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Secretary for Security John Lee officiated at the Correctional Services Department’s community education programme "Mission in Prison" opening ceremony at Ma Hang Prison in Stanley today. Introduced under the Rehabilitation Pioneer Project, Mission in Prison is based on the concept of escape room activity with elements of role playing, problem-solving and team building, which simulates various emergencies and daily situations confronted by CSD staff to bring young people authentic learning experience. Incorporated with the concept of Smart Prison, "Mission in Prison" has 18 checkpoints. With the aid of smart applications on tablets, participants will become correctional officers to carry out various tasks to deter illegal activities organised by people in custody and formulate a rehabilitative programme for them to turn over a new leaf. Launched in 2008, Mr Lee said the project collaborated with various schools and social service organisations to hold diverse learning activities to cultivate students' development of positive values, sense of responsibility, and help them become law-abiding citizens. The department upholds the belief of correction and education to lead youngsters in custody to reflect, correct and equip themselves to start a new journey of life, he added. About 70% of secondary schools in Hong Kong have taken part in the activities, with nearly 400,000 participants including youths and educators.
The Hong Kong Special Administrative Region Government today strongly objects to the US Congressional-Executive Commission on China’s newly released 2020 annual report which is biased, politically motivated and not reflecting the truth. In a statement, the Hong Kong SAR Government said safeguarding national security through legislation is in line with international practice. Contrary to the erroneous allegations that the Law of the People's Republic of China on Safeguarding National Security in the Hong Kong SAR undermines the "one country, two systems" framework, the country has the right to legislate for this matter under “one country, two systems". Every country has laws and duty to safeguard its national security and sovereignty. The international community should not adopt a double standard. The allegation that the offences under the National Security Law are vaguely defined is simply untrue. The National Security Law clearly stipulates four types of offences endangering national security and the penalties. Law-abiding people, including Hong Kong residents and overseas tourists/investors, will not unwittingly violate the law. At the same time, the National Security Law contains specific provisions upholding Hong Kong people’s rights and freedoms under the Basic Law as well as the relevant provisions of international covenants on human rights as applied to Hong Kong. It also provides for the presumption of innocence, the prohibition of double jeopardy, and the right to defend oneself and other rights in judicial proceedings that a criminal suspect, defendant and other parties in judicial proceedings are entitled to under the law. The National Security Law does not conflict with Article 23 of the Basic Law. The Hong Kong SAR is still required to complete the national security legislation stipulated in the Basic Law at an early date. Since the National Security Law’s implementation, street violence has subsided and stability has been restored. The legitimate rights and freedoms of the Hong Kong people have been upheld and criminals are brought to justice through the city’s independent judiciary. A stable environment is vitally important to the prosperity of Hong Kong and the business activities of both local and overseas enterprises here. In respect of the Hong Kong Police’s enforcement actions, the statement said Police have a statutory duty to maintain public safety and public order. Law enforcement actions taken by Police were based on evidence and strictly according to the laws in force, and regardless of the suspects’ political background or stance. The freedom of the press in Hong Kong is guaranteed under the Basic Law. While media practitioners need to cover news, Police have a statutory duty to adopt measures to maintain public order and safeguard public safety. On condition of not affecting police operations, Police have all along been assisting in media reporting, so that both sides can perform their respective functions on the basis of mutual understanding and respect. The Hong Kong SAR Government said taking people who have contravened the law to justice is the duty of every government, and where the offence concerns national security, the interests of the country and every citizen are at stake. This national obligation should be fully respected in the international arena, it added.
The Immigration Department is mainly responsible for the assessment of the employment visa applications of foreign domestic helpers (FDHs), while the regulation of boarding facilities for them is outside its purview. The department made the statement in response to the Ombudsman’s decision to initiate a direct investigation to examine the Government's regulation of boarding facilities for FDHs. In the course of the investigation by the Office of the Ombudsman, the Immigration Department will assist it to further understand the functions and powers of the department, and the delineation of responsibilities and distribution of the Government’s work in the regulation of boarding facilities for FDHs.
