Perfectly valid to prosecute wrongdoings with old law
Tony Kwok says disclosing details of identity of another person allegedly under investigation has no relevance to speech freedom and is criminal offense
Police should be commended for taking enforcement action against the chairwoman of Central and Western District Council, Cheng Lai-king, almost immediately after she revealed on her Facebook page personal details about a police sergeant, including his identification number, along with unproven allegations that he was the person who fired a rubber bullet that blinded an Indonesian reporter in one eye. She further posted inciting remarks simultaneously suggesting “An eye for an eye”. It doesn’t require a seasoned lawyer to see that such incitement is criminally culpable.
As she is a senior member of the Democratic Party (DP) while also head of a district council, Cheng clearly has brought shame to her fellow party members and to constituents who voted for her. The least her party should do is to reprimand her, or issue an apology and dissociate itself from her inappropriate remarks. The party should also consider suspending her membership pending a party disciplinary inquiry, as in the case of another DP Legislative Council member, Ted Hui Chi-fung, who snatched a mobile phone from a government officer stationed in LegCo and hid in the bathroom while gaining unlawful access to her phone.
Instead, Cheng’s party colleagues issued public statements of support. It is a travesty to see James To Kunsun, Dennis Kwok Wing-hang, Alan Leong Kah-kit, Alvin Yeung Ngok-kiu, and Johanne Chan Man-mun, some of who are prominent legal practitioners, accusing the police of political persecution and suppression of human rights!
The main basis for their complaint is that the police were applying an old law in their arrest of Cheng for “acting with seditious intent” under the Crimes Ordinance. Her actions were deemed to be “clearly in contravention of human rights protections under the International Covenant on Civil and Political Rights, the Basic Law and the Bill of Rights in Hong Kong”.
As a police spokesman clarified, Cheng is also being investigated for violation of the Privacy Ordinance, as well as possible contempt of court based on an Oct 25 injunction that forbids anyone from doxxing police officers by publicizing their personal information, including that of their family members. In both cases, the incriminating ingredients of the offenses are pretty obvious and easy to prove. We should also remember the main justification for the earlier court injunction was that numerous incidents of doxxing police officers have resulted in violence,
The author is an adjunct professor of HKU Space and council member of the Chinese Society of Hong Kong and Macao Studies. He is also the former deputy commissioner of the ICAC and now an international anti-corruption consultant. including gasoline bombs being thrown at police married quarters. Hence the blatant disregard of the court’s injunction should belong to a serious category of contempt of court.
As noted by Ronny Tong Ka-wah, a member of the Executive Council and former chairman of the Bar Association, the use of this old antisedition legislation under the Crimes Ordinance was reasonable because “it is the only offense in Hong Kong against hate crimes”. Tong also rightly explained that the fact that it is an old law did not invalidate it.
Exactly! What’s wrong with prosecuting someone based on an old law, as long as it is still in the statute book? We can draw a comparison with the Common Law offense of Misconduct in Public Office, which has now become quite common. In the 1990s, the Independent Commission Against Corruption started to detect cases where civil servants had abused their positions to benefit themselves or others. Their conduct did not involve the acceptance of bribes, and there were no statutory offenses under the Prevention of Bribery Ordinance to target this form of criminal misconduct. But at that time, the ICAC, with the assistance of the Department of Justice, was able to unearth an antiquated law in the old English Common Law, going back to the 18th century, called “Misconduct in Public Office”. This law had never been applied in Hong Kong’s legal history. Even in England, it was rarely used and last applied in 1979 (R v Dytham). By virtue of Section 3 of the Application of English Law Ordinance, Cap 88, this Common Law offense is applicable to Hong Kong. It was first used locally in the case of HKSAR v Shum Kwok-sher. He was the chief property manager of the Government Property Agency who had abused his office by assisting his relatives to obtain a government management contract. As expected, the defense counsel accused the prosecution of using an antiquated law and said that this offense was unconstitutional for failing to comply with Hong Kong’s Bill of Rights and the International Covenant on Civil and Political Rights as applied in the Hong Kong Basic Law. The case went all the way up to the Court of Final Appeal, where common sense prevailed. It ruled that the law, though old, was still applicable in Hong Kong and complied with the Bill of Rights.
Undoubtedly, this case will have a similar ending once the old law is considered valid by the CFA. Those opposition legal experts who cried foul should then hang their heads in shame.
What makes this case particularly treacherous is that the opposition politicians had used it to conspire with US politicians to publicly accuse the central and SAR governments of political persecution and suppressing freedom of speech to attract international attention. But they were promptly rebuked by the Office of the Commissioner of the Ministry of Foreign Affairs of the People’s Republic of China in the Hong Kong SAR. In a way, this case demonstrates once again that irrespective of how close you are to a foreign power, it will not protect you from prosecution if you breach the law here.
Revealing the identity of another person allegedly involved in a criminal investigation is not about freedom of speech. In all ICAC cases, any unauthorized disclosure of the identity of any suspects in an ongoing investigation is a criminal offense under Section 30 of the Prevention of Bribery Ordinance and subject to one-year imprisonment and a fine of HK$20,000 ($2,580). Being a senior bearer of a public office, Cheng should have known better.
Hong Kong really does not need politicians of such low moral standards and so stupid to commit such silly offenses. I hope the people of Hong Kong will bear this in mind when they vote in the coming LegCo election in September.