Understanding Criminal Justice in Hong Kong

Eric Wing Hong Chui, T. Wing Lo, Eric Wing Hong Chui, T. Wing Lo

• Publisher: Taylor & Francis
• Year: 2016
• eBook ISBN: 9781317497295
• Edition: 2
• Topic: Social Sciences
• Subtopic: Criminology
• Index: Social Sciences

In recent years law, crime and justice have become increasingly politicised in Hong Kong. Understanding Criminal Justice in Hong Kong, 2nd Edition offers a detailed and comprehensive overview of and introduction to the criminal justice system in Hong Kong, building upon recent events and controversies.

This book provides a much-needed overview of the criminal justice system in Hong Kong, including new chapters on criminological research methods, defining crime, fear of crime, the criminal court system, police power and discretion, and plea bargaining. This revised and expanded second edition:

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• Outlines the basic concepts of criminal law in Hong Kong,

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• Analyses the process of the criminal justice system, ranging from the reporting of a crime through to the correctional system,

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• Examines how criminal justice personnel work in practice, and how they deal with the offenders and victims during the criminal justice process,

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• Invites readers to consider arguments and debates that surround the controversial issues in the Hong Kong criminal justice system.

This book is a comprehensive resource for students studying this subject as part of a wider course in criminal justice, police studies, law or social work, and for practitioners working in Hong Kong in the police, prisons, probation, voluntary agencies and other criminal justice personnel. Text features include review questions, lists of cases cited, and useful websites.

1

The changing landscapes of the criminal justice system

Wing Hong Chui and Paul Vinod Khiatani

Introduction

Since the publication of the first edition of this book, a number of events have emerged to increasingly ‘politicise’ issues relating to law and order, and crime and justice in Hong Kong. Not only the events themselves, but also how the lawmakers and law enforcers respond to them are too. There are numerous real-case examples to illustrate the controversies surrounding the administration of justice. For example, protests from civil society, evident in the case of the ‘Occupy Central’ movement (Erni, 2015; Lee, 2015), and governance over locale-transnational criminal activities, evident in the case of the five missing booksellers (South China Morning Post (SCMP) 2016). Reflections on the complexities of these events necessitate a renewed understanding of the criminal justice system. The traditional approach to studying the criminal justice system, that is, the functional approach, needs to be superseded by the accommodation of a more critical, if not radical, lens (Taylor et al., 1973; Ugwudike, 2015). An understanding of the power relations, structural constraints and complexities of how Hong Kong should be administered would prove fruitful to any present-day discussion of the criminal justice system within the larger society.

This chapter will be divided into two parts. The first part of the chapter will draw on secondary data from local newspapers and government statistics to highlight the recent controversial issues relating to criminal justice in Hong Kong. The second part of the chapter will provide readers with an overall structure of the book and brief summaries of the chapters included in this second edition. This edition will feature 19 chapters, covering the basic concepts relating to crime and victimisation, pre-trial (police and corruption), trial (court, prosecution and the legal professionals), and post-trial (probation, prison and crime prevention). It is beyond the scope of this book to offer any concrete solutions to current socio-political problems. Moreover, it is also beyond the scope to cover the full range of issues and controversies surrounding the administration of justice in the past and today. Rather, this book intends to raise some of the issues that are or will be relevant to the study of the criminal justice system in Hong Kong.

Administration of justice today: issues and controversies

Broadly speaking, the changing landscapes of the criminal justice system can be attributed to four emerging trends, including an increasingly blurred line demarcating right from wrong, the changing face of criminal activities, the increasing public demand for accountability and transparency, and the persisting low rates of crime and fear of crime in Hong Kong. Whilst acknowledging that there are a number of significant events that may be out of the scope of the aforementioned trends, it is worth noting that these four trends touch on the core intersection of law, politics, crime and justice since the first edition of this book was published in 2008.

Increasingly blurred line demarcating right from wrong

Recent cases highlight, if anything, a blurred line in the sand when it comes to judging right from wrong in the social realities of Hong Kong. Increased civil unrest and public scepticism about the rulings and processes of the criminal justice system indicate a misaligned understanding of right and wrong between and within the administrative units and citizens in society. Take, for example, the case of ‘Long hair’ Kwok-hung Leung’s challenge to the Correctional Services Department on the hair-length policy as being discriminatory (SCMP, 2015a); the mass protest challenging a prison sentence passed to a female protestor for assaulting a police officer with her ‘breast’; Derek Tak-cheung Chan’s challenge to the Correctional Services Department that its meal-portion servings are racially discriminatory (SCMP, 2015j); and the pursuit of prison terms by prosecutors from the Department of Justice against four protesters, who were originally given community service orders, for rampaging the doors of the Legislative Council (LegCo) in November 2014 (SCMP, 2015l). The court ruling for the four protestors was changed on 25 August 2015, from 150 hours of community service to a three and a half-month prison term (SCMP, 2015n). One of the aforementioned incidents which received considerable attention from international media was the incident of the ‘breast assault’ conviction (Time, 2015; BBC News, 2015). On 30 July 2015, in the context of a protest against parallel or cross-border trading, a female protestor was found guilty of assaulting a police officer with her breast during a heated dispute between the two sides of the parallel trading issue by Tuen Mun Magistrates’ Court (SCMP, 31 July 2015a), sentencing the protestor to a three and a half-month prison term (SCMP, 2015f). Spiralling from the ruling, on 1 August 2015, a ‘Breast Walk’ rally of 200 people took place in front of Wanchai Police Station, lambasting the ruling and the police by shouting that the ‘breast is not a weapon’ (SCMP, 2015g). In the aforementioned cases, it is clear that what were once considered clear-cut, undisputed actions by the criminal justice system are now increasingly being questioned and challenged by the public on grounds of what should and ought to be right. It is in this cleavage that recent contention between the public and the criminal justice system exists.