The Opening of the Legal Year is an important occasion for the Judiciary as well as our community, as it focuses public attention on the administration of justice and the rule of law, and in particular the challenges we face. In this, my first Opening of the Legal Year as Chief Justice, I would like to outline three fundamentals of the Judiciary that we are committed to. Independent judiciaryFirst, the Judiciary must be and must remain an independent and impartial judiciary. In Hong Kong, judicial independence is both mandated and guaranteed under the Basic Law. The judicial power, including that of final adjudication, enjoyed by the Hong Kong Special Administrative Region under the Basic Law is exercised by the Judiciary independently, free from any interference, as Articles 2, 19 and 85 of the Basic Law provide. An independent judiciary is essential to the rule of law in Hong Kong and the due administration of justice. It is equally crucial to public and business confidence - whether local or overseas - in our judicial system, as well as to the international reputation of Hong Kong as a society that is governed by the rule of law under the "one country, two systems" arrangement. Amongst other things, judicial independence means the Judiciary, the courts, the judges and judicial officers (whom I shall refer to collectively as judges), when discharging their judicial functions, must not be subject to improper extraneous pressure or influence. The Basic Law and the relevant legislation provide clear and strict provisions regarding the appointment and removal of judges. In particular, Article 88 of the Basic Law provides that judges are appointed by the Chief Executive on the recommendation of the independent Judicial Officers Recommendation Commission, which is chaired by the Chief Justice. Appointment of judges, whether local or from overseas, must be based on and only based on judicial and professional qualities, as stipulated under Article 92. Judicial appointments must be free from political or other irrelevant considerations. Inevitably, cases with political overtones come before the courts for adjudication. Judges hearing such cases often come under intense scrutiny in the media and social media, and the decisions in these cases are almost always subject to partisan criticisms. Comments and criticisms, sometimes extreme and harsh ones, are unavoidable. Whilst the freedom of speech of everyone in society must be fully respected, there must not be any attempt to exert improper pressure on the judges in the discharge of their judicial functions. In this connection, it has to be stressed that attempts to exert undue pressure on our judges by means such as threats of violence or doxxing are as futile as they are reprehensible. Judges decide cases independently. When deciding a case, a judge is not subject to the control or interference by other judges, including more senior judges. The appropriate way to question a decision is by means of appeal or review. Our appellate courts exist precisely for the purpose of correcting mistakes made in the lower courts, ironing out discrepancies in decisions and sentences among different first instance courts, and where appropriate, clarifying the law and laying down sentencing guidelines. Admittedly, appeals and reviews take time, and patience is required. Nonetheless, we must have faith in our common law system and allow the appeals process to run its course. The positive and authoritative role played by our appellate courts can simply not be replaced. An impartial judiciary means that everyone is equal before the law. Whereas judicial independence means that judges must not be subject to improper influence from outside, judicial impartiality requires judges to be free from bias and prejudice of their own. Judges are human. It is only natural that, like others in society, judges may have and are indeed entitled to their own personal views and beliefs. However, a judge must decide cases objectively and professionally, independent of his own personal views or beliefs, political or otherwise. A judge must put them aside and apply only the law to decide cases. By his words and conduct, he must treat everyone that comes before the court equally and fairly. In this regard, perception is as important as reality. The public's expectation of the impartiality of our judges is very high, and rightly so. A judge must therefore exercise self-restraint. When dealing with high profile cases or cases with a political flavour, judges must be particularly careful with their appearance of impartiality in terms of what they say in court or write in their judgments, or how they treat the parties, their lawyers or the witnesses. Any lapses in this regard, given the potentially polarising nature of these cases, could lead to suspicion of partiality, which is not conducive to maintaining public confidence in our judicial system. It is only understandable and natural that different people may view the merits of a judicial decision from different perspectives and come to different conclusions. To some, only the outcome of the case matters, regardless of what the judge's reasons or reasoning may be. However, disagreement with a decision on the basis of one's political view or stance is never in itself an acceptable reason to call into question the judge's or the Judiciary's independence or impartiality. Unfounded allegations against our judges would only risk undermining public confidence in the Judiciary. Independence does not mean a lack of accountability. There are built-in features in our judicial system that ensure that the Judiciary and judges are accountable to the public for their works. These include, amongst other things, the requirement that save for well-defined limited exceptions, all proceedings are open to the public, as well as the requirement that reasoned judgments which are accessible to the public on the Internet be given for the decisions of the courts. Moreover, we also have a well-used system of appeals; transparent target dates for listing of cases for hearing and for delivery of judgments; a published guide to judicial conduct; an established system of complaints against judges; an annual budget that is approved by the legislature; and stringent financial control measures. There is of course further room for improvement in relation to these features, but our community should