MOB RULE IS NOT DEMOCRACY


Two well-respected, and usually reliable, news sources    the International New York Times and the Financial Times == have labelled  Hong Kong’s Court of Appeal’s recent decision  to jail certain people,  an act of political retribution instigated by the Central Government of China.

Neither publication paid heed to statements by trepresentatives of  Hong Kong’s  Bar Assocation and Law Society representing the legal professtion that the decision accords with the principle of applying the  rule of law in a democratic society.

That decision may be confirmed or  overruled by Hong Kong’s Court of final Appeal if, as reported, the ‘certain people’  get their case to be heard there.

There are then only two possible outcomes: they win their appeal or they lose.

If they win will the respected media react with: ‘BEIJING LOSES FACE – DECIDES

TO ALLOW ACTIVISTS TO CONTINUE PROTESTS: or, if they lose:

BEIJING WINS BY FORCING HONG KONG’S COURT OF FINAL APPEAL TO TOE LINE.

Here, they face a difficulty because they do not understand that, in Hong Kong, the rule of law as it should be applied in a democracy is applied more strictly than it is anywhere else in the world.

In Hong Kong, as a matter of practice, the Court of Final Appeal ALWAYS == I repeat ALWAYS == includes at least one eminent judge from another common law jurisdiction. And yet there has nevert been a case where any of those judges has been a dissentient in any judgment handed down by the court.

Suggest to the critics of Hong Kong’s rule of law set-up that they adopt in their country the same stringent dedication to the application of the rule of law and hear the response.

The US? Dead silence because their judges are politically appointed unlike in Hong Kong where the appointment process is as ideally freed of political influence as it’s humanly possible to be. I can personally vouch for this because for years I was a member of Hong Kong’s Judicial Service Commission.

But, whatever the Court of Final Appeal’s decision, if ever there is one, what has to be remembered is this: the question is not one of guilt but of appropriate punishment.

There is no question about whether the convicted offenders broke the law. Their defenders admit that but seek to condone the behavior on the basis that they were merely seeking to promote democracy.

That is the same argument used by lynch law activists.

Lynchers had to have the support of the majority otherwise they’d have found  it difficult to lynch. The difference, at least as it seems to me, is that democracy is the state of affairs where majority decisions are put into effect insofar as they can be by following the rule of law. Mob rule is where majority decisions are put into effect ignoring the rule of law.

The offenders in this case preferred mob rule to democaracy.

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HONESTY HAS ITS OWN REWARDS??


Mr Lee Kwok Shing pleaded guilty before me to a charge of pickpocketing.

The prosecutor said that he was aged 75 and had a clear record.

Curiosity killed the cat and it should’ve killed my judicial career.

It didn’t because in those days the only record of what happened in court was the record which I kept.

So, even if you search the court records to your heart’s content, you will only find in Mr Lee’s case what the charge was, what his plea was, that he was aged 75 and that he had no previous convictions Because that is all that I wrote into the record.

Today, every sound audible in court is tape-recorded.

Had that been the position when Mr LEE appeared before me, a transcript of the tape would have read as follows [with M as me and L as Mr Lee]:

M: “Mr Lee, pickpocketing being such a skilled operation, I suspect that you did not begin at the age of 75. Am I right?’

L: “You certainly are, Your Worship”.

M:”At what age did you begin?”

L: “When I was 15, Your Worship”.

M:”Always in Hong Kong?”

L: “Yes, Your Worship”.

M:”So, for 60 years you picked pockets in Hong Kong without ever being caught?”

L:”That is so, Your Worship”.

M:[with a stern countenance appropriate for the deliverance of a homily]:” Well, Mr Lee, I’m sure you must agree, that your appearance here today shows that no matter how clever a criminal may be the law will finally catch him”.

L: “I do agree, Your Worship”.

Then, holding up his hands with their knarled fingers, he added: “But arthritis also contributed, Your Worship”.

I did not give him secure employment by sending him to prison.

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DID A ROOKIE REALLY REFUSE THE OFFER OF A COOKIE?


In the seventies of the last century, the Hong Kong police force fulfilled the dual roles of a law-and-order enforcement agency policing criminal activity and a para-military force drilled, armed and ready to quell insurrection.

