Posted by My wife says I should have been a lawyer; my gift of gab combined with my rapier wit and quick mind makes me highly suited for the occupation. I will admit, I considered it when I was younger and still trying to find my place in the world. While working as a land administrator for a small oil and gas consultancy firm, I also transcribed the abstract legal briefs for Carswell Legal Publications as the in-house lawyer dictated them. It was fascinating to read the rulings, the precedents and the law that governed them. On a lot more than one occasion, I found myself shocked by rulings which made no sense or I thought were wrong. I was even more shocked to learn that based on the letter of the law and using logical application of it, the rulings were probably correct. In other words, I discovered that “the law” and “justice” are very separate concepts. In our modern societies, “law and order” is the operative term as the legal system’s primary purpose is to maintain order rather than dispense justice. In my one and only university course in law, the professor made a profound comment while telling us that going to court is very much a last resort, “anytime you take something to court, you’re rolling the dice. No matter how strong your evidence and arguments, it can still go any way.”
In Hong Kong recently, there was a particularly polarising case where seven policemen were convicted of assault of a protester during the 2014 Occupy Central movement. I’ll be honest with my bias upfront; I really hated the student protesters. They didn’t have a clue about what democracy really is or even the systems behind it. Initially, they wanted one man one vote (一人一票) and when it was pointed out that was exactly what was going to happen in 2017, they then changed their mind (and pithy slogans and T-shirts) to we want a real nomination process. Even then, they have no clue what that means. As we have seen in the United States recently, the party picks the nominee and all you get to do is pick which of the two candidates that the Democrats and Republicans have selected or throw your vote into the rubbish bin by picking a third party candidate like the Libertarians. That’s not a lot different than three or four candidates selected by Beijing and, one might argue, might give you better choices than what the American public was faced with last November. Regardless, its not their stupidity and naivety that bothered me most; that’s to be expected of young students anywhere. It was the fact that they blocked major roads and freeways for nearly three months. This caused huge traffic problems and immense financial damage to local small businesses and taxi drivers who had to deal with the disruption and loss of income. Here’s a photo I took in Admiralty when the protesters attempted to grab more real estate from the police.
Do the student’s have a right to protest? Absolutely yes. Do they have the right to block roads and businesses and be violent? Absolutely no. Civil disobedience is just a fancy way of justifying breaking the law which is unacceptable when there are so many legal ways and non-violent ways to express your views. But in Hong Kong, the students camped in Admiralty blocking two main traffic arteries into Central for three months. Anywhere else in the the world, the riot police would have come down on the students like a tonne of bricks. Occupy Wall Street which the pathetic Occupy Central bunch tried to emulate only sat in Zuccotti Park. When they actually tried to take their protest to Wall Street, this is what happened (see photo below). It should never had been called Occupy Wall Street because they never made it there; it should have been called Occupy Zuccotti Park – but I guess that doesn’t sound nearly as romantic.
In reality, the response of the Hong Kong government and police to the Occupy Central was a model of restraint compared to what authorities in America and Europe do to their protesters. One incident of tear gas use after street rioting broke out. No mass clearing with water cannons on APCs, no horse mounted riot police, no rubber bullets; while all the time the “peaceful” protestors rained rocks and bottles on the police while tearing up the streets. Of course reporters were looking to grab as much video and photos of police brutality, otherwise its not newsworthy and undoubtedly you will always manage to capture something when tempers flare and the mob rushes police lines. But the truth is that the Hong Kong police were unbelievably restrained in their response especially compared to what their Western counterparts would have done in the same situation. In the end, the Occupy Central movement died out because it lost the popular support of the people – just like the student uprising in Victor Hugo’s Les Miserables (although I sometimes wonder if the semi-literate students in Occupy Central realise that pretty much all of the student protesters in the novel died when they were doing off-key renditions of the Broadway song to the musical of the same name). It is also important to note that unlike in America, the public in Hong Kong generally still has a positive view of its law enforcement officers and the profession is still generally respected. Nonetheless, it is only biased Western reporting that would consider the Occupy Central movement a success in any form. Nothing was accomplished, nothing has changed – all it has managed to do is leave an indelible black mark on Hong Kong society and has widen rifts and increased polarisation and discord – all of which is not a good thing in a Chinese society which prizes harmony above all else.
