Civil Unrest and Governance in Hong Kong

Law and Order from Historical and Cultural Perspectives

Michael Ng, John Wong, Michael H. K. Ng, John Wong, Michael Ng, Michael H. K. Ng, John D Wong

• Publisher: Routledge
• Year: 2017
• Print ISBN:
  9780367141912
• eBook ISBN:
  9781134987511
• Topic: Social Sciences
• Subtopic: Regional Studies
• Index: Social Sciences

This book examines important social movements in Hong Kong from the perspectives of historical and cultural studies. Conventionally regarded as one of the most politically stable cities in Asia, Hong Kong has yet witnessed many demonstrations and struggles against the colonial and post-colonial governments during the past one hundred years. Many of these movements were brought about in the name of justice and unfolded against the context of global unrest. Focusing on the local developments yet mindful of the international backdrop, this volume explores the imaginaries of law and order that these movements engendered, revealing a complex interplay among evolving notions of justice, governance, law and order and cultural creations throughout the under-explored history of instability in Hong Kong. Underscoring the apparently contrasting discourses on the relationship among the rule of law, law and order and social movements in Hong Kong, the contributors emphasise the need to re-examine the conventional juxtaposition of the law and civil unrest. Readers who have an interest in Asian studies, socio-political studies, legal studies, cultural studies and history would welcome this volume of unique interdisciplinarity.

Part I

The past matters

Governance, coloniality of power and law

1 Rule of law in Hong Kong history demythologised

Student umbrella movement of 1919

Michael H.K. Ng

In the 2005 Common Law Lecture, a prestigious annual seminar in which distinguished jurists address senior lawyers and law academics in Hong Kong, Sir Anthony Mason, former Chief Justice of the High Court of Australia and then Non-Permanent Judge of the Hong Kong Court of Final Appeal, spoke about the role of common law in Hong Kong:

The common law also stands for a set of concepts, interests and values which it has protected during the course of its long history. They include the rule of law, the independence of the judiciary, access to the courts, the separation of the powers of government, liberty of the individual, freedom of expression, freedom of association … These values have both generated and informed legal principles including the rules of statutory interpretation. The common law supports the rule of law. Under the rule of law, the law is supreme, so that everyone, including those who exercise power, must conform to the law, a concept memorably captured in the celebrated aphorism ‘a government of laws, and not of men’ … The common law stands both as a symbol and as link between Hong Kong’s past, its present and its future.¹

English law is central to the history of colonial Hong Kong. Traditional colonial historians conceptualise it as a gift to the colonised, and it is still widely acknowledged by Hong Kong citizens today as a core contributing factor to the city’s continued growth and prosperity. The traditional narrative, which Sir Anthony reproduces above, is that the rule of law, which embraces the principles of judicial independence and offers such safeguards of individual liberty as freedom of expression, is the most important legacy of British colonial rule in Hong Kong, a legacy that is very often cited to distinguish the legal and societal development of Hong Kong from that of its neighbour across the border, mainland China.² This chapter challenges this widely accepted narrative, thereby severing Sir Anthony’s link between common law’s legal past and present in Hong Kong. It argues that the traditional narrative simply does not stand up to scrutiny of the archival research. On the contrary, that scrutiny casts serious doubt on the weight afforded such liberal notions as the separation of powers, independence of the judiciary, and assurance of individual freedom of expression and association in the common law legal system practised in Hong Kong in the pre-Second World War twentieth century, particularly in trial hearings in the Magistrates’ Courts, the courts that heard the majority of criminal cases in colonial Hong Kong.

Through discussion of a widely reported court case concerning students’ anti-Japan movement in 1919, the chapter further argues that the common law system practised in early twentieth-century Hong Kong played a more important role in reinforcing an authoritarian form of colonial law and order to achieve the British Empire’s strategic aim of maintaining its overseas territorial and economic possessions than in safeguarding individual liberty and the impartiality of the judicial process.

Only a very limited number of scholarly works have addressed the prevalence of anti-Chinese legislation in nineteenth- and early twentieth-century Hong Kong, and no work to date has questioned the operation of the highly famed rule of law in the trial process of the latter period.³ This chapter thus constitutes a first attempt to demythologise the well-rehearsed history of common law in Hong Kong told by Sir Anthony Mason and like-minded historians through a close reading of trial hearing record. Owing to space limitations, only the aforementioned 1919 trial case, which was widely reported in both Hong Kong and overseas newspapers of the day, is used to make the case for the foregoing arguments. However, it should be emphasised that it is not the sole such case in the legal history of early twentieth-century Hong Kong (or at least up to the outbreak of the Second World War as far as my current research is concerned). Many similar judicial cases have been recorded in my ongoing research project, the output of which will be published in due course.⁴

Trial of students involved in the patriotic Umbrella Movement

The story told herein is part of the larger story of the large-scale May Fourth movement that broke out in mainland China in 1919 against the Japanese acquisition of Qingdao with the support of the Western powers. When news of the Chinese government’s failure to recover Qingdao under the terms of the Treaty of Versailles arrived in China, nationwide demonstrations, strikes and boycotts against both the government and Japan broke out in many Chinese cities. The movement also garnered support from the Chinese populace in Hong Kong, and boycotts of Japanese stores and products were launched across the colony. Newspapers reported these patriotic activities in great detail, and teachers in vernacular schools discussed them with students and promoted nationalistic and patriotic sentiments.⁵

