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Opinion｜The Police is duty-bound to enforce the law resolutely

HK Current

2020.10.06 11:05

By Athena Kung

According to the statement made by the US Department of State on 3rd of October 2020 (local time), the arrests made by the Hong Kong Police on 1st of October 2020 were criticized by the Department as malicious ones. It has been alleged by the US Department of State that the Hong Kong Police merely enforces the law for the aim of achieving political goals, which amounts to serious violation of Hong Kong's rule of law and thus strongly attack individual's human rights as well as Hong Kong people's freedom of expression, procession and assembly. The Central Government was commented by the US Department of State as being given up the undertaking of "One country, Two systems" completely. Obviously, such allegations against both the Central Government and HKSAR made by US Government were very serious. To examine whether such comments were fair ones, we have to carefully consider if the allegations really have any valid legal basis or foundation.

According to both the Hong Kong Bill of Rights Ordinance, Cap. 383, Laws of Hong Kong (hereinafter referred to as "the BORO“) and and the International Covenant on Civil and Political Rights (hereinafter referred to as the "ICCPR "), the freedoms of expression, procession and assembly were not absolute, and might be subject to restrictions as prescribed by law. Article 16 and 17 of the BORO relates to the freedom of opinion and expression and right of peaceful assembly which can be enjoyed by Hong Kong people:
"Article 16
Freedom of opinion and expression
(1) Everyone shall have the right to hold opinions without interference.
(2) Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
(3) The exercise of the rights provided for in paragraph (2) of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary—
(a) for respect of the rights or reputations of others; or
(b) for the protection of national security or of public order (ordre public), or of public health or morals.
[cf. ICCPR Art. 19]

Article 17
Right of peaceful assembly
The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.
[cf. ICCPR Art. 21]"

Thus, freedom of expression, procession and assembly in Hong Kong are not absolute. On the other hand, such rights are subject to restrictions as prescribed by law in the interests of public order, public safety and the interests of others, and so on.

Besides, Section 10(a) to (e) of the Police Force Ordinance, Cap 232, Laws of Hong Kong has clearly stated inter alia that:
"10. The duties of the police force shall be to take lawful measures for—
(a) preserving the public peace;
(b) preventing and detecting crimes and offences;
(c) preventing injury to life and property;
(d) apprehending all persons whom it is lawful to apprehend and for whose apprehension sufficient grounds exists;
(e) regulating processions and assemblies in public places or places of public resort;
…………"

What has really occurred in Hong Kong in various districts on 1st of October 2020?
(1) At around 1400 hours, a group of people gathered and yelled along Great George Street in Causeway Bay, which might have constituted offences related to unauthorised assemblies under the Public Order Ordinance, Cap 245, Laws of Hong Kong and offences related to prohibited group gatherings under the Prevention and Control of Disease (Prohibition on Group Gathering) Regulation, Cap 599G, Laws of Hong Kong. Even though the Police had given multiple warnings at the scene and raised the blue flag requesting participants to leave the scene, at around 1500 hours, a large group of protesters still remained at the same place. Some of them even commenced to chant the slogan “Liberate Hong Kong, Revolution of Our Times” over and over again. Thus, they were suspected of inciting or abetting others to commit acts of secession, which might constitute relevant offences under the HKSAR National Security Law. Afterwards, some protesters even spilled onto the road and breached public peace.

(2) At around 1500 hours, 2 men in the vicinity of Tin Ma Court in Wong Tai Sin hurled some petrol bombs and large objects at Lung Cheung Road. Having attended the scene, the police noticed that traces of the road being charred, as well as fences and traffic cones left on it. After investigation, the Police found that even though a large amount of vehicles were travelling along the road at the time of the incident, fortunately, no vehicle was hit by the petrol bombs and objects successfully. In any event, the rioters’ such heinous acts had severely endangered road users and breached public peace.

(3) The Police intercepted a man at Stewart Road in Wanchai at about 1600 hours and found him in possession of a foldable sharp knife which was at the same size of a business card. The 23-year-old man was subsequently arrested on suspicion of possession of an offensive weapon, as there stood a strong likelihood that he might intend to use the said item to injure members of the public or police officers.

