Hong Kong's New Chief Justice

Chief Justice Andrew Cheung making his inaugural address

Hong Kong has a new chief justice, Andrew Cheung Kui-nung, and with the official start of the legal year, he gave an inaugural address stating that the judiciary would continue to follow the rule of law that is enshrined in the Basic Law.

The 59-year-old Cheung succeeded Geoffrey Ma Tao-li who retired last week. Cheung seems to continue in the same vein has his predecessor, as he urged judges to be steadfast in maintaining the rights and freedoms of residents.

Cheung (right) with predecessor Geoffrey Ma

He repeated a few times that the principles of judicial independence and impartiality would remain unchanged during his tenure.

"An independent judiciary is essential to the rule of law in Hong Kong and the due administration of justice," he said.

"It is equally crucial to the public's and business [community's] confidence -- whether local or overseas -- in our judicial system, as well as to the international reputation of Hong Kong as a society governed by the rule of law under the 'one country, two systems' arrangement."

Cheung noted he was coming in at a sensitive time, with the slew of prosecutions related to the anti-government protests in 2019 and the implementation of the national security law last summer.

He said it was inevitable that cases with political undertones would come before him and his colleagues, which would inevitably draw "extreme and harsh" partisan criticism.

Cheung was sworn in today as chief justice

"Whilst the freedom of speech of everyone in society must be fully respected, there must not be any attempt to exert improper pressure on judges in the discharge of their judicial functions," Cheung said. "It has to be stressed that attempts to exert undue pressure on our judges by means such as threats of violence or doxxing are as futile as they are reprehensible."

In addition Cheung advised judges to put aside their personal opinions when they returned to the bench, as the public expected impartial judgments.

While it is reassuring to hear the new chief justice say the judiciary will continue on as it has, how much pressure will it have to try to fend off from stakeholders on all sides as Hong Kong becomes more politicized and divisive?

 

Hong Kong's Absurdities Continue

Private clubs, like China Club, have had guests test positive

Today there was a string of bad news, starting with 92 new coronavirus cases reported today. More restaurants and private clubs have been affected, which makes it harder for them to continue to do business when you're tagged as having a positive case in your place.

This fourth wave is very scary, surging faster than the third wave back in July. With Christmas less than a month away, one has to wonder if we'll all have to mark the birth of Jesus in complete lockdown...

Staff went on strike in February to shut borders

Meanwhile hospital staff who took part in a strike in February demanding the government shut the border between Hong Kong and the mainland because of the coronavirus, will have their pay deducted. 

The Hospital Authority says this will affect 7,000 doctors, nurses and other hospital workers who went off duty without authorization, and that there would be no further punishment apart from the salary deduction.

From February 3-7, hospital staff went on strike in a bid to force the government to close the border, believing this was the most effective way to stop the virus. At the time there were 15 cases in the city, and the government closed six of the 15 border checkpoints. with China, and did not allow those from Wuhan to come in.

Hospital Authority Chairman Henry Fan Hung-ling said the strike affected people's confidence in the public healthcare system and undermined the professional image of its workers.

As a result the authority received some 7,000 complaints and calls for help.

Imagine if Hong Kong had really shut down all its borders with China... 

Cheung (middle) took caller's questions on RTHK

In other news, the government continued to try to sell its policy address and Chief Secretary Matthew Cheung Kin-chung was on RTHK radio this morning to take callers' questions. 

One caller criticized the lack of opposition resulted in a lame-duck legislature with no electoral mandate.

Cheung's response? "We're not taking advantage of the so-called Legco vacuum -- the absence of the pan-democrats in Legco -- to push through difficult things. We're doing it for Hong Kong's long-term good."

Uh huh.

Things got more absurd today.

Secretary for Constitutional and Mainland Affairs Erick Tsang Kwok-wai explained he dozed off on Wednesday while his boss Chief Executive Carrie Lam Cheng Yuet-ngor gave a two hour and 15 minute policy address because he was recently diagnosed with tonsillitis and had to take medicine for it, which made him drowsy.

