Summary: 2 Hong Kong NON-democratically elected lawmakers Dennis KWOK Wing-hang and James TO Kun-sun will visit America in early December, and try to persuade US politicians and business tycoons that HK’s “rule of law is still intact”, and to lobby them to continue to treat HK as a custom area separate from China, and keep the Hong Kong Policy Act. However, numerous incidents have occurred in HK, which have apparently violated the rule of law there. E.g., between 2016 and 2017, 6 democratically elected dissident HK lawmakers were disqualified by the HK Court for “insincere” oath-of-office-taking, following Beijing’s interpretation of the HK Basic Law in that regard. And in June this year, Baggio LEUNG and YAU Wai-ching were sentenced by a HK Magistrate to four weeks’ imprisonment for “illegal assembly” INSIDE the Legislative Council in 2016 while they were still democratically elected lawmakers. Also, LO Kin-man, a young photographer, who was sent to jail for 7 years as a “rioter” who allegedly threw a dozen of plastic water battles from a distance during his confrontation with the police in the 2016 Mongkok Police-civilian clash, was recently denied legal aid for appealing against his conviction, despite the fact that he has always been utterly impoverished.
Dennis KWOK and James TO Want USA to Keep the HK Policy Act
Hong Kong Legislative Council members, Dennis KWOK Wing-hang and James TO Kun-sun, will go to the United States, KWOK from 7th through 17th December, TO from 4th through 10th December, with a view to lobbying US politicians and businessmen to continue treating Hong Kong as a custom area separate from China, and maintaining the Hong Kong Policy Act. Dennis Kwok says when he delivers speeches in New York, he will argue that “the rule of law of Hong Kong is still intact”, though he will also reflect the situation of the implementation of One Country Two Systems in Hong Kong, e.g., the Causeway Bookstore incident, and the West Kowloon Rail Link Co-location Arrangement. He will discuss his trip with the HKSAR Government before he sets off. James TO will attend the US Congress Information Security Forum, and meet American politicians and scholars, including the Chair and members of US-China Economic and Security Review Commission, which has recommended that the US Congress regard Hong Kong and China as the same custom area with respect to the export of dual-use technologies. Dennis Kwok is a lawmaker representing the Legal functional constituency, and James To represents the District Council constituency. Both are NOT democratically elected. There are, however, numerous instances in which the rule of law in HK has been significantly compromised. Three examples will be given as follows:
6 Democratically Elected HK Lawmakers Disqualified for “Insincere” Oath-taking
Between 2016 and 2017, the HK court disqualified six democratically elected lawmakers, including two localists, Baggio Sixtus LEUNG and YAU Wai-ching, and four pan-democrats, LAU Siu-lai, Nathan LAW, LEUNG Kwok-hung and YIU Chung-yim, for their “insincere” oath-of-office-taking” manners, e.g. Baggio Leung and Yau showing a banner of “Hong Kong is not China”. In the middle of the trial of Baggio Leung and Yau’s case, The Standing Committee of the National People’s Congress, without invitation of the HKSAR Government, interpreted the Basic Law of HK as regards how HK lawmakers may swear allegiance to the HK and China authorities ,and maintained that the interpretation has a retrospective effect. A retrospective law which retroactively punishes someone for an act that was legitimate when performed violates two major principles of the rule of law — predictability and certainty. This has for a long time been frowned upon by most law experts in various civilized countries. British law expert, Francis Bennion (2008) says, “A person cannot rely on ignorance of the law and is required to obey the law. It follows that he or she should be able to trust the law and that it should be predictable. A law that is altered retrospectively cannot be predicted. If the alteration is substantive it is therefore likely to be unjust. It is presumed that Parliament does not intend to act unjustly.” The disqualification of the 6 non-establishment lawmakers represents China’s blatant interference with Hong Kong’s democratic election, co-opted by the Hong Kong court. Apparently, it is a serious compromise of the rule of law and a rough violation of Hong Kong’s autonomy.
Lawmakers Sent to Jail for Illegal Assembly in the Legislative Council
Another instance. In June this year, Baggio Leung and Yau Wai-ching and their three assistants were sentenced by a HK magistrate to four weeks’ imprisonment, for taking part in an illegal assembly inside the Legislative Council Building, when Baggio Leung and Yau, as democratically elected lawmakers, tried to enter a room inside the building of the Legislative Council in order to attend a meeting of the Legco there, but were blocked by security guards of the Council. Many HK citizens, including the HK lawmaker, Claudia Mo, have found it hard to believe that this is not a political prosecution/persecution.
Impoverished Prisoner’s Application for Legal Aid Rejected
Yet another instance. LO Kin-man, a 31-year-old young man and co-defendant of the localist activist Edward Leung, was sentenced in June this year to seven years’ imprisonment as a “rioter” who allegedly threw a dozen plastic water battles from a distance during his confrontation with the police in the 2016 Lunar New Year Mongkok Police-civilian clash. His application for legal aid for appealing against the conviction was rejected despite the fact that he has always been impoverished. According to the UN Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems, “Legal aid is an essential element of a fair, humane and efficient criminal justice system that is based on the rule of law. Legal aid is a foundation for the enjoyment of other rights, including the right to a fair trial, as defined in article 11, paragraph 1, of the Universal Declaration of Human Rights.”
(Chapman Chen reports)