Friday, April 06, 2007

Obstruction of Injustice: Hong Kong Law, Part III


(This is the final of three posts about the unique legal universe of Hong Kong. Here are Part 1 and Part 2).

Hong Kong, China

If you want to plumb the oceanic depths of the Chinese Communist Party’s paranoia, you can start with the story of Kwok “Long Hair” Hung Leung.

Every city has its Kwok. He’s the middle-aged guy with little visible means of support who organizes or speaks at every protest for every left-wing cause imaginable. He’s always suing the mayor or picketing the police station or gathering signatures for a ballot measure, and every once in a while he makes a valid point. He’s good for democracy, and he’s great for journalists in search of material.

Hong Kong’s Kwok is Kwok (pictured). He usually wears a Che Guevara t-shirt, and, true to his name, he has vowed not to cut his hair until the Chinese Communist Party apologizes for its bloody crackdown on the Tiananmen Square protesters. He is also in favor of full democracy in Hong Kong. (Currently, the Hong Kong city council is elected, but real power is held by the mayor, called the Chief Executive, who is selected by an 800-member committee controlled by Beijing.)

Kwok, 51, has more mojo than your average activist. After prior failed campaigns, he was elected to the city council in 2004 with 60,925 votes, which is 60,925 more votes than any member of the Politburo Standing Committee has ever received. Kwok therefore is, in a real sense, a more legitimate leader of the Chinese people than General Secretary Hu Jintao, who has never been elected deputy head of work unit. (In the U.S., we would say “dogcatcher.”)

This terrifies the Chinese Communist Party. Kwok believes his phones have been tapped and that he is under surveillance, and I don't doubt it. Although the Party in January announced eased controls on foreign reporters covering the 2008 Summer Olympics, news organizations operating in China know that three areas are still off limits: no reporting about Tiananmen Square, the Fulan Gong religious movement, or Kwok.

It’s quite a compliment, really, placing an obscure city councilman on par with one of the most famous events in the 4,000-year history of China. It also reveals the Party’s totalitarianism. Kwok isn’t advocating that Hong Kong secede from China; he just thinks the people of the city should vote for their own mayor. In the People’s Republic, that’s enough to put you near the top of the government’s enemies list.

I had heard about Kwok -- you can hardly not, since he’s in the news all the time -- but I had never given Kwok any real thought, until I decided to visit Hong Kong’s highest court, the Court of Final Appeal, to watch a random hearing. When I arrived, there he was, blocking the entrance.

To The Barricades

Kwok and 11 of his supporters were chanting slogans while standing on the steps of the courthouse, holding a banner written in Chinese but bearing the name, in English, of the League of Social Democrats, a local political party. A small crowd had gathered, including one television news crew, two print reporters, three photojournalists and five uniformed police officers.

Blocking the entrance to the courthouse for a few minutes was part of the political theatre, because the hearing was an appeal regarding the prosecution of Kwok and four others for blocking a public thoroughfare.

Two years earlier, the Hong Kong city government had announced an increase in the fare to drive through the Eastern Harbour Tunnel, which connects Hong Kong Island to the Kowloon Peninsula. Increases in cross-harbour fares are even touchier in Hong Kong than they would be in other cities, because one of the largest riots in the city’s history occurred in 1966 after an announced increase in the cross-harbour fares charged by the Star Ferry, the tubby passenger ships that are icons of the city. Fare hikes are an issue that resonates with Hong Kong voters, and Kwok is, after all, a politician.

On April 29, 2005, two days before the toll hike was to go into effect, Kwok and his co-defendants parked four cars in the two approach lanes to the Hong Kong-bound tunnel, blocking traffic. The protest was not a surprise. Kwok had informed the tunnel operators and the police of his intentions.

Kwok and his team parked the cars at 12:45 p.m., unfurled a banner across both lanes of traffic and chanted slogans – all duly recorded by the assembled reporters (Kwok had alerted the press, too). The tunnel operators converted one lane of the Kowloon-bound tunnel to service Hong Kong-bound traffic, but a back-up developed. At 1:13 p.m., Kwok and his co-defendants were arrested and charged with one count of obstruction of a public place and one count of doing an act (unfurling the banner) whereby obstruction might be caused.

The case was heard by Magistrate Josiah Lam who appears to be what prosecutors call “friendly” and what defense attorneys call “a jackass.” Or maybe he was having a bad day.

In any event, when the case went to trial, Kwok represented himself while the other four defendants were represented by counsel. Kwok was the only witness. The remainder of the evidence was in the form of written admissions of fact to which both sides agreed.

After the close of evidence, it became obvious that the prosecution had failed to establish certain necessary facts, specifically, the length of time the cars blocked the tunnel, how many cars were backed up and whether any of the drivers had been inconvenienced (since an obstruction which is tolerated is legal under Hong Kong law). In other words, the prosecution had rested without proving its case.

Magistrate Lam asked Kwok how many cars had been backed up. Kwok informed the magistrate that the evidence was closed and that it was no longer his obligation to answer evidentiary questions. Magistrate Lam didn’t like this answer and took the position that everyone had an obligation to assist the court in coming to a just verdict.

