Little Hong Kong: Political considerations at play in timing of arrest of Occupy leaders, says Captain Obvious (Part 24)

In law, we have a Latin phrase called res ipsa loquitur which means “the thing speaks for itself.”  The principle readily applies to the law of tort, where based on the facts of the case, it is so obvious that someone is negligent.  It is then said that “the thing speaks for itself.”

“The thing speaks for itself”

Yesterday, only one day after the Chief Executive election on 26 March 2017, the leaders of the Occupy protests of 2014 were charged.  The headline of the SCMP article reads, “Timing under debate after nine Occupy participants charged a day after Carrie Lam wins chief executive election” and “Experts question if political considerations were at play.

“Experts question if political considerations were at play”

Now, we have Senior Counsel barristers and veteran politicians discussing the reasons for the timing.  But I wonder if we need “experts” to question whether political considerations were at play in the timing of the charge.  In case you weren’t aware, the charges were public nuisance, and not illegal assembly as expected, which warrants up to seven years’ imprisonment.

And Captain Obvious says…

Half a year ago, Secretary for Justice Rimsky Yuen said in LegCo that legal advice has been tendered to the police.  The “experts” then question why the charges were laid only yesterday.  Captain Obvious would say that CY Leung did not want the laying of charges to affect the Chief Executive elections, particularly against Carrie Lam’s election campaign.

The charge itself must stand up to the rule of law

Ronny Tong says that although the timing was “unfortunate,” the charges weren’t “political prosecutions.”  Well, I think law and politics go hand in hand.  It really depends on how one defines “political.”  The charges are not political in the sense that a charge, no matter how absurd, must hold up in court.  It does not matter if the motivations are political.

The decision to lay a charge may be political

However, on whether to lay the charge is a decision which can be political.  Paragraph 5.3 of the Prosecution Code provides that:-

[T]he decision to prosecute includes two required components.  The first is that the admissible evidence available is sufficient to justify instituting or continuing proceedings.  The second is that the general public interest must require that the prosecution be conducted.

Whether the prosecution lays a charge may very well depend on general public interest.   But there is no definition of “general public interest.”  This is really up to the government’s own interpretation.

The vague concept of “general public interest” gives the government basically an unfettered power to decide whether or who to charge.  Recent case law does suggest that the decision whether to prosecute might be subject to judicial review, see D v. Director of Public Prosecutions HCAL 88/2015.  But the case was unfortunately not proceeded with, after the government succumbed to “pressure” and acceded to the applicant’s case which challenged the prosecution’s refusal to charge.  The accused was eventually charged and convicted.  Perhaps this is how our government really works.

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