- Courts and prosecutors cannot keep up with rising number of arrests in ongoing protests, with about 60 being detained for a second time
- Lawyers and legal scholars question whether dedicated court will be effective given the complexity of the cases
About 60 anti-government protesters in Hong Kong have been arrested for a second time after being detained and released by police, prompting calls for a special court to fast-track cases related to the unrest.
While the idea drew some support, some lawyers and legal scholars questioned whether having a dedicated court would be effective, given the complexity of the cases.
As of October 10, police have arrested close to 2,400 people involved in the protests, which began in June and are now in their fifth month. There has been an escalation of violent confrontations between radical protesters and police.
Roughly 2.4 per cent of those arrested were rearrested after being charged or granted bail. Two thirds of them were arrested a second time within a month.
A senior police source said most were arrested for taking part in unlawful assemblies. Half were aged between 21 and 30 and the youngest was 12 years old.
He accused supporters of "romanticising violent and barbarous behaviour", either believing there would be no legal consequences or that the punishment would not be immediate.
"They are not afraid of arrest. We need expeditious trials and punishment to bring these dreamers back to reality," he said, suggesting the special court, an idea also floated last week by Maria Tam, deputy director of the Basic Law Committee.
More than 443 people have been taken to court so far, with 230 charged with rioting.
Former director of public prosecutions Grenville Cross said a dedicated court could be set up easily, with between three and five judges assigned to handle all protest-related cases.
"Depending on the volume of cases, the protest case magistrates could sit beyond the normal sitting hours," he said, likening it to the special court set up in the United Kingdom, which ran around the clock to deal with cases related to the London riot in 2011, which saw more than 3,000 people arrested and five killed.
"If there is a serious backlog developing, the judiciary will need to consider how trials can be expedited, and dedicated courts are an obvious answer," he said.
Cross pointed out that the special court might work only at the magistrate's court level, which deals with less serious cases, because higher courts "do not lend themselves readily" to special arrangements.
Top criminal barrister Cheng Huan SC said was no legal impediment to the establishment of a special court in Hong Kong.
He said the chief executive could use the powers available to her under the Emergency Regulations Ordinance. But the city's embattled leader Carrie Lam Cheng Yuet-ngor has been under fire for using colonial-era legislation to impose a mask ban.
The Criminal Procedure Ordinance in Hong Kong also stipulates "the practice and procedures" in all criminal cases should follow the English system, Cheng said. There is provision in the United Kingdom for a special criminal court, he added.
"But whether there is a real need for such courts is another matter," he said.
A spokesman for the Judiciary did not comment on the idea for a special court but said: "The Judiciary will always make appropriate arrangements to deal with cases expeditiously and efficiently as far as practicable. In handling cases, the courts will do so strictly in accordance with the law and always ensure that cases are dealt with fairly."
Barrister Anson Wong Yu-yat, who represents some of the protesters, was unconvinced that a special court would help speed up the cases, pointing out that the Department of Justice keeps asking for more time in protest-related cases.
The Post has observed that almost all the people charged in court in connection with the protests were not required to make a plea during their first appearance, and prosecutors often sought more time for further investigations to be done.
Wong said: "The cases are simply not ready."
He also feared that judges selected for a special court might come under immense political pressure.
It is not uncommon for judges to be criticised after ruling on controversial cases from both sides of the political spectrum.
Expecting the same would happen to judges hearing protest-related cases, Wong said: "It will be unfair to them."
Another barrister, who preferred to remain anonymous, said he always preferred a judge to approach a case with a fresh mind. He thought it undesirable to have all protest cases handled by the same few judges.
The police source said having a special court for protest cases would help to avoid holding up other cases unrelated to the unrest and already in the queue.
But Wong felt that restricting some magistrates to handling protest cases would leave the courts less flexible in distributing manpower, and the result would likely be inconvenience to other defendants waiting for their cases to be heard.
Cheng said the immediate concerns would be for the judiciary to hire more magistrates and judges at the District Court level in anticipation of the large influx of cases.
The police source said speeding up cases would allow details to enter the public domain sooner, meaning society would be better able to judge if police deserved to be accused of using excessive force on protesters.
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