In a display of sportsmanship, the prosecutor reminded the magistrate that, if a reasonable doubt existed, Magistrate Lam, who was trying the summary offenses without a jury, was required to acquit. The magistrate instead offered that a prosecution motion to re-open the evidence could be entertained. The prosecution took the hint. The motion was granted, two witnesses supplied the missing information, and Kwok and his co-defendants were found guilty and sentenced to 12 days in jail.

The Court of First Instance, which hears appeals from the Magistrates' Courts, overturned the verdict. “In my judgment, unfortunately, even if justice was done, it was not manifestly seen to be done,” wrote Judge Peter Nguyen. “This would constitute a material irregularity, and on this ground alone, the appeals against conviction must be allowed.”

The prosecution appealed, which is why the players were gathering for a hearing in Hong Kong’s highest court, the Court of Final Appeal.

The Highest Court In the City-State

The Court of Final Appeal is housed in a red brick building built in 1917 for the French Foreign Mission. The building has been carefully restored and modernized and is one of the older buildings in Hong Kong, a city which does not hesitate to demolish its past to erect a more profitable future.

Contrary to its name, the Court of Final Appeal does not have the last word on all things legal in Hong Kong. If an issue arises regarding the relationship between Hong Kong and the Chinese national government, or there is a dispute over the meaning of the Basic Law (the city’s constitution), a litigant can request a “binding interpretation” from the Standing Committee of the National People’s Congress. Of course, the N.P.C. Standing Committee – like all high organs of the Chinese state – does what the Party oligarchs instruct it to do. Thus does the Chinese Communist Party retain ultimate control of Hong Kong, “one country, two systems” notwithstanding.

The Court of Final Appeal is similar to most American courts of last resort in that it has a highly discretionary docket, meaning that it generally hears only the cases it wants to hear. Aggrieved parties in the lower court have no automatic right to an audience, and they must persuade the court that the case is important enough to warrant review.

In the United States, this request is made entirely in writing. In Hong Kong, however, the highest court holds a hearing and allows the parties to argue in person as to whether the court should conduct a review of the case’s merits. In the case of HKSAR v. Leung Kwok Hung, Et Al., the matter before the court on the day of my visit was the city prosecutor’s Application For Leave To Appeal.

The Bench

Which is how Kwok and his supporters came to be obstructing the door of the courthouse with their rally. Actually, you could walk around them and enter the building, so the obstruction was more symbolic than actual, but everyone got the message.

Like all Hong Kong courts that I visited, the Court of Final Appeal had no metal detectors. I walked to the courtroom and took a seat in the press gallery. I am not familiar with the procedure for covering a session of the U.S. Supreme Court, but I don’t think it’s show up, stroll in unquestioned and take a seat five feet from the judges.

The courtroom was a jewel, the type of space in which directors film the climax of lofty constitutional dramas. The architecture was law-giving and authoritative. It was originally a chapel for French diplomats, with a vaulted classical rotunda two storeys above us. The various corners of the room were ornamented with tasteful plinthed columns, the features of the architecture outlined in light cream paint above brown wooden paneling.

Facing the raised judges’ dias were three rows of polished wooden counters, with seats for the lawyers and their assistants. On the judges’ left, facing the courtroom, was the press gallery with eight seats. On the judges’ right, also facing the courtroom, was a station with a young Chinese man wearing a robe, the courtroom bailiff. Next to him was a cage of steel, the dock where incarcerated litigants would sit.

At the back of the room, behind the eponymous “bar” that separated the attorneys from the general public, were two rows of seats for the curious. A set of double doors opened into a back room, which contained overflow seating and two television screens broadcasting a closed circuit link of the proceedings. It wouldn’t take much to have a capacity crowd. The most important courtroom in the city contained 33 seats for the public.

Four barristers were in the front row, in full robes and wigs. The two lead barristers were older men, one Chinese, one Western, while both were assisted by younger Chinese co-counsel. The older European barristers are a dying breed; Hong Kong's baby lawyers are almost all Chinese.

Kwok sat in the second row, representing himself. His co-defendants, who were represented by counsel, sat in the third row, looking like extras from a Cantonese staging of Hair. These guys had decided on a look in 1968 and never found a reason to update their style. Two reporters joined me in the press gallery, a Chinese woman and a European man, both taking notes in Chinese.

Three loud knocks. Everyone rose, and three judges, in robes and wigs, came out and sat down. Everybody bowed.

Applications for leave to appeal are heard by three of the four permanent judges of the Court of Final Appeal. If the application is granted, the appeal would be heard on the merits by a panel of five judges. This merits panel would usually consist of the four permanent judges as well as one non-permanent judge, who could be a lower-court judge given a tryout on the big bench or a visiting judge from another common law jurisdiction such as New Zealand.

Justice Syed Kemal Shah Bokhary, a Hong Konger of Pakistani descent, sat in the middle and directed questions, in English, to the barrister for the prosecution, John Reading, S.C., about the degree of public toleration which would provide a defense to an obstruction charge. The two sparred for several minutes in the quick, punchy style of U.S. courtrooms. Unlike the strange procedures of the Hong Kong Court of Appeal, the manner of argumentation at this hearing would be familiar to an American litigator.