"I've been feeling a bit unwell. But I don't think it's so serious that it has affected my work," he said. "If I try to bother the CE with even such a minor matter, I think she would be kept very busy."

Startling revelation by Lam today

And borderline outrageous was Lam telling the media in an interview that because of US sanctions against her, she cannot keep a bank account and so her salary is paid to her in cash.

"I am using cash everyday. I have piles of cash at home because the government is paying me cash for my salary because I don't have a bank account." 

By the way her salary is over HK$400,000 a month. That's a lot of HK$1,000 bills...

Does someone deliver it to her in a handcuffed suitcase?

And does she want someone to rob her?

But finally a small legal victory:

The Court of Final Appeal has ruled unanimously with former opposition lawmaker Leung Kwok-hung otherwise known as "Long Hair", that a prison requirement that male prisoners keep their hair short is sex discrimination. 

A big legal victory for "Long Hair"

The ruling ends a six-year legal battle Leung waged in the courts after his hair was cut short when he was sent to jail in 2014.

"The discrimination was so obvious," he said as he tossed his flowing mane that has since gotten greyer.

Chief Justice Geoffrey Ma Tao-li wrote the judgment, in part saying: "It is not readily apparent, and no explanation was provided by the [commissioner of correctional services], as to why this had any reasonable connection with custodial discipline."

Ma noted that the Correctional Services Department, which had argued it was only imposing a social norm, had failed to explain the basis of its claim that men always had shorter hair, an assumption he added gave rise to stereotyping. 

At the time Leung was jailed for four weeks for criminal damage and disorderly behaviour in June 2014, after an incident during a public forum in Tsim Sha Tsui in September 2011.

Let's see what tomorrow brings...

Sowing Seeds of Confusion

Lam says the public has the wrong understanding of the Basic Law

Hong Kong's alternative reality continues with the government pushing through its version of how the city should be governed versus what people have lived with since July 1, 1997.

Yesterday Secretary for Education Kevin Yeung Yun-hung explained that liberal studies textbooks removed references to Hong Kong having a separation of powers between the executive, legislature and judiciary, and that it would be wrong for textbooks to suggest that it does.

Yeung says textbooks weren't changed due to political pressure

He rejected suggestions that the changes were made due to political censorship, and that publishers were not instructed on what should and should not be included.

But he insisted the content be factually accurate, adding the SAR has never had a separation of powers, neither before nor since the handover.

"As a matter of fact, some of the concepts now included in the textbooks are much more accurate than before," he said.

That raised a lot of eyebrows because this totally goes against what Chief Justice Geoffrey Ma Tao-li said back in 2014:

"The Basic Law sets out clearly the principle of the separation of powers between the legislature, the executive and the judiciary, and in quite specific terms, the different roles of the three institutions," he said in a speech.

However, today Chief Executive Carrie Lam Cheng Yuet-ngor defended and reiterated Yeung's statements in her weekly media briefing.

The new liberal studies textbooks have amended content

"There is no separation of powers in Hong Kong, so I fully support the remark made by Secretary for Education, and I fully support him in the textbook consultation services launched. In the process we'll be able to better explain the constitutional order in Hong Kong," she said.

"Every so often someone will make this a topic -- whether there is separation of powers in Hong Kong -- they will cite some well-known persons or judges but there is nothing clearer than the Basic Law," Lam said.

Huh???!!

She added people have the wrong understanding of the Basic Law.

"I have carefully looked at what people from the legal sector said; they are mainly talking about the division of labour, of course in terms of trials and the judicial system, they can act independently," Lam said.

Compare the changes to previous liberal studies textbooks

"This is about the division of labour in terms of their functions under the Basic Law; if you look at the relations amongst the three powers, of course they would perform their duties and carry out their functions, I do agree that there are checks and balances, I can give you a lot of examples."

Are we all talking about the same Basic Law?

