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Well well. Government spokespersons of various kinds have been commenting defensively on the slow-motion prosecutions which have left two thirds of the people arrested during the 2019 disorders still awaiting trial. I would not dare to attribute this to my nagging on the subject, but it seems there is some unease behind the scenes. As there should be.
According to the the latest figures, of the 10,279 people arrested, 2,974 had been or were being processed in September, leaving about 7,000 still awaiting a decision.
First up was Secretary for Justice Paul Lam, who told Sing Tao that there was no statute of limitations on criminal cases in Hong Kong. This is inaccurate and irrelevant. There are, in fact, statutory requirements that prosecutions – for some offences – should start within six months of detection.
In any case, the absence, if there were an absence, should perhaps be remedied. As a legal scholar put it: “legislatures implement a statute of limitation out of necessity to protect defendants from defending against purported injuries that challenge faded memories and lost records. The aim of statutes of limitations is not to set the guilty free, but to serve justice by ensuring that plaintiffs do not bring claims against which a defendant cannot properly defend.”
Mr Lam also said that he did not understand why people were complaining because those awaiting trial were free to “travel, work and study.” Well, good luck with starting a career when you have the possibility of a four-year furlough in Stanley hovering over you. Travel is a tempting thought, though. I am not sure exactly how Mr Lam put it – the interview was in Cantonese – but he may need to work harder to avoid giving the impression that officials rather hope all these ungrateful malcontents will emigrate rather than face trial, sparing us a “bad story about Hong Kong” and leaving space for newcomers.
Next up was Secretary for Security Chris Tang, in a briefing for selected media. Mr Tang said the delay in prosecutions was “not unfair” because the police needed time to gather evidence. He also said it would be against the rule of law principle if prosecutions were subject to a time limit, and gave the example of someone who murders his wife and flees the jurisdiction. If he returns 20 years later he should still be tried, Mr Tang believes.
As do we all, but this example has two deficiencies. It is an example of the most serious possible crime (well … unless you’re really hung up on national security) and of a delay entirely caused by the defendant, who could have had his trial promptly if he had not left town first.
Mr Tang said that, if anyone was not prosecuted, it would be making something legal which was illegal, an odd way of putting it. But there we are.
Neither of these gentlemen offered any alternative to continuing as at present. There were no ideas for reducing the workload or speeding up the work. The government is apparently happy to continue on its present course, which will lead to continued prosecutions hitting the court sheet until about 2035, by which time the defendants will have been waiting for 16 years.
No doubt they will then be consoled with a repeat performance from Grenville Cross SC of his piece in the China Daily recently, reassuringly headlined “Delay in protest cases is legitimate and unavoidable.”
This opens with some of the usual platitudes about the decision to prosecute, and continues to a fine example of the sort of legal argument which leaves laypeople baffled and frustrated. Mr Cross introduces the “ancient common law doctrine” that “time does not run against the Crown,” as indicating that prosecutions are not invalidated by delay.
This doctrine is indeed ancient. It would be unfair to describe it as a dinosaur. It is a fossil. Historians trace it back to the time of William the Conqueror. Being ancient, it was of course originally expressed in Latin: nullum tempus occurrit regi. In accordance with the ancient legal principle that proceedings should be as incomprehensible as possible to non-lawyers this is usually referred to simply as “nullus tempus”.
In the Middle Ages, it did not apply to criminal matters, which were disposed of in a drastic and summary way. The question of delay did not really arise. Defendants facing serious charges were kept in jail until an itinerant judge charged with “gaol delivery” arrived and after brief hearings they were freed (if acquitted), mutilated or executed. Prison as a punishment did not appear until the 19th century.
The “nullus tempus” rule applied to the ownership of land. The common law rule was that if you had occupied the plot for 60 years – as far back as anyone could decently be expected to remember – then it belonged to you. But this did not apply if the would-be owner disputing your claim was the King. If your land had once belonged to the Crown then it made no difference how long you had been sitting on it.
This was manifestly unfair and it was abolished by two Acts of Parliament known as the Nullus Tempus Acts, in 1623 and 1769. Their full names (I cannot resist this stuff) were “An Act for the General Quiet of the Subjects against all Pretences of Concealment whatsoever” and “An Act to amend and render more effectual an Act made in the 21st Year of the reign of King James the First, intituled An Act for the General Quiet of the Subjects against all Pretences of Concealment whatsoever.”
