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Justice Chow's judgment triggers stronger demand for Judiciary's reform

By Tony Kwok | China Daily Asia | Updated: 2020-11-26 15:07

Photo taken on Aug 5, 2019 shows China's national flag and the flag of the Hong Kong Special Administrative Region on the Golden Bauhinia Square in Hong Kong, China. [Photo/Xinhua]

When news broke that the Hong Kong High Court has sided with the Hong Kong Journalists Association's application for judicial review, in ruling that the riot police officers' failure to display their identification numbers during last year's anti-government riots and that the police complaint system is inadequate had both contravened the Hong Kong Bill of Rights Ordinance, my immediate gut reaction is to check out who is the judge that made the ruling.

When it was learned that the judge is Justice Anderson Chow Ka-ming, the pieces of the puzzle immediately fell into place. Justice Chow is one of the two judges who had earlier been publicly criticized by Henry Litton, a most eminent lawyer and retired judge of the Court of Final Appeal, on their judgment that the Emergency Regulation Ordinance was against the Basic Law. Litton described the judgment as "breathtaking" and accused the judges of showing total insensitivity to the policy of "one country two systems" and that they had in effect elevated themselves to a level on par with the National People's Congress! The judgment was subsequently corrected by the Court of Appeal, indicating that these two judges have committed grave professional misjudgment.

With such a track record, it is logical to ask why is he assigned to hear such an important judicial review case with constitutional implications. One cannot help but to surmise that the answer may lie in the former Magistrate Stanley Ho Chun-yiu, who very likely allocated the assignment. Ho's many verdicts and sentences during his tenure at Eastern Magistracy appear to be biased in favor of the rioters. Only recently, his sentence of a rioter to community service was overturned with three months' imprisonment by the Court of Appeal, which also criticized him for having committed a fundamental error in sentencing principle. Yet notwithstanding the public criticism, he was promoted to Acting Deputy Registrar of the High Court, responsible for the listing of criminal cases in the High Court. Was Ho instrumental in ensuring this judicial review case be heard by Justice Chow? This is a fair question to ask.

Litton described the judgment as "breathtaking" and accused the judges of showing total insensitivity to the policy of "one country two systems" and that they had in effect elevated themselves to a level on par with the National People's Congress!

On the first issue that the police had failed to display their personal identification number during last year's anti-government protest, I wonder whether the prosecution has pointed out the international practices in many different jurisdictions, including US, that it is common for riot and special duty police not to display their identities at the scene in order to protect them and their families from revenge. However, I have no qualms requiring the police to wear some kind of identification so as to ensure accountability for their actions. And this is actually what the police have done. It is true that at the early stage of its introduction, riot police officers did not wear their identification due to real concerns over their personal safety. At the time, there was a rampant doxxing campaign targeting them and their family members with malicious intent online, affecting over 3,000 police officers and their families, a point which the judge accepted. However, as of June, last year, police have introduced a new system of identification with alphanumeric badges for all officers. The new system ensures that all riot police officers' identities can be traced if necessary. On that basis, the judge should have dismissed the judicial review application. However, what the judge did instead is nitpicking isolated incidents where some police officers had failed to wear the badges properly, and that there were some human errors resulting in the same alphanumeric numbers being issued to different officers. Such errors are inevitable in the initial stage of implementing a new system, especially when it was undertaken under the stress of rioting. The judge should not have relied on these isolated cases of human error to dismiss the legitimacy of the new identification system.

The ruling clearly suggested that the judge had placed the risk of violence against officers doing their duties and their families secondary to the rioters' right of complaint. And when read in conjunction with his previous judgment barring the government's introduction of an anti-mask law in public protests through Emergency Regulation, it gives rise to legitimate suspicions of his bias toward the rioters and his disregard for the human rights of police officers and public safety.

To be fair, he could have also pointed out that the reporters at protest sites should also be required to wear personal identification badges so that they can be held accountable should they behave unprofessionally, with the possibility of disqualification from future coverage of police operations.

