1. Like my fellow citizens, I am greatly concerned by recent events arising from the controversy over the Fugitive Offenders bill. As a former Chief Justice, I have no wish to participate in the political arena. But having regard to the present extraordinary situation, I wish to contribute to the discussion, especially as certain issues have a legal dimension.
2. Overall, there is no doubt that Government made a serious error of political judgment. They misjudged the mistrust which the people of Hong Kong have of the Mainland legal system and their concern of what they perceive to be the increasing “mainlandisation” of Hong Kong. The commitment of Hong Kong people shown by their peaceful and orderly marches was impressive. The Central People’s Government (CPG) also showed wise pragmatism in supporting the abandonment of the bill, even though it had majority support in the Legislative Council.
3. Unlawful and violent behaviour must be strongly condemned by all. The scenes in the storming of the Legislative Council were ugly and shocking. Under the rule of law, this cannot be tolerated. The law was willfully disobeyed. Those responsible must be brought to justice. If convicted after a fair trial, the courts should consider deterrent sentences.
4. The Chief Executive (CE) has already sincerely apologized for Government’s handling of the matter. She should be given the chance to continue to serve. I respect the CE for her unwavering dedication to public service.
5. As the CE strives to improve governance, I wish to respectfully make a few points. First, as a leader, before making important decisions, she should encourage more extensive debate within Government. This will enable all options and angles to be explored and all considerations to be carefully weighed. This will lead to the making of better decisions.
6. Secondly, under the Basic law (BL), the CE is accountable to the CPG and to the HKSAR. The perception of Hong Kong people is that she has paid undue emphasis on the former. She must speak up more for them and should be seen to be doing so.
7. Thirdly, all holders of public office, whether serving in the executive, legislative or judicial branch of government, must always remember that they are not exercising parental authority over citizens. They are servants of the people and should serve with humility. They are subject to scrutiny in the court of public opinion.
8. There are continuing calls for Government to withdraw the bill, to establish a Commission of Inquiry (COI) and to grant an amnesty.
9. The Government has suspended the bill. It has stated that it will not be presented again before the expiry of the term of the current Legco in September 2020 when it will lapse. But there are widespread calls for its immediate withdrawal. There is no practical difference between the two positions. That being so and as it would assist in the process of reconciliation, Government should now withdraw the bill.
10. In spite of widespread calls, Government has refused to appoint a statutory independent COI. It has stated that complaints against the Police should be investigated by the Independent Police Complaints Council (IPCC).
11. A COI into recent events led by a Judge is a much more effective mechanism for ascertaining the truth. It is deemed to be a judicial proceeding. Its hearings are open and the public and the media can attend. It can summon witnesses. Evidence is given under oath and covered by absolute privilege. It is tested by cross-examination and cannot be used in subsequent proceedings against the witness. Relevant parties are entitled to legal representation. The COI mechanism has been invoked satisfactorily by Government before and after 1997 on many occasions.
12. The IPCC is a respected body. But with the best will in the world, it cannot be as effective as a COI for arriving at the truth. It has none of the powers, protections and features of a COI. Further, apart from dealing with individual complaints, it is limited to identifying any default or deficiency in Police practice or procedure.
13. A COI would take a considerable time to report, at least say 9 months. This would enable a calmer atmosphere to prevail. Further, allegations and grievances will be aired and explored in open public hearings. This would have a therapeutic effect for society and would assist in the process of reconciliation.
14. Government is concerned about Police morale. I have high respect for our Police Force. Whilst there may be an impact in the short term, scrutiny by a COI can enhance its reputation in the longer term. A COI would be totally impartial and fair. It may exonerate the Police. Even if criticisms are made, the Police can take action in order to avoid future recurrence. The Force can then turn the page and move on. It will enable it to serve even better “with pride and care” in accordance with its motto. In the absence of scrutiny by a COI, there is a serious danger that grievances against it would continue to fester.
15. An amnesty for protestors has been suggested. Presumably, on the principle of equality, this would also extend to police officers. An amnesty at this stage would involve a direction by the CE to the Police not to investigate further. This would be inappropriate. It would be inconsistent with the rule of law. It is a fundamental principle that everyone is subject to law. The law must be obeyed by everyone without exception. Compliance cannot be a matter of individual choice. A partial amnesty enacted by statute was granted in 1977 for pre 1977 corruption offences. The circumstances were entirely different.
16. In conclusion, as has been well said, time is the commander of all things. Reconciliation will take time, probably a long time. Government deserves to be supported in this process by the community.
The Hon Andrew Li Kwok Nang
First Chief Justice of the HKSAR 1997-2010