To whom it may concern,

A. Introduction

1. My opinion is sought on the demand by the protest movement, and its supporters, for the non-prosecution of persons arrested during the ongoing civil disturbances. This demand, generally described as an "amnesty", is one of the five demands made of the government, with the first, the withdrawal of the fugitive offender bill, having already been granted.1

2. In the event that I conclude that an amnesty is not viable, I am asked to opine on the associated question of whether pardon or commutation of sentence may properly be granted by the Chief Executive to individuals who have been convicted of criminal offences, arising from their involvement in the civil disturbances.

B. Amnesty

3. The term "amnesty" derives from the Greek word "amnestia", meaning forgetfulness or oblivion. An amnesty has been defined as: "A pardon by the government to a group or class of people, usually for a political offence; the act of a sovereign power officially forgiving certain classes of people who are subject to trial but have not yet been convicted".2 In other words, an amnesty has the effect of providing immunity from criminal prosecution for past offences.

4. In 1660, for example, at the time of his restoration to the throne, England's King Charles II approved the Act of Indemnity and Oblivion, which granted amnesty to the followers of the country's former Lord Protector, Oliver Cromwell, but excluding 50 people, all complicit in the execution of his late father, King Charles I.

5. In 1977, US President Jimmy Carter, in an effort to heal the nation's war wounds, granted an amnesty to thousands of draft evaders, albeit with some exceptions. He did this as the war, like the draft, was over.

6. In 1986, US President Ronald Reagan approved an amnesty for 3 million undocumented immigrants, who otherwise faced prosecution for having entered the country illegally.

7. The benefits of amnesty are said to include an avoidance of expensive prosecutions, an encouragement to lawbreakers to identify themselves, and the promotion of reconciliation.

8. An amnesty, however, affects fundamental rights. As the Constitutional Court of South Africa has recently explained: "Every person is entitled to protection from unlawful invasions of his or her rights to life, security of the person and dignity, and, when those rights are infringed, to be able to approach a court for relief. The granting of amnesty takes away this entitlement".3

9. If an amnesty is granted, it means that the offender will not be punished for his or her crime, that he or she and others will not be deterred from again committing the crime, and that the victim of crime, and his or her family, will be denied the satisfaction of seeing justice being done.

10. Those who have been arrested and/or charged because of their involvement in the ongoing civil disturbances face various charges, while investigations are continuing to locate other people suspected of grave offences. The offences that have been committed include: murder and attempted murder (punishable with life imprisonment), wounding with intent to commit grievous bodily harm (life imprisonment), arson (life imprisonment), causing explosions likely to endanger life (life imprisonment), making or keeping explosives likely to endanger life (20 years' imprisonment), criminal damage (10 years' imprisonment), riot (10 years' imprisonment), theft (10 years' imprisonment), false imprisonment (seven years' imprisonment), unlawful and unauthorized assembly (five years' imprisonment), criminal intimidation (five years' imprisonment), assault occasioning actual bodily harm (three years' imprisonment), endangering safety on the railway (three years' imprisonment), desecrating the national flag (three years' imprisonment), sedition (two years' imprisonment), assaulting police officers acting in the due execution of their duty (two years' imprisonment).

11. Even if an amnesty was to be considered as a possible option, the gravity of the crimes committed would need to be carefully assessed, along with the likely implications.

Sir Murray Maclehose and the ICAC

12. It is sometimes said that, as an amnesty was granted to corrupt police officers in 1977, this is a precedent which can again be followed in 2019. It is important, therefore, to appreciate what exactly happened in 1977.

13. After the ICAC was established in 1974, it sought to investigate all types of corruption. This triggered concerns, particularly because, in some areas, such as the enforcement of the anti-vice laws, corruption was an established way of life. Some officers, moreover, regarded corruption as a necessary means of supplementing quite meagre incomes. Within the police force, corruption was rife, and there was huge opposition to the ICAC's investigations of its officers, past and present.

14. This came to a head in 1977, when the ICAC's Hutchison House headquarters were attacked by off-duty police officers, and its personnel assaulted. A police mutiny was, moreover, threatened if the ICAC's investigations were not curtailed. Faced, therefore, not only with intimidation, but also a collapse in law and order, the governor, Sir Murray MacLehose, had no choice but to tell the ICAC not to pursue many of its investigations, although an exception was made for "heinous" crimes.

15. This episode, therefore, is not a precedent. Sir Murray MacLehose was not a free agent, and was coerced in the most shocking circumstances. He did not, however, at least so far as is known, interfere with any corruption-related prosecutions being conducted by the Legal Department (now the Department of Justice).

The Basic Law

16. In contrast to the situation in 1977, which only concerned cases being investigated or likely to be investigated, many of the civil disturbance cases are now in the hands of the Department of Justice, and are before the courts.

17. In the event of amnesty, therefore, the Chief Executive would have to instruct the secretary for justice to terminate the ongoing prosecutions. This, however, would be unconstitutional.

18. Since 1997, the Basic Law has provided both the Department of Justice and the ICAC with the constitutionally guaranteed independence they lacked in 1977. Whereas Article 63 provides that the Department of Justice "shall control criminal prosecutions, free from any interference", Article 57 stipulates that the ICAC "shall function independently".