I once was invited to a round table luncheon for the chairman of Bloomberg. Surrounded by such pro-democracy luminaries such as Anson Chan, everyone nodded in passive agreement that the 500,000 who took to the streets on 1 July 2003 wanted democracy. I was the lone voice of dissent. The truth is that most of those people were just frustrated with collapsing property prices, rising unemployment, a crap economy, and a leader (Tung Chee-Hwa) who was uninspiring. Sure the usual core group of a couple thousand pro-democracy protesters were there but if you think this was a mass uprising for democracy, you’ve got it all wrong. It was a mass uprising about a bad economy and frustration with the government as personified by Tung Chee-Hwa for the vast majority of the marchers. So there is the chairman of Bloomberg and his flunkies managed to fill a table with “local experts” who all told him the same thing (we want freedom and democracy) except for one guy who they thought would toe the line (because I am from Canada) but didn’t. Bloomberg, and the western media, still view that day as a pro-democracy march when it was nothing of the sort. I never did get another invite from Bloomberg to any similar event after that.
It is with this background that we return to the conviction of the seven police officers for assault which was caught on video for the world to see. District Court judge David Dufton sentenced all seven to 2 1/2 years reduced to six months. The protester Ken Tsang who was previously convicted of assault from the same incident was only sentenced to five weeks. Did the officers do wrong? Yes, they shouldn’t beat someone after he is handcuffed and arrested unless he is resisting (mind you I kind of think the smug jerk probably deserved a good ass kicking). Is the sentence wrong? Debatable because the beating while nasty looking was not so vicious given there were no reports of severe injury; the optics look doubly bad in light of the fact that the protester got such a milder sentence for his role in the affair. My bigger concern was the logic surrounding the conviction of all seven, including two who did not partake in the beating, using the argument that they should have intervened. Legally, under common law precedent, this is probably correct so there is little to appeal; however, a legal system that thinks that there is no difference between actually beating somebody and not intervening is one that has really lost track with any concept of justice. It is irrelevant anyways because the point of this piece is not to argue whether the trial, verdict and sentencing was correct (as I said earlier, I long gave up the idea that law and justice are related); it’s to discuss the aftermath. In particular, the public outcry about the number of foreigners sitting on Hong Kong’s judiciary.
As usual, we have to make a few definitions in order to progress. There is a big difference between a civil law system and a common law system. “In common law, past legal precedents or judicial rulings are used to decide cases at hand. Under civil law, codified statutes and ordinances rule the land.” In simpler terms, under common law, judges essentially make new laws every time they make a ruling because it creates precedent to be used in future cases. If a judge says sitting by and watching while your buddy beats someone up is the same as doing the beating yourself, then that becomes precedent and de facto law. It may even be completely at odds with what the original drafters of the law (you know, actual legislators) intended and may evolve over time as society changes and attitudes shift. The power that judges hold in common law jurisdictions is far too excessive given they are essentially writing laws themselves which, in a democracy, is kind of counter to what electing legislatures is all about. Common law comes from Britain and is basically used in the old British colonies (Canada, United States, Australia, India, and of course Hong Kong). Civil law is practiced in the rest of Europe and is pretty much what the rest of the world use.