be assured that there are important features in place to ensure that whilst the Judiciary is independent in its organisation and operations, it is nonetheless fully accountable to the public in the discharge of its functions. Judges are of course not above criticisms and complaints. Under our existing system, complaints against judges are handled by court leaders responsible to the Chief Justice. Where appropriate, input from senior judges is also sought. Annual reports of complaints received and handled are published by the Judiciary. In some cases, the results of investigation into complaints are posted on the Judiciary website and subject to public scrutiny. In the most serious of cases, Article 89 of the Basic Law provides for the removal of judges (including the Chief Justice) by the Chief Executive upon the recommendation of a tribunal consisting of judges only, on the ground that they are unable to discharge their duties, or for misbehaviour. The fact that even in the case of possible removal, the tribunal making the recommendation to the Chief Executive on the course to take comprises only judges speaks volumes of the importance the Basic Law attaches to judicial independence and non-interference with the Judiciary by any outside interests. That said, I do agree that subject to the overriding consideration that there can be no undermining of judicial independence, there is still room for further enhancement of the transparency and accountability of our complaint handling mechanism. Accordingly, a review of our existing mechanism, which was last reviewed in 2016, will be undertaken with a view to further enhancing its transparency and accountability. Judges’ integrity upheldThe second fundamental of the Judiciary, which overlaps to some extent with the first one I have just outlined, is that the Judiciary must comprise judges who are upright and who are prepared to uphold rights. A judiciary can only be as good as the judges that man its courts. The Judicial Oath is a requirement under Article 104 of the Basic Law. It requires every judge to uphold the Basic Law, to bear allegiance to the Hong Kong Special Administrative Region, to serve Hong Kong conscientiously, dutifully, in full accordance with the law and with integrity, and to safeguard the law and administer justice without fear or favour, self-interest or deceit. It can only be fulfilled by judges who are upright; judges who are people of integrity. It is worth repeating that judges must be impartial, free from bias or prejudice. Judges must be fearless and be prepared to make decisions in accordance with the law, regardless of whether the outcomes are popular or unpopular, or whether the outcomes would render themselves popular or unpopular. A judge must be honest and intellectually honest. Binding laws and precedents must be dispassionately applied and applicable rules and procedures faithfully observed, even if this means getting a result the judge personally might not prefer. Powers and discretions must be exercised judicially. Judgments must set out the true and entire reasons for the decisions made. Society has every right to insist that our judges must be faithful to the Judicial Oath. On behalf of my colleagues in the Judiciary, I would like to assure the public that we expect nothing less of ourselves. Why do we need upright judges with integrity to administer justice? We need these judges because courts exist to adjudicate disputes, to enforce rights, to punish the wrongdoers and to acquit the innocent, all in accordance with law and evidence. Of all the rights that are recognised under our legal system, there are no rights more precious than the fundamental rights that are guaranteed under Chapter III of the Basic Law and those that are set out in the Hong Kong Bill of Rights, such as the freedom of speech, the freedom of assembly, the procedural and other safeguards in criminal proceedings, and other personal freedoms and liberties. Society expects the courts and our judges to generously interpret and jealously protect these rights when they are threatened or are otherwise interfered with. The courts are the place where these rights must be enforced. Our courts must continue to enforce and give effect to these fundamental rights. All this said, three observations should be borne in mind. First, the Basic Law is the ultimate guarantee of the fundamental rights enjoyed by the people of Hong Kong, and of the jurisdiction of the courts to enforce them. The importance of the Basic Law cannot be over-emphasised. Secondly, whilst fundamental rights must be given a generous interpretation, most fundamental rights are not absolute in the sense that they are liable to be restricted for the sake of others or for the common good. However, any restriction must be justifiable by reference to its aim, relevance, necessity and proportionality. Thirdly, fundamental rights are equally enjoyed by the people of Hong Kong, each and every one of them. When rights are exercised or sought to be enforced in courts, the fundamental rights of others, where relevant, must equally be borne in mind and respected. When different rights pull in different directions, as is quite often the case, the court's task is to balance these competing rights and come up with a decision that best gives effect to these rights. Staying attunedThe third fundamental of the Judiciary that I would like to discuss is that our Judiciary must remain a professional and efficient judiciary that moves with the times. A modern judiciary must be an efficient judiciary. The annual number of leave applications for judicial review relating to non-refoulement cases has risen from 60 in 2016 to over 3,700 in 2019, even though the number of leave applications in other types of judicial review cases has remained stable at around 160 per year. The resulting stress on our judicial capacity is tremendous and it is not helped by the outbreak of the COVID-19 pandemic last year which seriously disrupted court operations, nor the large number of criminal cases arising from the social events in 2019. Whilst we will continue to deal with these workloads with determination and perseverance, specific attention will be given to the prioritisation of different types of cases so that backlogs and bottlenecks can be tackled more strategically and effectively. In particular, steps to enhance the practice and