Fans of the rule of law, of which we all approve, are prone to the delusion that the local legal system is without fault or flaw. This is a dangerous error. Legal systems are designed and manned by humans.
Consider the recently concluded case of Ms. Lau Ching-yee. Some time in 2011, during the run-up to the District Council elections in that year, someone applied to be registered as an elector under that name, claiming to live in a flat in Mong Kok.
Actually Ms. Lau lived in a public housing flat in a different constituency. The ICAC somehow stumbled upon this anomaly, and discovered that someone had actually obtained a ballot paper as Ms. Lau, using the registration. She was charged with “engaging in corrupt conduct with respect to voting in elections,” which seems a bit fierce for registering to vote in the wrong constituency, deplorable though that may be.
Never mind. At trial she was acquitted. This was in December 2012, so it had already taken the prosecution more than a year to get its case together.
The prosecution then appealed. Readers who are not familiar with the Hong Kong system may find this surprising. Generally in common law systems you can only be tried once. The prosecution has no right to appeal, which would constitute double jeopardy.
In Hong Kong the prosecution can appeal. This is a legacy of the days when many magistrates had no pretension to legal knowledge, and many officials who were not lawyers, such as District Officers and the Harbour Master, had judicial functions. To provide a check on this bunch of amateurs the prosecution could ask a professional to look at the case again.
Now that even the most junior judges are fully qualified lawyers it is difficult to see any justification for giving the prosecution two shots at the target, but there is no sign of this being given up, or even used with restraint.
In Ms. Lau’s second trial, in August 2014, the prosecution won. She was convicted and sentenced to six weeks in prison. Ms. Lau in turn appealed to the Court of First Instance, and the case reached that august body in September 2015. The CFI found for Ms. Lau and ordered a new trial.
A further 18 months passed before the matter came up last week in Kowloon City Magistracy, before Principal Magistrate Law Tak-chuen. Ms. Lau, who had perhaps had enough by now, decided this time to plead guilty and throw herself on the mercy of the court.
I fear she supposed that the worst thing that could happen was a revival of the six-week sentence passed back in 2014. But in this she under-estimated the initiative and energy of Mr. Law, who considered the matter afresh, bizarrely applied a discount for pleading guilty, and jailed her for two months.
It seems to me that nobody emerges from this saga with much credit. In the first place the legal system seems to be working at a speed worthy of the 19th century Chancery court immortalised in Charles Dickens’ Bleak House. There is no forensic evidence, no horde of witnesses and I suppose no excruciatingly difficult legal issues. But six years? It is a cliché that “justice delayed is justice denied,” but it is still true.
I realise there is no statute of limitations for most criminal offences, and nor should there be. But surely someone in the so-called Department of Justice could apply some common sense to the question of whether it was worth continuing with a minor matter which had dragged on for so long?
And what are we to make of Mr. Law? Ms. Lau pleaded in mitigation that she had “gone through a lot” since the matter first came up, and this could be considered an under-statement.
Mr. Law might also have considered the general merits of not jailing people for first offences, and the general demerits of short prison sentences, which do not allow time for any of the constructive features of incarceration, such as they are. Ms. Lau has, I presume, not been in trouble with the law since the time of the offence, which suggests that she is unlikely to offend again.
Mr. Law, however, said that vote rigging was a “serious offence.” This is a poor choice of words. Mr. Law would find it easier to avoid the appearance of pompous conceit if he remembered that serious offences are tried in the higher courts, not in his.
Election fraud is of course a serious matter, but that does not mean that every example of it is a serious crime. Ms. Lau was the smallest of small potatoes in the wave of election fraud which washes over us every time a poll is imminent. None of the organisers of this wave are ever brought to book.
And then there is the ICAC. I suppose they take a pride in their work. Ms. Lau is a 42-year-old hawker who now says she misregistered herself at the instigation of her sister. And indeed it doesn’t sound like the sort of thing an ordinary non-political person would do off her own bat.
Every time we have an election there is a rash of discoveries, usually made by the media, of misregistration and bogus voters. These commonly involve people allegedly living in non-existent or implausibly crowded flats, derelict buildings or, in one case, a five-star hotel.
There is no mystery about what is going on here. Some organisation is moving electors to constituencies where their votes will be more useful. It would be useful if the ICAC could find out who is behind this and put a stop to it. Instead we are offered Ms. Lau’s scalp. Not very impressive.
This case does not meet the minimum requirement of a criminal law system, producing a result in which one can have confidence. I know Ms. Lau pleaded guilty this time, but this looks strange after so many years of insisting on her innocence. I am left with the lingering suspicion that she only pleaded guilty because a few weeks in prison looked a less daunting prospect than continuing her six-year ordeal in the clutches of the legal profession any longer.