Whose flaws?

March 13, 2017 12:34
Ken Tsang takes a beating from policemen in a dark alley (inset). No overseas judges have been 'recruited' by Hong Kong since the handover in 1997. Photos: HKEJ, tvb.com

Opinion is free but facts are sacred. Fact-free opinion is dangerous trumpery.

Even allowing for the fact that it is only a newspaper which has seen better days, can there be any excuse for the SCMP to provide a platform for a pea-brained academic to spew his xenophobic and ill-informed opinions?

At the risk of dignifying such garbage, what is peddled as “insight” by a Beijing-based academic is so fundamentally wrong that one is obliged to set the record straight.

Under the headline “Occupy case shows up flaws in Basic Law”, an associate professor of Beihang University’s Law School complained that “While the protester remains at large, the seven officers enforcing the law at the scene have been jailed.”

The unnamed protester is of course Ken Tsang and anyone who has followed the news knows that, far from being “at large”, he is in fact on bail pending appeal, having been prosecuted, convicted and given a custodial sentence.

Such perversion of the facts by a “legal expert” suggests that dragging anyone into a dark corner and beating him up by a policeman amounts to “enforcing the law at the scene”.

Doubtless public security officers consider it not merely appropriate but their unassailable right to assault those whom they arrest which, though it may provide context for a mainland academic in humanities is entirely alien to any civilised society’s version of the rule of law.

Such an opinion does, sadly, provide a valuable insight into the unbridgeable gulf between perceptions of the rule of law between Hong Kong and the mainland.

The piece focuses on what he plainly considers an unacceptable disparity between the two-year sentences imposed on the policemen and that of five weeks on Tsang which, in his racist opinion, sends a message that the presiding judge’s moral support lies with the protester.

The disparity between the sentences reflects appropriate sentencing policy within Hong Kong’s jurisdiction.

The Hong Kong judiciary’s sentencing policy is closely drawn and leaves remarkably little discretion to the sentencer.

Passing judgment on Tsang for pouring an unidentified liquid on police officers, Principal Magistrate Peter Law observed that “Tsang did not intend to hurt the police officers”.

Now contrast that with the hospital report on Tsang’s extensive injuries: “swelling and bruising of the forehead, upper face, and chin; bruising of the neck; bruising of the clavicle; circular reddish bruises all over the chest; bruising of both sides of the abdomen; bruising of the back; bruising of the left wrist; abrasions and bruising of the left arm and hand; and abrasion of the left knee. Doctors testified that the distinctive circular bruises were likely caused by forceful jabbing by retracted police batons.”

Those given special powers bear an equivalent level of duty to exercise them fairly and an abuse of power by someone in office attracts a higher level of judicial opprobrium as Donald Tsang’s case illustrates.

With florid ignorance of the law in Hong Kong, this academic declares that in a situation such as the Occupy protest “there were no comprehensive guidelines” for the police to follow with regard to how much force is appropriate.

Part of the basic training of a Hong Kong police officer is to instruct him that, as in all common law jurisdictions, the pragmatic test of universal application is that only such force as is reasonably necessary may be used to effect an arrest.

Breaches of this rule flout the Force’s Standing Orders as well as rendering the officer answerable both criminally and in civil law.

The associate professor’s analysis suggests that taking Tsang off to a corner and beating him up is consistent with “the discretion which the police could exercise while enforcing the law during a protest”.

It may well be normal for a Chinese Communist Party-appointed judge to “differentiate the powers that the police are allowed to use in such situations from those normally allowed” but the common law does not accommodate such politically driven discretion.

Hong Kong’s police are a highly trained disciplinary force, fully able to handle civil disturbances if allowed to do so by the administration.

The constraints on police powers during the Occupy movement were imposed by those senior members of the Hong Kong administration who, while keeping the lowest possible profile themselves, inhibited the discretion of police commanders on the ground.

No reputable Hong Kong police officer would condone such undisciplined behavior by a serving officer and, unsurprisingly, at their trial none of the seven sought to justify their conduct as a proper exercise of their discretion whilst enforcing the law.

The academic’s statement that “Hong Kong society is in a state of chaos” suggests that his head is lodged firmly in his nether regions.

But it is consistent with his view that “social protest movements are extraordinary events” the opinion of someone subservient to an autocracy which denies the validity of three of the rule of law’s most basic freedoms: of thought, speech and association.

By what authority does he challenge the declarations of every Secretary for Justice since the handover to conclude that Hong Kong requires “a rethink of the value of the rule of law and how it can support the city”.

As if all this garbage was not enough, this humanities expert asserts that the Basic Law “deviates from what a modern legal system should be like”.

Further insight into this racist venting of spleen comes from the characterization of the trial judge as “foreign”.

The SCMP compounded its failure by according him an interview in which he criticized – again without editorial correction or comment – the “recruitment” of “foreign” judges.

No overseas judges have been “recruited” since the handover in 1997.

The expatriate judges within the judiciary are all likely to be Hong Kong permanent residents, having served the community for many years, a qualification conspicuously missing in this extra-jurisdictional academic.

It contributes nothing to informed debate about Hong Kong’s criminal justice system for the SCMP to be a springboard for a wild, inaccurate polemic more akin to a Trump tweet than the product of academic rigor.

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Queen's Counsel