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Opinion | A misleading slogan by the opposition camp: political prosecution HK

Current2小時前

By Athena Kung

LegCo members Lam Cheuk-ting (hereinafter referred to as "Lam") and Ted Hui Chi-fung (hereinafter referred to as "Hui") were arrested at their residence respectively in the morning on 26th of August 2020. In the afternoon on 27th of August 2020, they were brought before Magistrate Peter Law Esq. sitting in West Kowloon Magistrates' Courts. Both of them faced a count of attempting to perverting the course of justice. Lam was also charged of 1 count of riot. Hui further faced 2 more charges, including criminal damage and access to computer with criminal or dishonest intent. Their bail application was objected by prosecution. After all, the court granted bail to both Lam and Hui. Their cases were adjourned for mention.

Shortly after being released by the court, Lam and Hui strongly criticized the arrest and prosecution and described it as a "public prosecution". All along, whenever any members of the opposition camp have been arrested and prosecuted, then their whole group with the local and foreign media supporting them would together accuse the HKSAR Government of making a political prosecution with an aim to suppress the dissidents. They would also try their best to condemn the HKSAR Government's such act as being a violation of the Sino-British Joint Statement and Hong Kong Basic Law. From time to time, they further attack the Government's such acts as suppressing their freedom of speech.

It appears that whenever the opposition camp alleges the Government conducts a political prosecution, all they mean is that the Government is making use of the political reasons to arrest or prosecute them. Recently, the term "political prosecution" has been the slogan made use of by the opposition camp frequently for the purpose of smearing the Hong Kong Police, Department of Justice, the Judiciary as well as the whole HKSAR Government. The motive behind is to provoke the public's hatred towards the HKSAR Government and even the Central Government, which has been a very important step in the Colour Revolutions instigated by the US Government all over the world.

Everyone is equal before the law. Even the LegCo Members must comply with all the laws in Hong Kong. No doubt, according to the Legislative Council (Powers and Privileges) Ordinance, Cap 382, Laws of Hong Kong (hereinafter referred to as "the Ordinance"), the privileges and immunities to be enjoyed by the LegCo Members include:

(1) Freedom of speech and debate "in the Council or proceedings before a committee" under Section 3 of the Ordinance.

(2) Immunity from legal proceedings, namely no civil or criminal proceedings shall be instituted against any member for "words spoken before, or written in a report to, the Council or a Committee, or by reason of any matter brought by him therein by petition, Bill, resolution, motion or otherwise" under Section 4 of the Ordinance.

(3) Freedom to arrest under Section 5 of the Ordinance, including:

(a) No member shall be liable to arrest for any civil debt whilst going to, attending at or returning from a sitting of the Council or a committee;

(b) No member shall be liable to arrest for any criminal offence whilst attending at a sitting of the Council or a Committee.

In short, the privilege, immunity and freedom of speech and debate can only been exercised by the LegCo Members when they are performing their duties in making speech and debate in the Council or during the committee proceedings. The charges faced by Lam and Hui occurred in Yuen Long MTR Station on 21st of July 2019 or outside Tuen Mun Police Station on 6th of July 2019 respectively. Clearly, on both days, Lam and Hui were not performing their duties in the Council or before any Committee. On 26th of August, they were arrested at their home, but not during their attending at or returning from the Council or any Committee. Obviously, the LegCo Members from the Opposition Camp often exaggerate their privilege, immunity and freedom of speech to mislead the public.

Outside the Council and Committees, all LegCo Members must obey to all the laws in Hong Kong. Being the lawmakers who play a significant role in discussing and passing the Bills in the Legislative Council, as expected by the society, they have to behave themselves properly and setting up as good models for the public to follow and imitate, particularly for those youngsters who are immature. Their keeping on showing no respect at all towards the law and order is step by step ruining Hong Kong's rule of law, which has been the cornerstone of the success gained by the Pearl of the Oriental.

The Opposition Camp often alleges that the HKSAR Government has violated the Sino-British Joint Statement and the Hong Kong Basic Law. However, never have they pointed out which part of the 2 documents have been breached by the HKSAR Government. Obviously, such condemn is slogan as well without any concrete support at all, aiming at spreading the hatred towards the Government in the society.

So long as the Opposition Camp is of the view that any prosecution has insufficient basis to support the charge, all they should do is to face the trial bravely instead of keeping on criticizing the Government wrongfully from time to time. In court, they may have the right to deny the charges against them. The burden of proof lies on the prosecution whereas the standard of proof is beyond reasonable doubt. Defence discharges of no burden of proof at all. All defendants in criminal cases are presumed to be innocent. Prosecution had the duty to produce evidence to prove all elements of the charges they are facing. They also have the right to have their legal representation, call their own witnesses and decide whether to give evidence during the court process. Even if they are convicted after trial, they still have the right to appeal against the conviction and/or the sentence.

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

#國際戰線【JOSHUA WONG RUNS FOR LEGCO ELECTION AMID NATIONAL SECURITY LAW】

1. A week ago, over 610,000 Hong Kongers went to ballot boxes to affirm our resolve to defend freedom despite Beijing’s tightening control and police disturbances. Our votes are our voice under China's crackdown.