Discipline within the force did not distinguish between the roles. A rank-and-filer on beat patrol with his pencil and notebook in his pocket would react in exactly the same way as his counterpart on anti-riot duty decked out with a truncheon and a rattan shield.

The “knee-jerk” reaction of each on meeting a member of the officer class was to stand rigidly to attention with heels clicked, backbone straight and head at perfect right-angles to each shoulder whilst formally saluting and uttering “SIR” as a full-stop to anything said to the superior.

In the law enforcement role, the force had to seek out and prosecute people who contravened the law.

That, in turn, involved seeking out and prosecuting people who breached licences to operate massage parlours.

One method then employed was to use a recently graduated constable from the police training school as a decoy.

To the massage parlour receptionist, he would appear as the ideal patron – young, fit, fresh-faced and apparently eager to lose his virginity.

My knowledge of this comes from a case I heard.

In those days, the court prosecutor was a police inspector – officer rank.

The principal prosecution witness was the decoy.

After the prosecutor had asked the decoy the questions which established how he came to be at the massage parlour and meet the very comely female defendant [‘the defendant’] the dialogue between the prosecutor and the decoy went { with P meaning Prosecutor and R for rookie meaning decoy} as follows:-

P: “Now, constable, tell court what then happened after you were introduced to the defendant”.

R: “The defendant took me to a cubicle, Sir”.

P: “And what happened in the cubicle?”

R: “The defendant told me to take off all my clothes, Sir”.

P: “Did you take off all your clothes, constable?”

R: “I did, Sir”

P: “What happened then?”

R: “The defendant took off all her clothes, Sir”

P: “So, you and the defendant were then together alone in the cubicle both completely naked: Is that so?”

R: “Yes, Sir.”

P: “Did anything then happen?”

R: “Yes, Sir.”

P: “What was the next thing that happened, constable?”

R: “The defendant turned on the shower, Sir.”

P: “After that, did anything else happen?”

R: “Yes, Sir.”

P: “What happened, constable?”

R: “The defendant began soaping my body, Sir.”

P: “What part of your body did the defendant soap?”

R: “The upper part of my body, Sir.”

P: “Only the upper part of your body?”

R: “No, Sir”.

P: “What other part of your body, constable?”

R: “The lower part of my body, Sir”.

P: “Any particular part of the lower part of your body, constable?”

R: “Yes, Sir”.

P: “What particular part of the lower part of your body, constable?”

R: “My private parts, Sir”.

P: “Whilst the defendant was soaping your private parts did you react in any way at all?”

R: “I did, Sir”.

P: “Tell the court exactly how you reacted?”

R (standing as if being addressed on the parade-ground , with arms held close to his body, head forming perfect right-angles with his shoulders, “eyes front” and face expressionless): “I revealed my identity, Sir”.

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HOW A HELPING HAND MAY BECOME A FOOT IN THE MOUTH


Whilst still in my early days as a makee-learnee magistrate I heard a custody case.

Dad and Mum whilst unmarried to one another had produced a daughter.

Each wanted custody.

Dad’s case was that he could support the child better because he was a skilled worker in regular employment whereas Mum had no skills and no means to support the child.

Mum’s case was that her lack of those skills wasn’t an impediment because, through a former liaison, she had a source of unconventional income superior to Dad’s.

The “source” was another daughter, and the “unconventional income” was earned as a dancing hostess.

Mum called the “source” to give evidence.

Her name was Miss Woo.

Miss Woo’s evidence was that, as a dancing hostess, the major source of her income was derived by way of commission.

The figure she gave for her commissions far exceeded the modest wage the father said he earned.

So much so, that the father’s solicitor, in cross-examining her, sought to show that her net income was not much, if any, greater.

His questions were directed at her expenses: in particular about her clothing.

All went well until he asked her about how much she spent on shoes.

She replied with a figure which, to me, appeared as if she bought only one pair of shoes a year.

When you are very new to the game of judging, as I was then, you can be so transported to another world by being addressed in terms of “Your Worship”, that you react as if you were in that other world.

I was surely in that other world when I intervened to make this observation:-

“Miss Woo”, I began and went on, pontifically, “if your income depends upon your commission then the more you earn by way of commission the more wear-and-tear there should be on your shoes. With the commision you claim you earned you would’ve worn out more than one pair of shoes in a year”.

