A Hong Kong Decide Adjustments His Spots

By: Samuel Bickett

The next, although for much longer than Asia Sentinel’s regular articles, is reprinted with permission from the “Hong Kong Legislation & Coverage” weblog on Substack of Samuel Bickett, previously an American company lawyer who was arrested in 2019 for allegedly interfering with a police officer who refused to establish himself and who was beating a youth who reportedly had jumped a turnstile. Bickett was in the end sentenced to 4 months and two weeks in jail. The expertise turned him right into a human rights lawyer. He’s now primarily based in Washington, DC as a authorized fellow on the Georgetown Heart for Asian Legislation.

Since early January, many Hongkongers have been captivated by the continuing testimony of former Stand Information Editor-in-Chief Chung Pui-Kuen, who’s being prosecuted for sedition alongside former chief editor Patrick Lam and their now-defunct firm. In a metropolis the place anti-establishment speech is closely suppressed, Chung’s eloquent protection of the free press has garnered public reward and uncovered the prosecutor questioning him, Laura Ng, as inept.

But all through Chung’s testimony, the prosecution has violated the defendants’ rights by producing, day-after-day, a whole bunch of paperwork that it by no means gave to the protection—a violation of legislation and the Prosecution Code which, in egregious circumstances, warrants halting the proceedings completely. However every time Ng has revealed one other set of unproduced supplies, the decide within the case, Kwok Wai-Kin, has shortly dismissed objections from protection counsel. Again and again, he has not solely ordered the trial to proceed, however even allowed the withheld paperwork for use to cross-examine Chung.

To these unfamiliar with Decide Kwok, his actions might sound surprising. However to court docket watchers, his actions aren’t shocking in any respect.

For the reason that 2019 Hong Kong protests, Decide Kwok has grow to be infamous for his controversial rulings and political biases. Even in a judiciary more and more influenced by Beijing, Kwok stands out. In 2020, Chief Justice Geoffrey Ma suspended Kwok from listening to political circumstances after he praised a defendant who stabbed three peaceable protesters and in contrast the victims to terrorists.

The following yr, nevertheless, newly appointed Chief Justice Andrew Cheung reinstated Kwok, paving the best way for his appointment as a nationwide safety decide. In consequence, Kwok now handles one of many heaviest caseloads of high-profile, politically charged “nationwide safety” circumstances through which the proceedings are choreographed and conviction is inevitable.

Decide Kwok has grow to be probably the most controversial and influential figures in Hong Kong’s judiciary. This may hint Kwok’s journey from abnormal civil servant to pro-Beijing radical, and his comeback from shame after the stabbing case to a outstanding nationwide safety decide.

Decide Kwok is an instance of how Hong Kong’s judicial system, as soon as revered for its independence and professionalism, has been eroded by Beijing’s interference and intimidation. Kwok’s radical views and actions haven’t hindered his profession, however quite boosted it, as he has grow to be a loyal enforcer of the Chinese language regime’s crackdown on dissent and autonomy in Hong Kong. By analyzing Kwok’s biography and verdicts, we are able to acquire insights into how and why many judges and magistrates in Hong Kong have deserted their authorized rules and ethics, and succumbed to the pressures of nationalism, ambition, and worry. By Decide Kwok, we are able to witness the transformation of the judiciary from a guardian of the rule of legislation to a instrument of political oppression.

An abnormal civil servant

On Might 23, 1989, as pro-democracy demonstrators occupied Tiananmen Sq. in Beijing, a bunch of Hong Kong attorneys printed an announcement of solidarity. Within the doc, they declared that they “assist the scholar motion, oppose martial legislation, oppose the army, oppose violent suppression, oppose a information blackout, and name for open and forthright dialogue in direction of a peaceable answer.”