(4) At around 1500 hours, the Police set up a roadblock along a section of the Tuen Mun Road near Summit Terrace in Tsuen Wan to intercept suspicious vehicles, and found extendable sticks, a helmet, face masks and a large amount of promotional leaflets inside a private car with an expired vehicle licence. Some of the leaflets contained slogans suspected of calling for “Hong Kong independence” written on them. The 35-year-old male driver of the car was arrested on suspicion of various offences including “Possession of Instrument Fit for Unlawful Purpose”, “Driving an Unlicenced Vehicle” and “Driving Without Third Party Insurance”.
(5) At around 1630 hours, the Police stopped and searched a man in the vicinity of Tonnochy Road and Lockhart Road in Causeway Bay, and found items including a cutter, a spanner, plastic straps and a pair of gloves in his backpack. The 20-year-old man was subsequently arrested on suspicion of possession of offensive weapons.
(6) After nightfall, protesters continued to gather in different districts. To ensure public safety, the Police have enforced the law resolutely according to the situations arising in different districts. At 2200 hours, not less than 86 persons have been arrested in multiple districts. Among them, 74 persons including four District Councillors were arrested on suspicion of taking part in unauthorised assemblies in Causeway Bay, while the rest were arrested on suspicion of committing offences including possession of offensive weapon, failing to produce proof of identity, possession of forged identity card, disorderly conduct in a public place and driving an unlicenced vehicle. Besides, 20 persons were given fixed penalty notices for suspectedly breaching the Prevention and Control of Disease (Prohibition on Group Gathering) Regulation.

Actually, the Police is duty-bound to enforce the law resolutely. On the facts, all arrests taken place on 1st of October 2020 were absolutely lawful and necessary to maintain law and order in the society and protect the life and property of all Hong Kong residents. Undoubtedly, the US officials have all along been adopting "double standards" in expressing utterly irresponsible remarks on law enforcement actions in the HKSAR. Everyone is equal before the law. So long as there is evidence supporting that someone has violated the law, no matter what his or her status or background is, he or she must face the legal consequence. Being a law enforcement agency, the Police must take action whenever they come across any unlawful acts in strict accordance with the laws in force. All cases must be handled in a fair, just and impartial manner by the Police in accordance with the law, which is the only and real reason as to why the Police arrested the 86 odd people on 1st of October 2020. To conclude, all criticizms made by the US towards the Hong Kong Police, HKSAR Government and Central Government were all unfair without any legal or concrete support at all.

It appears that the US government has always been refusing to accept the truth that the HKSAR is an inalienable part of the People's Republic of China (hereinafter referred to as "the PRC") and a local administrative region which enjoys a high degree of autonomy, as contrary to absolute autonomy, and comes directly under the Central People's Government. Hong Kong affairs are internal matters of the PRC. The system in Hong Kong is not "Two countries, Two systems". Hong Kong will never be an independent country with a pro-American government formed by the Opposition Camp in Hong Kong. Any foreign governments like the US must at once stop scaremongering and interfering in any form in Hong Kong's affairs. The "Colour Revolution" promoted by the US in Hong Kong should be terminated in no time.

The author is Barrister-at-law.

The views don't necessarily reflect those of Orange News.

責編： CK Li

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Opinion | LegCo Member Ted Hui Chi-fung may be liable for malicious prosecution

HK Current

2020.08.24 16:41

By Athena Kung

In June 2020, Magistrate Lam Tsz Kan sitting in Eastern Court allowed LegCo Member Ted Hui Chi-fung (hereinafter referred to as "Hui") to press ahead with 2 firearm-related counts, including "discharging ammunition with reckless disregard for other's safety" and "dealing with arms in a way likely to injure or endanger other's safety". Maximum sentence for both of the above firearm-related offences is 7 years imprisonment. In addition, another count of shooting with intent which is an offence punishable by life imprisonment was added to the case.

Hui's such legal action was initiated by private prosecution, which was against the police officer who opened fire during a riot in Sai Wan Ho on 11th of November 2019. At common law, like prosecuting authorities, all citizens have the same right to institute proceedings. As time goes by, subject to certain restrictions, private prosecution continues to enjoy a respectable position in modern schemes of criminal justice. In any event, the right of private prosecution is not absolute. A private prosecutor has 2 hurdles to surmount. Firstly, he must persuade a magistrate to issue a summons. Thereafter, so long as he wishes to retain control of the case, he may have to persuade the Department of Justice not to take it over.

When deciding whether to issue a summons, the magistrate who has a discretion should consider at least the following factors:
(1) whether the allegation is of the offence known to law, and if so, whether the essential ingredients of the offence are prima facie present;
(2) that the time limits have been complied with;
(3) that the court has jurisdiction;
(4) whether the informant has the necessary authority to prosecute;
(5) whether the allegation is vexatious.

Once the summons has been issued, like the case initiated by Hui, it is open to the Secretary of Justice to intervene, which may be with a view to continuing or terminating such private prosecution. To prevent the abuse of private prosecution, it is thus necessary to seek to achieve a balance between the citizen's right to prosecute and the responsibility of the Secretary for Justice so as to ensure that unworthy prosecutions do not proceed. Under section 14 of the Magistrates Ordinance, Cap 227, Laws of Hong Kong, the Secretary of Justice enjoys wide power of intervention and "may at any stage of the proceedings before the magistrate intervene and assume the conduct of the proceedings."

