What the case of an American says about the future of the Hong Kong courts

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December 7, 2019 what close to the end of a year of turmoil in Hong Kong. Since spring, people have been protesting to the extradition bill Opponents saw it as a threat to Hong Kong’s autonomy. The riots have forked the city: you were yellow, with the protesters; or blue, with the police.

Those were Hong Kong’s undercurrents when, walking through Causeway Bay Station on 7 December 2019, Samuel Bickett saw a man hit a teenager with a truncheon.

“Whether it was a day of protest or not, you see a plainclothes guy beating people, your first thought is ‘this guy, cop or not?'” Bickett said in a recent interview from Hong Kong.

A. video of the meeting shows a passerby asking the man in English if he is with the police. First he denies that he is, until he finally says yes. By then Bickett had grabbed the witness to try to disarm him. The two quarreled. Bickett was convicted of assaulting a police officer and condemned to four months and two weeks in prison.

Bickett, a 37-year-old American who later worked for Bank of America Merrill Lynch in Hong Kong, was out of jail on bail since August as he appeals to his condemnation and sentence.

The hearing is set for Monday morning local time. Bickett wants justice for himself. But his case is not just his: it intersects with the turmoil in Hong Kong, driven by Beijing’s ever-tighter crackdown on the city’s democratic freedoms. It has become another indicator of the lack of accountability for the police and deep concern over the deterioration of the rule of law.

When Britain returned Hong Kong to China’s control in 1997, it was under the understanding that the territory would be governed under the “one country, two systems” principle. Hong Kong would maintain a separate economic and political structure from mainland China until 2047. This includes that of Hong Kong tradition of common law, an independent judiciary and safeguards for certain freedoms such as speech.

The Communist Party of China has tried to erode the separation between the two systems. In the aftermath of the 2019 protests, it stepped up its efforts to completely dismantle it. Covid-19 restrictions source mass demonstrations in Hong Kong, and in the summer of 2020, Beijing imposed a national security law targeting crimes such as secession, subversion, collusion with foreign powers and terrorism. It heralded a trawl on dissent in Hong Kong. This week, a 30-year-old man was sentenced to more than five years in prison for “inciting secession”. He screamed Hong Kong’s pro-independence slogan in public.

Bickett’s is not a case of national security law. But the national security law is reshaping Hong Kong’s institutions and wider legal system: “The government has manipulated criminal justice systems to achieve political ends,” said Eric Yan-ho Lai, a Hong Kong law researcher. at the Center for Asian Law at Georgetown Law School.

This manipulation – things like punishing political activists or pressuring companies to provide information under the National Security Act – is happening because “Beijing has used various techniques to warn the courts if they do not behave well,” Lai said.

A prison van arrives at West Kowloon courthouse in Hong Kong on September 23, 2021, when 47 pro-democracy defendants appeared in court, accused of conspiring to commit subversion under the National Security Act enacted by Beijing.
Isaac Lawrence / AFP via Getty Images

“Behaving” means embodying Beijing’s interests, which, at this moment, means eliminating any challenge to its authority. An independent judiciary cannot function in this scheme. “I don’t think it can be said that the rule of law exists in Hong Kong in any meaningful way at this point,” Bickett said this month. This, however, is something he is fighting for, even if one of the only ways he can do it is through a legal system that is being hollowed out.

Bickett’s case forms part of a broader debate on police accountability

Bickett says he tried to intervene because he feared the man with the witness would attack other people. In a video of the accident, a passerby approaches the officer, later identified as Yu Shu-sang, and asks him in English: “Are you popo?” a slang term for policeman. The officer replies “no”. And although the plainclothes officer later says “yes,” according to Bickett and his appeals documents, the officer also denied having been a cop multiple times before what was caught in the video. Bickett says he didn’t hear the “yes” and even if he did, he would have doubted it due to repeated denials.

The two ended up in a fight for the best man. Bickett says he hit the officer in self-defense, and that Yu Shu-sang’s the refusal to identify himself and his unreasonable use of force (the teenager, apparently, was suspected of having missed the race) violated the code of ethics of the Hong Kong police force. (The Hong Kong Department of Justice declined to comment on individual cases.)

Eventually, the magistrate in Bickett’s case decided that Yu Shu-sang was a reliable witness and, although he initially denied being a police officer, “popo” was a “disrespectful reference” and had a “degrading meaning. “and therefore” the fact that he denied being called as such does not make me think that he was trying to hide his identity “.