2. During this first civil voting since the National Security Law, 31,398 voters had entrusted my political belief and advocacy effort to fight for democracy and freedom for Hong Kong people. No matter Beijing choose to censor me out from the ballot or not, I will not give up.

3. And with the unwavering mandate, today, I announce solemnly, that I am running for office for the Kowloon East Constituency in the upcoming Legislative Council Election. It's time for pro-democratic camp to take the majority and not to be threatened by their chilling effect.

4. It must be a tougher battle this time. After the security law, the risk for electoral candidates is not merely getting disqualified, but to be directly exposed to physical threat and to be sent across the border to serve sentence in a Chinese prison.

5. The Hong Kong Government has already set the stage for political screening in the election, instead of maintaining a ''free and fair election''. Among the hundred excuses to disqualify my candidacy, my name, Joshua Wong is and will always be the only reason.

6. I haven't got any clue my whereabouts three months later, but rest assured that our determination will become a strong message to the world that Hong Kong people shall never surrender despite the National Security Law.

Don’t get overawed (Lee Yee)

On the day that the National Security Law was passed by the National People’s Congress, I got a message of a friend from afar: “Are you secure?” I answered without even giving it a thought: ”No one is secure in a secure country.”

When maximal authority of a country is realized, individual rights are so minimal that no one is secure. Even in China where the plebs would answer with a big NO, are people in power secure? Was Liu Shaoqi, the late Chairman of the People’s Republic of China persecuted to death during the Cultural Revolution, secure? In the past 70 years, have most of the people in power of different levels been secure in view of the miseries they have encountered? Was and is Jiang Zemin, the former General Secretary of the Chinese Communist Party(CCP), secure? Is Xi Jinping secure?

The befalling of the National Security Law is likened to “the second handover of Hong Kong”. An online article points out “the difference between the first and second handover” is that “the people who resent the CCP in 2020 is countless times more than those in 1997, and in terms of reputation, conduct and calibre, the people who espouse the second handover in 2020 are not even comparable to those who espouse the first handover in 1997”. Another says that “Hong Kongers belonging to no country before handover used to live in peace and work with contentment”, and asks “where their homes are when they belong to a nation”? In China, even the movers and shakers evacuate their relatives by fair means or foul from their country to a strange place they call home in the West.

The Articles of the Hong Kong version of National Security Law was not announced until it took effect, so that Carrie Lam was unable to utter a word about the details of it on the day of implementation of the Law. Legislation as such is preposterous. The full text of it is awash with equivocal meanings of unfinished wordings, which is so jaw-dropping that even a layman would ask: What kind of legal document is that? Zhao Sile, a journalist from China, said online: “The Law is typically from China because the laws of China have always been ambiguous and ill-defined”. She continued, “How are they enforced? Arbitrary and flexible provisions are made by different administrative departments which then inflate in power unceasingly.”

Regarding the abovementioned, it is almost pointless to delve into every Article of it for clarifying under what circumstances does one offend and not offend the Law, and where the grey areas are. Take those dubbed the “four ringleaders of Hong Kong independence” and “gang of four that jeopardizes Hong Kong” by Chinese media as an example. While they are known to be opposed to Hong Kong independence and even anti-localist, and did not advocate the protest last year, China deems them to be guilty of all of the above by dismissing the actuality. Subsequently, some budding political groups disbanded in no time. However, if the CCP decides to recriminate, on no account can they escape. That being said, it is possible that China will sit on the issue of Hong Kong independence provisionally in an attempt to dilute the sanctions against it from overseas. With the arbitrariness and flexibility of laws of China and its enforcement, no one is secure, nor one is doomed to committing a crime. Falling into a trap is simply akin to running into a car accident.

Looking at the National Security Law, Hong Kongers, who are accustomed to living under the rule of law, will naturally get frightened and anxiety-ridden, and try to wash their hands of sensitive issues. They think they will stay secure by stopping short of slogans with content of “secession of state” or disbanding a political group. In reality, if the CCP wants to get you in trouble, it does not have to leverage the National Security Law. Manipulated by the CCP, the SAR government can do and will do whatever stipulated by the National Security Law. Is the Law retroactive? Wasn’t the disqualification sentence for Leung Chunghang and Yau Waiching, former Legislative Council members, retroactive? And the judge that brought in the verdict based on retroactivity was Andrew Cheung Kuinung, the next Chief Justice of the Court of Final Appeal to-be. Does it make sense to contemplate upon the situation differently before and after the enactment of the National Security Law?

Now that the CCP can do whatever it wants. Is the enactment of the National Security Law an unnecessary move? As Chinese officials said, the Law, like a sword dangling above Hong Kongers, is to get them overawed and frightened.

Scared? Surely. Yet, one should have been scared much earlier on. If one had been scared, one would have arranged for fleeing from Hong Kong. Those who choose to stay should not let fear take control of them.

I have always remembered what British writer Salman Rushdie wrote after September 11 attacks in 2001: “Amid the conflict between liberty and security, we should always opt to stand with liberty without remorse even though we make a wrong choice. How do we beat terrorism? Don’t get overawed and don’t let fear take control of you even though you are scared.”

The late U.S. President Franklin Roosevelt said, “The only thing we have to fear is fear itself.” If we let fear take control of us, we give up liberty.