Gloating with glee about the logic of my observation, I turned to the solicitor for the father whilst my remarks in English were being interpreted for Miss Woo’s benefit, and said: “Doesn’t that summarise your point, Mr. Chan?”

Young Mr. Chan’s opening words in reply, if given literally without the accompanying smile and body language, would convey the wrong response because he said: “Your Worship has been most helpful”.

It is only when you hear his “punch-line” that you can appreciate the irony of his advocacy and how, what I thought was a helping hand was, in reality, my foot being put in my mouth.

He went on to say:

“It will, however, be my suggestion to her that she does only need to buy one pair of shoes a year because the less time she spends on her feet the more she earns”.

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YOU HAVE TO BE IN THE RIGHT MOOD TO MAKE THE RIGHT DECISION


The connection between the Star Ferry riots and a subsequent court event arose in this way.

A young man – let’s call him Weetabix Wong.

Why?

To demonstrate a fascinating Hongkongism.

In our society it is a practice for Chinese children, when they begin to study English, to choose for themselves a given English name.

I have a Chinese brother-in-law whose real name is Wong Tung (黃動). But most people know him as Terbin Wong. The given name “Terbin” is the name he adopted when he began to study English. Where did he get the name Terbin? It’s an anagram of Bertin which was then the brand name of his favourite bicycle.

So I was not surprised when my eldest son, Greg, told me after doing invigilating duty that one candidate he supervised was registered as Weetabix Wong.

By using Weetabix’s amusing choice of a given name I do not mean to poke fun at him
Far from it : I’m grateful to him for providing me with a means to set the tone for the following “parable”.

The riots, which erupted on my arrival in 1966, had begun as a protest against a decision to increase the cross-harbour ferry fare.

The government decided, after the riotous demonstrations had continued for several days and shown no sign of abating, that a curfew had to be imposed.

The decision to impose the curfew was broadcast at about midnight.

It was to take effect from 1.a.m.

Weetabix was arrested in a public area at 1.20 a.m.

At his trial the prosecutor was the late Frank Addison – the author of a legal textbook entitled “Addison’s Digest of Criminal Cases”.

“Mr Addison”, I asked, “how can a person be guilty of an offence if, at one moment he’s doing something lawful and then, in the next moment, without an opportunity for him to change his position, an edict is issued that what he is doing is suddenly unlawful”.

If Frank’s body language had been added to the words he actually uttered the answer could be rightly rendered as: “You stupid Australian. It’s bad enough that you mangle the English language by mispronouncing vowels. But, please don’t try to mangle our English law with your “down-under-upside-down” logic. The proper legal logical approach is this: (1) a curfew was in force; (2) Weetabix was walking in the street whilst the curfew was in force; so, therefore (3) Weetabix was in breach of the curfew.”
If judicial discipline had not restrained me I would’ve instinctively responded: “Yes, Sir”.

If you think that this is an invention of mine to create a story then check with Winston Chu.

Yes, I mean the famous Winston Chu of today’s Save the Harbour Campaign.

Winston was “green” then in the sense that he had not long broken out from the shell of law school.
Forty-five years on he is still “green” in his efforts to save our harbour.
He thinks that it is better to cross the harbour on a ferry with a sea breeze caressing your face.
He doesn’t like the idea of crossing the harbour walking through a shopping mall with the fans of air-conditioning systems caressing it.

He defended Weetabix.

When the policeman who arrested Weetabix said, in evidence, that when Weetabix was apprehended he said, according to the interpreter`:

“I knew the curfew was on. I was about to go home.”

Winston, knowing that I had only been in Hong Kong three weeks, and without any glimmer of a smile on his face said this:

“Your Worship, AS YOU WELL KNOW, it is very difficult, unlike in English,
to express the subjunctive mood in Cantonese. In English, you can know from
the expression that it is the subjunctive mood. In Cantonese, on the other hand,
what appears to be an expression in indicative mood, may well be an expression
in the subjunctive mood if one is acquainted with the tones in which the utterance
was made. It could well be, therefore, that if we heard the tones in which my client uttered
what the witness says he uttered, that what he actually said would be
rendered in English as: ‘if I had known that a curfew was on I would’ve been home
by now’.”