And that was really that as far as English law was concerned. English judges now routinely throw out cases if they feel the prosecution has not been carried out at a decent speed. However, as often happened in the old imperial days, laws passed in London did not always apply in colonies. Shortly after the second Nullus Tempus Act, the American colonies declared independence with the old law still on the books.
Many states have since abolished or modified the common law rule, because – as one judge put it: “The fundamental injustice caused by the nullum tempus doctrine is that it renders the public forever vulnerable to a suit by the State for long past conduct or omissions.”
The principle also lurks, for similar reasons, in some parts of Canada. As Hong Kong adopted the English system in the 1840s, long after the two acts, it has nothing to do with us really.
Emerging from this grey area, Mr Cross canters through the territory explored by Messrs Tang and Lam, with whom (mirabile dictu, as lawyers would say) he entirely agrees, and observes that the courts have the right – which they occasionally exercise – to dismiss prosecutions if manifestly unfair, and reduce the sentences of people whose ordeal in the legal digestive system has been prolonged.
Mr Cross opines: “It is invariably in the interests of justice that those who commit offences should face justice, even if it takes time.” Whether he regards 16 years as acceptable in this context is, alas, not explored. But he adds that the police are investigating in good faith and are doing their best to get the whole thing over with.
Actually, I entirely agree with that last point. Because we have also had, since I last visited this topic, the result of District Judge David Cheung’s request for a timeline of the prosecution which had arrived in his court earlier this year.
According to HKFP’s intrepid reporter, he summarised the result as follows: “Cheung said police spent three months investigating the case, while the Department of Justice used two years and three months to give legal advice.”
Just in case you weren’t listening carefully I’ll repeat the most interesting part of that: “the Department of Justice used two years and three months to give legal advice.” What? No analysis of hours of video, no missing street cameras, no extended and detailed investigations? Nope. The police did their thing in three months.
The Department of Justice operated at a speed which beggars belief. It took them longer to produce an opinion than many writers consume over a book. George Simenon could have written two novels in that time. Precocious babies who were born when the file hit some government lawyer’s in-tray were talking and walking by the time it had crossed the desk to the out-tray.
The remaining two and a half years still unaccounted for were, I presume, consumed waiting for a court and a judge to be available. This shortage was entirely predictable and – thanks to the Department of Justice’s contribution – the government had two years to tackle the problem, which it did not.
Now look, the issue of unreasonable delays in proceedings is not a matter on which mediaeval lawyers had the last say and it is not a simple matter of saying that justice must take its course, even if it takes time. This is a matter of human rights on which there are international standards. Human rights instruments often include the requirement that trials should not be unreasonably delayed, and – if they do not – this is usually inferred anyway from the more fundamental obligation to provide a fair trial.
There will always be cases where this is difficult for good reasons. The British system managed to get some rioters into court in a matter of days recently. On the other hand the trials ensuing from the investigation of the Grenfell Tower fire in 2017 will not start until next year, about which there have been some bitter complaints. The public inquiry was put first.
But the principle is that defendants are entitled – i.e. not allowed to hope for, but entitled – to a speedy trial unless there are good reasons for delay and the case is so important that a bad trial is better than no trial at all. Otherwise the remedy is, and should be, to drop the case altogether.
If the government cannot bring itself to stop the flow of cases and leave some pounds of flesh uncollected, then there really needs to be some serious thought about how we can stop the whole saga from running uncontrollably into the next decade.
In the old days, Hong Kong magistrates’ courts had a way of handling hawking offences in bulk. The day’s crop of suspects would be lined up at the back of the court. The clerk would read out their names and announce that these defendants would be fined HK$10 if they pleaded guilty, which of course they all did.
I suppose many of our 7,000 waiting suspects would be quite happy to be invited to plead guilty before a magistrate, whose sentencing powers are much less than those of a district court judge. That would overload the prison system so we may also need to revive some alternative punishments. The Italian government has built a camp in Albania which the courts will not allow it to use for asylum seekers. Bring back transportation?
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