Legal sector lawmaker Dennis Kwok Wing-hang remarked that if Lam's interpretation of the Basic Law is that there is no separation of powers, then the rulings by the top court are all wrong, and that the Court of Final Appeal should clearly explain this to everyone.

"The courts have always referred to and relied on the separation of powers as the fundamental principle when it comes to dealing with all kinds of cases, concerning the rights of Hong Kong residents, the constitutionality of legislation, and the legality of executive decisions," he said.

"So, for Carrie Lam as the Chief Executive to now come out and say that there's in fact no separation of powers in Hong Kong is a joke," Kwok said. "It's ludicrous, and it's an offense to the common sense of the Hong Kong people."

Kwok says people have not misunderstood the Basic Law

He dismissed Lam's comment that people misunderstood the Basic Law, and accused the government of changing its stance to please Beijing.

Kwok also cited an article written by Basic Law Committee member Albert Chen Hung-yee in 2018, which said the courts in Hong Kong have stated that the separation of powers is "an important and indispensable constitutional principle embedded in the Basic Law".

Lam and her administration are trying to sow seeds of confusion, perhaps in a bid to justify the need for the national security law? To make Hong Kong lawyers unnecessary? To undermine the Basic Law?

But her audience is highly skeptical of what she and her officials are doing. There has still been no authoritative explanation of how the national security law interfaces with the Basic Law, only that it exists and a separate judicial system is set up to deal with cases -- a small number -- we were constantly told.

Chow on the evening she was arrested under the NSL

One of them, Agnes Chow Ting, went to the Tai Po Police Station today about the extension of her bail. She was asked to give a new statement with regards to her arrest under the national security law, but did not disclose more details to the media three hours after she entered the police station.

Chow has not yet been charged with anything, but has to report back to the police station on December 2, a day before her 24th birthday.

She hopes to celebrate her birthday at home...

Defiance Against Further Repression

Saying this slogan is deemed subversive and secessionist

The annual July 1 march was banned by police for coronavirus pandemic reasons, so while there weren't hundreds of thousands of people out in the streets, there were a few thousand who came out to protest against the newly enacted national security law.

One man tried to flee Hong Kong after stabbing a police officer, but was caught as the plane was on the tarmac, while 370 others were arrested.

It remains to be seen if the 10 out of the 370 who were arrested for breaching the national security law will be charged and convicted, but it was enough of a deterrent to prevent most people from coming out.

Tam wonders if the new law isn't harsh enough

However, Tam Yiu-chung, the sole Hong Kong delegate of the National People's Congress Standing Committee that drafted the new law says yesterday's turnout shows the national security law isn't harsh enough.

The pro-Beijing loyalist told a RTHK radio program that if the law, which carries a maximum penalty of life imprisonment were harsh, no one would dare defy it.

Has Tam underestimated Hongkongers? It seems Beijing has misread the people yet again. While the large numbers didn't come out, there were enough who were willing to test and defy the law because they are very angry that Tam and the Hong Kong government have sacrificed the city without the consent of its residents.

They are worried but they are also defiant. And they will find another way to show their displeasure.

Meanwhile Chief Justice Geoffrey Ma Tao-li issued a rare statement today [Thursday], saying it is the judiciary's mission and constitutional duty to protect its independence and rule of law.

Ma continues to uphold the rule of law

The new law gives the Chief Executive the power to choose a list of judges to handle future cases, which critics say would undermine the judiciary.

Justice Ma stressed judges should only be appointed on the basis of judicial and professional qualities, not politics.

"Judges should not be designated on the basis of any political considerations. This reinforces the principle that in the handling or determination of any legal dispute, only the law and legal principle will be considered," he wrote.

"Judges of foreign nationality are not excluded. They are expressly permitted to be appointed as judges in Hong Kong," Ma said.

He also clarified that appointments of judges under Article 88 of the Basic Law are made by the Chief Executive on the recommendation of the Judicial Officers Recommendation Commission, which is chaired by the Chief Justice. "This has always been the position in Hong Kong," the statement said.

