Hong Kong’s Judiciary Lose Their Nerve

Three cases present a disturbing precedent

Hopes are every day more in jeopardy that the Hong Kong judicial system would long stand as a barrier to an executive increasingly controlled by the Communist Party and Beijing’s emissaries. Just one day last week saw three cases where decisions by judges suggested that either their individual prejudices or informal pressures from above were behind decisions.

The danger here is incalculable. One of the major assets of Hong Kong, in direct contradiction to the mainland, is that the territory has largely observed the rule of law, certainly in contract if not across the board. It one of the reasons that multinationals have traditionally chosen Hong Kong over China for their headquarters. If it is becoming clear that the judiciary is losing that impartiality, it raises concerns that contract law can’t be far behind.

In one of the three cases at hand, the judge ranted against black peaceful demonstrators, likening them to the Red Guards of the Cultural Revolution while expressing sympathy for an accused who had stabbed three persons with a knife close to the so-called Lennon Wall where messages of support for the demonstrations were exhibited. One of the victims was critically injured.

Although the attacker had deliberately gone to the site armed with two large knives, the judge was more concerned to compare Hong Kong’s demonstrators with the Cultural Revolution. Thus are the territory’s judges being persuaded to turn history upside down and accuse pro-democracy demonstrators of being like the Communist party, which inflicted the Cultural Revolution on China and caused many deaths in Hongkong.

In another case, a protester was sent to jail for “defiling” the Chinese national flag by throwing it into a trash bin. Originally given a community service sentence, the Court of Appeal agreed with the prosecution that this was inadequate as such treatment “gravely undermined the dignity of the state.”

Giving the flag such sacred status is a reflection both of current Chinese xenophobia and the Communist Party’s assumption of itself as a kind of priesthood with the flag as a symbol of heavenly power. Millions of Chinese object strongly to this flag which was created only at the time of the Communist victory over the Kuomintang. Its red background and large yellow star are both symbolic of the party, not the people at large.

The third case saw an activist given a non-custodial sentence for supposedly assaulting a policeman with noise by using a loud hailer and also allegedly hitting the policeman’s shield with a microphone! The growing tendency of magistrates to believe anything the police force claims however flimsy the charges.

Judges, particularly at the lower level, have careers to protect, particularly at a time when the number of law graduates is probably growing faster than demand.  Although appointments and promotions are supposed to be based on merit, the fact is that they are made by the judiciary, whose head must be approved by Beijing and which is currently occupied by one of its most faithful acolytes.