“LIKE MOTHS TO A FLAME” – A REVIEW OF:
THE DANCE OF FOLLY:
OR HOW THEATRICS HAVE TARNISHED THE RULE OF LAW
by HENRY LITTON
((Kin Kwok, Hong Kong, 2021) 98 pages, HK$120)
by
Richard Cullen
A series of
acute points are made by Henry Litton in his new book, The Dance of Folly.
These typically pivot on his observations of how judges, across various courts
in Hong Kong, have been drawn away – by lawyers - from what he argues is the
essence of well-grounded, common law reasoning towards playing dubious games
with legalized expressions and theory-based arguments. The result is that
dangerous stress has increasingly been placed on the operation of the One
Country Two Systems (OCTS) framework, which governs the relationship between
Hong Kong and China.
Some will
disagree with the central arguments made. But where they do, most will
still find themselves thinking deeply about what is being argued in this
robustly readable work.
As I read the book,
it prompted significant reflection – and a particular memory
Over four
decades ago, as I was completing my LLB at the University of Melbourne, I began
attending various courtrooms to see the law actually being applied. Armed
with my new legal-classroom understanding, I found I could follow what was
going on. Rather like when one learns the rules of football; watching any
game afterwards becomes far more engaging.
On one occasion
I was fortunate enough to happen upon a murder trial, in the Victorian Supreme
Court, where the facts were exceptionally lurid. The two accused, a wife
and her lover (call them “X” and “Y”), were charged with murdering her husband
(“A”). The evidence showed that all were no strangers to the professionally
criminal way of life. Apart from myself, a number of X and Y family
members were in court paying close attention.
The husband and
wife, A and X, had a hilly countryside allotment in the well-timbered, modest
mountains bordering Melbourne to the east. By arrangement, Y had arrived
one damp day, to coordinate with X in order to murder A. Husband A was
rendered unstable by a blow to the head and fell heavily. Mr. Y then ran
over A with his motor vehicle more than once. Subsequently, X and Y,
discovered that husband A was still drawing breath. A small calibre rifle
was fetched and Y shot A, finally killing him.
After all this
was established, the barrister for Y, asked to lodge a new defence to the
charge of murder. To do this mid-trial is unusual. The judge agreed
to a voir dire (a separate hearing within the trial) to allow the
barrister to make his application. The jury was sent from the courtroom
so they would not hear the argument unless the judge said it was admissible.
The barrister
for Y then advised the judge that his client now wanted to plead self-defence.
The judge asked the barrister what the basis for this argument could possibly
be. The barrister explained that, although husband A was significantly
injured prior to being shot, it must have been the case that he was also
extremely angry with Y, by that stage, and thus, had he been able, he would
certainly have been minded to kill Y and Y, thus, shot husband A dead in order
to defend himself. The judge shook his head slightly in what looked like
disbelief and smartly told the barrister that this argument was improper and
would not be allowed to be put to the jury.
I had heard how
lawyers could argue that black was white, but here I saw that sort of ability
applied in real life for the first time.
The judgments in
the cases analyzed by Henry Litton do not involve vividly lethal facts to
compare with those just outlined but they do rely on putting legal arguments to
work, unfittingly in Litton’s view, in ways which have adversely shaped the
operation of the common law system in the Hong Kong Special Administrative
Region (HKSAR).
Chapter 4 of
this new book is entitled, “Do Judges Run Prisons?” Henry Litton provides
a withering review of a case involving certain personal hygiene and appearance
procedures applied within prisons in Hong Kong.
In March 2012,
Leung, Kwok Hung was convicted of a criminal charge before a
magistrate. Leung was, for an extended period, a Member of the
Legislative Council (LegCo). He was widely known as “Long Hair” in
recognition of the way he had worn his hair over many years. After
exhausting the appeal process, he commenced his sentence of four weeks in
2014. His hair was cut short in accordance with long established prison
regulations (page 39).