One of many signatories to this principled protection of democratic rights was a younger barrister named Kwok Wai-Kin. Kwok was born and raised in Hong Kong, receiving his legislation certificates in 1982 after finding out on the College of Hong Kong. He was a product of a British authorized training system and society that, regardless of its many flaws and failures in the course of the colonial interval, by this level was instructing its attorneys to worth rule of legislation and particular person rights. So it was unsurprising that Kwok would assist the younger women and men demonstrating for simply this kind of justice and equity throughout the border in China.

In 1992, he was appointed as a Justice of the Peace, later changing into a chief Justice of the Peace. In his early years, he did little to differentiate himself, steadfastly making use of the legislation with out a lot fuss. In his many non-political rulings, he comes off as a by-the-books kind, fastidiously hewing to sentencing tips and authorized precedents in a variety of circumstances from drug dealing to housebreaking. Certainly, one skilled barrister I’ve spoken to for this text described Kwok’s early repute as that of an unassuming civil servant, and a “good and truthful man.” One other barrister reported that he was largely unfamiliar with Kwok “till he grew to become notorious” in 2019.

Outdoors of the courtroom, Kwok’s solely brush with notoriety got here in a minor 2004 incident through which he was accused in his non-public capability of pressuring the Immigration Division to waive a alternative price for a misplaced ID card. The Chief Justice on the time dismissed it as a personal matter, and no motion was taken.

In one in all his last circumstances as Chief Justice of the Peace earlier than promotion to the District Courtroom in 2012, Kwok demonstrated his dedication to the legislation, in addition to a little bit of an impartial streak. The defendant within the case was accused of “accessing a pc with a view to dishonest acquire” through the use of a smartphone to secretly movie ladies in a toilet. In court docket, the defendant wished to plead responsible, however Kwok rejected the responsible plea as a result of he had considerations that the prosecution was overstepping by characterizing a smartphone as a pc—an exceedingly uncommon transfer by a decide the place a represented defendant pleads responsible. After a trial, Kwok discovered the defendant not responsible.

The decision was overturned on enchantment, however at a time when the judiciary was nonetheless believed to be positioning itself as impartial of the federal government and Beijing, the case helped set up Kwok as a defender of that independence. One barrister I spoke to believed it was this case greater than another that allowed Kwok to interrupt out of the “profession purgatory” of Chief Justice of the Peace and acquire a uncommon promotion to the district court docket later the identical yr.

It’s doable that Kwok was merely a devoted, principled civil servant earlier than one thing in his life led to a drastic shift in his political beliefs, inflicting him to grow to be a real believer within the Communist Social gathering and its proper to carry the judiciary to heel. In hindsight, nevertheless, his actions recommend a much less noble clarification, one that’s widespread amongst Hong Kong’s authorities officers: that as Hong Kong modified, a lot of its civil servants sought to additional their very own careers by altering with it

In 1989 as a younger lawyer, Kwok’s profession development in British Hong Kong relied on supporting the Tiananmen protesters, in order that’s what he did. In 2012, in the course of the peak days of the post-Handover impartial judiciary, his profession development relied on displaying his independence from the federal government, so he issued choices displaying his independence. Then someday throughout or after the 2014 Occupy Central protests, as Beijing started encroaching on political dissent and stoking nationalism, he realized that his profession development relied on pleasing Beijing, so he modified route as soon as once more.

Canary within the coal mine?

The primary indication that Kwok’s views on politics and legislation might need begun turning extra excessive was in 2018, within the interval of political uncertainty between the 2014 Umbrella Motion and the 2019 democracy protests. Kwok was one in all a number of District Courtroom judges assigned to rioting circumstances stemming from the 2016 “Fishball Revolution.” In that incident, throughout a standard celebration in Mongkok industrial district over Chinese language New Yr through which distributors would hawk conventional snacks, Meals and Environmental Hygiene Division officers arrived on the scene and started checking hawkers for cooked meals licenses, which many didn’t have.