procedure of the Constitutional & Administrative Law List in the High Court will be taken, and important public law cases and appeals will be given priority and fast-tracked for hearing so as to reduce the delays and social costs that these litigations involve. Likewise, hearing of selected criminal appeals or sentence reviews that are of general importance or otherwise draw wide public attention will be expedited so as to enable the Court of Appeal to clarify the law where appropriate or give authoritative sentencing guidance in a timely manner. Enhanced administrative measures will be put in place to help ensure that judgments are delivered within a reasonable time. On the question of manpower, judicial vacancies at all levels should be filled by competent and efficient judges and lawyers of the appropriate qualities. Our top court must continue to be composed of judges of the highest calibre and professional qualities, in order to maintain full confidence in our legal system and the hard earned reputation of the court in the common law world. In this regard, the substantial contribution made by our overseas non-permanent judges to the work of the court deserves full recognition. Despite occasional difficulties in recruitment for judges in the Court of First Instance of the High Court in recent times, there can be no lowering of judicial and professional requirements for our judges. We will continue to explore ways to attract lawyers of the right calibre and character to join the bench. Society, and in particular, the legal profession, must help the Judiciary in encouraging suitable lawyers to apply to become judges. This is vital to the Judiciary in discharging its functions to uphold the rule of law and to administer justice impartially and competently. One means to alleviate the workloads of judges in the High Court is the gradual expansion of the judicial associate scheme to support judges in the Court of First Instance. To help maintain and further develop the professional qualities and efficiency of our judges, efforts will be made to strengthen and expand the work of the Judicial Institute, one essential function of which is to provide continuing judicial education for our judges. Workloads permitting, judges will be given more "protected time" to attend judicial seminars and workshops on subjects such as court craft, judicial ethics, judgment writing and sentencing, just to name a few. As a modern judiciary, we will continue to strengthen our exchanges with the judiciaries and judges in other common law jurisdictions as well as our counterparts on the Mainland. We are in the middle of a huge, substantial project to digitise our legal procedures and support systems. The Court Proceedings (Electronic Technology) Bill was passed into law on July 17 last year. The relevant court procedural rules, which are subsidiary legislation, will hopefully be tabled before the Legislative Council in the first quarter of this year. In the coming few years, processes will go electronic in our courts, in the court registries, in the preparation for and conduct of cases, and in the interaction with the courts. The COVID-19 pandemic has prompted initial attempts to conduct remote hearings in our courts. The use of technology has proved to be effective in many areas. It is envisaged that remote hearings will become a permanent feature of our legal system, particularly in civil cases. For criminal cases, using remote means to conduct hearings requires amendments to be made to existing laws. There are ongoing consultations with relevant stakeholders. Our target is to introduce a Remote Hearing Bill into the Legislative Council in the second quarter of this year. On behalf of all my colleagues in the Judiciary, I wish to assure the community that we are committed to meeting the expectations that I have just outlined to you. We are committed to the rule of law and to administering justice in full accordance with the law without fear or favour, self-interest or deceit. Chief Justice Andrew Cheung made these remarks at the Ceremonial Opening of the Legal Year 2021 on January 11.
The holding of the opening of the legal year here at the Court of Final Appeal, with its live broadcast to the public, is testimony to Hong Kong's strong legal traditions and the resilience and tenacity of the legal community notwithstanding unforeseeable challenges beyond one's control. The coronavirus has posed immense challenges to the world and Hong Kong is not spared. Judicial Independence In my 2019 speech, I condemned the totally baseless, arbitrary and even malicious attacks on some of our judges, urging the community to dispel such unwarranted misunderstanding by reading the court judgments. Last year, I have witnessed multiple occasions by which similar reminders have had to be made. Our judicial independence is premised on the solid infrastructure that has been laid down primarily in the Basic Law - the security of tenure1, the immunity of judges2, the non-revolving door3, and importantly the expressed provision in Article 85 of the Basic Law that guarantees judicial independence, free from any interference4. The judicial oath, taken by all judges, requires them to safeguard the law and administer justice, without fear or favour. Judges are required to adjudicate cases independently and impartially. Comments and discussions on court decisions are always permissible within the boundary of the law if done rationally and objectively. Yet some remarks that have surfaced are nothing like that. Any unfair or unfounded remarks with the ulterior motive of exerting pressure or undue influence on our judges in dispensing justice will be to no avail. Doxxing Doxxing activities towards judges and other people involved in the administration of justice were on the rise and must be curtailed. As “guardian of the public interest” 5, I sought and obtained an injunction order to restrain the conduct of such activities towards judges, judicial officers and their family members. In granting this injunction, the court noted: “It remains fundamental to the rule of law that litigants and the general public are able to place reliance on and have confidence in a court system that is free from bias, and that the judge or judicial officer in any case is the person who decides that case according to its evidence and the applicable law.” 6 It is a serious matter to act in