After some
indecision about appealing against this hair-cutting decision because it was
discriminatory – women prisoners in separate prisons are not ordered to have
short haircuts in the same way – Leung lodged an appeal to the High Court,
which was heard in April and May, 2015. A declaration was given in
Leung’s favour in a 39 page judgment delivered 18 months later in late
2016. The Court of Appeal (CA) reversed this outcome in another prolonged
judgment in April 2018. In November 2020, the Court of Final Appeal (CFA)
overruled the CA and restored the original judgment, once more explaining why
at length. The entire process took over five years. It transformed
what Henry Litton powerfully argues was clearly (and justly) a matter best left
to be decided (as it had been for many years) by the prison administration,
into an immensely elongated discussion of equality rights, which now
complicates custodial discipline measures (pages 39 – 49).
He finds the
outcome absurd. He says the Judge at First Instance failed to accept his
basic, judicial gate-keeping responsibility. The judge should have
stopped the original case from proceeding in the interests (inter alia) of good
governance. Subsequently, the disarray was compounded when the CFA failed
in its leadership role by giving the procedural (access to judicial review)
aspects of the case “not an ounce of thought”, simply following where it was
led by counsel (page 50).
Litton concludes
by observing that: “The judges, at all three levels of the courts, seem drawn
to overseas case law as moths to a flame: apparently brushing aside the
inconvenient truth that the common law system operates under the principle of
One Country Two Systems. Such a mind-set spells disaster in the long
run. It is not a formula for the long continuation of the common law in
Hong Kong” (pages 50-51).
The book is
conspicuously based on the penetrating analysis of a series of high profile
cases – mostly cases seeking judicial review. These include (apart from
the case above) the court-based review of: the election of the former Chief
Executive C. Y Leung (2012); procedures under the Complaints Against Police
Ordinance (CAPO) and police identification (2020); the Face-Covering Case
(2020); and a bail-procedural case related to the new National Security Law
(NSL) in 2020 (chapters 1 to 8).
Litton perceives
– and documents in detail – the clear failure in many such judgments to come to
terms with the substantive factual evidence as they each detour into “forensic
games” typically played by discussing abstracted interpretations of the Basic
Law and most recently, the NSL, both of which are nationally enacted
fundamental laws applying in the HKSAR (chapters 1 to 8).
He repeatedly
notes the failure to stop improperly based applications for judicial review
(many of which are publicly funded by legal aid) proceeding at all.
The criticisms
leveled are sharp but they are typically argued, step by step, with
clarity. In his analysis of the Face Covering Case, Litton makes
one perceptive point after another (chapter 3). At the outset he notes
that judicial review is meant to aid those with a real grievance in the public
law field and not “a mere agitator” (page 28).
Litton explains
that all the applicants seeking a review of the new, emergency face-covering
regulations (made under the Emergency Regulations Ordinance (ERO)) applied on
October 5, 2019 by the HKSAR Government, were LegCo members, apart from one who
was a former LegCo member. Litton asks the question which the court did
not: were the applicants “legislators or agitators”. Why come to court –
why not argue these matters within LegCo (which, as it happens, had largely
been rendered non-functional by these same LegCo applicants). Litton goes
on: “Were the applications made in good faith – or were [the applicants] just
pursuing a political agenda?”(pages 28-29)
In an
extraordinary judgment, the two High Court Judges hearing the case at first
instance declared that the ERO was unconstitutional and they also struck down
most of the regulations, themselves. This was a plainly dangerous on at
least two levels. First, it badly handicapped the Hong Kong Police who
were in the midst of managing the most difficult crisis they had faced in decades:
trying to bring an end to the immensely violent and destructive multi-month
insurrection which began in June 2019. Second, it openly challenged the
fundamental constitutional role of the sovereign. Beijing explicitly
reviewed the laws of British Hong in February, 1997 and then adopted most of
those laws, in general. Next, a list was provided of particular laws
which were not adopted because they contravened the Basic Law. The ERO
was not on this list. The judgment also singularly failed to
consider the vital nature of the public interest as an existential threat to
the social and constitutional order of Hong Kong unfolded (see Cullen, Richard,
“Ruling on mask ban a reminder of centrality of public interest”, China
Daily, March 1, 2021).
The CA
overturned the ERO declaration and restored most of the regulations.
Finally, the CFA dismissed every ground relied on by the applicants – restoring
all the regulations. By this time, the judgments, described in the book
as a “carnival of words” ran to over 320 pages, in total. Litton
trenchantly notes that: “It should have been blindingly obvious that counsel’s
arguments that the [ERO] was unconstitutional verged on the absurd. Why
was it given oxygen by the judges?” He summarizes the final outcome in
these words: “After so much huffing and puffing, what has been achieved?