The custom of hawkers promoting snacks at Chinese language New Yr had an extended, well-established historical past, so the efforts to finish the follow drew anger from members of the general public already resentful of perceived overreach by the Beijing-friendly authorities. In response, “localist” leaders—a moniker given to those that supported the Hong Kong self-determination motion—despatched out calls on social media for supporters to come back defend the hawkers.

Police in riot gear then arrived and moved to close down the occasion, resulting in violent clashes. The police dubbed the whole occasion a riot and arrested dozens, a lot of whom have been merely current and had nothing to do with the violence.

The alleged rioters have been charged in teams, with Kwok overseeing a judicial trial for 11 of the defendants. Kwok convicted all 11, regardless of little proof that almost all of them had been violent. However whereas his reasoning confirmed a transparent shift in direction of punishing Beijing’s opponents, he nonetheless hedged his views all through. Whereas sustaining the convictions was justified, Kwok distinguished himself from the opinions of a few of his colleagues—and post-2019 Kwok himself—by sustaining that bodily presence at a riot was not sufficient for conviction. Moderately, he wrote:

“The accused should…be bodily concerned within the riot. Since rioting is a further act of disrupting social peace along with unlawful meeting, the defendant should take part in these acts of disrupting social peace to represent participation in riots. The defendant could take part within the riot in several methods or levels, however the defendant should do some particular person exercise in an effort to promote the prevalence and/or conduct of the riot (“some particular person exercise in furtherance of the riot.”

In different phrases, whereas Kwok took the place that no violence was wanted, some motion in furtherance of riot was; as such, he rejected the federal government’s rivalry that mere bodily presence was sufficient for conviction.

Nonetheless, at sentencing, Kwok was harsh, displaying little leniency in direction of the defendants or making an allowance for the complicated social scenario and aggressive police response that led to the violence. He rejected counsel arguments that every defendant ought to solely be held liable for the crimes they took half in, as a substitute concluding that the defendants bore “collective legal responsibility” for the riot as a complete.

This discovering allowed him to condemn even nonviolent defendants to vital jail phrases. His sentencing of an autistic man, Ng Ting-Kai, to 2 years and 4 months in jail went in opposition to the recommendation of probation officers. The longest sentence of 4 years and three months was given to a 17-year-old minor, Mo Jia-tao, whereas a 73-year-old obtained three years and 5 months.

Kwok’s determination, together with a number of different choices from his colleagues listening to different rioting circumstances stemming from the identical incident, marked a major departure from earlier rioting circumstances, the place sentences for contributors have been often measured in months, not years. Even within the Nineteen Sixties pro-CCP riots in British-occupied Hong Kong, which brought about a number of deaths, defendants convicted of rioting sometimes spent just a few months in jail. In distinction, the 2016 Mongkok protesters brought about little property injury and there have been no fatalities, but the sentences handed down have been terribly lengthy.

Whereas Decide Kwok was not the one decide concerned on this drastic enhance in punishments for political exercise, he performed an vital function in it.

In his causes for sentencing, Decide Kwok made an announcement that may later come again to hang-out him. Rejecting protection arguments that he ought to consider the political circumstances surrounding the riots, Decide Kwok wrote:

“When sentencing, the court docket won’t ever think about whether or not the riots are derived from political views, not to mention whether or not these political views are right. The court docket will solely think about the extent of mass violence and the extent to which social tranquility has been broken to make the sentence… The court docket won’t be part of the political debate, nor will it decide the appropriate and flawed of political claims, as a result of these will not be the capabilities of the court docket.”

Kwok’s dealing with of the Mongkok riot case drew consideration, however nonetheless confirmed a degree of restraint. Few imagined how far he would in the end be keen to go to advance Beijing’s political pursuits.