As I didn’t understand the subjunctive mood in English, my inferiority complex induced me to stay with the indicative rather than get entrapped in Winston’s subjunctive.

I struggled with Frank’s concept of “absolute offence”.

Weetabix had gone walking in Wanchai whilst it was lawful to do so.
Whilst he was lawfully walking the law was changed – it suddenly became unlawful to do so.
What could he be reasonably expected to do in order to comply with this sudden change in the law?
Commit another offence by breaking and entering whatever structure he was then adjacent to in order to get away from an open area?

After consulting with ‘non-down-under’ colleagues, I made what I now regard as the most shamefully disgraceful decision of my judicial career – I convicted poor Weetabix.

That’s the bad news.

The good news is that in the end justice was done.

Not because of anything I did.

But because of something Winston did.

He appealed to a judge who understood the subjunctive mood.

That judge overturned my decision.

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ARE THE SUMMONED SAVVIER THAN THE SUMMONERS?


The court event which revealed that my arrival was not completely ignored by the local populace was a run-of-the-mill careless driving case.

The defendant pleaded guilty to the charge.

Whilst I was waiting for the English translation of his Cantonese delivered mitigation I wrote down the standard fine of $75.

Then, with pen poised ready to record a precis of his mitigating plea, I heard:

“I am a married man with five children.”

My pen immediately returned to the $75 and obliterated it.

He’d struck a chord.

I was then a married man with five children struggling on a magistrate’s salary. He was struggling on a truck driver’s wages. A fine of $75 will punish the kids, I thought. I’ve got to try to confine the punishment to him. So I discounted $10 for each child and reduced the fine to $25.

Later, I thought that I had detected a statistical significance in some of the pleas of mitigation I’d been hearing.

So I asked my Chinese court clerk: “Do Chinese people regard 5 as a lucky number?”

“No”, he replied.

“Well”, with a somewhat superior air, I asked, “why is it that most Chinese families have 5 children?”

“They don’t”, he replied.

“Then, haven’t you noticed”, I said, thinking I was delivering a killer blow, “ that most of the men who have appeared before me have been married men with 5 children?”

The question was met with a knowing smile and this reply: “Of course. But that doesn’t mean that they ARE married men with 5 children. It only means that they KNOW that YOU are a married man with 5 children”.

“How on earth do they know that?”, I asked.

“Because, a couple of days after you arrived, there was a story in the Chinese press with a photo of you and your wife and your five children.”

In Australia, my next door neighbour was a journalist with Hong Kong connections. Ahead of my arrival he had alerted them to the “story” of a man with five children leaving the open spaces of the world’s largest island to come and live in one of the world’s most crowded cities. As a result, I was interviewed by the press with photographs taken but I saw nothing of it in the English press. So I was completely unaware, until then, that my five children had really made me newsworthy.

That court event, however, was only the first in a series which eventually taught me that in Hong Kong the people who are summoned to appear in court usually have more reliable information about the summoner than the summoner ever has about them.

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LOITERER HAD TO WAIT FOR JUSTICE TO BE DONE



I arrived in Hong Kong on 22 March 1966.

Riots immediately erupted.

A subsequent judicial inquiry into the cause of the riots found that there was no causal connection between the two events.

There was, however, a causal connection between my arrival and a subsequent event in court and between the riots and another event in court.

But, before either of those court events occurred, there was another which illustrates how justice, like God, can act in mysterious ways.

I arrived on a Friday night.

On Monday I sat in number one court at North Kowloon Magistracy with the Principal Magistrate for Kowloon, Chub Hayden.

On Wednesday Chub rang me to say: ‘Eric, I have a meeting with the Registrar of the Supreme Court on Friday. I’d like you to preside over number one court’.

‘Chub’, I said, ‘I’ve only been here a few days, how could I possibly preside over that court?’

Chub was an amiable fellow with an uncanny ability to assess people’s weaknesses. He had known me for only a few days but had accurately concluded that I was malleable in the hands of a flatterer.

‘Eric’, he said, ‘I wouldn’t have suggested it if I hadn’t been confident that you could handle it.’

With what I thought was cunning on my part, I agreed

My cunning thought was that in the number one court there were only two procedures.

If a person pleaded not guilty all that needed to be done was set a date for hearing and determine whether the person charged should be granted bail and, if so, on what terms.