breach of an injunction order. Any person who acts in violation of an injunction order may be held in contempt of court and is liable to a fine or imprisonment, including an immediate custodial sentence as ordered by the court in a recent decision7. As I have stated in 2018, “(a)ll of us jointly bear the responsibility to respect, promote and further the rule of law as a fundamental basis of our society” 8. It lies in every individual and institution to be forthcoming in defending our judiciary and the rule of law against these baseless and malicious attacks and, for some, to refrain from blindly uttering such statements. National Security Law Another baseless challenge to our rule of law relates to the promulgation of the National Security Law in Hong Kong. National security is within the purview of the central authorities. The National People's Congress is the highest organ of state power in the People's Republic of China and its Standing Committee was entrusted to formulate the National Security Law. Pursuant to Article 18 of the Basic Law, it was added to Annex III, promulgated and became applicable to the Hong Kong Special Administrative Region. Article 23 of the Basic Law does not change the fundamental principles set out above. It imposes a constitutional responsibility on the Hong Kong SAR to enact legislation in respect of certain offences relating to national security. Yet the central authorities always have the power and duty to legislate on matters of national security, especially when this responsibility of the Hong Kong SAR has not been fulfilled. It is entirely misconceived to say that the principle of “one country, two systems” has been undermined. Many unfair and ill-informed criticisms have been made against the designation of judges by the Chief Executive, with remarks that it will undermine Hong Kong's judicial system. It should be reiterated that the Chief Executive only designates a list of judges in different levels of courts to hear cases involving issues of national security, rather than assigning which judge to preside over a specific case. Understanding the Basic Law The National Security Law brings into sharp focus the constitutional order of Hong Kong. China is a unitary state, and the powers of the branches of the Hong Kong SAR emanate from the central authorities. The Constitution and the Basic Law form the constitutional basis of the Hong Kong SAR. A proper understanding of this concept is of utmost importance to comprehend our legal system. The Basic Law 30th Anniversary Legal Summit with the theme “Back to Basics” reminds us of the fundamentals necessary for the proper understanding of the Basic Law. A key takeaway from the summit is entirely the same as a finding in the Court of Appeal decision dealing with the Emergency Regulations Ordinance (ERO): that the Hong Kong SAR Government is “very much an executive-led government” 9. The Emergency Regulations Ordinance The judgment delivered by the Court of Final Appeal regarding the ERO10 is particularly significant. It upheld the compatibility of the ERO with the Basic Law, and recognised that in circumstances of public danger, it is “‘essential’ to give the executive ‘wide and flexible legislative powers’ whether or not the legislature is sitting” 11. The court continued: “It should be remembered that the purpose of the ERO is to provide the (Chief Executive in Council) with wide and flexible legislative powers in times of emergency or public danger in order to deal quickly and adequately with the situation in question.” 12 In upholding the constitutionality of the ERO and the proportionality of the Prohibition on Face Covering Regulation which restricted the use of facial coverings during public order events we saw in 2019 with deteriorating law and order13, the court took the view that when striking a fair balance between the societal and individual interests, the interests of Hong Kong as a whole is important. I echo this view - rights and freedoms are not absolute but are subject to lawful restrictions including the interests of public safety, public order and the protection of the rights and freedoms of others14. One final statement in the judgment is noteworthy: “And finally, the interests of Hong Kong as a whole should be taken into account since the rule of law itself was being undermined by the actions of masked lawbreakers who, with their identities concealed, were seemingly free to act with impunity.” 15 Criminal Appeals This year marks a significant increase in the amount of applications for the review of sentence lodged under section 81A of the Criminal Procedure Ordinance16, with 17 applications lodged in 2020 compared to four in 2019. Of the 12 such applications decided in 2020, 11 were allowed. In four of the cases, the Court of Appeal repeated the sentencing principle as set out in Wong Chi Fung17 of the necessity to emphasise deterrence and punishment in large-scale unlawful assembly cases involving violence be applied. Vision 2030 Under the “Vision 2030 for Rule of Law” initiative, and benefiting from the guidance of the task force formed under it, we noted that objective data shall be referred to in ascertaining the practice of the rule of law and important elements including cultural, socio-economic and local traditions (both legal and indigenous) are features that must be taken into account. Locally, we have started projects that will promote the proper understanding and recognition of the rule of law, the Constitution and the Basic Law at various levels of society, through a multi-faceted approach such as animated short videos, drama, interactive workshops, and exposure to international conferences. These “3Es” projects - representing “Engagement, Empowerment, and Enrichment”, aim to raise awareness of a law-abiding society, equip youth with the correct understanding of the rule of law, and provide the legal community with opportunities to broaden their knowledge and international exposure. Other DoJ Initiatives The coronavirus has changed the way we deliver conferences. The use of technology and live feed has enabled us to reach out to more people in more jurisdictions and to provide recordings on the website. In a way, it is a blessing in disguise. Yet, some of our events which are best conducted by way of physical meetings to facilitate personal interactions have to be postponed. They include the Asian-African