How to lose confidence in the justice system

July 20, 2015 18:30
Ng Lai-ying (inset) says she was bleeding as she was pushed to the ground by the police. However, she was convicted for attacking policeman with her breasts. Photos: YouTube, Apple Daily

Hong Kong's standard of jurisprudence is plain and simple -- justice must be done and must be seen to be done.

The judiciary wrote it into the Guide to Judicial Conduct to ensure no one is in doubt about this basic principle.

We can safely conclude that the mere appearance of bias or conflict of interest harms the cause of justice.

Which is why a recent decision involving a protester is causing public concern and attracting international attention not only for the actions under which the defendant was convicted but also for the circumstances of the judge in the case.   

Tuen Mun deputy magistrate Michael Chan convicted Ng Lai-ying, 30, of assaulting chief inspector Chan Ka-po by hitting him with her breasts during a chaotic protest against parallel traders in Yuen Long in March.

Let's set aside the ludicrous notion that an officer in police gear can be attacked by a woman using a pair of breasts and the fact that the extent of the policeman's injuries was never revealed while video evidence had Ng with a bloodied mouth.

What we find is a few small but not insignificant details about the judge.

To begin with, Michael Chan is a deputy magistrate, which means he is not a full-time member of the judiciary.

Deputy magistrates have day jobs and are appointed to the judiciary to assist in its operation.

It turns out that Chan is the chairman of the executive committee of Hong Kong Student Aid Society, whose patron is Regina Leung, the wife of Chief Executive Leung Chun-ying.

Although Chan's role in the society is voluntary, it nevertheless creates the appearance of conflict of interest because of his indirect association with the plaintiff through Regina, the police force being part of her husband's administration.

So, the question is whether Chan declared his interest when he was assigned to try the case.

This is important because the judicial principles are specific about the mere appearance of impropriety.

Given these circumstances, myriad questions arise regarding the fairness and independence of the hearing and about Chan's fitness to serve the ends of justice.

The guidelines state that impartiality must exist as a matter of fact and as a matter of reasonable perception, adding that "if partiality is reasonably perceived, that perception is likely to leave a sense of grievance and of injustice having been done, which is destructive of confidence in judicial decisions".

Also last week, a Kwun Tong magistrate's court found So Suet-ling, 65, guilty of one count of common assault and sentenced her to a 14-day prison term suspended for 12 months.

Her husband, Chan Nam-sing, 72, was fined HK$8,000 (US$1,032) for indecent assault on a woman during the street occupation of Mong Kok last year.

The judge said their offenses were serious enough to merit imprisonment but pronounced a lenient sentence on humanitarian grounds after considering their age and health.

It's no coincidence that these convictions were dealt in politically charged cases.

These show a troubling reality that is less about the strength of the rule of law and more about the unevenness of its application.

Hong Kong's independent, open and transparent judiciary has been a bulwark of its way of life and a bedrock of its success.

And because of these qualities, Hong Kong people put much store by the justice system, even if they feel let down by their political leaders.

Do we feel as confident in our justice system as before?

The answer just got harder.

(March 1, 2015)

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EJ Insight writer