Is there a distinction between political reasons and reasons of law enforcement policy based on PRC interests? I ask this for a reason which is explained below.
I think it is important to examine the manner in which the prosecutorial system operates in detail and to ensure that its manner of operation is satisfactory in principle prior to the 1997 changeover. I say this because I am uneasy about the impression created by a letter sent to the NCNA by the Political Adviser on 23rd October, 1989. In part, it said the following: -
"The Hong Kong Government has no intention of allowing Hong Kong to
be used as a base for subversive activities against the People's Republic of China. NCNA will have noticed the arrest of members of the April 5th Action Group outside their National Day reception. They will also have noted that the 10 October celebration passed off in a low-key way, and that the Hong Kong Government has recently rejected a proposal for a permanent site for a replica statue of democracy. No group in Hong Kong has any more tolerance than the law allows. The Hong Kong Government will continue to have a prudent regard for the special circumstances of Hong Kong and the interests and, concerns of the Chinese
Government.
as the prosecution
The sentence "no
The major question seems to me to be as follows: power been used with an eye to China's interests? group in Hong Kong has any more tolerance than the law allows" is the antithesis of the correct position that "in Hong Kong everything is lawful which is not expressly prohibited". Admittedly that is rather technical; although for Hong Kong, in future, it could be a crucial practical distinction. Whether such messages are a pragmatic way to seek to persuade the PRC to stop calling Hong Kong "subversive" is not my point in this paragraph. I deal with that issue in paragraph 5.32. Here my point is this: In the context of a change of sovereignty based on an agreement where the words "elected legislature", "accountability" and "final adjudication" do not seem to mean what they mean in British minds, I think it might be wisgo
to be more careful with the way one treats the law in this colony. If the impression is given that the law is being used now with an eye to China's interests, then the bottom line becomes difficult to predict. I accept that the phrase "no group in Hong Kong has any more tolerance than the law allows" was probably a way of seeking to convey precisely the point that all are - or should be equal under the law in Hong Kong. But at a time when we will be seeking to explain what Hong Kong's ingredients are, such issues are important, and mistakes perhaps difficult to correct.
If the system today is thought to be used with an eye to China's interests, what could be required of prosecutors post-1997? The last thing Hong Kong prosecution lawyers should take into account in areas of political speech is a "prudent regard for the interests and concerns" of