The Justice Department continues to find ways to ruin my morning. Consider the case of Ms. Ami Chanwhich was heard in the Eastern Magistrates’ Court earlier this week.
Ms Chan was arrested in 2019 (yes, it is one of those cases) although she was not charged with rioting. The case revolves around the contents of her backpack, which included two laser pointers and two cans of spray paint. A rare stop-and-frisk police crackdown.
Nothing further happened until 2021, when Ms Chan, still a free woman without conviction, moved to Australia, where she has lived and worked ever since.
However, earlier this year she returned to Hong Kong and was subsequently arrested and charged for offenses involving her unruly bag. Nothing remarkable so far. Cases dating back to 2019 are still before Hong Kong courts, although the government now apparently accepts that most of the thousands of people who were arrested will never be charged with anything.
Why am I worried? Because at the time of her arrest Ms. Chan was 15 years old. She was a schoolgirl, a minor in the eyes of the law. She is now an adult, appearing in adult court and facing possible adult penalties.
This is not supposed to happen. The law takes a less abrasive approach to juvenile defendants than to adults. There are differences in procedure and also in the penalties that can be imposed upon conviction. There are also reporting limitations.
This system only works if prosecutors get their act together quickly enough and take the case to court while the minor is still a minor. When I was a court reporter, we still covered juvenile cases (the public is not allowed, but media reports of a limited kind are allowed) and the hearing usually happened within weeks of the alleged offense.
I do not recall any case in which the prosecution of a juvenile has lasted so long that the case had to be heard in an adult court. This happens routinely in Hong Kong.
In the defense of prosecutors, it will be said that Ms Chan was responsible for part of the delay because she could not be prosecuted while she was not in Hong Kong. That’s one way to put it. After all, Hong Kong citizens are not required by either law or morality to sit in Hong Kong waiting for the machinery of justice to plow through their documents if they have things to do elsewhere.
I also note that in 2021, when she left, she will have already been 17 years old, on the verge of legal adulthood. The other five years have only been enough to remove him from further protections provided by the Court of Appeal’s sentencing guidelines for under-21s.
I express no opinion as to the guilt or innocence of Ms. Chan, which the judge is now considering. I believe that having fallen so far below the standards expected of criminal prosecutions in cases involving children, the Department of Justice should not have brought this matter up at all.
The department’s guidelines for prosecutors (echoing numerous human rights instruments, including our own) state that defendants have the right to be tried within a reasonable time. What the residents of the department seem to have a hard time wrapping their heads around is that this can change with the age of the accused.
It may be acceptable (God help us) to keep an adult waiting for seven years. For a minor, even seven weeks may be considered excessive. Faced with a child in trouble, the case must either be diverted into a high-speed channel from the bureaucratic pipeline where it must float along with the rest of the legal scum, or it must be fished out and dealt with immediately by whoever owns the appropriate tray.
Depriving young defendants of the benefit of provisions expressly made available to them is a gradual and indisputable injustice, whether as a deliberate abuse or the unintended result of a lax system. Children should be treated as children.
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