The Department of Justice continues to find ways to spoil my breakfast. Consider the case of Ms Ami Chan , which was heard in the Eastern Magistrates Court earlier this week.
Department of Justice. Photo: GovHK.
Ms Chan was arrested in 2019 (yes, it’s one of those cases) although she was not accused of rioting. The case revolves round the contents of her rucksack, which included two laser pointers and two cans of spray paint. A rare hit from “stop and search” policing.
Nothing further happened until 2021, when Ms Chan, still a free woman without convictions, moved to Australia, where she has lived and worked ever since.
However, earlier this year she returned to Hong Kong and was then arrested and charged with the offences involving her unruly rucksack. Nothing remarkable so far. Cases dating back to 2019 are still coming before Hong Kong courts, although apparently the government now accepts that most of the thousands of people who were arrested will never be charged with anything.
Why am I bothered? Because at the time of her arrest Ms Chan was aged 15. She was a schoolgirl, a juvenile in the eyes of the law. Now she is an adult, appearing in an adult court and facing possible adult penalties.
Judges gather at the opening of the Legal Year 2025, on January 20, 2025. Photo: Kyle Lam/HKFP.
This is not supposed to happen. The law sensibly has a less abrasive approach to juvenile defendants than it does to adult ones. There are differences in procedure and also in the penalties which can be imposed in case of a conviction. There are also reporting restrictions.
This system only works if prosecutors get their act together in a reasonably quick fashion and get the case into court while the juvenile is still a juvenile. When I was a court reporter we still covered juvenile cases (the public is not admitted, but media reports of a limited kind are allowed) and the hearing commonly occurred within weeks of the alleged offence.
I do not recall any case in which the prosecution of a juvenile took so long that the matter had to be heard in an adult court. This routinely occurs in Hong Kong.
In defence of the prosecutors, it will be said that Ms Chan was responsible for some of the delay because she could not be prosecuted while she was not in Hong Kong. That is one way of putting it. After all, Hong Kong citizens are not required by either law or morality to hang about in Hong Kong waiting for the justice machinery to churn through their paperwork if they have things to do elsewhere.
I note also that in 2021, when she left, she will already have been 17, on the brink of legal adulthood. The further five years have sufficed only to remove her from the further protections provided by the Court of Appeal’s sentencing guidelines for people under the age of 21.
I express no opinion about Ms Chan’s guilt or innocence, on which the magistrate is now pondering. I do believe that having fallen so far below the standards expected of prosecutions in cases involving children, the Department of Justice should not have brought this case at all.
The department’s guidelines for prosecutors (echoing numerous human rights instruments, including our local one) say that defendants are entitled to a trial within a reasonable time. What the department’s denizens seem to have trouble getting their heads round is that this may vary with the age of the accused.
Eastern Magistrates’ Courts. Photo: Kelly Ho/HKFP.
It may be acceptable (God help us) to keep an adult waiting for seven years. For a juvenile even seven weeks could be considered excessive. Faced with a kid in trouble, the case needs either to be diverted into a high-speed channel from the bureaucratic pipeline where it has to float along with the rest of the legal excrement, or fished out and dealt with promptly by whoever owns the relevant in-tray.
Depriving young defendants of the benefit of the provisions expressly provided for them is a rank and undisputable injustice, whether it is perpetrated as a deliberate abuse or an unintended result of a sluggish system. Children should be treated as children.
[Table]
HKFP is an impartial platform & does not necessarily share the views of opinion writers or advertisers. HKFP presents a diversity of views & regularly invites figures across the political spectrum to write for us. Press freedom is guaranteed under the Basic Law, security law, Bill of Rights and Chinese constitution. Opinion pieces aim to constructively point out errors or defects in the government, law or policies, or aim to suggest ideas or alterations via legal means without an intention of hatred, discontent or hostility against the authorities or other communities.
[/Table]