A “noble sacrifice:” Decide Kwok expresses sympathy for a person who stabbed protesters

In June 2019, Hong Kong exploded in mass demonstrations involving hundreds of thousands—first in opposition to a legislation that may have allowed Hongkongers to be extradited to China, after which extra broadly for presidency and police accountability, democracy, and human rights. Within the months that adopted, greater than 10,000 folks have been arrested and 1000’s prosecuted, usually for nonviolent crimes like illegal meeting and possession of “weapons” resembling laser pointers. In distinction, no cops and solely a tiny handful of these committing violence in assist of Beijing have been prosecuted.

Decide Kwok was assigned to listen to one in all these uncommon circumstances involving a pro-Beijing defendant. On August 20, 2019, Tony Hung stabbed three democracy supporters who had been including pro-democracy sticky notes to a “Lennon Wall.”

As Kwok described it in his causes for sentence, Hung had seen pro-democracy supporters on the website, gone dwelling, grabbed knives, returned to the scene, argued with two ladies posting to the wall, then stabbed them and one other bystander who tried to intervene. All three have been hospitalized, with one of many ladies, a 26-year-old surnamed Wong, left in vital situation as a result of a collapsed lung.

Hung pled responsible to wounding with intent. On April 26, 2020, Kwok convened the court docket to ship his sentence. Even amongst a public that had by that time grow to be practically resistant to outrages from officers, the phrases that flowed from Decide Kwok’s mouth shocked the town.

In recounting the verbal change between Hung and his victims previous to the stabbing, Decide Kwok mentioned that Hung had blamed Wong for “beating folks on the airport”—a reference to a mass sit-in at Hong Kong Worldwide Airport per week earlier through which a small portion of protesters grew to become violent. Wong then denied that she or the pal along with her, a 35-year-old surnamed Li, had finished any such factor: “We didn’t beat anybody,” she replied on the time. However regardless of the trial having nothing to do with the airport incident, Decide Kwok went out of his option to argue at size that Ms. Wong—a sufferer within the case—was a liar:

“Ms. Wong’s reply is clearly not true, as a result of on August 6, 2019, shortly earlier than this incident, there was an incident the place demonstrators kidnapped and beat a Mainland [China] journalist at Hong Kong Worldwide Airport, which was broadcast reside on TV. I imagine that anybody who helps rule of legislation can be shocked by the photographs he noticed at the moment.

He then excused Hung and blamed Wong’s stabbing as a substitute on protesters who had been imply to Mainland Chinese language on the airport:

“I imagine that the defendant felt notably deeply concerning the assault on the Mainland journalist on the airport, as a result of he works as a tour information, primarily for vacationers from the Mainland. When a big group of individuals abused and insulted Mainlanders out within the open on the airport, and nobody reached out to assist, this picture should scare Hong Kong guests, particularly these from the Mainland. The defendant will need to have felt that the airport incident was the ‘nail within the coffin.’”

That was unhealthy sufficient, however Kwok was simply getting began.

He then launched into an prolonged political tirade. He lumped all protesters collectively as violently committing “prison injury” and “wounding” folks regardless of the overwhelming majority of protesters, together with the injured victims, demonstrating peacefully. He gave an prolonged description—with out offering proof—of an unrelated incident through which, Kwok claimed, some protesters surrounded a mall and used violence in an effort to free others who had been arrested. He described the protesters’ actions as “cultural-revolution fashion extremist acts.” He blamed protesters for “financial melancholy” and “unease” in society.

He then launched right into a prolonged protection of the defendant’s actions and blamed the “demonstrator” victims:

“The defendant clearly knew on the time that folks shouldn’t be stabbed, however he additionally couldn’t settle for the demonstrators’ conduct of undermining Hong Kong’s financial system and societal peace.”

He mentioned that Hung was “an involuntary sacrifice” who “had already been left bloodied and dying by this social motion.”

