無知本無罪，雌黃實可哀｜戴啟思
蘋果日報 2019/09/18 11:00
戴啟思專欄人物
Ignorance of the Law-Protests outside the CFA
Newspapers reported that on Thursday about one hundred protesters gathered outside the Court of Final Appeal (CFA). They were there to call for the resignation of the Chief Justice Geoffrey Ma. Their complaint was that he was at the head of judicial system which was far too lenient to protesters of a different political persuasion.
Their gripe was that after police had arrested and brought to court protesters of this other colour, magistrates released them on bail. When they were convicted of offences, magistrates and judges let them off with lenient sentences.
Now, complaints about judges are nothing new. They were made not very long ago against individual magistrates and judges in connection with cases arising from the Occupy movement in 2014. The complaint made then was that some judges were too lenient. Some were too harsh.
A twist to the some of the complaints then was that the nationality or ethnicity of the judge or magistrate played a part in the judicial decision-making process.
Both sides of the legal profession issued statements then defending judicial autonomy and explained in simple terms why the Rule of Law required judges to be both independent and impartial. Their job was to administer justice in accordance with relevant laws and their conscience without favouring one side or another.
All this is encapsulated in the oath of office taken by judicial officers on appointment. It is worth setting out.
I swear that, in the Office of a Judge/a judicial officer of the Judiciary of the Hong Kong Special Administrative Region of the People’s Republic of China, I will uphold the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China, bear allegiance to the Hong Kong Special Administrative Region of the People’s Republic of China, serve the Hong Kong Special Administrative Region conscientiously, dutifully, in full accordance with the law, honestly and with integrity, safeguard the law and administer justice without fear or favour, self-interest or deceit.
Swaearing official oaths is a serious business. Ask any one of the handful of duly elected legislators who have deen disqualified from taking their seats in the Legislative Council. Or you could ask any one of of the persons who would like to stand for election but have been negatively vetted from particpation in the electoral process because an administrator doubts the sincerity of a declaration to abide by an oath to serve.
People like the protesters outside the Court of Final Appeal seem not to understand some very basic principles that are clearly stated in the Basic Law about how judges should go about their work. The most important one is Article 85.
The courts of the Hong Kong Special Administrative Region shall exercise judicial power independently, free from any interference. Members of the judiciary shall be immune from legal action in the performance of their judicial functions.
.
A defining feature of judicial power is sentencing offenders for breaches of the law of the land, common law or statute. Law-makers may create new offences with new penalties but it is the judges and magistrates that decide whether an offence haas been committed and, if it has, what should be the penalty. And they do that without any help from you or me.
That is why one of the protesters’ demands that the Chief Justice should set up an independent commission, headed by the Chief Executive and composed of members from the judiciary, government and the public to review sentencing is so surprising. It is simply a constitutional non-starter if the intention is that this composite body review sentences passed on individual defendants.
The Chief Executive has no judicial powers, thank goodness. And the only time the public gets a look-in to exercising judicial power is when they serve on a jury.
The review of sentences on the basis that they are too lenient is a job given to the Secretary of Justice who make use of the power on a regular basis. Sometimes sentences are increased on review; sometimes judges disagree with application and the sentences are unchanged. That is what the exercise of independent judicial power is all about.
If there is a case for making sentences tougher so that offenders may go to jail where previously they would not, then that is a matter for changing the law. That is a job for the legislature.
And it is a part of our law that you cannot change the law retrospectively. If the law changes and a ten year sentence of imprisonment is introduced in place of a 5 five year term, it is not possible to apply the new sentencing regime to offences that pre-dated the change in the law.
The protesters were not happy with the way magistrates bailed other protesters when they appeared before them charged with an offence. They wanted the protesters to be locked up until they were tried, perhaps six or nine months later.
The sentiment behind this demand obliterates the presumption of innocence which is that everyone is presumed innocent until proven guilty. Why should a person accused of a crime lose his liberty before trial just because he or she was a protester?
In fact, magistrates do not have a wide discretion when it comes to making decisions about bail. The Criminal Procedure Ordinance creates a right to bail which can only be withheld upon the magistrate being satisfied that grounds peculiar to the offence or the defendant exist so that remanding in custody is warranted because he or she might not attend their trial.
A person with no previous convictions charged with an offence which usually is met with a fine or a short term of imprisonment or a non-custodial sentence is in a completely different position to a foreign national charged with a very serious offence that almost invariably results in a very long prison sentence. The first person is unlikely to be a flight risk and can be bailed whereas the other person might be supposed to have good reason to flee and needs to be kept in custody.
Even the flight risk refused bail can be assured that will not be just because they of a certain nationality they cannot get bail. Likewise bail will not be refused because they are of a certain ethnicity, age or political persuasion. These are extraneous considerations and have nothing do with whether they will turn up for trial because we do not sentence people to prison simply because they are black or because they are of one gender or because they subscribe to a particular political or religious belief.
All in all, the protest outside the Court of Final Appeal was a demonstration of ignorance. It is no crime to be ignorant and no one should seek to limit the rights of the ignorant and misinformed to be heard. Such demonstrations at least provide the opportunity for me and others to point out that the demands the protesters made are nonsense.