The changing face of criminal activities

Another trend that has emerged in recent years is the increasing diversity and sophistication of criminal activities. For example, published as a public announcement on the official website, the Hong Kong Police Force recorded that over the period of January to July 2015, there had been 2,371 reports of telephone deception (the Hong Kong Police Force (HKPF) 2015a) – nearly half the total recorded cases of deception during that period, of 4,875 (HKPF, 2015b). While the upsurge in cases of deception comes as no surprise, especially given that the upward trend has been evident recently (HKPF, 2015b), it is the use of sophisticated technologies, the transnational nature, intended targets and meticulous ‘division of labour’-based planning, such as deceiving the victim through group-oriented role-play and storytelling, which gives rise to a relatively new modus operandi (HKPF, 2015a; SCMP, 2015k).

In a recent case, a Chinese soprano, Yuanrong Li, was the victim of an elaborate and sophisticated phone fraud, duping her out of HK$20 million. The group of fraudsters impersonated mainland officials, postal officials, prosecutors and the like to convince Li that she had violated mainland law. She was then ordered to pay money via bank transfers into several mainland bank accounts to avoid being prosecuted and sent to prison (SCMP, 2015h).

The aforementioned evolution in telephone-related deception starting in Hong Kong around 2010 (HKPF, 2015a; SCMP, 31 December 2010), poses a pressing challenge to the criminal justice system in Hong Kong. With the accumulation of millions of Hong Kong dollars from duping various targets in Hong Kong, from the elderly to working professionals, since 2010, with striking effectiveness (SCMP, 2010), actors and constituents in the criminal justice system of Hong Kong are forced to adapt and take a firm position in tackling the local problem via international collaborations, especially with Mainland China as most of the fraudsters emerge from Greater China and possess links that extend to South-East Asia (SCMP, 2015i, 2015k).

The increasing public demand for accountability and transparency

There has been an increased dissatisfaction with the performance of constituents of the criminal justice process. This is evident especially in the Hong Kong Police Force, the forefront ‘gatekeepers’ of the criminal justice process (Traver, 2009). Since the second half of 2013, there has been a striking drop in the rate of public satisfaction in their performance, plummeting from 51.1% in the second half of 2013 to 36.3% and 29.1% in the biannual review of 2014, and further dropping to 28.7% in the second half of 2015 (Public Opinion Programme, 2015a). When compared with the other disciplinary forces, the Hong Kong Police Force has ranked next to last, if not last, in the league tables year after year since the second half of 2012, dropping in satisfaction rates from 67.0 in 2012 to 63.7 in 2013 and 62.4 in 2015 (Public Opinion Programme, 2015b).

Contextualising this dissatisfaction, consider the manner in which the Hong Kong Police Force handled members of the general public – student activists (SCMP, 2014), ethnic minorities (SCMP, 2015c), and people with intellectual disabilities (SCMP, 2015b) – in certain events. This is particularly evident in the incidents that occurred over the ‘Occupy Central’ period, from September to December 2014, involving allegations of excessive use of force, assault and unnecessary arrests. As a case in point, consider the assault case involving the then Superintendent Franklin King-wai Chu and ‘Occupy Central’ protestor Osman Chung-hang Cheng. On 26 November 2014, Chu was found hitting demonstrator Osman persistently with a baton at one of the ‘Occupy Central’ protest sites in Mong Kok (SCMP, 2015d). Having lodged a formal complaint of unlawful assault against Chu through the Independent Police Complaints Council (IPCC), Cheng, as well as the general public, has yet to see the resultant disciplinary action. Arriving at the conclusion that a criminal investigation against Chu was ‘substantiated’, the IPCC’s initial ruling on 10 July 2015 was rejected by the Complaints against Police Officer (CAPO) on 20 July 2015, suggesting that launching a criminal investigation against the then superintendent was ‘not fully substantiated’ given the evidence (The Standard, 2015). A renewed vote by the IPCC in the same week confirmed its initial stance for ‘substantiating’ Cheng’s complaint against Chu, and the case has since been passed to the Department of Justice. Coinciding with the progress made in pursuing a formal criminal investigation against Chu, Chu retired in the same week (SCMP, 2015d). In this incident, as with the many others that involve public disputes with the police over the ‘Occupy Central’ movement, the controversial nature and operation of the criminal justice system in handling allegations involving its own criminal justice actors continue to raise eyebrows and agitate sceptics. Feeling the pressure from the rise in controversial cases and mounting public discontent, the Department of Justice has since found it imperative to increase transparency with the public on court rulings and handling of controversial cases, as well as playing down public outcries of ‘politically driven’ rulings (SCMP, 2015c). This emerging observable trend signals an evolving relationship between the public and constituents of the criminal justice system, especially one grounded in a demand for greater accountability and transparency.

