Rule of Law or Rule by Law–Part 1

Justice Michael Hartmann’s decision yesterday (full text here) to deny the Hong Kong justice department’s request for an extension of the civil injunction banning Citizens Radio from the airwaves wasn’t a huge surprise. At least not for anybody who sat through all 7 and a half hours of arguments in High Court last Friday. As readers of this blog know, I’ve been following the ups and downs of Hong Kong’s radio activists for more than 2 years. So of course I sat there absorbing every delicious minute.
I really must thank Long Hair for introducing me to the Hong Kong arena that is more riveting than Cantonese opera or even Legco: the faat teng. Literally, the hall of law. Courtroom.

(The press scrum gathers outside the court awaiting Long Hair’s exit–photogs aren’t allowed inside. )

(On the High Court steps, Long Hair meets the press)

Whenever Leung Kwok Hung goes to court–and that’s pretty often, because the judicial challenge is one of the activist’s favorite weapons in the fight for a democratic Hong Kong–I always try to catch some of the action in person. (Once I even took my mother to watch him argue a case in High Court. We shared seats in the spectator’s box with a handful of mainland Chinese visitors. Hong Kong’s British-style courts, with their be-wigged barristers and exotic Rule of Law are, no surprise, a hugely popular stop on the Chinese tourist trail.)

My mother, an American of English parents, was tickled by Hong Kong’s old-school robe and wig scene, and by the courtly etiquette of the barristers who refer to their opponents, in their speeches, as “My Learned Friend…” I admit to being tickled too–and occasionally much more than that. Well do I remember the first time I observed Hong Kong’s most senior barrister, human rights and pro-democracy activist Martin Lee, arguing a human rights case in the Court of Final Appeal (HK’s equivalent of the U.S. Supreme Court). While watching the septuagenarian Lee, his head topped with a yellowed horsehair pigtail wig and his fine black silk robe flapping like bat wings as he gestured, I suddenly found myself transported in a flash to the earliest days of the American republic. There, standing before me, what a heart-stopping apparition–James Madison and Thomas Jefferson reincarnated as Cantonese, debating the finer points of the Bill of Rights!  (Last Friday’s proceedings found the judge and the barristers waxing eloquently as usual, but, alas, in civilian gear. This was a mere injunction hearing and only court sessions require the full 18th century regalia).

Beyond fashion and historical charms, Hong Kong’s courtrooms are riveting for a more technical reason, as this report from an American lawyer who visited a HK court last year entertainingly explains. In the U.S., most of a lawyer’s arguments are contained in the paperwork, the submitted briefs. In Hong Kong, however, courtroom arguments take place in real time–typically, barristers come into the courtroom preceded by a squadron of assistants wheeling a half-dozen or more suitcases and pushcarts full of heavy, index-tabbed three-ring notebooks–case citations, evidence, testimonies, notes. Then, slowly and deliberately, the prosecution and defence counsels unspool their arguments verbally, section by section, as the judge listens. What takes 30 minutes in a U.S. court can take a whole day here in the legal ivory tower of Hong Kong

So, even if you don’t have a law degree, just by sitting in a courtroom and listening to these arguments, you’re going to learn a lot. Long Hair, who probably has logged as much courtroom time in the last three years as he’s spent in the Legislative Council chambers, certainly has. When I first started watching him in court several years ago–he always represents himself–he’d stand up during his alloted time and deliver political speeches in Cantonese. (Hong Kong’s courts are officially bilingual, English and Cantonese. But since most common law is written in English, barristers and judges mainly use English for their arguments. There’s always a simultaneous interpreter on hand.)

After several years of civil disobedience cases and judicial challenges, Long Hair’s diligently learned the ropes, and now he’s arguing as deftly as any of the black robe brigade. On Friday, his final statement to the judge began, “Mr. Justice, my opponents are like Don Quixote, they are tilting at windmills. Basically they have three arguments, and I will explain why all three are wrong….”. Then slowly, quietly and with lawyerly precision, he proceeded to do so, occasionally pausing to correct subtleties of the Cantonese-to-English translations of the simultaneous interpreter.

(After court is adjourned, I ask him why he doesn’t go and study law. “I could study, but I can never be admitted to the bar in Hong Kong,” Leung reminds me. Because of his acts of civil disobedience, he’s a convicted felon.)

Usually, after a couple of hours in a Hong Kong courtroom, you can make a pretty informed guess as to which way the judge’s decision is going to turn. Most judges will interrupt counsel to ask questions, and those questions will reveal how he’s thinking. Often, the judge will make it even easier for you to pick the winner, by expounding at length his interpretation of the matter at hand.

On Friday morning, right at the beginning of the Citizens Radio injunction hearing, Justice Michael Hartmann laid his cards on the table in some opening remarks. Hartmann said he was of the opinion that civil injunctions should rarely, if ever, be used against criminal defendants. This was a heavy-handed, and unfair use of judicial power–if broadcasting without a license is already illegal and punishable under the law, how do you justify adding a further penalty on top? If the Hong Kong Department of Justice wanted his court to grant an extension of the civil injunction forbidding Citizen’s Radio to broadcast, they were going to have to convince him with evidence that “exceptional and extraordinary circumstances” warranted it.

To me, this sounded like bad news for the government’s prosecution team and good news for Leung Kwok Hung, “The Bull” and Citizen’s Radio. The judge had come straight out and said he thought the prosecution needed to jump a very high bar.

Still, the government’s Department of Justice had sent all its heavy guns into the courtroom today, maybe enough firepower to sway Justice Hartmann from his original position. Head prosecutor Jat Sew Tong, a suave young fellow with an upper-crust British accent who sprinkled his arguments with offhand references to countryside holidays in England, is a rising young Turk in legal circles. Five years ago, when he was 36, he became one of the youngest barristers in Hong Kong to ever be “called to the Inner Bar”, that is, inducted into the 80-member elite club of the city’s Senior Councillors. Sitting in the spectator’s section was the government’s senior prosecutor Kevin Zervos, a cocky, darkly glowering Australian who just lost the government’s previous case against Citizen’s Radio in lower court (Zervos would come onto the pitch as substitute for Jat later that afternoon). Besides Jat and Zervos, I counted 12 additional solicitors and assistants on the prosecution team.

The plucky Citizen’s Radio guys weren’t lacking in legal muscle, though. Martin “Je
fferson” Lee headed the team, assisted by human rights activist and Senior Council Philip Dykes, and one of Dykes’ bright protegees, Hectar Pun. On the backbench, sitting next to Long Hair, was a fellow Legco member and Democratic Party president, solicitor Albert Ho Chun Yan.

Would they be able to hold the line and defeat the government’s prosecutors? Would Justice Hartmann change his mind about the legal justification for a civil injunction?

In my ringside seat at the faat teng Friday morning, I eagerly awaited the answer to all these questions. Of course they were just sideline concerns. The biggest question looming in that High Court courtroom on Friday was this: Why in the world does the Hong Kong government think it needs to expend so much money, talent and legal firepower to stop a band of upstart radio pirates from broadcasting with this:

(to be continued)

(above: Citizen’s Radio’s transmitter. Made in China, it costs about 1,000 Hong Kong Dollars, or $130 US.)

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