Their gripe was that after police had arrested and brought to court protesters of this other colour, magistrates released them on bail. When they were convicted of offences, magistrates and judges let them off with lenient sentences.
Now, complaints about judges are nothing new. They were made not very long ago against individual magistrates and judges in connection with cases arising from the Occupy movement in 2014. The complaint made then was that some judges were too lenient. Some were too harsh.
A twist to the some of the complaints then was that the nationality or ethnicity of the judge or magistrate played a part in the judicial decision-making process.
Both sides of the legal profession issued statements then defending judicial autonomy and explained in simple terms why the Rule of Law required judges to be both independent and impartial. Their job was to administer justice in accordance with relevant laws and their conscience without favouring one side or another.
All this is encapsulated in the oath of office taken by judicial officers on appointment. It is worth setting out.
I swear that, in the Office of a Judge/a judicial officer of the Judiciary of the Hong Kong Special Administrative Region of the People’s Republic of China, I will uphold the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China, bear allegiance to the Hong Kong Special Administrative Region of the People’s Republic of China, serve the Hong Kong Special Administrative Region conscientiously, dutifully, in full accordance with the law, honestly and with integrity, safeguard the law and administer justice without fear or favour, self-interest or deceit.
Swaearing official oaths is a serious business. Ask any one of the handful of duly elected legislators who have deen disqualified from taking their seats in the Legislative Council. Or you could ask any one of of the persons who would like to stand for election but have been negatively vetted from particpation in the electoral process because an administrator doubts the sincerity of a declaration to abide by an oath to serve.
People like the protesters outside the Court of Final Appeal seem not to understand some very basic principles that are clearly stated in the Basic Law about how judges should go about their work. The most important one is Article 85.
The courts of the Hong Kong Special Administrative Region shall exercise judicial power independently, free from any interference. Members of the judiciary shall be immune from legal action in the performance of their judicial functions.
.
A defining feature of judicial power is sentencing offenders for breaches of the law of the land, common law or statute. Law-makers may create new offences with new penalties but it is the judges and magistrates that decide whether an offence haas been committed and, if it has, what should be the penalty. And they do that without any help from you or me.
That is why one of the protesters’ demands that the Chief Justice should set up an independent commission, headed by the Chief Executive and composed of members from the judiciary, government and the public to review sentencing is so surprising. It is simply a constitutional non-starter if the intention is that this composite body review sentences passed on individual defendants.
The Chief Executive has no judicial powers, thank goodness. And the only time the public gets a look-in to exercising judicial power is when they serve on a jury.
The review of sentences on the basis that they are too lenient is a job given to the Secretary of Justice who make use of the power on a regular basis. Sometimes sentences are increased on review; sometimes judges disagree with application and the sentences are unchanged. That is what the exercise of independent judicial power is all about.
If there is a case for making sentences tougher so that offenders may go to jail where previously they would not, then that is a matter for changing the law. That is a job for the legislature.
And it is a part of our law that you cannot change the law retrospectively. If the law changes and a ten year sentence of imprisonment is introduced in place of a 5 five year term, it is not possible to apply the new sentencing regime to offences that pre-dated the change in the law.
The protesters were not happy with the way magistrates bailed other protesters when they appeared before them charged with an offence. They wanted the protesters to be locked up until they were tried, perhaps six or nine months later.
The sentiment behind this demand obliterates the presumption of innocence which is that everyone is presumed innocent until proven guilty. Why should a person accused of a crime lose his liberty before trial just because he or she was a protester?
In fact, magistrates do not have a wide discretion when it comes to making decisions about bail. The Criminal Procedure Ordinance creates a right to bail which can only be withheld upon the magistrate being satisfied that grounds peculiar to the offence or the defendant exist so that remanding in custody is warranted because he or she might not attend their trial.
A person with no previous convictions charged with an offence which usually is met with a fine or a short term of imprisonment or a non-custodial sentence is in a completely different position to a foreign national charged with a very serious offence that almost invariably results in a very long prison sentence. The first person is unlikely to be a flight risk and can be bailed whereas the other person might be supposed to have good reason to flee and needs to be kept in custody.
Even the flight risk refused bail can be assured that will not be just because they of a certain nationality they cannot get bail. Likewise bail will not be refused because they are of a certain ethnicity, age or political persuasion. These are extraneous considerations and have nothing do with whether they will turn up for trial because we do not sentence people to prison simply because they are black or because they are of one gender or because they subscribe to a particular political or religious belief.
All in all, the protest outside the Court of Final Appeal was a demonstration of ignorance. It is no crime to be ignorant and no one should seek to limit the rights of the ignorant and misinformed to be heard. Such demonstrations at least provide the opportunity for me and others to point out that the demands the protesters made are nonsense.
－
About the author
Philip Dykes is a Senior Counsel. He has lived in Hong Kong for over thirty years. His interests are in literature, language, history, fine art and photography. He worked as government lawyer until 1992 and he is now in private practice.
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About the author
Philip Dykes is a Senior Counsel. He has lived in Hong Kong for over thirty years. His interests are in literature, language, history, fine art and photography. He worked as government lawyer until 1992 and he is now in private practice.
探索驚奇精彩的 wONdEr 故事，請LIKE 我們的Facebook Page，並設定為「搶先看」：
https://www.facebook.com/wondermedia.hk/
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