Legal Consultative Organization annual meeting, the United Nations Commission on International Trade Law (UNCITRAL) Working Group III Intersessional Meeting & the Advanced Course that my department is co-organising with The Hague Academy of International Law and the Asian Academy of International Law. We have also reached a Supplemental Arrangement18 with the Supreme People's Court to bring the 1999 Arrangement Concerning Mutual Enforcement of Arbitral Awards19 more in line with the spirit and intent of the New York Convention20 and international arbitration practice21. Legislative measures will be needed to implement the same. As to new initiatives, the Department of Justice (DoJ) will continue to pursue and promote the development of LawTech. As set out in the Policy Address, we will be facilitating the development of the Hong Kong legal cloud to provide safe, secure and affordable data storage services for local legal and dispute resolution communities. Furthermore, with the use of online dispute resolution (ODR) being more prevalent, and apart from already signing up to the Asia-Pacific Economic Co-operation ODR Framework, we have also established a DOJ Project Office for Collaboration with UNCITRAL to study pertinent legal issues stemming from the increasing use of emerging technology. With input from UNCITRAL, we are planning to set up an Inclusive Global Legal Innovation Platform to facilitate studies in this particular aspect. Last year, an online international conference to celebrate the 40th anniversary of the United Nations Convention on Contracts for the International Sale of Goods (CISG) was conducted. A public consultation on Hong Kong's proposed application of the CISG was completed and we are analysing and compiling the results. WTO Case with US In protecting our legitimate rights, Hong Kong has formally taken steps under the World Trade Organization (WTO) framework to resolve its dispute with the United States with respect to its origin markings requirement imposed on Hong Kong products. We believe that the US requirement is contrary to a number of WTO-covered agreements, undermines the rule-based multilateral trading system, and does not respect Hong Kong's status as a separate customs territory. Conclusion Ladies and gentlemen, today is a very special day: the Ceremonial Opening of the Legal Year 2021, the former Chief Justice Mr Geoffrey Ma's 65th birthday, and Chief Justice Andrew Cheung's first day in assuming the role of Chief Justice. To the new Chief Justice I offer my heartfelt congratulations, and I am confident that he will continue to safeguard the independence of the Judiciary and the rule of law in Hong Kong. With this, I wish you all a very happy and healthy new year. Note: 1 Article 89 of the Basic Law guarantees the security of tenure for judges, and states that they can only be removed for inability to discharge his or her duties or for misbehaviour. 2 Article 85 of the Basic Law provides that members of the judiciary shall be immune from legal action in the performance of their judicial functions. 3 Upon appointment, judges at the District Court level and above are precluded from returning to practice in Hong Kong as a barrister or solicitor. This “non-revolving door” system prevents perceived conflicts of interest and enhances the independence of the judiciary. 4 Article 85 of the Basic Law reads: “The courts of the Hong Kong Special Administrative Region shall exercise judicial power independently, free from any interference. Members of the judiciary shall be immune from legal action in the performance of their judicial functions.” 5 Secretary for Justice v Persons unlawfully and wilfully conducting themselves in any of the acts prohibited under paragraph 1(a), (b) or (c) of the indorsement of claim [2020] HKCFI 2785 (HCA 1847/2020, 13 November 2020) at paragraphs 8 and 35. 6 Secretary for Justice v Persons unlawfully and wilfully conducting themselves in any of the acts prohibited under paragraph 1(a), (b) or (c) of the indorsement of claim [2020] HKCFI 2785 (HCA 1847/2020, 13 November 2020) at paragraph 37. 7 Secretary for Justice v Chan Kin Chung [2020] HKCFI 3147, (HCMP 744/2020, 28 December 2020) at paragraph 59. 8 Speech by the Secretary for Justice at the Ceremonial Opening of the Legal Year 2018 at 9 See the Court of Appeal judgment in Kwok Wing Hang & Others v Chief Executive in Council & Anor [2020] 2 HKLRD 771, [2020] HKCA 192 and Leung Kwok Hung v Secretary for Justice & Anor [2020] 2 HKLRD 771, [2020] HKCA 192 at paragraph 92. 10 Kwok Wing Hang & Others v Chief Executive in Council & Anor [2020] HKCFA 42 and Leung Kwok Hung v Secretary for Justice & Anor [2020] HKCFA 42. 11 Kwok Wing Hang, Leung Kwok Hung [CFA] at paragraph 44. 12 Kwok Wing Hang, Leung Kwok Hung [CFA] at paragraph 61. 13 Kwok Wing Hang, Leung Kwok Hung [CFA] at paragraphs 87 to 97. 14 Kwok Wing Hang, Leung Kwok Hung [CFA] at paragraph 100. 15 Kwok Wing Hang, Leung Kwok Hung [CFA] at paragraph 146. 16 Criminal Procedure Ordinance, Cap. 221. 17 Secretary for Justice v Wong Chi Fung [2018] 2 HKLRD 699, which was endorsed by the Court of Final Appeal in Secretary for Justice v Wong Chi Fung (2018) 21 HKCFAR 35. 18 Supplemental Arrangement Concerning Mutual Enforcement of Arbitral Awards between the Mainland and the Hong Kong Special Administrative Region, signed on November 27, 2020. 19 Arrangement Concerning Mutual Enforcement of Arbitral Awards between the Mainland & the Hong Kong Special Administrative Region, signed on June 21, 1999. 20 Convention on the Recognition & Enforcement of Foreign Arbitral Awards, signed on June 10, 1958. 21 The Supplemental Arrangement amends the 1999 Arbitration Arrangement in four aspects, namely: (i) expressly including the term “recognition” when referring to enforcement of arbitral awards; (ii) providing that a party may apply for preservation measures before or after the court's acceptance of an application to enforce an arbitral award for greater certainty; (iii) aligning the scope of arbitral awards with the prevalent approach of “seat of arbitration”; and (iv) removing the current restriction and allow parties to make simultaneous applications to both the courts of the Mainland and the Hong Kong SAR for enforcement of an arbitral award. Secretary for Justice Teresa Cheng gave these remarks at the Ceremonial Opening of the Legal Year 2021 on January 11.