This is very relevant because the intellectuals are attacking the unwashed masses for saying that we should get rid of foreign judges like Dufton in the wake of the Hong Kong Seven case. Contrary to what the smart lawyers say, the unwashed masses have a point. Jessica Fernando a trainee solicitor and a graduate of the City University of Hong Kong has this to say: “There is no ‘foreign’ justice and ‘local interpretations’ of justice or human rights. Our judiciary is not peddling ‘foreign’ values. Foreign judges are not bringing a different kind of law into Hong Kong. All our judges are enforcing universal norms and standards, and they have become important to the people of the city.” The last statement is woefully incorrect because, as I have written in the past, there is no such thing as universal norms and standards and anyone who peddles that argument (mostly Westerners) is basically wallowing in their own sense of self-satisfied superiority that what they believe and value is “universal”. As to the idea that they are not bringing “foreign” law into Hong Kong, in fact, they do. Because foreigners have very different views and values than locals and under a common law system, every time they make a judgment, those values trickle down through precedent to become de-facto law. The argument that we bring in skilled judges from other common law jurisdictions is even worse as it directly brings in their biases and precedents from a different country. Thus, foreign judges DO unequivocally and unarguably bring their views of what law and justice should be (even if its subconscious) to Hong Kong and even if it is against the values and norms of the vast majority of the local population. Every local Chinese Hong Konger (not expatriate lawyers) I have talked to does not think that beating someone and standing by without intervening are the same thing. The law of the land here should reflect that societal “norm”, not one formed thousands of miles away by a different culture.
Laws are simply an abstract set of codified rules designed so that we can function in a larger society. By definition, they are not universal, otherwise we would have the same set of laws everywhere. Instead, we have different laws in each country (and even each city) that are supposedly designed to suit the needs and beliefs of the local population. Most foreigners (or expats if you prefer) in Hong Kong have very little to do with the 95% of the Chinese population. Virtually none, even after decades of living here, learn the language. Few are inclined to take in more than a superficial amount of the local culture. I have yet to see one in the mahjong parlours or at a “dai pai dong” (大 排 檔) eating fish-balls on the street (apart from the occasional tourist). They live in their own relatively affluent enclaves, eat their own food and speak their own languages to the exclusion of the unwashed mass of local Chinese “deplorables”. And yet you would have me believe that these self-same individuals should be allowed to adjudicate and make precedents for the majority whose language, culture and values they have virtually no understanding of? Call me racist if you want (that argument doesn’t work well over here though, it only works in the politically correct West) but I know of no Western country that would allow foreign judges to sit on their benches so who is really the racist here? Hong Kong should not allow foreigners who have completely different views and beliefs from the local Chinese to essentially make laws that go against the beliefs of the vast majority (Hong Kong is 94% ethnic Chinese) but that is exactly what is happening. That’s a vestige of colonialism and should be done away with post-haste as the handover was 20 years ago. All the arguments made in favour of having foreign judges are red herrings revolving around lies like there is such a thing as universality in law which cannot be further than the truth.
An exaggeration you say? Sorry to say it but very much not. In the article which inspired this piece, Andrew Raffell a barrister who has practised criminal law in Hong Kong for over 25 years, writes about the public outcry around the Hong Kong Seven case. “What is going on? Why this outpouring of criticism? Has the Hong Kong Club been putting something hallucinogenic in the gin and tonics? No. In Hong Kong a good judge has reached a decision that is not liked by people who regard themselves as the guardians of all that is good and right about our society. The howls of protest are painful to the ears of anyone who believes in a truly free society and democracy.”