However, the judge's ruling on the second issue might have much wider ramifications. The judge claimed that "The existing complaints mechanism involving the Complaints Against the Police Office (CAPO), with oversight by the Independent Police Complaints Council (IPCC), is inadequate to discharge this obligation, noting that the former operated under the force itself, while the latter lacked the necessary investigative powers, hence contrary to the Bill of Right Ordinance."

First off, the Hong Kong police complaint system conforms with international best practice. Most of the overseas police forces I visited as an international consultant handle public complaints through their internal investigation unit similar to CAPO. To investigate police officers' misconduct requires expertise in criminal investigation, which is not normally available outside the force itself. Secondly, such investigations may touch on sensitive operational secrets, which may cause harm if leaked to outsiders.

In Hong Kong, the police complaint system is actually better than those of most countries with the introduction of an independent watchdog. The IPCC was established by law (Cap 604) in 2009, making it a statutory body, with the mission "to ensure police complaints are handled in a fair, impartial, effective and transparent manner, and advise on improvements to police procedures to enhance service."

The judge ruled that the police complaint system contravenes the Hong Kong Bill of Rights Ordinance (Cap 383). Surely at the deliberation stage of the Legislative Council of the IPCC Ordinance, this human rights issue must have been examined thoroughly and found to be in order. Despite the system having worked smoothly for so many years, and there has never been any serious challenge that the system is in breach of human rights, Justice Chow can suddenly stand up as the seemingly extraordinary legal sage to condemn the system!

As IPCC Chairman Anthony Neoh rightly pointed out, the ruling appeared to show a lack of understanding of the work of IPCC. He said that whilst IPCC did not have investigative powers, it can compel the police to continue investigating until IPCC is satisfied that the process is thorough enough and fair. IPCC also had the right to sit in as an observer in interviews of witnesses. They can disagree with the conclusion of the police investigation and if there is such dispute which cannot be resolved, IPCC can refer the matter to the Chief Executive for decision. The case of police superintendent Franklin Chu King-wai is a case in point. The CAPO investigation of the complaint against police superintendent Chu concluded that the officer had abused his authority but it was not tantamount to a criminal offense. IPCC disagreed and, in the end, Chu was prosecuted and convicted of assault causing bodily harm. This manifestly proves that IPCC is not a toothless tiger as the judge implied.

This ruling has wide ramifications because if we accept the rationale of Justice Chow, all public institutions should have an independent complaint authority with investigative powers. Just imagine having an Independent Complaint Authority for the Hospital Authority and another one for the Airport Authority.

If Justice Chow sincerely believes in the righteousness of his ruling, then he should demand having a similar complaint system embedded within the judiciary itself. At present, all complaints against judicial officers are investigated secretly in-house with zero external oversight. Is Justice Chow suggesting that the head of judiciary is breaching the law in failing to set up an Independent Judiciary Complaint Authority?

The biggest concern now is that Justice Chow has been designated to hear National Security Law cases. Was he appointed after a vigorous integrity and political vetting, and is it true that he once worked as an assistant of Martin Lee Chu-ming as widely alleged in social media, or he was appointed on the basis of a strong recommendation from the head of judiciary? If it is the latter, and together with the controversial promotion of Ho Chun-yiu, this should call for a close scrutiny by the National Security Department.

The judgment came just a day after Zhang Xiaoming, the deputy director of the State Council's Hong Kong and Macao Affairs Office, called for judicial reform in his speech marking the Basic Law 30th anniversary Legal Summit. The public has tolerated long enough with all these patently preposterous verdicts and the internal mismanagement of the organization. This new judgment ought to trigger a stronger public demand for a review of the Judiciary's work and internal workings, with a view to its reform.

The author is an Adjunct Professor of HKU Space and Council member of the Chinese Association of Hong Kong and Macao Affairs. He is also an international anti-corruption consultant and former Head of Operations of ICAC.

The views do not necessarily reflect those of China Daily.

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