Around noon on 3 June 1919, nine schoolboys aged between eight and 17, from Ying To College on Gough Street in the Central District of Hong Kong Island, walked westwards along Queen’s Road Central clad in their school uniforms and holding open oil-paper umbrellas made in mainland China. The umbrellas featured Chinese characters in white paint that read ‘Chinese [people] should buy native goods’ or simply ‘Native goods’ (guohuo 國貨). The group of young boys carrying umbrellas attracted the attention of passers-by who began to stop and watch or even follow the boys as they walked down the street. More than 100 people joined the impromptu parade. Within less than an hour, a police inspector with the surname Brazil (Inspector Brazil hereafter) who was patrolling the area intervened and stopped the crowd near the Central Fire Station. He asked one of the students whether he had obtained a permit to organise such an activity. The student said no, but that one of their teachers had instructed them to march. Inspector Brazil arrested the nine students on the spot and then went to the teacher’s residence to arrest him as well. All of those arrested were taken to Central Police Station, where the students were charged with the offence of organising a procession without having obtained a permit from the Secretary for Chinese Affairs under the Regulation of Chinese Ordinance and remanded for trial. The teacher was charged with aiding and abetting the organisation of an illegal procession.⁶

Given the involvement of young boys in a nationalist movement, the subsequent four-day trial in the Magistrates’ Court was widely reported in Chinese- and English-language newspapers in Hong Kong. Many people attended the trial as spectators, and the courtroom quickly became overcrowded, prompting police to guard the front door to prevent additional numbers from entering. The newspapers reported that a large number of audience members were students.⁷

This early ‘umbrella movement’ not only demonstrates the shared nationalism between the Chinese population of Hong Kong and their mainland counterparts. Equally important is that a record of the trial hearings reveal how the suppression of political activity and maintenance of authoritarian law and order were juridified, legalised and justified in a common-law setting. The case was treated very seriously by the government, and hence the prosecution was conducted by Captain Superintendent of Police Edward Wolfe (CSP Wolfe hereafter), the head of the entire colonial police force in Hong Kong. The defendants were represented by a solicitor of Portuguese ethnicity named Leo d’Almada.

As noted, the students and teacher were charged under the Regulation of Chinese Ordinance (Ordinance No. 3 of 1888). The critical issue at the heart of the case was whether the students’ action amounted to a ‘procession’ under the terms of the Ordinance, Part V of which reads as follows under the heading ‘Religious Ceremonies and Theatrical Performances’:

Section 22: (1) Except as by this Ordinance provided, no person shall, in any public street or road within the City of Victoria, play any musical instrument or beat any drum or gong in connection with any religious ceremony (except a funeral or marriage) or with any annual or other festival. (2.) No person shall, within the City of Victoria, play the Chinese reed pipe (except in connection with a funeral or marriage), or bear any drum or gong within any premises, or knowingly suffer or allow any such instrument to be played or beaten upon his premises between the hours of 11 p.m. and 6 a.m.

Section 23: (1.) Except as by this Ordinance provided, no person shall organize, equip, or take part in any procession [emphasis added] with or without music, in any public street or road in the City of Victoria. (2.) This section shall not apply to any funeral or marriage procession, whether with or without music, except in cases where the Governor may so direct.

Section 53: Every person convicted of an offence against this Ordinance for which no penalty is specially provided shall be liable for a first offence to imprisonment for any term not exceeding two months and to a fine not exceeding one hundred dollars.⁸

Although anyone reading the word ‘procession’ in the context of this ordinance would agree that it was meant to govern Chinese religious and theatrical activities, the colonial government attempted to use it in this case to suppress a nationalist movement by unreasonably expanding its meaning to cover any group activity that could possibly lead to disorder. The following widely reported record of the interrogation of Inspector Brazil by the prosecuting and defence solicitors reveals the colonisers’ anxiety over the rise of a nationalist movement in Hong Kong, as well as their determination to ease that anxiety at the expense of due process and freedom of expression for the Chinese population. The record also shows that judicial independence was blatantly disregarded during the trial hearing in one of Hong Kong’s Magistrates’ Courts, which were responsible for trying over 90 per cent of criminal cases in the first century of British rule in Hong Kong.⁹ Finally, it also shows how the law and prosecution were used to pursue the geopolitical interests of the British Empire.

Political prosecution camouflaged as law

Leo d’Almada, the solicitor acting for the defendants, starts his defence by examining Inspector Brazil, who had arrested the students and their teacher. In his examination, d’Almada attempts to confine the term ‘procession’ to the original statutory meaning intended by the legislature in formulating the Regulation of Chinese Ordinance:

D’ALMADA: You have been in Hong Kong for quite a long time?

INSPECTOR BRAZIL: Twenty years.

D’ALMADA: I have taken you know the meaning of the word ‘procession’ in the usual sense? … Not have a legal definition of the word, I put to you, as a gentleman residing in the Colony for over twenty years that [Regulation of] Chinese Ordinance is intended to mean the usual Chinese processions seen in Hong Kong. [All errors throughout appear in the original transcript.]

MAGISTRATE ROGE...

Table of contents

• Cover
• Half Title
• Series Information
• Title Page
• Copyright Page
• Table of contents
• List of contributors
• Acknowledgements
• Introduction: Negotiating the legitimacy of governance
• Part I The past matters: Governance, coloniality of power and law
• Part II The art of argument: Justifications and expressions of civil unrest
• Index