Dr. Margaret Ng : Lack of oversight at DOJ leads to wrongful charges

The cause of judicial disaster is “indiscriminate arrests”, according to Margaret Ng. She adds that during the Anti-Extradition Bill Movement, the police force and government have been calling protesters “rioters” and “cockroaches”, attempting to portray Hong Kong as “streets full of rioters”. Not only have the police been arresting violent protesters frequently, peaceful protesters and mere bystanders have also been targeted. According to the figures from the Hong Kong police in December 2019, 220 arrested citizens were released unconditionally after being arrested. 

If there is insufficient evidence, DOJ should instruct the police not to lay charges. They should even inform them, “Do NOT arrest people if you don’t have sufficient evidence of any offence.”

Yet, making an arrest is just the first step. DOJ has full independent discretionary power in proceeding with criminal prosecutions in Hong Kong. Still, many arrestees have had to go through complicated judicial procedures only to have their charges dismissed in court.

Many people were charged with unlawful assembly during a violent conflict at Mong Kok on 3 August.  Of those who were arrested that day, three had their charges dismissed, including a Disneyland dancer who happened to pass by the conflict site on his way home.

On 21 September, some civilians gathered outside the Mongkok Police Station — a chef was charged with assaulting the police. However, video clips from media showed the defender keeping his hands down throughout the altercation. Prosecution was withdrawn after four hearings and the defendant was compensated for the litigation cost. 

At the beginning of November 2019, a citizen from Tseung Kwan O was unhappy with the dispersal of tear gas near his home. He argued with the police on site and ended up being subdued by the police. Despite getting 10 stitches on his head, he was prosecuted for "assaulting the police“.  The prosecutor later withdrew the case because of lack of evidence.

From Margaret Ng’s perspective, DOJ has a shortage of manpower. They may also have their own difficulties but their poor oversight is undeniable.

She explained that in considering every case for prosecution, DOJ must ask the police, “What charges do you want to lay against the defendant? What evidence do you have?” If there is not enough evidence, DOJ should advise the police to drop the charges. They should even inform the police to “not arrest the person if there is insufficient evidence of a crime or an offence.”

Back in July 2019, an open letter bearing the DOJ’s letterhead was published by a group claiming to be “prosecutors” which criticized the Secretary for Justice Teresa Cheng as “an unjust rule breaker” who took politics into consideration by insisting on prosecutions even though there was insufficient evidence. That she “regards the Prosecution Code as dung”. They also condemned David Leung, the Director of Public Prosecution (DPP), for his poor oversight quoting Article 63 of the Basic Law in the letter, “The Department of Justice of the Hong Kong Special Administrative Region shall control criminal prosecutions, free from any interference." The prosecution of each case must consider whether there is a reasonable probability in reaching a conviction and whether the prosecution is in the public’s interest.

The Department of Justice later responded that the Secretary for Justice is “not influenced” by political considerations.  The Secretary for Justice and the DDP “deeply regretted such accusations without supporting facts”. The incident was left unsettled.

Faced with an overwhelming number of cases, Margaret Ng worries that many may be falsely accused. According to the information provided by Arrested People’s Concern Group (a civil group), there are more than 70 people currently held in custody awaiting trials. Margaret Ng suggested that DOJ should prioritise cases that do not have sufficient evidence for prosecution rather than processing cases by chronological order.

Source : Initium Media, December 2019

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