Category Archives: rule of law

Police Officer’s Force is Illegal, Unnecessary and Disproportionate

The Police Officer who forcibly removed and detained the Reporter

The news reported*:

Increasing intervention from Central Chinese Government and heavy – handedness of the police against peaceful protesters – evidenced by more frequent and intense use of pepper spray and assignment of restricted areas for media – only serve to show the ‘mainlandisation’ (i.e. a complete disregard of human rights) of the Hong Kong police.

The above news report is one of the other many examples showing police force against dissidents and protesters are dubiously illegal, unnecessary and disproportionate.

Admittedly, freedom of speech and freedom of movement (as stipulated in Article 27 and 31 of Basic Law respectively) are not absolute rights but restrictions are only justified provided they pass the legality, necessity and proportionality test.

From the facts in the news, the police officer did not even bother to give reply to a question from one journalist on what guidelines he relied on that delegated him the power to forcibly remove and detain the reporter.

Neither it seems necessary in a democratic interest in the interests of national security or public safety and public order for him to not only remove but to detain him for another 15 minutes. Surely asking a question, though a political sensitive one, to President Hu Jintao will not disrupt the public safety or order, on the face of a large amorphous army of black – suited guards, along with numerous police officers and other unknown covert policemen, and let alone damaging any national security.

The force is only proportionate when it rationally connects with a legitimate purpose and is no more than necessary for accomplishing it. Granted, protecting President Hu is a legitimate purpose  but it is his personal safety that matters, not his face. The purpose of the police officer is to save President Hu from a politically sensitive question, at the great expense of infringing human rights.

The means employed are neither rational nor no more than necessary. From the TV news, President Hu has already gone after he heard the Reporter’s question. In other words, the police officer’s removal and subsequent detainment were wholly irrational and unnecessary, as further questions from the Reporter would have gone unheard or unheeded when President Hu was already out of sight.

Hence the police officer’s force toward the Reporter is illegal, unnecessary and disproportionate. It is not a scarecrow or a fallacious slippery slope logic to argue one compromise following another for the Hong Kong police will eventually mean a complete ‘mainlandisation’ of the whole police force. Accumulated reports and this incident are only too obvious to show this sad and unfortunate trend.

* The South China Morning Post (SCMP) reported, below is an excerpt:

‘Police forcibly removed a journalist from a press area after he shouted a question about the June 4 Tiananmen Square crackdown to President Hu Jintao while the president was visitng the Kai Tak Cruise Terminal on Saturday.

As Hu walked by the press area accompanied by government officials, the Apply Daily reporter shouted “President Hu, the people of Hong Kong want the truth behind June 4 to be revealed, do you know this?”

Hu heard the question and turned to the journalist before continuing on his way without responding.  The reporter was immediately taken by a policeman to a stairwell where he was questioned for 15 minutes and eventually reprimanded

He told me that my yelling was breaking the rules,” said the reporter…’

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Why I feel disappointed to Alan Leong

Alan Leong doing a radio programme in his Chambers office
The curtain for DC election has been drawn with the Civic Party (CP) losing 4 seats, leaving 7 seats. Party leader Alan Leong explained the ‘smear tactics’  and the overwhelming power of the Central Liaison Office in planting votes and unleashing the mechanism’s mobilisation have caused this election failure.Further, if district works remains to be snake banquet, it would prove wholly impossible for a CP  district councillor (DC) in another profession (lawyers, engineers) to stay in the district for up to 10 hours a day.

Alan Leong has been my mentor and inspirator. In 2011 March 1, it has been an awakening when he told me ‘ Rule of law is the hallmark of Hong Kong. Without it, Hong Kong is no different than one of the many Chinese cities’. His charisma as guardian of the rule of law has caught me but his explanation to the failure  of election caused me unease.
The CP and news media widely attributed the low – voting rate to the party’s support to the two controversial legal issues in the right of abode for foreign helpers and environmental permits for the Hong Kong – Zhuhai – Macao bridge (HKZM bridge). But really?
Professor Choy Chi – keung (蔡子強) has rightly pointed out these merely act as excuses for the fact that the CP has never been keen in working at the constituent district. It is also at odds when Alan Leong confessed the impossibility for a CP DC to stay a long time in the district when this is what DC exactly does – to serve the people in the district as a full profession, not a part – time job. (Professor Choy has written a number of articles on this, the most recent is here)It is the sad political reality that people do not realize rules in laws. First a barrister has no choice but to represent a client for a field he is competent at. This is the cab – rank – rule to ensure fairness, so even a powerless person can get a lawyer. So CP did not tell Philip Dykes SC to represent Chu Yee – wah in the HKZM bridge. Legal duty obliges Dykes to represent her for the sake of the rule of law, so even the powerless minority can get a lawyer.

