Juvenile offenders become adults during HK’s long court delays

I have been complaining for many years – it’s not particularly fun but someone has to do it – about the lamentable speed with which prosecutions proceed in Hong Kong.

You will notice that a sentencing involving 2014 Umbrella Movement democrats predated both Covid-19 and the 2019 “arrestfest.” I will not repeat the details.

Suffice to say that, in the absence of special circumstances, two years between arrest and trial is widely regarded as an infringement on the rights of the accused, and three years as so unacceptable that less serious cases at least should be dropped altogether. But that is not how we do things here. Four years or more is regarded as perfectly acceptable.

As a result, we have cases in which the convicted defendant walks free because they have already served their sentence in bail-less custody before the trial, and a recent case where erroneous prosecution evidence was rejected by the judge on the basis that the events occurred a long time ago.

Let us note in passing that this was a serious error. The onus is on the prosecution to prove its case beyond reasonable doubt; any deficiency in that case should help the accused. It is not the judge’s job to rehabilitate the reputation of police witnesses.

Last month, we had a new horror, so outrageous as to attract the attention of the presiding judge. Invited to pass sentence on four participants arrested at a riot scene in 2019, five years ago, District Judge David Cheung announced an intention to look into any delay in the prosecution and asked for a timeline.

It is not for me to put thoughts into the judge’s head, but what may have attracted his attention is that two of the defendants were twins who, at the time of the offence, were 14 years old.

This presents an interesting sentencing dilemma. At the time of the riot, the twins would have been eligible for a variety of treatments designed specifically for juvenile offenders. With the passage of time they have now become adults.

This is not supposed to happen. The law recognises that – in most cases – it is not appropriate to deal with young offenders in an adult court, and although exceptions are sometimes made, they are rarely made for 14-year-olds.

Delaying the proceedings for so long that the defendants become adults not only deprives them of the special arrangements made for young offenders (informal procedure, presumption in favour of rehabilitation etc…) but also of the restrictions on the reporting of juvenile proceedings.

If the twins had been dealt with in a juvenile court, as they should have been, it would have been an offence for the media to report their names or any identifying details. Their names are now all over the place, with effects which may include adverse discrimination in bids for employment or education.

No doubt the judge will consider whether, perhaps, this exposure in the public pillory may be punishment enough.

After the UK government sped its local rioters into court within a week, one of the China Daily tellers-of-good-stories about Hong Kong observed that there would have been international criticism if Hong Kong had done the same. That may be true, but there is a happy medium in these matters. Five years is not a material improvement on five days.

It must also be said that, if a case in England had taken so long that a 14-year-old defendant appeared for sentencing at the age of 19 there would be an almighty and amply justified row. Heads would roll.

You have to wonder what the Secretary for Justice tells his children he does for a living. Practising for when the Olympic authorities finally recognise snail-herding as a sport?

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