It seems Ma is pushing back as much as he can, but will Chief Executive Carrie Lam Cheng Yuet-ngor and Beijing listen? How does the new national security law interface with the Basic Law? This question hasn't been clearly addressed yet.

Is this considered art or subversive message?

Yellow shops aren't taking any chances, many of them taking down their "Lennon Walls", a colourful collection of Post-It notes with messages on them, as well as any posters that may be deemed subversive or secessionist.

One restaurant in Shau Kei Wan was warned to remove its Lennon Wall by the police after the force received a complaint about it. If it didn't comply, the restaurant could be prosecuted.

However, in the Hong Kong Museum of Art, there are some whimsical sculptures by Rosanna Li Wei-han that portray everyday life in Hong Kong. One of them features a Lennon Wall, and someone putting up a poster that says. "post no bills".

Does this piece of art need to come down too?

Oh and this just in -- the protest slogan that was chanted regularly during gatherings is now deemed by the government as having a secessionist and subversive meaning...

A Judge's Politically Charged Comments

The pedestrian tunnel in Tsueng Kwan O where the three stabbings took place

On Friday District Judge Kwok Wai-kin sent a 51-year-old man to jail for stabbing a reporter and two others inside a pedestrian tunnel that was decorated like a Lennon Wall with a collage of colourful messages of support for the anti-government protests last August.

Tony Hung Chun, a tour guide who was out of work at the time and said his emotions were affected by the protests, pleaded guilty to three counts of wounding with intent. Yesterday he was sentenced for 45 months, but what raised eyebrows was Judge Kwok's comments.

District Judge Kwok Wai-kin

In his judgment, Kwok described Hung as "an involuntary sacrifice and a bloodstained victim hanging by his last breath" amid the social unrest, and that the black clad protesters ganged up like a "terrorist army" and changed Hong Kong with extremist acts reminiscent of the Cultural Revolution in mainland China.

Two well-known lawyers said these comments were uncalled for.

Highly respected criminal lawyer Lawrence Lok Ying-kam said an judicial comment should not be partial, and these comments should not have been made, while former Bar Association chairwoman Audrey Eu Yuet-mee said the judge's remarks may not have followed the long standing principle of political neutrality.

"A man seriously wounded and attacked another citizen, which was almost life threatening," Eu said. "But then [the judge] said the attacker had a motive that was praiseworthy or laudable -- you're not being politically neutral, but taking into account his political stance.

Chief Justice Geoffrey Ma said judges cannot be political

"If the reports are accurate, it will definitely affect respect for the judiciary and judicial independence, that's contrary to what the chief justice said."

Chief Justice Geoffrey Ma Tao-li has stressed repeatedly that judges only consider cases according to the evidence and the law, and that politics and popular sentiment are not part of the proceedings.

Interestingly Kwok himself has said politics did not play a role when  two years ago he sentenced 10 people charged with rioting in Mongkok in 2016.

"The courts will not get involved in political debate, nor to judge on right or wrong in political ideals, as that is not the role of the courts," he said at the time.

Tony Hung Chun (left) was jailed for 45 months

It's just very curious to see Judge Kwok make such a comment on his sentencing. Legal scholar Simon Young at the University of Hong Kong explained the judiciary's Guide to Judicial Conduct was unclear on whether judges could express their own opinions before the court of they were unnecessary for the case, but in general, the principle of independence and impartiality would strongly advise against it.

"[Unnecessary comments] could generate an issue of apparent bias for the judge in a future case," Young said, adding with the current political climate, judges may need to be a bit "more monastic" when it came to politically-charged cases.

Legal Smackdown

Chief Justice Geoffrey Ma spoke out, telling people to read the Basic Law

Thank you Chief Justice Geoffrey Ma Tao-li!

Thank you for setting the record straight once and for all about the status of Hong Kong's chief executive.

Today Ma made a legal smackdown hours after Leung Chun-ying's comments that the chief executive "is indeed transcendent", giving the impression that he has an emperor-like status.

