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Illustration: Craig Stephens
Opinion
Opinion
by Grenville Cross
Opinion
by Grenville Cross

Hong Kong protests: calls for an amnesty or a pardon for those convicted must be resisted

  • Apart from the potential backlash and waste of courts’ time and money, granting a pardon or amnesty to those convicted of protest-related crimes would constitute a manipulation of procedure and hurt the integrity of Hong Kong’s criminal justice system
While visiting Shanghai, Hong Kong Chief Executive Carrie Lam Cheng Yuet-ngor again ruled out a general amnesty to people arrested over the civil disturbances. She was right to do so, as the idea that people who commit grave crimes should escape their just deserts is repugnant to the rule of law. Had she decided otherwise, the message would have gone out that political violence is less abhorrent than other types of violence.
Although advocates of an amnesty invariably point to the one granted to corrupt police officers in 1977, that sorry episode provides no sort of precedent. After the Independent Commission Against Corruption (ICAC) headquarters were attacked and its staff assaulted, a police mutiny was threatened if its investigations were not curtailed. Faced with such intimidation, the governor, Sir Murray MacLehose, had no choice but to tell the ICAC to end many of its investigations. It was a black day for the legal system, and one which will hopefully never be repeated.
Moreover, in contrast to 1977, many of the protest cases are now before the courts. In the event of amnesty, the chief executive would have to instruct the secretary for justice to terminate the prosecutions, but this would be unconstitutional.
Since 1997, the Basic Law has provided both the Department of Justice and the ICAC with the constitutionally guaranteed independence they lacked in 1977. Whereas Article 63 provides that the Department of Justice “shall control criminal prosecutions, free from any interference”, Article 57 stipulates that the ICAC “shall function independently”. Since, moreover, Article 48 (2) requires the chief executive to implement the Basic Law, any attempt to interfere with ongoing prosecution would be unthinkable.
Although the police force does not enjoy the same protections as the ICAC, its mandate, nonetheless, requires it to detect crimes. Any attempts, therefore, by the executive to terminate its investigations would not only be improper, but would also trigger a huge backlash, including in the police force, given that its officers and their families have recently been the victims of crime.
However, an alternative possibility, of granting pardons to convicted protesters, or at least some of them, has now been mooted. This, presumably, is seen as a sop, given that an amnesty is out of the question. It is, however, no less of concern, and must also be excluded as an option, save, perhaps, in the rarest of cases. Any pardon must be subject to the strictest criteria.

Although the Basic Law’s Article 48 (12) enables the chief executive to “pardon persons convicted of criminal offences or commute their sentences”, the circumstances under which this power is exercisable are few and far in between. They must have a legitimate foundation, particularly if someone has committed a grave offence. A sentence might, for example, be commuted where a prisoner is dying, as an act of mercy, so he can be free in his final days.

In 1907, the British Home Secretary, Herbert Gladstone, told the House of Commons that “numerous considerations” influenced a decision to grant a royal pardon, including “the motive, the degree of premeditation or deliberation, the amount of provocation, the state of mind … character and antecedents”. He added, however, that “many other” factors had to be considered in every case.

Protesters start a fire at an entrance of Wan Chai MTR station on September 15. Factors to be considered in pardoning a person convicted of a criminal offence include the amount of provocation and state of mind. Photo: Sam Tsang

In the United Kingdom, pardons are, for example, sometimes given to prisoners who provide the authorities with valuable assistance, or who show great bravery while imprisoned, or who are deemed “morally or technically” innocent.

In 2015, moreover, the UK enacted the Policing and Crime Act (the so-called “Turing law”), which conferred an automatic pardon on deceased individuals convicted of consensual homosexual offences under since-repealed legislation, as well as on living individuals who were entitled to have their convictions legally disregarded.

Although a pardon indicates forgiveness, it does not, as many people suppose, expunge a conviction. A pardon cannot overturn a conviction, as only the courts can determine someone’s guilt or innocence. If, moreover, the conviction is legally flawed, the courts would normally have overturned it already.

A protest during Chinese University’s graduation ceremony on November 7 in Sha Tin, Hong Kong. Protesters should know that pardons do not expunge convictions, which remain on the record. Photo: Winson Wong

In 1984, in the UK’s Queen’s Bench Division, the late lord justice Tasker Watkins said the effect of a pardon was to remove from the convicted person “all pains, penalties, and punishments whatsoever that from the said conviction shall ensue”, without eliminating the conviction itself.

This means that, for example, a job applicant, or someone filling in a visa application, must, when asked, disclose a previous conviction, although they may add that a pardon has been granted. If, moreover, someone is later convicted of another offence, the judge can take the pardoned offence into account, in deciding appropriate punishment.

Leave Hong Kong’s judges out of the protest politics

If a pardon is granted, it must be legally justifiable. The UK’s former justice secretary, Kenneth Clarke, once said that the subject of the pardon must not be “tainted with unclean hands”. The grant of a pardon is, therefore, judicially reviewable even if it involves an element of policy, most obviously by the offender’s victim.

In practical terms, moreover, to start handing out pardons to people convicted of serious offences after long trials would be a waste of time and money. Even if only some offenders were pardoned, the whole process could get bogged down in claims of arbitrariness, with some people complaining of being left out of the chief executive’s generosity.

Protesters shout slogans as they gather outside the Eastern District Courts in Sai Wan Ho, where the first protesters arrested for wearing face masks appeared in court, on October 7. Photo: May Tse
The victims themselves, whether police officers injured by petrol bombs, visitors beaten up by mobs, or shopkeepers whose businesses have been destroyed, would naturally be outraged if the culprits were pardoned for no good reason. Appeasement of those responsible for the mayhem is certainly no justification, and would lead nowhere.
After the withdrawal of the fugitive offender proposals failed to satisfy activists, the clear lesson is that concessions do not work. Even if an amnesty were to be announced, or pardons issued, this would again be interpreted as weakness, and a vindication of violence.

The integrity of the criminal justice system must, therefore, be safeguarded, and any temptation to manipulate established procedures firmly resisted.

Grenville Cross SC is a criminal justice analyst

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