Justice Bokhary asked for the certified Chinese-language transcript of the trial, but Reading conceded that one did not yet exist. “The purpose of this hearing is to increase my desire to send this case to the Court of Final Appeal. Some of the things you are saying decreases my desire,” Justice Bokhary said. Reading turned red.

“What would a foreign lawyer say if they saw this trial?” asked Justice Bokhary. “It depends on if they read the whole transcript,” Reading responded, later conceding that the magistrate’s actions could be reviewed under a “fair-minded observer” test.

The judges questioned the defendants’ lead barrister, a straw-thin man of about 70 years old who held himself with a vaguely regal manner. He wore black-rimmed glasses and the waistcoat of a Senior Counsel, the highest rank of barrister. He was completely at ease and spoke perfect, accent-less English. He looked familiar. One of the judges referred to him as “Mr. Lee,” and I realized I was watching the most famous attorney in Hong Kong.

The Learned Gentleman

Martin Lee, S.C., is Hong Kong’s Alexander Hamilton, Thomas Jefferson and Daniel Webster rolled into one. Lee is the city’s foremost advocate of democracy, for which he has agitated for decades. He is an elected member of the city council and served for years as the leader of the city's Democratic Party. He has a successful private practice and is the second-most senior barrister in the city, having been called to the Inner Bar – i.e., become a “silk” – in 1979. If Hong Kong were allowed to hold a real election for mayor, Martin Lee would be a shoo-in.

“After listening to my learned friend, I am none the wiser what the prosecution’s complaint is,” Lee said. “The burden is on my learned friend to show that there was a departure from accepted norms [when the Court of First Instance overturned the convictions]. I’m waiting for him to tell us.”

Justice Bokhary asked if the magistrate’s unorthodox procedures mattered if, at the end of the day, the trial was fair. “Even if justice was done, that’s not good enough,” said Lee. “Justice must appear to have been done.”

The vacatur of the convictions “would have to constitute a substantial and grave injustice for this Court to get involved,” Lee said, arguing that the dispute did not warrant the attention of the high court. American lawyers in Lee’s position make the identical argument. Nothing to see here, your honors, nothing worth your time.

The judges asked the unrepresented Kwok if he had anything to say. Kwok picked up the earlier theme of what foreign lawyers would say if they had watched the trial.

“If those lawyers were from North Korea and China, they would say, ‘O.K, that’s what we do,’” Kwok said. The judges appeared uncomfortable at the jab at the notoriously politicized Chinese judicial system. Hong Kong, as a semi-autonomous entity, is proud of its independent judiciary and the rule of English common law.

Kwok spoke in Cantonese, which was translated into English, despite the fact that all the participants in the courtroom probably spoke Cantonese. The use of English in courtrooms is in its final years, I thought; it makes no sense for Hong Kongers to live most of their lives in Cantonese but be forced to operate in English in the courtroom, where their liberty or property is at stake.

After two hours of argument, the judges conferred in whispers.

“We will reserve our decision on this matter and hand down a decision as soon as possible,” Justice Bokhary said. The judges rose. Everyone stood up and bowed to the judges as they left.

As I walked from the courthouse in the late afternoon, the bells of St. John’s Cathedral tolled five times.

The Day The Good Guys Won

The judges denied the application.

“In our view, it is plain beyond reasonable argument to the contrary that the magistrate’s conduct of the trial had lost him the appearance of impartiality, and that there is a real danger that such conduct had actually influenced his decision to convict so as to have deprived the defendants of a fair trial,” Judge Bokhary wrote for a unanimous tribunal.

The government lost. The prosecutors did not have their way. It happens every day in the United States and Belgium and Israel, but it’s unheard of in mainland China, where the government always gets what it wants.

Not in Hong Kong. In this postage stamp of freedom, the British bequest included the only functioning and legitimate judicial system in the People’s Republic.

So raise a glass to Kwok and Lee. The good guys won.

But – far more importantly – the government lost.

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4 Comments:

Anonymous mxferraro said...

PKL, along with your Gratuitous FF posting, this makes for quite a double feature. What was the public reaction (all 33 or less) to the denial of appeal? and what did your two colleagues in the press gallery make of the decision?

6:45 AM  
Blogger Paul Karl Lukacs said...

The Hong Kong English-language media ran short pieces on the decision when it was handed down, but it did not seem to be a major news story. Just Kwok being Kwok.

12:34 PM  
Blogger mausekopf said...

you made this application to the CFA a very interesting read. well done!

12:15 AM  
Anonymous hkdenizen said...

"Kwok" is Leung Kwok Hung's middle name.

His Chinese surname is Leung. He should be called Mr. Leung.

Also, Martin Lee, while deservedly respected by Hong Kong's people as a great barrister, would be very unlikely to win a free election for Chief Executive...he is unpopular among many Hong Kong citizens for his supposed coziness with "foreign elements".

Otherwise, a nice report.

1:41 AM  

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