In maybe probably the most surprising assertion of all, with the victims and their households wanting on, he declared that the demonstrators, by “placing stress” on others with their protests, have been the identical as terrorists who homicide hostages:

“I imagine that if the demonstrators are actually pursuing what they declare to be democracy, freedom, human rights, and the rule of legislation, they need to give it some thought earlier than taking radical actions. Earlier than they damage their claimed enemies, their actions will solely first damage abnormal individuals who usually simply wish to reside and work in peace and contentment. In the event that they put stress on their enemies by harming abnormal civilians, that is no totally different from killing a hostage if the enemy refuses to submit. That is an out-and-out act of terrorism.”

Wrapping up his speech, Kwok declared that the defendant had “noble sentiments” in direction of the victims (presumably in distinction to the victims themselves, who, Kwok had already established, have been sticky-note-wielding terrorists).

He then lowered the sentence by a full two years from the start line of six years—an infinite deduction within the context of Hong Kong’s political circumstances, the place deductions are uncommon and, if given, are usually measured in weeks or a few months at most. Kwok mentioned that it was “unlucky” that the legislation wouldn’t enable him to scale back the sentence additional.

The ultimate sentence was 4 years, of which the defendant would possible serve a bit of greater than two and a half years—an extremely gentle sentence for stabbing three folks and practically killing one.

As an instance how disproportionate this sentence was, examine it to the rioting sentences handed out to democracy supporters for the reason that 2019 protests. As of this month, based on as-yet unpublished statistics compiled by author and human rights activist Kong Tsung-Gan, Kwok and different judges have sentenced 261 demonstrators to a mean of three years and eight months imprisonment for “rioting” in the course of the 2019 protests, most of them merely for nonviolent participation in political assemblies the place different folks breached the peace.

The fallout: Chief Justice Ma removes Decide Kwok from political circumstances

By the point of Kwok’s ruling, the general public had grown accustomed to anti-protester bias within the courts. Nonetheless, Kwok’s language was notably excessive, and the case was one of many few introduced in opposition to perpetrators of violence in opposition to protesters, resulting in heightened expectations of justice. In consequence, the information struck a nerve among the many public, prompting outstanding activists resembling Joshua Wong and Ventus Lau to voice their outrage and demand justice. The incident obtained widespread media protection, together with overseas.

Two days later, the Chief District Decide eliminated Decide Kwok from one other protest case assigned to him. A month after that (as soon as the 30-day time period through which the defendant might enchantment had expired) Chief Justice Geoffrey Ma issued an announcement on the matter. It was extremely vital of Decide Kwok, notably by the requirements of collegiality which are the norm amongst judges:

“Judges and judicial officers should not be biased nor, simply as vital, be fairly perceived to be biased for or in opposition to any individuals or causes. Because of this, they have to chorus from unnecessarily expressing in public, together with of their judgments, any views on issues which are controversial in society or could come earlier than the courts for adjudication. That is notably so with political beliefs of no matter nature. The place the decision of a problem in a court docket case necessitates the expressing of a view by the court docket on a matter of political controversy, such view should be measured and go not more than is fairly essential to get rid of the problem at hand.

“Non‑adherence to those rules threatens the general public’s confidence in, and its notion of, the independence and impartiality of the Judiciary. A decide or judicial officer who expresses in public unwarranted or pointless political beliefs dangers compromising the looks of impartiality and talent to listen to any circumstances through which one’s political stance could fairly be considered related.”

Then, the large announcement: Decide Kwok can be indefinitely prohibited from listening to political circumstances:

“The Chief Justice has previously reminded all judges and judicial officers of those vital rules, that are contained within the Information to Judicial Conduct. He has additionally spoken to and reminded HH Decide Kwok of the significance of the above issues in discharging his judicial duties. The Causes for Sentence referred to earlier have brought about controversy in that there’s a threat that some affordable, truthful‑minded and effectively‑knowledgeable individuals might fairly take the view that the aforesaid rules could have been compromised in {that a} flawed notion was given. Decide Kwok agreed with the Chief Justice. For these causes, the Chief District Decide with the settlement of the Chief Justice has additionally determined that Decide Kwok shouldn’t in the meanwhile take care of any circumstances involving an analogous political context.”

