the safety of public officials acting in the discharge of their official functions must also be ensured. The Police Force faced extreme abuse during the black violence of 2019-20, and the government must make clear there is no right to abuse or demean police officers. They, like other law enforcement agents, must be protected from abuse, as in Singapore, where it is an offense, punishable with one year's imprisonment and a fine, to insult a public officer (including a police officer).

Although the Basic Law guarantees freedom of expression (Art.27), restrictions are legitimate, as the International Covenant on Civil and Political Rights recognizes (Art.19). These may be necessary to ensure respect of the rights or reputations of others, the protection of national security, or the maintenance of public order.

In 2017, three legislative councilors (including the current deputy justice secretary, Horace Cheung Kwok-kwan), sought to protect law enforcement officers in various ways. They envisaged a prohibition on any abusive or insulting words, behavior or slogans toward law enforcement officers, acting in the course of their duty. The maximum sentence suggested was three years' imprisonment and a fine of HK$2,000 ($255). Although this proposal went nowhere, events since have shown this sort of law is now necessary.

Under the Crimes Ordinance (Cap.200), moreover, anybody who intimidates a judge (or anybody else) only faces a maximum sentence of five years' imprisonment (Sect.27), and this is woefully inadequate. As the recent threats to the judiciary are ongoing, with various black riot cases and national security trials in the pipeline, the judges must be given extra protections by the criminal law.

Since threats to public prosecutors and police officers are equally reprehensible, they should also enjoy the same protections as judges. This could be readily achieved by increasing the maximum sentence for intimidation to imprisonment for any term and a fine of any amount (the same penalty, since 2008, for attempting to pervert the course of public justice).

There is no logical reason why somebody who intimidates a judge (or prosecutor or police officer) should be treated differently from somebody who attempts to pervert the course of public justice by interfering with a judge (or prosecutor or police officer), and this proposal is inherently reasonable and easy to justify.

Also requiring protection, this time from discrimination, are people from elsewhere in China. When the Race Discrimination Ordinance (RDO) (Cap.602) was enacted in 2008, it was decided it should not cover them, as they were of the same ethnicity as local Chinese people. The view was taken that any discrimination they faced would arise for social reasons, and this left mainland Chinese largely unprotected, particularly from 2014 onward, when they started facing serious hostility from fanatics. By 2019-20, when the secessionists unleashed their insurrection, people from elsewhere in China were victimized in earnest.

In 2021, the Equal Opportunities Commission (EOC) received many complaints of discrimination against people of Chinese stock. A survey (covering 2019-21) revealed that nearly 3 in 5 adult mainland immigrants and 1 in 3 children complained of everyday prejudice. For some, the prejudice endured no matter how long they lived in Hong Kong.

The EOC has called for discrimination against mainland Chinese to be proscribed. Its proposals cover three situations; namely, where people of the same ethnicity discriminate against each other, where people are discriminated against based on their residential status, and discrimination related to where a person comes from, even if within the same country.

On May 28, after the Cathay Pacific discrimination scandal, in which flight attendants were accused of insulting and discriminating against non-English-speaking passengers, the EOC Commissioner, Ricky Chu Man-kin, expressed the hope that legislation on intraracial discrimination against mainland Chinese could be completed as soon as possible, and his words will hopefully be heeded in the Policy Address.

What this means, therefore, is that once the scope of the RDO has been expanded, the EOC should be empowered to investigate and prosecute cases of discrimination against Chinese people from elsewhere, with offenders facing condign punishment.

Although child abuse remains rampant, the government must be complimented for introducing legislation to make its reporting mandatory for particular people who deal with children. This, however, is only the first step, and the Policy Address should build upon the progress made by embracing the other child protection laws that are also urgently needed.

In 2021, the Law Reform Commission (LRC) proposed the creation of a new offense of "failure to protect a child or vulnerable person where the child or vulnerable person's death or serious harm results from an unlawful act or neglect". This offense would facilitate the prosecution of people who, for example, fail to lift a finger to help a child for whom they are responsible and who is in danger, such as Yeung Chi-wai, the 5-year-old disabled boy who died in 2013 after swallowing methamphetamine hydrochloride ("ice") that his carers had left lying around at home.

The LRC proposal is based on a British law that was fast-tracked through Parliament in 2004, and the Policy Address will hopefully reveal an intention to fast-track a similar reform in Hong Kong.

In 2019, moreover, the LRC highlighted the dangers children face on the internet, and called for them to be protected from sexual predators by means of a new offense of "sexual grooming", which must be implemented. At the same time, the sending of sexual messages to a child should also be criminalized.

A strict regime to prevent children from accessing adult websites, whether deliberately or inadvertently, is also essential, not least because children can be mentally damaged through exposure to pornography. However challenging, a duty of care, together with a regulatory framework, should be imposed on internet service providers (ISPs), making them liable for protecting children from online pornography.

The ISPs should be required to ensure that adult websites are not accessible to people under 18, and age verification software is now available to those who need to ascertain a consumer's age. Their online platforms also need to be policed by a regulator, who would be tasked with publishing guidelines that indicate how ISPs should ensure their users are aged 18 or over.

If an ISP fails to comply, the regulator should have the authority to impose fines, block websites, and direct the withdrawal of any associated financial or advertising services. As part of their duty of care to young people, the providers should be required to work with the police and other stakeholders to prevent and delete exploitative materials, and, in this, artificial intelligence technology could assist. If ISPs are required to use internet filters to block all websites containing adult content, unless customers opt out, this would provide the young with significant protection.

Another vital reform concerns the Offenses Against the Person Ordinance (Cap.212), given that its child cruelty law (Sect.27) does not cover emotional abuse. Although the existing law works well when children are physically abused, it is of little use when psychological abuse is involved. If there is no tangible evidence, such as a wound or bruising, it is almost impossible to bring a prosecution, and this means that emotional abuse invariably goes unpunished.

Hong Kong's law is based on its UK counterpart, and the problem was resolved in Britain in 2016 by the so-called "Cinderella Law". This makes child cruelty prosecutable regardless of "whether the suffering or injury is of a physical or a psychological nature", and Hong Kong must now follow suit.

Although the suggested reforms have been discussed from time to time since 1997, they need to be turned into reality. The chief executive has shown he means business over Hong Kong's well-being, and he can now rely upon a responsible legislature that prioritizes the people's welfare. Once criminal justice protections are strengthened, people in many situations will be safer, and the community as a whole will benefit accordingly.

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

The article was first published in China Daily.