(Please scroll down for English)
(ii) 然而，當有人發表一些批評或一連串批評並旨在 (即具實際意圖或罔顧後果地) 藐視法庭或法官、損害其權威或干擾司法公正，並且造成該等效果的 真實風險，便可構成藐視法庭的刑事罪行。
3. 至於梁女士提出的第二類陳述 :
(b) 我們認為梁女士作出外籍法官對中國就香港行使主權認識不深的評論並無根據。很多所謂「外籍法官」均於香港居住及工作多年（有些甚至數十年）的傑出法官，他們對於香港的認識不下於本地華人法官。再者，亦無任何實質證據顯示其他普通法適用地區的法官對中國就香港特別行政區行使主權缺乏認識。事實上，終審法院於1999年劉港榕案（Lau Kong Yong vs Director of Immigration）中，確定了人大常委會有獨立及完全權力解釋《基本法》的所有條文，而主要的判詞就是由前澳洲高等法院首席大法官梅師賢爵士所撰寫的。
1. We refer to press reports and commentary in recent days as regards comments on the judiciary:
(a) The first category of such comments relate to decisions made by the judiciary in relation to protests (“Category One Statements”):
(i) On Saturday, 20 February 2016, online media outlet “Silent Majority” posted a graphic containing the photograph of a magistrate who recently handed down sentence in relation to an incident during the New Territories North East development protests of 2014. Accompanying that photograph was text which accused “yellow” judges of “not caring about rule of law, only caring about politics”. The graphic further accused such judges of “letting off perpetrators of violence lightly and encourage Hong Kong independence”, “destroying Hong Kong’s social safety, being a bedrock of prosperity”. It then concludes that “Hong Kongers will tolerate this no further, and Hong Kongers will from today closely identify each one of you, Hong Kongers believe in legal justice but no longer believe in you!”
(ii) On Tuesday, 23 February 2016, a former officer of the Independent Commission Against Corruption published a blog post on the online version of “Headline Daily” (and subsequently published in Ta Kung Pao), questioning the granting the bail to Ray Wong Toi-yeung, who has been charged with riot in connection with events in Mong Kok in the early hours of 9 February 2016 (“Mong Kok Incident”). In the conclusion of the blog post, the blogger said: “One cannot help but have suspicions about this whole situation, is there a ‘problem’ with this magistrate? I suggest that netizens work hard to ‘uncover’, to see if there is enough proof that he and his family have connections with pan-democratic parties, as well as his political views.” He then added that if a judge did not declare any of his and his family members’ conflict of interest in cases he is handling, that is a “serious problem” constituting perverting the course of justice.
(iii) Also on Monday 22 February and Tuesday 23 February 2016, press reports referred to a Chinese Association of Hong Kong and Macao Studies conference on the Mong Kok Incident. It was reported participants at this conference have blamed the incident on past lenient rulings on judges, and that one participant even suggested publicising a list of judges with clear political inclinations and who regularly hand down light sentences.
(b) The second category of commentary (“Category Two Statements”) relate to recent press reports on a Hong Kong civil servants study tour to Mainland China in October 2015, during which former Secretary for Justice and current Basic Law Committee member Ms. Elsie Leung was a speaker. She was reported to have made comments to the effect that as over half of the judiciary in Hong Kong comprised of “foreigners”, the Courts do not have an in-depth understanding of China’s sovereignty over Hong Kong and have failed to consider issues from a national interest perspective. This is said to have led to conflicts between the Hong Kong and the Central Governments. Ms. Leung has not denied making such statements nor has she retracted from them.
2. Turning first to the Category One Statements:
(a) We repeat the analysis set out in our statement of 30 March 2015 in relation to comments attacking the judiciary, namely that:
(i) In a free society, Courts and judges are by no means immune from criticism.
(ii) However, where there is a real risk that certain comments or series of comments were calculated (i.e. such comments were made with actual intent or with recklessness) to bring a Court or judge into contempt or lower their authority or to interfere with the administration of justice, they would constitute criminal contempt of Court.
(b) As with the comments attacking the judiciary outlined in our 30 March 2015 statement, the Category One Statements do not contain any reasoned analysis, nor backed by any evidence. In some cases they even seek to threaten the privacy (and possibly even the safety) of individual judges. In this regard:
(i) We consider it at least reasonably arguable that comments set out in 1(a)(i) and (ii) above, as well as 1(a)(iii) in so far as they call for the “outing” of certain judges, constitute criminal contempt of Court.
(ii) We further consider that if law enforcement authorities are consistent in their approach to date in relation to the offence of “access to computer with criminal or dishonest intent” under section 161 of the Crimes Ordinance, then comments as set out in 1(a)(i) and (ii) above arguably also come under the purview of this offence. However, we emphasise that in making this point, we are not expressing agreement with law enforcement authorities’ approach to date on section 161, but merely noting the implications if a consistent approach was to be adopted.
3. As for Category Two Statements by Ms. Leung:
(a) Foreign judges are explicitly provided for and permitted under the Basic Law. Article 81 states that the judicial system previously practised in Hong Kong (which, in our view, includes the use of foreign judges) shall be maintained after the Hong Kong Special Administrative Region is established. Article 82 explicitly provides for the use of judges from other common law jurisdictions, while Article 92 states that judges may be recruited from other common law jurisdictions.
(b) There is no basis for suggesting that foreign judges do not understand China’s sovereignty over Hong Kong. Many of the so-called “foreign judges” are eminent jurists who have in fact lived and worked in Hong Kong for many years, sometimes decades, and to that extent are no less “local” than judges of Chinese ethnicity. More specifically, there is no evidence that judges from other common law jurisdictions lack understanding for Hong Kong’s position within China. Indeed, in the Court of Final Appeal’s 1999 ruling in Lau Kong Yong v Director of Immigration, a case which upheld the Standing Committee of the National People Congress’s freestanding and plenary power to interpret the Basic Law, the leading judgment was written by Sir Anthony Mason, a former Australian High Court Chief Justice.
(c) In any event, Article 84 of the Basic Law states that “[t]he Courts of the Hong Kong Special Administrative Region shall adjudicate cases in accordance with the laws applicable in the Region…”. In other words, the rule of law applies. To the extent the “laws applicable” involve elements of national interest, this will be given due consideration. In its 2011 ruling in FG Hemisphere v Republic of Congo, the Court of Final Appeal ruled that after the establishment of the Hong Kong Special Administrative Region, the law of sovereign immunity in Hong Kong follows the position adopted in Mainland China rather than the position under English common law. However, save in such circumstances, the Court’s constitutional duty is to adjudicate cases in accordance with law, national interest or not.
4. In conclusion, we are deeply saddened that ignorant and at times downright criminal attacks on Courts and judges (sometimes by eminent people who should know better) have continued unabated. The rule of law and the independence of our judiciary are cornerstones on which the stability and prosperity of Hong Kong is founded. We urge that everyone, from ordinary citizens to those in positions of influence or power, pay utmost heed to this fundamental fact, and not say or do anything which undermine these cornerstones.
Progressive Lawyers Group
24 February 2016