Introduction
In the previous part, I discussed the historical background and recent political developments in Hong Kong that have raised concerns about the role of Australian judges in Hong Kong’s Court of Final Appeal. This part will examine specific cases involving Australian judges to assess their contributions and the extent to which they have challenged the infringement of human rights in their judgments.
Judgments by Australian Justices
In the case of HKSAR v. Chow Hang Tung [2024] HKCFA 2, the appellant, Chow Hang Tung, a human rights lawyer, was convicted for inciting others to participate in an unauthorised assembly. This charge stemmed from her attempt to challenge the legality of a police prohibition on a public assembly intended to commemorate the anniversary of the June 4th massacre.
Despite her efforts to appeal the prohibition, her conviction represents a significant setback for freedom of assembly in Hong Kong. Justice Gleeson’s role in this case was minimal yet consequential. He concurred with the judgment that upheld Chow’s conviction, rejecting Chow’s point of view, and agreeing with the majority’s decision that found Chow’s collateral and constitutional challenges to be without merit. Notably, Justice Gleeson did not offer any commentary, not even as obiter dictum, in support of Hong Kong’s freedom of assembly. This contributed to the affirmation of her conviction, highlighting the challenges faced by individuals seeking to exercise their right to assembly in Hong Kong’s increasingly constrained legal landscape.
The continued service of Australian judges in a Hong Kong court system increasingly manipulated to repress dissent under authoritarian rules
In the case of HKSAR v. Choy Yuk Ling [2023] HKCFA 12, the appellant, Choy Yuk Ling, a journalist, sought to uncover collusion between the Hong Kong police and criminal mobs in suppressing the civil rights of Hong Kongers through her investigative journalism. Despite the noble intentions behind her news report, she was punished with a minor offence by the police for allegedly making false statements in her application for vehicle registration details, leading to a costly 30-month legal battle that escalated from the lowest courts to the Court of Final Appeal. Ultimately, Choy achieved a rare victory in court, with her convictions being quashed. However, Justice Gummow’s contribution to the judgment was minimal, merely uttering seven words, “I agree with the judgment of J. Fok.” His lack of criticism, among other judges, towards the prosecution’s approach or the retaliatory actions of the Hong Kong Police is notable, as it suggests a silent endorsement of the status quo, leaving the broader implications of Choy’s case and the state of press freedom in Hong Kong unaddressed.
In the case of HKSAR v. Mak Wing Wa [2023] HKCFA 19, Mak Wing Wa was convicted of taking part in an unlawful assembly during a massive protest by Hong Kongers for freedom in 2019. The incident involved a large crowd gathering at Wong Tai Sin Square, with some individuals, including Mak, shining torches and laser pointers at police officers. The Court of Final Appeal held that Mak had participated in the unlawful assembly with intent, as he was aware of the prohibited conduct of others and joined in by using a torch against the police.
The conviction and sentence were restored by the Court of Final Appeal. In this case, Justice Keane’s contribution to the judgment was minimal, as he simply concurred with the judgment of Mr. Justice Lam PJ. Furthermore, he chose to endorse the conviction without addressing the broader context of the peaceful protests or offering any sympathy towards the powerless protesters, who wielded nothing more than torches and laser pens against a violent crackdown by the police.
A journalist, sought to uncover collusion between the Hong Kong police and criminal mobs in suppressing the civil rights of Hong Kongers
In the case HKSAR v. Chan Chun Kit [2022] HKCFA 15, also known as the Zip Ties case, the appellant, Chan Chun Kit, was initially convicted for possessing 48 pieces of 6-inch plastic cable ties, deemed to be an instrument fit for unlawful purposes under section 17 of the Summary Offences Ordinance. This case is emblematic of the police crackdown on the 2019 mass protests for freedom in Hong Kong, where many young protesters commonly carried plastic cable ties to construct barricades as a defence against police tear gas and rubber bullets.
Unexpectedly, The Court of Final Appeal overturned the conviction, ruling that the plastic cable ties did not fall within the scope of section 17. In this case, Justice Gleeson’s contribution to the judgment was minimal, as he merely concurred with other judges who focused on the technicalities of the law, without addressing the broader issue of the police’s abuse of power and arbitrary arrests of peaceful protesters. Furthermore, he did not challenge the prosecution’s reasoning, failing to question why plastic cable ties could be considered unlawful in the first place.
Conclusion
The approach of the three Australian judges in the above cases has been minimalist, focusing primarily on technicalities without addressing the broader context of the law being used as a tool for political repression. There has been no demonstration that their presence has helped maintain the independence of Hong Kong’s courts from political interference by the regime. Consequently, their involvement has failed to show any meaningful infusion of Western liberal or democratic values into the increasingly authoritarian environment in Hong Kong. It is important to note that these cases represent only minor political offences; more serious charges under the NSL, such as conspiracy to subvert state power and collusion with foreign elements, are entirely beyond the purview of Australian judges.
The continued service of Australian judges in a Hong Kong court system increasingly manipulated to repress dissent under authoritarian rules not only threatens the integrity of the Australian legal profession but also risks diminishing Australia’s standing within the international common law community. The departure of British judges from the Hong Kong Court of Final Appeal, due to their stance against endorsing an administration that strays from core values of political freedom and freedom of expression, underscores the growing international unease with the judicial environment in the region.
This stark contrast between the British judges’ principled exit and the ongoing presence of Australian judges in the same system could significantly erode trust in the Australian judiciary, potentially transforming these distinguished legal figures into a source of national embarrassment. Given these circumstances, it is crucial for the Australian legal community to critically reassess its involvement
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Ted Hui is a solicitor at RSA Law and former Member of the Hong Kong Legislative Council)