One wonders if Leung has indeed been hanging out at Government House with a crown on his head.

While the chief justice said he was not going to comment on "things which have recently been said" or on other people's comments on what he said in the past, he did say: "But I wish to emphasize two points, both in relation to the Basic Law," Ma said. "The first point is judicial independence. This is specified in the Basic Law in three separate places and I would ask people to read articles 2, 19 and 85."

CY Leung will have to re-think his "transcendent" status

He went on: "The second point deals with equality before the law, and this is Article 25 of the Basic law, which prescribes that everybody is equal before the law, without exception. This applies to everyone."

And what does Article 25 of the Basic Law say? "... all Hong Kong residents shall be equal before the law".

So there. Leung can take off his crown now. The ermine robes have to go too.

In Article 2, Beijing's legislature authorizes Hong Kong "to exercise a high degree of autonomy and enjoy executive, legislative and independent judicial power, including that of final adjudication".

Finally Article 19 reiterates that Hong Kong "shall be vested with independent judicial power", while Article 85 states that Hong Kong courts "shall exercise judicial power independently, free from any interference. Members of the judiciary shall be immune from legal action in the performance of their judicial functions."

Again we have to ask -- why did Zhang Xiaoming, head of the liaison office, say what he did on Saturday?

Legally his speech was completely out of line and we hope Ma's clarification will end any more speculation of the chief executive's status.

Today on Commercial Radio, James Tien Pei-chun, honorary chairman of the Liberal Party, urged Zhang to clarify what he meant five days ago.

James Tien thinks Beijing is still trying to assert authority

The last five days have been a verbal circus, because having others like Justice Secretary Rimsky Yuen Kwok-keung and Leung himself trying to explain Zhang's comments is like watching a dog chase its tail.

"Zhang read his speech carefully that day," says Tien. "It seemed to me it was pre-written by Beijing and he was only responsible for reading that out. Perhaps Beijing feels the hearts of Hong Kong people are still not with the country, years since the [1997] handover. That's why they are doing this to assert 'one country'." he said.

If Tien's speculation is true, then Beijing still does not understand how Hong Kong operates and what its people are thinking. For China to think locals will automatically demonstrate unwavering patriotism -- when many of them escaped the Communists in 1949 and onwards -- is naive thinking.

And trying to assert its power over the city is just making things worse.

But in the meantime, high fives to Ma -- the smackdown was just what the doctor ordered.

Standing Up to Beijing

Beijing's tentacles seems to be creeping into Hong Kong one way or another, as some believe the city is "ruled by Western", referring to the Hong Kong Liaison Office in Sai Ying Pun.

Others think Beijing's influence on Chief Executive Leung Chun-ying is too strong and believe he is not looking out for Hong Kong interests as he had promised.

In any event it's reassuring to hear that the city's judiciary intends to be impartial in upholding rule of law and not allowing any interference from Beijing.

Yesterday during the opening ceremony for the 2014 legal year, both Chief Justice Geoffrey Ma Tao-li and Secretary for Justice Rimsky Yuen Kwok-keung both reiterated that it was important for judges to remain independent and follow the rule of law in both spirit and letter, as well as have transparency.

They may have made these statements to respond to Liaison office propaganda chief Hao Tiechuan, who said last year that Hong Kong could not exercise separation of powers because the chief executive had more power than the legislature and the judiciary.

However Ma said the Basic Law stipulated clearly and repeatedly that Hong Kong exercised separation of powers between the executive, legislature and judiciary, and that there was "no cooperation" between them.

"Some have even indicated that they would compile a list of judges whom they considered politically biased and would request their removal," Yuen said. "However well-intended their subjective motives might be, such conduct should not be encouraged," he said.

"Deliberate attempts to act in breach of the law, even for causes which may sound noble, should not be encouraged."

So rest assured. While some government policies may seem like they are kowtowing to Beijing, at least the judiciary claims it won't stand for any meddling.

And skeptics wonder why Hong Kong still hasn't become another Chinese city...