Courtesy of Samuel Bickett

The magistrate concluded that, based on the evidence, “I am satisfied beyond a reasonable doubt that [the police officer] he acted in the fulfillment of his duty ». As for Bickett, the magistrate wrote, his actions were “a serious threat to public order”.

And that’s one of the problems here: who, or what, is defining a threat to public order. During the 2019 protests, videos and testimonies documented Hong Kong police using aggressive tactics against protesters, some of them violated their own rules. This combined with the government’s decision to call the protesters “rioters” and arrest some of them on charges of revolt It generated more fury against the authorities and led to calls for an independent investigation into the brutality. But the Hong Kong government largely defended police tactics during the protests, including things like agents pretending to be undercover as protesters. Efforts to review or hold the force accountable have failed. According to the South China Morning Post, more than 10,000 people were arrested in connection with the pro-democracy protests of 2019, with hundreds sentenced. No police officers accused of excessive use of force were among them.

Bickett wasn’t a protester, just a guy who went Christmas shopping with a friend. But the case has resonated because it may be less of an isolated incident than a look at a police force capable of operating with impunity. “This appears to be another typical case of the court that has tried to act impartially, but is actually partially in favor of law enforcement,” Lai said.

Bickett sees this deference as a sign of institutional erosion. “You cannot have a rule of law when you are selectively prosecuting only one part of the population and at the same time signaling to another part of the population that they are above the law.”

The rule of law is crumbling in Hong Kong, which is enough to completely undermine it

That question – of who is above the law – is not unique to Hong Kong. This debate also happens in places like the United States, very so in cases involving police officers.

But Bickett’s case and appeal developed in parallel with Beijing’s campaign to undermine Hong Kong’s autonomy and freedoms. A man shouting pro-independence slogans he is condemned for “inciting secession”. The former CEO of Apple Daily, a now closed media companythe one who denied the bail, in part because the US government and other governments have spoken out against his arrest. A university tried to remove a statue commemorating the Tiananmen Square massacre.

“If we can put it very honestly, Hong Kong is becoming just another city in China,” said Dongsheng Zang, a Chinese law expert and professor at the University of Washington School of Law. And in China, the rule of law is largely decided by the Communist Party of China.

“My sense is that [Hong Kong’s rule of law is] on life support – but the prognosis is not very good, “said Martin Flaherty, a professor of international law at Fordham University. Part of the reason, he said, is that all the pitfalls of the Hong Kong system, based on the British model, are still there. The judges are writing the decisions. Appeals, like Bickett’s, are happening. It shows how sinister and subtle the erosion of the rule of law is; it is impossible to clearly identify the breaking point.

Bickett’s case will be one of many evidence points along the way, but it may not even offer a clear conclusion. If he is sent back to prison, will it be because the judge hearing his case fully believed he was wrong? Or why did he embarrass the police? If he is cleared, perhaps it will be the last gasp for the Hong Kong justice system, or perhaps there are cynical reasons: Bickett was blunt, and he’s American; maybe it’s not worth sending him back to prison.

The fact that Bickett is American is another reason this case stands out. So far, China has tried to do both: by cracking down on dissent but still trying to preserve Hong Kong as an international business center. Part of the reason Hong Kong got this status is because of the rule of law – if you have a trade dispute, you need to know that the courts will be a fair broker – and because its relative freedoms have made it a cosmopolitan and vibrant city.

Some of these are still in place. But Flaherty said Bickett’s case was a twist: China still wants your business, but not if it comes at the cost of challenging the government. “All you foreign businessmen and lawyers, if you keep your nose on the ground and make money, just make deals, go out to expat bars and get drunk and don’t bother anyone, you’ll be fine,” he said. “But the moment you get close to something political – which would include opposing the police – you’ll be in trouble.”

“And the fact that you’re a foreigner won’t help you,” added Flaherty.

Bickett, as a lawyer, has built his career on faith in the law. He is not optimistic about the outcome of his appeal. “The fact that I can’t really control whether I will end up in jail or not, or what will happen to me in the courts, has made me accept that the most important thing for me is to make sure that something matters,” Bickett said. through this, I don’t want to do it silently. “

Bickett wants this ordeal to matter. Many Hong Kongers do not have this option or the privilege of doing so. As an American in Hong Kong, Bickett has a chance to leave. Although, as he sees it now, it may end up being his only choice. “It’s not safe, for one thing,” Bickett said. “Besides, for another, I’m a lawyer, right? What will a lawyer do in a place where no one cares about the law? “

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