What has really happened on the day of incident on 11th of November 2019? According to "The footage of the shooting" which was a broadcast live in the Facebook by a bystander, an officer drew his sidearm in the district of Sai Wan Ho while trying to detain a masked man at a blockaded junction. Then, another masked man attempted to liberate the other, appearing to take a swipe at the officer's pistol before being shot in the midriff. After all, police could successfully detain both men onto the ground. The first man had a pool of blood next to him. His body limped as police officers moved him around. Apparently, the officers tried to tie his hands. The second man appeared to be conscious.

No doubt, according to the above footage, Hui's private prosecution is misconceived. Hui has completely turned a blind eye to the imminent danger confronted by the officer at the particular moment. With ulterior motives, Hui intentionally and wrongfully misled both the court and public by alleging that the police officer's such dedication and discharging his duty to maintain law and order during the riots amounted to abusing of police power and police brutality.

Obviously, Hui's private prosecution should have no prospect whatsoever of success. On the contrary, Hui's such an action even constituted an abuse of prosecution process. Justice can only be achieved by the Secretary of Justice's termination of Hui's private prosecution. It explains why the Department of Justice has applied to the court to intervene the case. A hearing date between 24th to 28th of August 2020 has been applied for the Department's making formal application to terminate the case in open court. Indeed, according to Article 63 of the Basic Law, the Department of Justice shall control criminal prosecutions, free from any interference.

May the police officer wrongfully prosecuted by Hui seek any legal remedy? Historically, the tort of "malicious prosecution" in English law refers to an unreasonable criminal prosecution. All along, malicious prosecution has been generally brought as an aftermath of unsuccessful criminal proceedings.

In Hong Kong, in the decisive authority of Pathak Ravi Dutt v Sanjeev Maheshwari [2015] HKCA 595, the Court of Appeal had summarized that in an action for malicious prosecution, the plaintiff must prove 4 essential elements:
(1) The Plaintiff was prosecuted by the Defendant, that is to say, the law was set in motion against the Plaintiff by the Defendant on a criminal charge ;
(2) The prosecution was determined in the Plaintiff's favour ;
(3) The prosecution was without reasonable and probable cause ; and
(4) The prosecution was malicious.

On the facts of the Hui's private prosecution case, following the intervention of the Department of Justice at the end of August 2020, it will be a case terminated by the Secretary for Justice instead of being ruled by the court with a verdict in favour of the police officer. Thus, it is advisable for the police officer to commence a tort of malicious prosecution action against Hui once the male shot by the police officer has been found guilty by the court. Then, the police officer may rely upon the male's conviction to support the assertion that his shooting under the particular circumstances was necessary and secure his civil claim against Hui.

The author is Barrister-at-law.

The views don't necessarily reflect those of Orange News.

責任編輯：CK Li
編輯：Whon

Living on in fear (Lee Yee)

Hong Kong people have been living on in fear. Contrary to the saying that since the implementation of the National Security Law, violence has been curbed, whereby peace has been restored and normality has returned, everyone, including law enforcement officials and those who have shown support for the law on orders, has been living on in fear. One of my friends, a journalist, said if one craves living on and working as usual, one should stay oblivious of the National Security Law, which will bring calmness and transcend fear and emotional entanglements. Contrariwise, getting overawed amounts to helping those in power that enacted the National Security Law gain their purpose. Yet sadly, by and large, the Chinese Communist Party(CCP) has had its way instantly.

Human fear is constituted by two elements: experiences and unknowable future.

Take the pandemic that has been ravaging across the globe and resurged in Hong Kong as an example. Firstly, COVID-19 keeps the world in fear because of the horrible experiences that it spreads fast and extensively without a trace, with the contracted and carriers showing no symptoms initially, and sustains a pretty long incubation period. Secondly, its resurgence and scale are both unpredictable. Precisely, the experiences and the unknowability have put a halt to the Book Fair, which was supposed to start tomorrow, and made all economists incapable of forecasting the world, China and Hong Kong’s economy. So people live in fear, for they do not have a clue how their lives are impacted by the economy.

Even though it is said that China’s legal system is being perfected day by day, that extradition to China is not hair-raising, that there will be very few cases in which the suspects are extradited to China, that the Chief Executive will keep tabs on the cases, that most cases will be heard by Hong Kong judges…those tranquilizers, which cannot pacify Hong Kong people, cannot even sedate the advocates who put forward the above pretexts for the experiences that there are a lot of uncertainties, flexibility and possible manipulation with National Security Law making breaches of law unknowable. Experiences and unknowability bring about fear.

