Not all protester cases would warrant prosecutions: HKBA chief

January 14, 2020 16:41
Hong Kong Bar Association chairman Philip Dykes delivers a speech on Monday at an event to mark the opening of the Legal Year 2020. Photo: RTHK news video/screenshot

Authorities must examine the offenses carefully before pursuing prosecutions of the thousands of people arrested during anti-government protests, the Hong Kong Bar Association (HKBA) chief said on Monday, pointing out that cases should be evaluated on the grounds of public interest.

Legal proceedings should be taken up only if the cases pass the public interest test, Philip Dykes said, reminding the government that not all of the arrested persons may need to be taken to court.

Cases can be dropped if the offenses are not serious, he suggested.

Delivering a speech at the ceremonial opening of the Legal Year 2020, Dykes cited Article 63 of the Basic Law as saying that the Department of Justice (DoJ) controls criminal prosecutions “free from any interference”.

But the Prosecution Code published by the DoJ “reminds us that a decision to prosecute is not made just because the police have enough evidence to go to court and secure a conviction. Public interest also plays a part in the decision-making process too so that individuals or some classes of cases will not end in court, even though there is a strong case against them”, he said.

Dykes, who serves as HKBA's chairman, noted that the police have arrested several thousand people during the months-long protests.

“The arrested persons are predominantly young. Some are just school children. Many more are university students. However, many were ordinary workers and others had stopped work long ago and entered retirement,” the Bar Association chief said.

He noted that while some of them “now face serious charges which carry substantial terms of imprisonment”, many of the arrested “have been charged with lesser public order offenses, not involving violence or extreme vandalism”, and that the persons “in the main, are of good character.”

"Prosecutors looking beyond the four corners of a charge sheet to other matters, both personal to the person charged and to other matters, is a part of the rule of law,” Dykes said.

The HKBA chief then pointed out that judges “do not try people differently because of the defendant’s political or other beliefs.”

“If they did that, they would not be true to their oaths of office which bind them to do justice with fear or favor, self-interest or deceit.” 

Speaking at the same event, Melissa Kaye Pang, president of the Law Society of Hong Kong, said the public should know that Hong Kong's judiciary is "fiercely and totally independent, and that its integrity is beyond doubt.”

"Citizens must appreciate that our judges decide cases according to the Law, not according to any, I emphasis the word ‘any’, extrinsic factors, or ‘any’ color codes also known as political views nowadays,” Pang said, the Hong Kong Economic Journal reports.

"This is the time to tell the public that politically our judiciary is color-blind," Pang said, emphasizing: “Humanity dictates however strong we may disagree with others’ political views, in a civilized society, we cannot resort to violence to silence different views.”

Secretary for Justice Teresa Cheng Yeuk-wah, who was also among the guests at the event, said in her speech that the turmoil in the last year has put many of the core values of Hong Kong and the rule of law under challenge.

"When disarray such as unchecked acts of violence and vandalism prevails, it will be rule of mob, not rule of law,” she said.

"Litigation inevitably involves competing rights. Yet, rights are not necessarily absolute and may be subject to restrictions,” Cheng said.

Referencing a ruling of the Court of Appeal in a case against activist Joshua Wong Chi-fung and others in 2018, the justice chief noted that “if the individual's rights are over-emphasized at the expense of observing the law, people will easily become self-serving, with little regard for other people's rights and the overall interests of society, so that society is prone to fall into disarray.”

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