Dr. Margaret Ng : Case overload at Courts

Dr. Margaret Ng, an experienced barrister, writer and former LegCo member, was interviewed by Initium Media in December 2019. Part 1 of the interview was published last month in which she talked about issues with the Department of Justice. In this part of the interview, she expressed her concerns that Hong Kong’s court system does not have the capacity to handle the rapidly increasing number of cases in recent years. This has become apparent with the mass arrests that took place during the Anti-ELAB movement. 

With cases that were not handled properly from the start, problems will arise once they go through the judicial process.

Since the Anti-Extradition Law Amendment Bill (Anti-ELAB) movement, the past half a year has seen an accumulation of nearly a thousand prosecution cases, far exceeding the Judiciary's capacity. Most of these cases are suspended in arraignment but have yet to proceed. On 28 July 2019, in a clash in Central and Sheung Wan, 44 people were arrested. Charged with rioting, they were split into three separate cases. Among them, one is set to be arraigned on 6 Mar 2020. This will be the first case of rioting to open, seven months after the fact.

"You cannot predict in advance how long it takes to try each case. And how many cases are there? So in total, how many days? It's like 500 times an unknown. Isn’t the answer also an unknown?" 

On the night of 18 November (2019), protesters advanced to Yau Tsim Mong in hopes of rescuing those trapped inside Hong Kong Polytechnic University by the police blockades. Hundreds were arrested and 242 were charged with rioting. They were divided and sent to six courts for trial on the same day. West Kowloon Magistrates' Courts continued to hear cases until 1 am the next day, breaking records for the number of consecutive defendants and duration.

"How many courts and judges exist for trying criminal cases? How many legal teams do we have to handle them? Does this mean there is no need to try other cases?" Dr. Margaret Ng asked.

Hong Kong has a hierarchy of courts that includes Magistrates' Courts, District Courts, High Court, etc. The judicial process is complicated and tedious. It could take about a year before a trial date is scheduled. Looking at District Court numbers from the 2018 Hong Kong Judiciary Annual Report, 988 cases were closed and the average wait time was 187 days.

The movement resulted in nearly a thousand cases that will begin trial next year (2020). The pressure confronting the courts is unfathomable. On New Year's Day in 2016, many people were charged with rioting in the Mong Kok riots. In particular, Mok Ka-to's case involved ten other defendants. Their case was tried in June 2017. It was expected to last 30 days, in the end it lasted 63, the trial concluded in October of the same year. However, the judge repeatedly postponed judgment. So, it was not until May of the following year that the verdict and sentence were decided. As for Edward Leung's case involving five other defendants, there were two separate trials lasting 60 and 90 days respectively.

Dr. Ng said that the police mainly used video evidence in trial. Both the prosecution and defence would need to watch "hundreds of hours of footage" before deliberating on what should be produced as evidence. Then, the jury had to watch it. The entire process was drawn-out, making it difficult to estimate when a conclusion would be reached.

In just the 500 rioting cases alone, the trial duration will be "a startling number". "You cannot predict in advance how long it takes to try each case. And how many cases are there? So in total, how many days? It's like 500 multiplied an unknown. Isn't the answer also an unknown?"

Dr. Ng sighed, "The most worrying is, with this great pressure upon you, can you still properly handle each case?"

Her concerns are justified. On 31 August(2019), a clash occurred between protesters and the police in the Causeway Bay and Wanchai area. 16 people were charged with rioting on 2 September. During the re-arraignment in early December, defence lawyers revealed that the prosecution had yet to produce any video footage or documented evidence. "There was not a single shred of evidence, not even a film clip." Dr Ng went further and criticised, "It has been three months and I have not seen a single piece of paper. You [police] arrest someone, have no time to document it and claim that you have evidence to charge them. This whole process is extremely chaotic (disorderly, lacking manpower)."

In early November (2019), the police found a large number of petrol bombs in a flat in Wan Chai. Four men and one woman were arrested and charged with the possession of explosives. However, the prosecution from the Department of Justice agreed that the defendants' names were written incorrectly and the charges stated in Chinese were different from its English version. Eventually, the prosecution dropped all charges. But just as the defendants were leaving the court, they were arrested again and had to go through the judicial process all over again.

Dr. Ng said that these types of judicial errors have been cropping up a lot, “Now people can see how crude the judicial system is.... It gives a bad impression."

The Honourable Henry Denis Litton - former Permanent Judge of the Court of Final Appeal - expressed regret for Hong Kong's current situation. He believed that the court of law needs more manpower and the pro-establishment camp agreed. During an interview with mainland Chinese media, Maria Tam Wai-chu - Deputy Director of the Hong Kong Basic Law Committee - stated that there was a significant backlog of cases. She suggested that Hong Kong could borrow the methods of other countries, like establishing a "special rioting court" to deal with these cases. Dr. Ng curtly disapproved, "How can we create a new court with judges out of thin air?" She explained that other countries had a cohesive judicial system to facilitate the recruitment of judges from different regions. Hong Kong does not have enough judges to afford it. She also worried that the criteria to become a judge would be lowered, thus affecting the quality of trials.

To read Part 1 of the interview, go to: https://t.me/guardiansofhongkong/18709

Source : https://theinitium.com/article/20191227-hongkong-interview-margaret-ng-judiciary-disaster/