If a person pleaded guilty all that needed to be done was hear what the alleged facts were, listen to any plea in mitigation and pass sentence.

From my experience on the Monday when I sat with Chub, I remembered that those who pleaded guilty had generally done the same thing before on many occasions so that the appropriate sentence was already exposed by the details of their previous convictions. So I was able to persuade myself that my inexperience with Hong Kong conditions would not be exposed if I simply did what all good judges do: namely, simply follow precedent.

And that I did.

Unfortunately, however, as the day went on I became proud of the way that my cunning was working. Pride, it is said, precedes a downfall.

My downfall came about in this way.

A man pleaded guilty to a charge of “loitering with intent to commit a crime”. He had 14 previous convictions for that offence. On the previous three occasions he had been sentenced to imprisonment for three months. In the former British Colony from whence I’d come the maximum term of imprisonment for a similar offence was imprisonment for 18 months. In the belief that the same maximum applied here, I decided that it was time that he should serve four months. And I ordered accordingly.

One day short of three months later I received a telephone call from the Superintendent of the Fingerprint Bureau of the Hong Kong Police Force. The Bureau was then responsible for keeping police records of convictions.

‘Mr. Barnes’, he said, ‘a mistake has been in a communication we’ve received from Noth Kowloon Magistracy about a conviction of a person charged with loitering with intent. The record says that you sentenced him to four months’ imprisonment. As the maximum is only three months that order can’t be right. Could you confirm for me what your actual sentence was?’

‘Certainly, superintendent’, I replied. ‘I’ll dig out the file and call you back’.

When I received the file I was horror-struck. By then I knew that the maximum was only three months and had no recollection of the sentencing incident until I saw the convincing evidence of my own handwriting that I had imposed such a sentence. My handwritten record recalled the circumstances under which I’d made such a horrible blunder but the real problem was: how do I correct it?

I rang Chub. He was, at the time, acting as Registrar of the Supreme Court. He was a very efficient man. It was during the morning when I rang him. By the afternoon he rang me back to tell me that affidavits had been prepared for the prisoner to sign so as to arrange his release that afternoon. It was very important, for the purposes of the administration of justice, that he be released that day. Prisoners sentenced to three months or less were not then entitled to any remission of sentence. So, if he were released that day, he would not have served any longer a sentence than if I had imposed a proper sentence in the first place.

Having prepared all the documents to secure the prisoner’s release that day, Chub rang me.

‘Eric’, he said, ‘is there any message you would like us to give the prisoner?’

‘Yes, Chub’, I replied, ‘tell him that if ever he comes up before me again that I owe him something.’

Some months later the then permanent Registrar of the Supreme Court held a dinner party at his home to welcome new magistrates. The late Henry Daniell and I were present. During the dinner , whilst I was relating my boo-boo in connection with this case the registrar, C.M. Stevens, nudged me under the table to keep quiet. People who know me know that once I’ve started a story a kick on the leg under the table is not enough to prevent me from continuing. So I continued.

Many more months later I received a phone call from Henry Daniell. ‘Eric’, he said,’ remember that story you told at C M Stevens’ dinner party about the guy you sentenced to four months’ imprisonment when the maximum was only three months?’

‘I remember it well’, I replied.

‘Well’, said Henry, ‘I had a guy up before me today who pleaded guilty to loitering with intent and when I asked him if he had anything to say he said: I was once wrongly sentenced to four month’s imprisonment and the magistrate said if I came up again he owed me something’.

‘What did you do?’, I asked.

Henry said, ‘Well, first I asked him: Who was the magistrate?’

“’Bar lee see’ was the reply”, Henry said.

‘What did you do?’, I asked.

‘Gave him an absolute discharge without a conviction being recorded’, Henry said.

The case poses two interesting questions:

(1) As the “victim” did not suffer adversely through my judicial blunder was he entitled to the benefit Henry bestowed?

OR

(2) Was Henry’s decision – not justifiable, say, on the basis of “logical justice” – an acceptable public relations exercise to demonstrate that judicial blunders should be:-

  1. publicly acknowledged; and
  2. rectified beyond the requirements of “logical justice” with the aim of maintaining public confidence in the integrity of the judiciary?

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