Chief Justice Andrew Cheung today said the Judiciary will do its best to face the challenges ahead. Meeting the media after attending the Ceremonial Opening of the Legal Year 2021, Mr Cheung explained that challenges sometime occur when judges are discharging their judicial functions. He emphasised that judges should not be subject to improper extraneous pressure or influence. “Political pressure is just one form of pressure that judges face and have to deal with. So we all do our best to deal with these pressures. “If a colleague were to ask me for some advice, I would surely give him or her this advice: Never mind the pressure, never mind the type of pressure, never mind the source of the pressure, the origin of the pressure or where the pressure comes from. Focus on your own case. “Never mind what people will say about your decision. You just decide the case, regardless, according to the law, facts, evidence and argument.”
The Security Bureau today published the public consultation report on the proposed introduction of offences of voyeurism, intimate prying and non-consensual photography of intimate parts and related offences. The Government earlier proposed to introduce six new criminal offences and consulted the public's views. During the three-month public consultation that concluded on October 7 last year, the Government received about 200 submissions, including those from major stakeholders such as the Law Society of Hong Kong, the Hong Kong Bar Association, the Equal Opportunities Commission and the Office of the Privacy Commissioner for Personal Data. The bureau said the majority of the submissions received expressed strong support for the legislative proposals and some of them also offered constructive views on specific proposals. It will brief the Legislative Council Panel on Security members on the consultation's outcome and the detailed legislative proposals on January 15. The Government is working on the drafting of the proposed amendment bill. Its target is to submit the amendment bill to LegCo in the second half of this legislative year. Click here for the consultation report.
The Hong Kong Special Administrative Region Government today said it has a constitutional responsibility to safeguard national security. The Hong Kong SAR Government made the statement in response to sweeping and erroneous remarks by overseas government officials and politicians on the arrest of certain people for allegedly committing an offence relating to subversion under the Law of the People's Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region. Since enactment of the National Security Law by the National People's Congress Standing Committee on June 30, 2020 and promulgation for its application in Hong Kong on the same day in accordance with the Basic Law, the Hong Kong SAR Government has been discharging its duty to safeguard national security in Hong Kong lawfully and dutifully, without fear or anxiety. The National Security Law, or indeed any law in the Hong Kong SAR, applies equally to every person in Hong Kong and no one is above the law. The Hong Kong SAR Government is appalled by remarks made by some overseas government officials that seemed to suggest that people with certain political beliefs should be immune to legal sanctions. Hong Kong prides itself on the rule of law and law enforcement agencies are duty-bound to take action against unlawful acts, regardless of the political background of the suspects. Arrests made are based on evidence and strictly in accordance with relevant laws and regulations. As provided for in the Basic Law, the Department of Justice makes independent prosecutorial decisions based on evidence, applicable laws and in accordance with its Prosecution Code, free from any interference. The statement pointed out that any person who is prosecuted has the right to a fair trial by our independent courts, and the burden is on the prosecution to prove that the accused committed a crime beyond reasonable doubt before there can be a conviction. Enshrined in the Basic Law, the courts of the Hong Kong SAR enjoy judicial power independently, including that of final adjudication, free from any interference. Contrary to allegations made by some overseas commentators, the National Security Law clearly stipulates four types of offences endangering national security and the penalties. At the same time, the National Security Law contains specific provisions upholding Hong Kong people's rights and freedoms under the Basic Law as well as the relevant provisions of international covenants on human rights as applied to Hong Kong. The law also provides for the presumption of innocence, the prohibition of double jeopardy, and the right to defend oneself and other rights in judicial proceedings that a criminal suspect, defendant and other parties in judicial proceedings are entitled to under the law. These important features have put the National Security Law on par with, if not superior to, similar national security laws in other jurisdictions. In making slandering remarks about the National Security Law, many overseas critics are clearly adopting double standards and merely exposing their prejudice against the People's Republic of China and Hong Kong. The Hong Kong SAR Government noted that the purpose of the National Security Law is to prevent, stop and punish acts and activities endangering national security in accordance with the law. Article 22 of the National Security Law stipulates that any person who organises, plans, commits or participates in acts by force or threat of force or other unlawful means with a view to subverting state power shall be guilty of an offence. There is a clear line between political pluralism and attempts to seriously undermine the performance of government duties and functions. Such a vicious plot would not be tolerated in any country. Since implementation of the National Security Law, street violence which had haunted Hong Kong people for months since June 2019 have subsided and stability has been restored. The legitimate rights and freedoms of the people of Hong Kong have been upheld and criminals are brought to justice through our independent judiciary. A stable environment is vitally important to the prosperity of Hong Kong and the business activities of both local and overseas enterprises here.The Hong Kong SAR Government stated that it has the determination, perseverance and capability to enforce the National Security Law to safeguard Hong Kong's long-term prosperity and stability under the “one country, two systems” principle. The Hong Kong SAR Government will not be intimidated by threats of sanctions by overseas governments, nor will it shy away from condemning foreign or external forces that have flagrantly interfered in Hong Kong's affairs.
