Editor-in-Chief: The Hon. Mr Justice Bokhary
General Editor: Professor Simon Young
Sweet & Maxwell
December 2019
Preface by the General Editor
Since the anti-extradition bill protests began in June 2019, thousands have been arrested, hundreds charged, and the numbers continue to grow. The public will closely follow these protest-related cases as they enter and make their way through the criminal justice system. Criminal justice in these turbulent times presents new challenges to those who contribute to the administration of justice in Hong Kong. If it were not for the extradition bill and ensuing protests, many students, young people, teachers, professionals and other law-abiding residents would not be caught up in the system. Whether they will feel contempt or respect for the system at the end of their case may well depend on how they are treated within the system. Perceptions of defendants being treated unfairly will have long term consequences for people’s respect for the law and confidence in the administration of justice.
A sudden influx of a large number of new cases also comes with its own challenges. Existing resources will be stretched in different ways and delays in the system will follow unless resources are appropriately augmented. Maybe the net increase in cases will not be as great as one might expect as considerable police resources have been diverted from regular policing to policing protesters.
Some have wondered whether the circumstances, as extraordinary as they are, call for a general amnesty from prosecution. An amnesty is a controversial political issue that should be debated in the legislature. On one hand, an amnesty suspends the principle of having legal consequences for one’s actions; on the other, it provides an expedient way for society to move on from a period of civil unrest. A continuous stream of delayed and prolonged criminal prosecutions will remind people of the underlying political conflicts and make it difficult to achieve reconciliation. Criminal cases from the civil disobedience protests of 2014 and 2015, which now pale in comparison to the violence seen in 2019, are still making their way through the courts. There are alternatives to an amnesty worth debating. Adopting new limitation periods to the laying of charges for certain offences will help to bring closure within a reasonable time without a wholesale suspension of prosecutions and legal responsibility. An early diversion programme for minor first time offenders is another alternative.
At a forum held at the University of Hong Kong in early September, one first-year LLB student asked if he had just joined a “sunset industry”. On the contrary, now more than ever Hong Kong needs dedicated and knowledgeable criminal lawyers to protect the rights of defendants and help them make informed decisions as they navigate through the criminal process. In pursuing resolute and fearless advocacy for one’s client, there is also the importance of civility. All must guard against allowing the incivility on the streets from being replicated in the courtroom. As Justice Moldaver wrote in Groia v Law Society of Upper Canada, 2018 SCC 27 at [67], “incivility can erode public confidence in the administration of justice – a vital component of an effective justice system”. Moreover, civility, rather than incivility, is “often the most effective form of advocacy” (at [76]).
If there is anything positive to come from the 2019 protests, hopefully it is greater attention paid by the government and legislators to the issue of youth justice. The number of young people becoming entangled in the criminal justice system is alarming, and their future after a sojourn in the system appears dim. Recent judgments of the Court of Final Appeal have helpfully clarified that young age is “always a relevant mitigating factor” because “the better opportunity for reformation and rehabilitation… must assume greater significance” (Secretary for Justice v Wong Chi Fung (2018) 21 HKCFAR 35 at [84]; Secretary for Justice v Leung Hiu Yeung (2018) 21 HKCFAR 421 at [51]). Legislative reforms are also warranted, beginning with the abolition of section 109A(1A) of the Criminal Procedure Ordinance (Cap 221), as recommended by the Law Reform Commission of Hong Kong in February 2014. This reform would enable the youth sentencing principles in section 109A(1) (i.e. jail as a last resort and the duty to obtain and consider information about the young person) to apply to all offences. Legislators should also debate a more basic question of whether a different paradigm to trial and sentencing should apply to persons under the age of 21 years.
Despite these challenges, criminal justice in turbulent times will be mostly business as usual. The system will continue to dispense justice in accordance with the law. Like our first-year student, some perceive the 2019 unrest as severely damaging the rule of law. But the foundations of rule of law in Hong Kong run deep and remain strong, free from corrosive elements, such as systemic corruption or ineptitude, seen in other places. Deep-rooted values and principles of the common law serve to ensure the system operates with fairness, integrity and humanity. These do not suddenly disappear when a political crisis has led to violence on the streets.
These values and principles are reflected in many judgments collected each year in this work. I highlight five cases from the past year. Note should be taken of the care and attention paid to the right to interpreter assistance in HKSAR v Moala Alipate [2019] 3 HKLRD 20 (CA), the decision not to order a retrial in HKSAR v Tsang Yam-Kuen, Donald (2019) 22 HKCFAR 176, the legal principles on reversal of guilty pleas set out in HKSAR v Chan Chi Ho Lincoln (2018) 21 HKCFAR 588, when ignorance of the law can be a defence as explained in HKSAR v Shum Wai Kee (2019) 22 HKCFAR 11, and when unfairness can arise from a duplicitous conspiracy charge, a complex area of the law made clearer in HKSAR v Chen Keen (alia Jack Chen) [2019] HKCFA 32. I thank my three able assistant editors and Ms Alisha Nanwani for all their helpful assistance.
Professor Simon NM Young
Parkside Chambers
3 October 2019
HKU Law academics serving as Contributing Editors in this year's volume include Amanda Whitfort (1. The Indictment; 13. Evidence of Similar Facts; 46. Animals), Simon Young (11. The Hearsay Rule; 19. Human Rights), and Michael Jackson (17. Principals and Secondary Parties; 18. Strict Liability).
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