Also the Court decides whether to accept a judicial review, not the CP, as Ronny Tong explained in our lecture. The Court accepts the review only when the matters concern the public. Denouncing judicial review is equivalent to denouncing fairness of the Court.

Secondly even CP member Gladys Li represents Vallejos, so? Barrister acts independently. No one can force a barrister to do something unwilling.

Sadly people don’t take time to understand all that. Or rather, they don’t need to. Dislike is dislike. They’ll show it in the votes. (Shih Wing Ching 施永青 here has said exactly what people erroneously think). Perhaps Chip Tsao (陶傑) is right; rule of law? Nothing. People just dislike Filipinos. (article here)

CP must either explains the laws to the people or to bend to the reality. For the former, the CP has not done much, except one or two appearance in news. For the latter, Alan Leong has partially done so when he made a partial retreat in clarifying the CP’s position of not supporting the coming of Filipinos into Hong Kong.

I fully support Alan Leong to fight for the rule of law in Hong Kong. But I am deeply disappointed how he has led the party.

It is time when Alan Leong and CP must drop down the overt elitism and work more in the district. It is time for CP to help people unlearning the unenlightened (DAB’s) welfarism and to help them learning what rule of law is.

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Rule of Law in China = Battered Lawyers

Rule of Law in trash

‘Arrogantly make a fool of yourself because others are but mere humans and you the Barrister, is the enlightened Supreme Being’ said my mentor.

This is certainly true where the rule of law reigns. Where her sovereignty ceases, lawyers become battered hopeless creature (if not be too exaggerating to borrow from Hobbes – living in solitary, poor, nasty, brutish, and short life).

This Tuesday, a criminal defense team of four lawyers in Guangxi has been arrested for suborning perjury (i.e. inciting clients or witnesses to commit perjury.) Briefly, they spotted holes and inconsistencies in the prosecution’s accrued evidence against four defendants involving death case.

It is suspected the local government in Beihai, eager to keep the record – breaking report card in resolving homicide cases, attempted to silence them through these arrests. (The full news can be read here – Chinese version or here – the English version)

This amounts to a public showcase to how China see the law – as a maid to the executive expediency when a shining report – card can trash over innocence of four men, plus another four lawyers. When law serves as the executive’s extended arm, no one’s rights are guaranteed, not even the lawyers, let alone the people.

What is ironical is when Premier Wen said in last month at Da Lian that the party must separate from politics and law to prevent absolute corruption flowing from the absolute power. What the Beihai government now has done seem to slap right on Premier Wen’s face.

Last month, a draft of amendment to Criminal Procedure Law has proposed to add 99 more articles (from 225 to 285), relating to rule of evidence, coercive measures, criminal defense and representation, investigative measures, trial procedures, enforcement and special proceeding. What the Beihai government now has done has shredded those papers into trash.

Rule of law is not empty words, along with a speech from this or that official (not even Premier Wen’s speech can be counted on). Rule of law at least mean an independent judiciary and a group of lawyers who don’t need to be afraid of get beaten this day, and arrested the next.

Even if the words on paper prima facie ensure protection for victims, like the additional grand proposed 99 articles, how do we know they are followed? The police can still happily stand a strong light against the ‘witness’ for hours until coercing a ‘desired’ statement, without letting anyone know.

We can’t hold any complacency here in Hong Kong. Do not forget our small island constitute an ‘unalienable part’ of this imperial empire. Following the precedence from Ng Ka Ling, NPCSC’s arm has again successfully encroached Hong Kong’s rule of law in the Congo case. Space here does not allow a full explanation but in essence, NPCSC rules Hong Kong will be governed by absolute immunity, in contrast to restrictive immunity practiced by the common law world, marking another blow to Hong Kong’s autonomy under One Country Two Systems.

I have recently finished reading a book on 1911 Revolution and realize revolution is not just about Sun Yat-sun but the people. It is the people who made history. Now, we, and the four arrested lawyers are part of the history in retaining the rule of law.