Police today arrested people suspected to have planned to paralyse the Government. Secretary for Security John Lee made the statement this afternoon after attending a Legislative Council meeting. He said: "The operation today targets the active elements who are suspected to have been involved in the crime of overthrowing or interfering, seriously destroying the Hong Kong Special Administrative Region Government's legal execution of duties. "We are talking about taking action against the active elements. The operation today does not involve other non-active elements, including those who voted in the so-called primary election." Mr Lee explained that the operation, in which more than 50 arrests were made, was necessary. "I have explained that the people involved are suspected of making use of what they called a 35-plus plan and a 10-step mutual destruction scheme to in some way paralyse the Hong Kong SAR Government. "They aimed to get 35 or more seats in the Legislative Council election through something they had organised as a primary, so that once they had achieved their goal, they would veto regardless of the actual content of the government budget so as to create a situation in which the Chief Executive had to resign and the Government had to stop functioning. This was to paralyse the Government. "They had a 10-step mutual destruction plan, in which they would be mobilising large-scale riots in the streets together with other actions to in some way paralyse society, coupled with international sanctions. "The plan was to create mutual destruction so that society as a whole, using their words, 'jumps off the cliff'. The plot was to cause such a mutual destruction that if successful, this 10-step mutual destruction plan would result in serious damage to society as a whole. That is why Police action today is necessary." Mr Lee stressed that the Hong Kong SAR Government will not tolerate such illegal acts and must take stringent enforcement action.
It is my honour and privilege to speak at the Farewell Sitting for Chief Justice Ma today. In a judicial career spanning more than 20 years beginning from being appointed Recorder of the Court of First Instance in December 2000, to leading the Judiciary as Chief Justice for the past 10 years, Chief Justice Ma's contribution to the legal community in Hong Kong cannot be understated. The Chief Justice has been a pioneer of major civil justice reform in Hong Kong starting from when he was Chief Judge of the High Court. As Chief Justice, he oversaw the effectiveness of the Civil Justice Reform from the advice contained in the annual reports from the Civil Justice Reform Monitoring Committee since 2009, and made sure that the reforms were fit for purpose, lowering legal costs and improving access to justice. This Herculean task could not be completed without the persistence and dedication of the Chief Justice to this cause. The Chief Justice has overseen numerous important cases brought in the Court of Final Appeal during his tenure, including groundbreaking cases that pushed the limits of the law in Hong Kong. One of the most significant is the string of decisions involving the rights of the LGBT minority, particularly in the landmark case of W v Registrar of Marriages1, where Chief Justice Ma remarked: “… the court ought in principle to consider all the circumstances - biological, psychological and social - relevant to assessing that individual's sexual identity at the time of the proposed marriage. We can see no good reason for the court to adopt criteria which are fixed at the time of the relevant person's birth and regarded as immutable… It is contrary to principle that the court, in making the important determination of whether a transsexual person has in law the right to marry, should be prevented from taking account of all the available evidence” 2. Chief Justice, the follow-up work that flows from this case is still ongoing in the Government. The Chief Justice led the Court of Final Appeal in its move from the former French Mission Building to the old Supreme Court Building here. During a brief tour of the former French Mission Building in Hong Kong Legal Week 2020, the Chief Justice visited his room and that of the other judges and remarked that they might wish to see how their old offices have changed. Indeed, we would love to organise such a tour once the pandemic subsides. As Hong Kong has gone through a challenging year of 2020, the Chief Justice's job has been particularly taxing in the past year. From the challenges brought about by COVID-19, leading to courts being closed for an extended period of time, to the unprecedented attacks on judges and the Judiciary stemming from the aftermath of the social unrest in Hong Kong, the Chief Justice has consistently upheld judicial independence and the rule of law, standing resolutely in the face of these challenges. Now, it is rare that one has the opportunity to comment on a judge's attributes, and I am not going to let this slip by. I can think of one word that aptly describes Chief Justice Ma - kind. His professional and judicial qualities are without a doubt, prime. His patience is remarkable as evidenced by the way he slowly and kindly answered the repeated questions from the media yesterday. His amicable personality will be sorely missed. Counsel at the Department of Justice has expressed to me their appreciation of the Chief Justice's meaningful dialogues with counsel during hearings, being honest and upfront with what he thinks about their case, including its weaknesses. Next week marks Chief Justice Ma's 65th birthday, where he will formally retire. I suspect on his birthday he might be tempted to step out of line and to enjoy some food from a franchise restaurant with the theme colours of red and yellow, whose name starts with an alphabet, the same as his surname. But for the social distancing measures, we might actually hold a birthday party there after the Ceremonial Opening of the Legal Year. To conclude, I would like to express, on behalf of the Department of Justice and the Government of the Hong Kong SAR, our heartfelt gratitude to Chief Justice Ma for his invaluable contribution to the Judiciary and to Hong Kong, and wholeheartedly wish him a very happy, healthy and fulfilling retirement. 1 W v Registrar of Marriages [2013] 3 HKLRD 90; FACV 4/2012 (13 May 2013)2 W v Registrar of Marriages [2013] 3 HKLRD 90; FACV 4/2012 (13 May 2013) at paragraph 103. Secretary for Justice Teresa Cheng gave these remarks at the Farewell Sitting for Chief Justice Geoffrey Ma on January 6.