Aug 19, 2002
General Comments
Falun Gong is being persecuted severely in Mainland China, but is freely practiced under the separate system in this territory. Whether the rights of Falun Gong practitioners are genuinely respected and protected is not only of concern to Falun Gong practitioners but also to people who would like to see the cherished rule of law and human rights survive in Hong Kong. Without a doubt, the recent trial became a test for the integrity and commitment of the Hong Kong justice system to uphold the rule of law.
Unfortunately, on August 15, Hong Kong Western Magistracy failed that test miserably. The verdict clearly didn't show respect for the rule of law, commitment to the preservation of rights or a high level of professionalism, qualities that a court is supposed to demonstrate. Leaving out vital pieces of evidence and failing to address relevant laws properly, Magistrate Symon Wong's guilty verdict against the practitioners is impossible to support on a factual basis or from a legal standpoint.
Furthermore, when delivering the verdict, the magistrate adopted a pattern of claiming to have given full consideration to certain pieces of the laws or evidence, yet those considerations were not evident at all in his findings. If the rule of law was discussed just to window-dress a biased ruling to appease and deceive the public, the sacred and noble responsibility of a judge would be severely undermined, and the confidence that people have in Hong Kong's justice system would be deeply damaged as well.
This dubious practice is troublesome as it is eerily reminiscent of the way verdicts are delivered in Mainland Chinese courtrooms, where sham or show trials are commonplace. Mainland's Constitution also guarantees freedoms of expression, assembly and belief to its citizens. Yet we all know that these freedoms don't really exist in practice as the legal system there is manipulated by people in power and, in many cases, functions as a political tool. The courts frequently violate the laws and this has resulted in many wrong judgments. This makes it hard, if not impossible, for the laws to function normally in real life in Mainland China.
Five years ago, the people of Hong Kong were not only promised a separate system for fifty years, but also a better future. If the Hong Kong public doesn't stand up to help preserve Hong Kong's rule of law and human rights, not only will the "One Country Two Systems" exist only on paper, Hong Kong will also soon lose its status as a free society as well as the respect that comes along with it. The future of Hong Kong will be full of worries. And that will not be the kind of "better future" everyone had in mind.
On Obstruction
Magistrate Wong based his ruling entirely on evidence provided by prosecution witnesses and failed to recognize crucial facts and evidence (or the lack thereof).
- The magistrate did not recognize the wide space available in front of the Liaison Office building on Connaught Road West. There were 140 sq meters of empty space available and the 16 practitioners only occupied about 7 sq meters and left ample room around them.
- The magistrate did not address the prosecution's failure to call a single pedestrian or worker from the Liaison Office to testify on alleged obstruction. In addition, neither the officers nor the security guards at the Liaison Office could provide any particulars about people who allegedly complained about being obstructed.
- "Hours of telling video evidence" referred to by the magistrate didn't capture the first hour of the demonstration. The police started to videotape the scene after police barricades were erected and the entire pavement was sealed off. The video actually proved that it was the police who caused "obstruction," not Falun Gong practitioners.
- The magistrate clearly tried to avoid admitting that the demonstration was small in size. He was evasive on the issue, saying "the size... fluctuated" without pointing out the fact that the number of demonstrators actually peaked at a little over a dozen. Furthermore, police intervened when there were only 4 Swiss practitioners demonstrating.
- Magistrate Wong decided that the duration of this 3-day peaceful sit-in on a wide and lightly traveled pavement was "bound to have caused a certain degree of obstruction." As every demonstration or event would have to carry potential to cause a certain degree of obstruction, the magistrate never cared to clarify the most important issue: what was exactly the extent of the obstruction and how was the obstruction manifested?
- The magistrate didn't address the legal issues properly. Article 17 of the Bill of Rights Ordinance provides that: "The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interest of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others."
The magistrate failed to address why the restriction imposed by the police was "necessary" and how such a small peaceful demonstration on the big pavement could be a threat to national security or public safety, public order, public health or morals, or infringement of rights and freedom of others.
