Tony Kwok discusses the controversial prison terms given to the seven police officers, and argues that a sentencing body is needed to ensure political bias doesn't affect judge's rulings

'Justice is incidental to law and order." This scary but sadly accurate observation by John Edgar Hoover, first director of the Federal Bureau of Investigation of the United States, comes to mind as I ponder the harsh two-year jail sentence dished out by the presiding judge to the seven police officers for beating up an abusive "Occupy Central" protester some two years ago. I was struck by the enormous disproportionality of this sentence vis-a-vis the incomparably lighter punishments for many

"Occupy" protesters and more recently the Mong Kok Lunar New Year rioters in 2016, when some were shown to have inflicted grievous bodily harm on unprotected policemen using pavement bricks and other improvised weapons.

In the latest case, which triggered a widespread public outcry, it is worth noting that the protester was manhandled only after he was shown to have poured foul-smelling liquid, believed to be urine, onto the officers. While the officers committed an offense by meting out punishment on the spot, such extreme provocation certainly must be taken into account. One can't help wondering what Judge David Dufton himself would have done if he were on the receiving end of such extreme physical denigration.

The officers' actions were illegal and punishable. But Judge Dufton apparently went overboard in his eagerness to live up to the cherished principle of "justice must be seen to be done".

Surely he is aware that another defendant in the same case, though not in the same trial, was given a five-week jail sentence by another judge and was immediately granted bail pending appeal. The disparity is shocking and makes a travesty of the said principle. What is worse is that this is not an isolated case. An earlier case concerns a young man throwing bricks at a policeman causing a severe injury and yet he was allowed to walk free from the court with a probation order. On the other hand, the defendant who threw eggs at Joshua Wong Chi-fung, the young darling of the "pan-democratic" camp, received an immediate heavy custodial sentence and was even ordered to pay for the cost of the soiled shirt! Examples of such punishments not fitting the crime so abound that one need not look hard to see a pattern in all this. I would like to be proved wrong, but are we seeing signs of the politicization of our judiciary?

We should not be surprised that certain sectors of our community are expressing outrage over such apparently biased judicial decisions; many have taken to social media to express their anger with uncouth language. While we must encourage rational debate with cool heads, the use of abusive language will only cloud intelligent public discourse, and should not be tolerated.

The judiciary and the Hong Kong Bar Association have since threatened these social media hotheads with "contempt of court", with certain people in the legal sector calling for their conviction. What they have conveniently neglected to inform the public of is that under the UK Crime and Courts Act 2013, Section 33, "Scandalizing the judiciary (also referred to as scandalizing judges) is abolished as a form of contempt of court under the common law of England and Wales." It is interesting to note that the call to abolish the UK offense arose when, in March 2012, the attorney general of Northern Ireland obtained leave to prosecute the Member of Parliament Peter Hain following comments made in his autobiography about a High Court judge. Although the proceedings were withdrawn, the proposed use of the offense caused considerable disquiet in the parliament and, more widely, was perceived by many as a serious attack on free speech. As Queen's Counsel David Pannick, who pushed for the law to be abolished at that time, wrote: "Respect for the judiciary ... is undermined rather than strengthened by the existence and use of a criminal offense which provides special protection against free speech relating to the judiciary." If the Hong Kong Common Law is supposed to emulate the UK system, why is it that "scandalizing judges" can remain a criminal offense in Hong Kong when it has long been abolished in the UK? Does it mean that Hong Kong citizens should enjoy a lesser degree of free speech than the citizens in England? Or do the judges in Hong Kong need an additional buffer to their counterparts in the UK against criticism?

The crux of the matter is the sentencing inconsistency in "Occupy"-related cases and the judiciary and the Bar Association should clarify themselves if they are to regain public confidence. Are they not aware that the UK has already taken steps to address this conundrum?

In April 2010, the Sentencing Council for England and Wales was established with the aim "to ensure a consistent approach to sentencing, demystify court processes and sentencing for victims and the public, and increase confidence in the criminal justice system". This council is a legal entity created by the Coroners and Justice Act 2009. The act gives the Sentencing Council a statutory duty to prepare sentencing guidelines. This council comprises eight members of the judiciary and six non-judicial members, all appointed by the lord chancellor and lord chief justice. The current council's chairman is a Court of Appeal judge. If the Hong Kong judiciary followed the UK practice on establishing this Sentencing Council, the controversy over the sentencing of the seven police officers could have been avoided. It's time we followed this judicious practice.

It has been said that our judiciary and the Bar Association have been more pedantic than constructive in their desire to keep abreast of the time. Thus the government may assist by requesting the Law Reform Commission to carry out a judicial reform study. The commission should look into the latest judicial practices of the five established common law jurisdictions - the UK, the US, Canada, Australia and Singapore - with a view to adopting their best practices in Hong Kong. There should be plenty, such as the amalgamation of solicitors and barristers, a limitation on foreign judges on the bench, the establishment of an "Independent Complaint Authority on the Judiciary and the Bar" and not least, the abolition of funny wigs, which the Chinese public would unreservedly applaud!

(HK Edition 03/02/2017 page7)