Oh Andrew, where to start? Well, by citing the Hong Kong Club, long a bastion of British expats, and putting hallucinogens in the gin and tonics (how much more British Colonial can you get), you already put yourself into the category of smug old colonial hand. The first of the very few times I have gone to the Hong Kong Club (this time was before the 1997 handover), I waited at the bar for my friend to show. Sadly, I was far too close to a fellow who was a caricature of the drunken old British colonial (all he was missing was the safari hat) who was well into his 10th gin and tonic by three in the afternoon. Trapped, I had to listen to his babblings including one comment about “back then, they didn’t allow Chinamen into the Hong Kong Club… no offense of course.” Yeah, of course… why would I take offense at that… jerk. Moreover, the criticism that Andrew refers to is more likely to be pouring out from the Tsui Wah “cha chaan teng” (茶餐廳) than from the Hong Kong Club but at least we know where he hangs out (hint: it’s not with the locals… no going “native” or “tropo” for this guy). I don’t know him personally but have run across far too many like him to know that those few statements exposes Andrew as a privileged white expat who has been in Hong Kong for 25 years, somehow considers himself a local (as local as being a regular at the Hong Kong Club can make you), and has trouble getting past “mm-goy” (please) in Cantonese. As for the second bit he mentioned, shouldn’t howls of protest be MUSIC to the ears of anyone who believes in a truly free society; or is it only protests that you agree with that should be allowed in a free society? There was an old saying amongst the expat Brits here – they call them FILTH (Failed In London Try Hongkong). Over my many years here, I find that acronym to have some truth as I have encountered far too many foreigners who were only modestly capable in positions way higher than they should have been. One of the reasons I went to work for the Bank of China was that I was tired of working for expat idiots and jerks who were far less qualified, less educated, lazier, and dumber than me but somehow were always promoted first and made more money. Nonetheless, judging from Andrew’s self-absorbed and condescending statements which likely stem from a long career of white colonial privilege, it’s comforting to see that in a world of constant change, some things seem to stay the same.
Update 1 (17 March 2017): In an unrelated incident to the one above, three people (including two young university students) were found guilty of rioting and sentenced to three years in jail each. During the Mongkok riots of 9 February 2016 which was triggered by the government trying to clamp down on illegal street hawkers, rioters threw bricks, glass bottles and other objects at police after blocking the road.
All I can say is, its about time. “Judge Sham Siu-man questioned why sentencing should not follow the case of Vietnamese refugees rioting in Whitehead camp in 1989, in which the Court of Appeal ruled that five years was a suitable term for conviction after trial… violence is violence. Glass bottles can kill people.” The lack of major prosecutions and convictions after the Occupy Central movement has only emboldened young radicals to believe that they can act with impunity, and violence if need be, in pursuit of their political goals. The Hong Kong government and judiciary must, and now has, sent a clear signal to all the Occupy Central wannabees. In a free and open society, the way to protest is through legal and non-violent ways of which there are many channels for you to choose from. That the liberal Western media considers “civil disobedience” to be acceptable and even noble (unless of course its in their own country in which case its OK to use tear gas and rubber bullets to disperse the filthy hippies) only goads on these young trouble-makers more.
Now everybody in Hong Kong (especially young university students) knows that illegal blocking of streets, rioting, and violence will have significant repercussions. It’s about time and the government should have been more assertive in its prosecutions following the ending of the Occupy Central movement. Even in freaking liberal Canada following the 2011 Vancouver riots (which occurred because the Canucks lost in the finals for the Stanley Cup – not as a deep political protest for freedom and democracy), “300 alleged rioters, including 54 youths, faced 912 charges. All but 16 of the accused pleaded guilty. The longest jail sentence served was 20 months, with seven days being the shortest sentence. The bulk of the jail sentences served varied in range from 30 to 90 days. Only 17 per cent of people charged in the riot had a prior criminal record.”
Update 2 (4 April 2017): Back home in Canada, I read that the drunken pilot on a Sunwing flight (he was taken off the plane with a blood alcohol level 3 1/2 times the legal limit while it was still at the gate) was sentenced to 8 months in jail. “With a dearth of Canadian cases to consider, [Judge Anne Brown] looked at cases out of the U.S., U.K., and Australia for guidance in coming to a fit sentence for Miroslav Gronych.” This gets back to my original argument against having foreign judges in Hong Kong specifically because it is a common law jurisdiction. That a judge would reach across to different countries to try to find legal precedent is precisely why a Chinese society cannot have foreigners sitting on the bench. “I think eight months is a pretty clear message,” is what judge Brown said. Without debating whether or not the sentencing was correct, how do you define what is a “clear message” or what is “justice”? Eight months is a pretty arbitrary number – why not 8 years or 8 weeks? When you do not speak the language or share the same culture and values as the society you are adjudicating over, your ability to define what is “just” is extremely suspect.