Under a system in which state power is unchallengeable, the objective of enacting laws is to get the people intimidated. A despotism can definitely do so if it wants to slap the people down.

Sanctions from the U.S. could be actualized, but its intensity and scale are unknowable. If they are applied to big banks in Hong Kong, it will a disaster. Based on experiences and unknowability, officials and the pro-establishment camp are bound to be frightened.

The overwhelming majority of Hong Kong investors chose to put money into Hong Kong in the past for good experiences and knowability. In terms of experiences, business operations were not bothered by politics, and were benefited from the simple taxation, free economy and foreign exchange. When it comes to knowability, the implementation of common law and case law were not totally dependent on judges’ interpretations on laws and were free from political manipulation, therefore were comparatively predictable. It was not without reason that other cities were unable to squeeze in among the three international financial hubs known for adopting common law - New York, London and Hong Kong.

Since the National Security Law taking effect, not only has the number of emigrants increased, but there have also been signs that foreign investments will haul off while Facebook and Google were rumored yesterday to consider withdrawing from Hong Kong in the wake of the fact that quite a number of foreign internet companies have announced suspension of dealing with requests from the HKSAR government for users’ data. If these two most influential global companies pull out, the unknowability of the future economy of Hong Kong will become knowable pessimism.

Freedom from fear is most fundamental among the Four Freedoms proposed by the late U.S. President Franklin Roosevelt. Being free from fear is a prerequisite for freedom from fear of saying something wrong, freedom of religion and freedom of pursuing a better life.

In view of the experiences with the CCP and Hong Kong communist regime, and the uncertainties of the articles of the National Security Law, Hong Kong people and investors cannot stay away from fear. The protesters on the frontlines last year also admitted that they feared, but they went head-on against it for carrying on the movement, crystalizing in the end a new Hong Kong spirit named “mutual destruction”, which means being free from fear in protests. The primaries of the pan-democracy camp last weekend showcased to the CCP and Hong Kong communist regime that thousands of Hong Kong people would still come forward with a big NO even if a machete is pointed at them.

Is Religion banned? Will you get your organs harvested for practicing your faith in China? Will you be oppressed and suppressed? Will you be arrested? Are there Churches in China?

The Taiping Rebellion was influenced to some degree by Christian teachings, and the Boxer Rebellion was in part a reaction against Christianity in China. Christians in China established the first modern clinics and hospitals, and provided the first modern training for nurses. Both Roman Catholics and Protestants founded numerous educational institutions in China from the primary to the university level. Some of the most prominent Chinese universities began as religious-founded institutions. Missionaries worked to abolish practices such as foot binding, and the unjust treatment of maidservants, as well as launching charitable work and distributing food to the poor. They also opposed the opium trade and brought treatment to many who were addicted. Some of the early leaders of the Chinese Republic, such as Sun Yat-sen were converts to Christianity and were influenced by its teachings. By 1921, Harbin, Manchuria's largest city, had a Russian population of around 100,000, constituting a large part of Christianity in the city.

Christianity, especially in its Protestant form, gained momentum in China between the 1980s and the 1990s, but in the following years, folk religion recovered more rapidly and in greater numbers than Christianity (or Buddhism). One scholar noted that "the Christian God then becomes one in a pantheon of local gods among whom the rural population divides its loyalties".

Protestants in the early twenty-first century, including both official and unofficial churches, had between 25 and 35 million adherents. Catholics were not more than 10 million. Other demographic analyses found that an average 2–4% of the population of China claims a Christian affiliation. Christians were unevenly distributed geographically. The only provinces in which they constituted a population significantly larger than 1 million persons are Henan, Anhui and Zhejiang. Protestants are characterised by a prevalence of people living in the countryside, women, illiterates and semi-literates, and elderly people.

A significant number of members of churches unregistered with the government, and of their pastors, belong to the Koreans of China.[334] Christianity has a strong presence in the Yanbian Korean Autonomous Prefecture, in Jilin. The Christianity of Yanbian Koreans has a patriarchal character; Korean churches are usually led by men, in contrast to Chinese churches which more often have female leadership. For instance, of the 28 registered churches of Yanji, only three of which are Chinese congregations, all the Korean churches have a male pastor while all the Chinese churches have a female pastor. Also, Korean church buildings are stylistically very similar to South Korean churches, with big spires surmounted by large red crosses. Yanbian Korean churches have been a matter of controversy for the Chinese government because of their links to South Korean churches.

In recent decades the Communist Party of China has become more tolerant of Christian churches outside party control, despite looking with distrust on organizations with international ties. The government and Chinese intellectuals tend to associate Christianity with subversive Western values, and many churches have been closed or destroyed. Since the 2010s policies against Christianity have been extended also to Hong Kong.

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