HK riot charges pushed ahead without justice chief’s written advice

02-Aug-2019 Intellasia | South China Morning Post | 6:02 AM Print This Post

Hong Kong’s justice secretary broke with convention by abandoning written advice to police and opting for a verbal agreement to charge dozens of protesters with rioting this week, the Post has learned, in a move seen as “fast-tracking” prosecutions to send a deterrent message to demonstrators.

Two legal sources said Secretary for Justice Teresa Cheng Yeuk-wah signed off on using the riot offence as a holding charge, instead of prosecuting people for unlawful assembly, for which they were originally arrested.

The revelations came after a group of prosecutors issued an open letter on Wednesday accusing Cheng of prioritising political considerations in handling recent protest-related cases.

The letter, which did not cite examples, said the government’s chief prosecutor had been “trampled by Cheng”, who in turn sought to “kowtow to” the city leader.

A spokesman for Cheng dismissed the accusations as groundless.

The missive emerged online the same day that 44 suspects charged with rioting in Western district last Sunday were taken to court. The cases were adjourned to September for further investigation.

The protest was among the most recent in two months of demonstrations against the government’s extradition bill and the police response to earlier protests. Organisers also expressed anger about an attack on protesters at Yuen Long railway station by about 100 men. Of the 14 alleged Yuen Long attackers arrested, none had been charged by Thursday afternoon.

Anyone charged with rioting faces a maximum penalty of 10 years in jail, while unlawful assembly sentences are capped at three years.

Critics said the first large-scale slate of prosecutions for rioting rather than the minor charge could be a serious deterrent.

“It will send a signal that violent protests may have legal consequences,” said Bill Li On-yin of the Progressive Lawyers’ Group.

During recent protests, many of which have ended in violence, police have repeatedly warned protesters they are participating in an unlawful assembly. The force has not mentioned a riot.

[Cheng] has insisted on prosecuting without sufficient evidence, without a reasonable chance of conviction, and when it was not in the public interest to do so

Prosecutors’ open letter

In a recent meeting with police, according to the sources, Cheng and top prosecutor David Leung Cheuk-yin supported the police’s decision to use the rioting charge against the 44, who were arrested on or around Des Voeux Road and Connaught Road on July 28. The department had given no written advice as of Wednesday.

One veteran prosecutor said that for serious offences handled by the District Court or even the High Court, the Department of Justice (DOJ) would typically give the force written advice before taking the matter to court, adding that this was “to ensure prosecutions from public assemblies comply with the human-rights context”.

The prosecutor said that skipping the written advice could have been “out of a practical need to fast-track the prosecution, with the written advice supplemented later”.

The sources also said Cheng, a barrister with an arbitration background, had directed that all prosecutions arising from protests over the past two months must be cleared by her.

Cheng’s office was yet to respond to a request for comment on that assertion.

In the four-page letter, written on DOJ-headed paper, the prosecutors said the department should, under the Basic Law, control criminal prosecutions, free from any interference.

“Two of the most important principles of prosecution are: before each prosecution is made, we must consider whether there is reasonable chance of conviction, and whether the prosecution is in the public interest,” the letter read.

“Regrettably, Secretary for Justice Teresa Cheng Yeuk-wah and David Leung Cheuk-yin, the director of public prosecutions, seem to have forgotten these rules.”

The letter went on to accuse Cheng of making political considerations in dealing with recent cases.

“She has insisted on prosecuting without sufficient evidence, without a reasonable chance of conviction, and when it was not in the public interest to do so,” it read.

The prosecutors also said Leung had been “regrettably trampled by Cheng”.

“All that Cheng knows is to kowtow to the chief executive,” they said.

They went on to call for an independent inquiry into the Yuen Long attacks.

A spokesman for Cheng said on Thursday the prosecutors’ accusations were “groundless” and “regrettable”.

“The secretary for justice has the constitutional responsibility to make decisions on and supervise criminal prosecution work,” he said.

“Prosecution decisions must be based on objective and professional analysis of evidence obtained and applicable law, as well as the Prosecution Code, there would not be any political consideration. The secretary has always been following these principles in handling all cases.”


Category: Hong Kong

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