The persisting low rates of crime and fear of crime

Although not a new trend by any account, given Hong Kong’s reputation as one of the safest cities in the world with a low violent crime culture, the low crime rate and low fear of crime statistics are a noteworthy trend in this discussion of the changing landscape of the criminal justice system as it relates to a continued ‘legitimation of process’ the government uses to retain its power and social control (see, for example, Chui et al., 2013; Adorjan and Chui, 2014). Despite its legitimacy being challenged in recent years, the criminal justice system delivers on performance. The crime rate and fear of crime have remained low. Since 2008, the overall crime trend has continued to decrease year on year, by 1.1% from 2008–09, 2.1% from 2009–10, 0.04% from 2010–11, 0.01% from 2011–12, 4.0% from 2012–13, 7.1% from 2013–14 and 1.9% from 2014–15 (HKPF, 2015c). Reflecting the decreasing trend in crime, research conducted on fear of crime in Hong Kong points to a collective perception of a safe city and confidence in the police (Broadhurst et al., 2010; Broadhurst et al., 2007; Adorjan and Chui, 2014). These research studies point to a pre-2010 atmosphere – a time when there was high satisfaction and confidence with the police and the other constituents of the criminal justice system. However, especially after 2013, satisfaction and confidence plummeted (refer to the satisfaction statistics on police performance mentioned in the third trend). In other words, the decreasing crime rate no longer clearly reflects favourable satisfaction and confidence in the criminal justice system.

Contextualising the relationship by considering their role in recent socio-political events, especially during the 2009–15 period characterised by various instances of competing political forces, constituents of the criminal justice system appear to face a challenge to retain their legitimate authority in maintaining law and social order amidst an increasingly disgruntled public. Looking to the recent case of the five missing booksellers, the criminal justice system appears to be under tight scrutiny by the state, civil society and Mainland China, as lawmakers and law enforcers steadily tread the line between provoking the ‘One Country, Two Systems’ concept, as stipulated by The Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China (hereafter referred to as Basic Law) whereby Hong Kong enjoys the autonomy of enforcing laws and having an independent judiciary, and answering to the concerned public (SCMP, 2016).

Taken together, the four aforementioned trends elucidate a change in character and focus of the criminal justice system. Particularly in recent years, actors and constituents of the criminal justice system in Hong Kong have featured prominently in the public light, often over controversies and sensitive cases, spilled over by socio-political upheavals in society, forcing them to be no stranger to the critical eye of the public. Hong Kong has witnessed several social and political protests and acts of civil disobedience concerted by the dissent over the Hong Kong government’s handling of internal affairs and its actions, or rather inactions, in furthering Hong Kong’s development. These include, but are not limited to, the anti-high speed rail link movement against the proposed Hong Kong Express Rail Link in 2009–10 (Hung, 2014), the movement against the proposal of the Moral and National Education in 2011–13 (Cheng and Ho, 2014; Morris and Vickers, 2015), the protest against parallel trading since 2012 (Laidler and Lee, 2015), and more recently, the ‘Occupy Central’ movement in 2014 against the Hong Kong electoral system reform package put forward by the Standing Committee of the National People’s Congress (Erni, 2015; Lee, 2015). Largely under the administration of the government, yet assumed to uphold justice through impartial administration of the law, the changing dynamics of the various constituents of the criminal justice system, often pursuing different interests and goals in maintaining the collective mission of criminal justice, thus arises as a topic of renewed interest.

About the second edition of Understanding Criminal Justice in Hong Kong

Designed as a prescribed text for both undergraduate and postgraduate students undertaking criminal justice and law as they embark on their studies, the aim of the book is twofold. The first aim is to outline basic concepts in criminal law, which is a common approach of defining crime in Hong Kong, and analyse the process by which the criminal justice system operates, ranging from initial reporting of a crime to the correctional system. The second aim of this book is to examine how personnel and actors in the criminal justice system work in practice, and how they deal with the offender and victim during the criminal justice process. In this respect, the updated text...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• List of Illustrations
• List of contributors
• Acknowledement
• 1. The changing landscapes of the criminal justice system
• PART I: LAWS, CRIMES AND VICTIMS
• PART II: PRE-TRIAL STAGE
• PART III: TRIAL STAGE
• PART IV: POST-TRIAL STAGE
• Index