The answer is zero, except to show how the law can be made ineffectual when the
discipline is ignored” (page 32).
The book also
includes a chapter that provides an overview of the new NSL (chapter 7).
Litton first outlines the history of the failed attempt by the HKSAR to enact
new a National Security Law in 2003 pursuant to the requirement to do this
spelled out in Article 23 of the Basic Law. He then concisely summarizes
the terrifying extent and impact of the lengthy 2019 insurgency and the
paralyzing of LegCo. He also notes how this massive dispute in Hong Kong
was used, inter alia, as a means to advance geopolitical interests aligned
against China. In these circumstances, the need to upgrade national
security protection became urgent (page 71).
In a paper
written by Paul Harris, a leading Hong Kong Senior Counsel and now Chair of the
Hong Kong Bar Association, it is said that NSL Article 43 (listing police
powers), “goes far to create a police state”. Litton says that this claim
is a “gross exaggeration”. He goes on to argue in detail and convincingly
against this paper – and a related paper on the Joint Declaration by the same
author (pages 77 – 85).
The concluding
chapter deals with the “35 plus primaries” organized by the Pan-Democrat
opposition in July 2020 (after the NSL was proclaimed) to prevent
vote-splitting and to find the candidates most likely to be elected in the
(then approaching) September, 2020 LegCo elections, who would use their LegCo
powers to apply new constitutionally disruptive pressures on the HKSAR
Government (chapter 9).
Litton argues
that what was sinister about this scheme was that it was designed “to implement
a wider plot called “ten steps to mutual destruction” which had been outlined
in a pro-democrat newspaper, Apple Daily on 28 April, 2020”. He explains,
convincingly, based on the outlined plan, that, if the 35 plus majority had
been secured, the new legislators were committed to using their powers to
create chaos (page94).
More recently,
the author has written a related, influential article. Published in early
July, 2021, it reflects on the first year of operation of the NSL in the
HKSAR. It is entitled “A Close Run Thing” – drawing on a remark made by
the Duke of Wellington after winning the Battle of Waterloo, against Napoleon,
in 1815. Litton states, definitively, that in 2019, “What Hong Kong faced
was an insurgency, the overthrow of government, nothing less:” another close
run thing. In the conclusion to this article, he briskly notes how
inadequately protected – compared to the NSL – potential defendants are under
the measurably harsh text deployed within the US national security regime.
This sort of clear
comparative analysis provides one foundation which shows how repeated Western
claims of freedoms being stifled in the HKSAR under the NSL are starkly and
purposefully detached from reality. Litton agrees with Mr C. H Tung that
Hong Kong has been systematically used as a proxy within a wider power
conflict.
The central
message of this book can be summarized as follows:
- Hong
Kong is inalienably and fundamentally part of China;
- As
the HKSAR, it enjoys remarkable special, constitutional, political, economic
and social privileges and opportunities within China under the OCTS
framework;
- But
it also owes deep obligations to China, under OCTS, to protect national
security within the HKSAR and within China;
- This
obligation has been singularly amplified by the increasingly hostile
efforts by the US (and heavily-encouraged-allies) to confront and contain
the rise of China, which threatens American superpower hegemony more
seriously than at any time since the end of World War II;
- The
key to maintaining OCTS so that it operates to the best advantage of Hong
Kong through until 2047 and beyond, is building and sustaining a level of
fundamental trust between Hong Kong and Beijing;
- The
Judiciary in the HKSAR is uniquely placed and has a special responsibility
both to maintain the essential principles of the common law and to
maintain that trust;
- There
have now been too many instances, within the judiciary, of a “carnival of
words” unfolding where there is a lack of “focus on the true issues
[while] forensic games [are] played with a national law”;
- This
has led to an increase in mistrust of the HKSAR Judiciary in Beijing;
- This
is a grave current problem which needs to be addressed candidly and
effectively.
Prior to the
decision in the Face Covering Case, one might have argued that these
concerns, though real, were rather strongly stated. After that decision,
however, it is hard to disagree with the basic tenor of where Henry Litton says
we now find ourselves, judicially, and why – and why this has led to a
measurable undermining of cross-border trust. A central and difficult
concern presents itself, which the judiciary in Hong Kong has to address.