On D11 (Erich Bachmann)
D11 wasn't meditating at all times, and his eyes were not kept closed at all times either. D11 was able to view the area clearly. In fact, D11 did see people walking by them without being obstructed.
When D11 heard the words "further action will be taken by the police", D11, who had never demonstrated in Hong Kong before, thought that could mean "carrying them to 162," a place adjacent to the Liaison Office that the police officers tried to persuade them to go.
On D3 (Ms. WONG Yiu-hing)
The Truth:
D3 clearly stated that she never saw "workers at the Liaison Office" using that part of the passageway. She sought legal advice first to make sure it would not cause obstruction to regular passersby, and secondly to be able to communicate intelligently with the police. The inferences drawn by the magistrate were groundless and irresponsible.
According to prosecution witnesses, D3 got involved when the police were trying to take away Yang. Yet the defense pointed out that D3 was not present when Yang was being taken away. It was only when Chee Fei Ming was being dragged away that D3 got involved. D3 was trying to reduce Chee's suffering by attempting to stop the forceful action of the police.
On D5 (Ms. Lu Jie)
1) The magistrate's findings on D5's credibility cannot be supported by evidence presented in court.
Magistrate said: D5 was "obviously trying to downplay her role with the Falun Gong. She repeatedly emphasized that her role was to act as an interpreter. But other parts of the evidence reflected that she played a very significant and active role for the Falun Gong."
Wong ignored: D5 made it very clear in her testimony that she acted mainly as an interpreter at a meeting prior to the Swiss demonstration. D5 never implied or stated that she was acting as an interpreter on other occasions. D5 was also very forthright about playing an active role on the day of demonstration. There is no contradiction if one doesn't get involved in the preparation of an event but plays an active role when the event does take place.
2) The Magistrate's conviction of D5 for assaulting police was based on personal speculation.
Wong said, "the [police officer's] scream was spontaneous and I did not believe it was a frame-up or a mistaken situation ... the sensation of being bitten is best felt than described. There could have been no room for error..."
Magistrate ignored these facts: On the police video, after a scream of pain, the "victim" officer immediately checked her forearm for wounds. She pointed at the inner part of her forearm, indicating that's where the wound was. However, at that moment, no one saw any wound or bite mark. In addition, from the police video, it was impossible for D5's mouth to reach that spot on her arm. Also her medical reports show that there was no record of bite marks on the forearm.
No evidence proves that D5 bit the officer. The truth is, D5 never bit the officer. The magistrate based his verdict on personal speculation, and this was absolutely not proven beyond reasonable doubt.
In both cases, magistrate Wong attacked D5's credibility without properly addressing the evidence. In fact, in many cases, the magistrate simply adopted the prosecution's lines verbatim.
Other Signs of Bias By the Magistrate
Only a few of the examples of unfairness are listed below.
- The magistrate displayed extreme hostility and bias toward defense counsel. He personally insulted the two senior barristers.
- The magistrate gave unnecessary, exaggerated compliments to the prosecution. During the removal operation, the police used pain-based acupressure techniques on a group of peaceful demonstrators, causing pain, nausea, shortness of breath, dizziness and weakness in the entire body. In addition, 9 of the practitioners sustained injuries, most of which didn't disappear until after about two weeks. Why would the police use such violent actions against a group of peaceful demonstrators?
- The magistrate granted prosecution's objections even without giving the defense a chance to argue on quite a few occasions. When the magistrate did grant defense's objection to prosecution's questions, he still allowed the question.
- The magistrate allowed the prosecution to ask questions such as, "Who pays your rent?" "Who is the chairman of your organization?" "Who designs your flyers?" This practice made practitioners feel reluctant to answer as they felt the prosecution was trying to gather intelligence.
- The magistrate said that Falun Gong practitioners had no regard for the public. This is untrue. The reason practitioners chose to demonstrate at 160 was that it would be more convenient for passersby than 162.
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Category: Perspectives