Whereas many felt the court docket ought to have finished extra and eliminated Kwok from the bench completely, for supporters of the protest motion it was a uncommon second of justice and a trigger for hope. Most assumed that Decide Kwok would by no means once more be able to deal with protesters unfairly, even when he would nonetheless be on the bench. And plenty of hoped it was an indication that the courts, led by the Chief Justice, would act to guard the judiciary’s integrity.

But even that was an excessive amount of to hope for.

Chief Justice Cheung reinstates Decide Kwok, who’s shortly appointed as a Nationwide Safety Decide

In January 2021, Chief Justice Ma retired and was changed by Andrew Cheung. Then-Chief Govt Carrie Lam had chosen Cheung for the function the earlier June. On the time, she praised Cheung’s “distinctive qualities, distinguished management and imaginative and prescient.” Given Lam’s historical past as a infamous human rights abuser, her endorsement was, to say the least, worrisome to those that have been involved about the way forward for the judiciary.

Cheung had already established his bona fides as a decide who noticed the legislation as…let’s say, malleable to go well with Beijing’s needs. In 2016, he upheld a ruling disqualifying six pro-democracy lawmakers on enchantment for not taking their oaths “solemnly” sufficient. Furthermore, simply earlier than assuming his place as the highest decide in December 2020, Cheung, together with two different judges, granted the Division of Justice go away to enchantment the bail granted to pro-democracy media mogul Jimmy Lai. Cheung and 4 different nationwide safety judges subsequently reversed the decrease court docket’s determination, leading to Lai’s return to jail, the place he stays incarcerated to today.

After taking workplace, Chief Justice Cheung moved to revive Decide Kwok to full presiding rights, citing Kwok’s “experience and expertise” in addition to “manpower shortages.” Simply three days later, Cheung created a brand new “advisory committee” to deal with complaints in opposition to judges. He appointed himself chairman of the committee and stuffed it with judges and “members from the group” who have been pleasant to the institution.

Then, shortly after Decide Kwok was reinstated, it was revealed that the Chief Govt had appointed him as a nationwide safety decide. Not solely would Kwok be capable of hear political circumstances once more, however he would additionally hear probably the most politically delicate circumstances of all: these in opposition to dissidents accused of political crimes beneath the nationwide safety legislation.

It is exhausting to imagine that the three occasions—Kwok’s reinstatement, Cheung’s reform of the complaints course of, and Kwok’s subsequent appointment as a nationwide safety decide—have been unconnected. The Chief Govt “could seek the advice of” the Chief Justice on nationwide safety decide appointments beneath Article 44 of the Nationwide Safety Legislation. If Chief Govt Lam, relaying Beijing’s needs, knowledgeable the Chief Justice that she wished to nominate Kwok as a nationwide safety decide, Cheung restoring Kwok to full duties would have been a prerequisite. Then, in an effort to guarantee the problem might by no means come up once more, Cheung stripped different judges of energy to self-discipline members of the court docket and ensured that there could possibly be no accountability for judges sooner or later with out his private approval.

No different decide or Justice of the Peace has been disciplined since.

***

Since his appointment as a nationwide safety decide, Kwok has dominated on 4 nationwide safety circumstances involving 15 defendants, all of whom have been accused of nonviolent political crimes. He has sentenced each to jail or juvenile detention. Now, he’s overseeing the high-profile Stand Information trial, and nobody has any doubt as to what the tip outcome shall be.

Kwok’s transformation from an unassuming civil servant to a virulently pro-Beijing nationwide safety decide is tragic, and sadly removed from distinctive. Many civil servants have betrayed their authorized and moral duties to advance the CCP’s political pursuits in Hong Kong. Most of them, like Kwok, haven’t acted out of conviction, however out of opportunism and worry: they’ve sought to advance their careers and keep away from Beijing’s wrath by adopting probably the most radical and excessive pro-Beijing stances.