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Keep our knee straight. Do not Kowtow to China.

The banner reads: ‘Maintain One Country Two Systems. Promote Hong Kong’s Long – Term Prosperity and Stability’ 

– What a joke

Since this month or last, radio and TV talk a lot about the 1911 Revolution. As a person living in Canada for almost ten years and never having a chance to study Chinese or Hong Kong history, I never realized that Hong Kong has had such an intimate relationship with the efforts of Mr. Sun Yat – sen and his colleagues in organizing this historical momentous revolution. 

Hong Kong was, of course, unique to offer such a chance where Sun Yat – sen and other revolutionaries could arrange meetings in a relatively safe environment, distribute pamphlet on ending slavery under imperialism, publish newspapers about democracy and liberalism. This has all been possible only because the Qing dynasty ceded Hong Kong to the United Kingdom in 1842 (Hong Kong island), 1860 (Kowloon) and 1898 (New Territories). With Hong Kong at his base, Sun Yat – sun ended the 2000 years of kowtow. 

During my job – shadowing with Mr. Alan Leong, senior counsel barrister – at – law and leader of the Civic Party, has told me ‘Hong Kong since the time of Sun Yat – sun has been a breeding place for liberating political ideas and a place where people can enjoy liberty and rule of law. 

Rule of law is a hallmark of Hong Kong. How long and how much we can maintain this precious rule of law depend on how much autonomy we can still enjoy under ‘One Country Two Systems’ (OCTS) – 100 years after Sun Yat – sen planned the revolution and overthrew the Qing dynasty in 1911. 

Jiang Zemin promised the Mainland Communist China and Hong Kong will be like river water and well water that won’t ‘mix with each other’. The 14 years of OCTS have shown that the two waters are, in fact, quite well – mixed. 

In the legal field, the NPCSC’s interpretation in 1999 about Ng Ka Ling showed CFA was incompetent to interpret the Basic Law. Professor Albert Chen, law professor in the Hong Kong University, explained this was the power vested in the Basic Law and that NPCSC has the full jurisdiction to do the interpretation. Despite how the Basic Law should have been drafted in the first place, Chen’s explanation overlooks the full political impact it entails. 

The interpretation by NPCSC implies the hollowness in the notion – ‘Hong Kong people rule Hong Kong people’. It shows, in the eyes of NPCSC and China, how incompetent Hong Kong people are in handling our autonomous affairs. Ronny Tong, barrister – at – law and also member of Civic Party, commented Ng Ka Ling and Chong Fung Yuen hampered the democratic development, since we, Hong Kong people, can’t rule ourselves.  

In the social and economic fields, China’s rise in the recent decades open new enterprising opportunities for Hong Kong to ripe. The Chinese scheme to let more mainland tourists coming to Hong Kong and the CEPA scheme after 2003 should have been optimistic signs but my feeling grows somewhat easy after reading Identity, Sovereignty, and Economic Penetration: Beijing’s Responses to Offshore Chinese Democracies by Guoguang Wu. He said in that article Beijing used economic penetration, such as effort to integrate Hong Kong into the Pearl River Delta, to curb the demands for democracy with businesses and monies.   

Our rule of law has come to another critical moment. Vallejos Evangeline Banao has won a temporary victory in Vallejos Evangeline Banao v. Commissioner of Registration and Another but she has a long way to go. What I can’t bear the most is the demonstration by the DAB yesterday. Beside demanding the HKSAR government for a quick appeal to CA, they even demanded HKSAR government to ask NPCSC for interpretation in case the government fails in CFA. 

Where is the rule of law? Do you throw it away so easily when it is the value upholding Hong Kong? Do you let our autonomy reduce to ash?

I left those question for them to answer, while I thought demanding the government to ask NPCSC for interpretation is equivalent to selling out our rule of law and our authority. 

At the end of the day, it is us, Hong Kong people, to defend our own core values. My heart sinks further when my Vice – Chancellor and President of HKU, Tsui Lap – see, said ‘The Hong Kong University has ceased to be a university of Hong Kong but has become a university of Hong Kong in Chinese soil’, at the exact place where Sun Yat – sen 100 years ago was learning and organizing his revolution against the imperial China. 

In 1911, Mr. Sun Yat – sun ended 2000 years of kowtow under the imperial dynasty. Now 2011, keep our knee straight. Do not kowtow to China. Hold the rule of law in our hearts and defend it at every moment.   
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