19. Since Article 48 (2) requires the Chief Executive to implement the Basic Law, any interference with the work of prosecutors would breach this provision, as well as Article 63.

The Hong Kong Police Force

20. The police force, however, does not enjoy constitutional independence under the Basic Law. It is, nonetheless, required to "preserve the public peace", and to prevent and detect "crimes and offences".4

21. In the absence of cogent legal or policy justifications, any attempt by the Chief Executive (whether directly, or through the Secretary for Security or the Commissioner of Police), to curtail police investigations into crimes would offend its legal mandate.

Conclusion: Amnesty

22. No basis exists for granting an amnesty to people arrested in connection with the ongoing civil disturbances. Very serious offences have been committed, and those responsible must be held to account. Contrary to the impression which has been given, the decision by Sir Murray Maclehose to curtail many ICAC inquiries in 1977 provides no precedent for today. It was a dark day in Hong Kong history, which saw brute force triumph over the rule of law. That episode will, hopefully, never be repeated.

23. This apart, to grant an amnesty would make a mockery of the criminal justice system, which requires that offenders be held to account for their actions. It would also create outrage among the victims of crime, if not the law-abiding public. Whether they be police officers who were stabbed or set on fire by petrol bombs, or civilians injured because they disagreed with protesters, or business owners whose shops and restaurants were destroyed because they voiced their opinions or came from a different part of the country, the victims of crime would be fully entitled to challenge any amnesty given by the executive to those responsible by way of judicial review, and they would have strong, if not unanswerable cases.

24. Any suggestion that the Chief Executive might instruct the Secretary for Justice to terminate cases under consideration or before the courts would, moreover, be unthinkable, not least on constitutional grounds.

25. It is certainly true that the Secretary for Justice is not bound to prosecute a suspect if of the opinion that "the interests of justice do not require his interference".5 However, given the catalogue of very grave crimes which have occurred (see paragraph 10, above), the interests of justice manifestly dictate that those allegedly responsible should be prosecuted with the full rigor of the law. There can, that is, be no question of allowing the suspects to go scot-free, even if it were thought that this might somehow appease those responsible for the disturbances.

26. Even though the protesters' first demand, the withdrawal of the fugitive offender bill, was acceded to, this did not satisfy them. Rather, it emboldened them, and sent out the message that violence works. There is no reason to suppose that an amnesty would be any more successful in curbing the ongoing unrest than the earlier withdrawal of the bill.

C. Pardon, commutation of sentence

27. By virtue of the Basic Law's Article 48 (12), the Chief Executive is empowered to "pardon persons convicted of criminal offences or commute their sentences".

28. The circumstances in which this power is exercised are strictly limited. There must be a legitimate foundation, no matter the gravity of the offence. A sentence of imprisonment might, for example, be commuted to time served when a prisoner is dying, and has only a short time to live, as an act of mercy.

29. In the United Kingdom, the royal prerogative of mercy dates back to the Norman Conquest (1066), and is now sometimes used to reward prisoners for exceptionally good conduct.

30. In 1907, the British Home Secretary, Herbert Gladstone, told the House of Commons that "numerous considerations" influenced a decision to grant a royal pardon, including "the motive, the degree of premeditation or deliberation, the amount of provocation, the state of mind...character and antecedents". He added, however, that "many other" factors had to be considered in every case.

31. In the UK, pardons are, for example, occasionally given to prisoners who provide the authorities with valuable assistance, or who show great bravery while imprisoned, or who are deemed "morally or technically" innocent.

32. In 1996, two convicted drug traffickers, John Haase and Paul Bennett, who were each serving 18 years' imprisonment, were pardoned after having served only 10 months of their sentences, as a reward for the assistance they had provided to the authorities in the combat of crime.

33. In 2001, two convicted criminals, Mark Collerton and Andrew Goodyear, were pardoned, after saving the life of a fellow prison worker who was attacked by a wild boar.

34. In 2015, moreover, the UK enacted the Policing and Crime Act (the so-called "Alan Turing law"), which conferred an automatic pardon on deceased individuals convicted of consensual homosexual offences under since repealed legislation, as well as on living individuals who were entitled to have their convictions legally disregarded.

Effect of pardon

35. In the Act of Settlement of 1701, England changed the law so that a pardon could not "stop an impeachmentbut there is nothing to prevent the King from pardoning after the impeached person has been convicted and sentenced". This reflects the current position, both in the UK and Hong Kong.

36. Although a pardon indicates forgiveness, it does not remove a conviction. A pardon cannot overturn a conviction, as only the courts can do that. In any event, if a conviction is flawed, the appeal courts would generally have set it aside, well before the issue of pardon fell for consideration.

37. In 1984, in the UK's Queen's Bench Division, Lord Justice Tasker Watkins said that the effect of a pardon was to remove from the convicted person "all pains, penalties, and punishments whatsoever that from the said conviction shall ensue", without eliminating the conviction itself.6 He added that the Court of Appeal was "the only body which has statutory power to quash a conviction" (page 71), and this is also true in Hong Kong.7

38. This means that, for example, a job applicant, or someone filling in a visa application, must, when asked, disclose a previous conviction, although they may add that a pardon has been granted. If, moreover, someone is later convicted of another offence, the judge can take the pardoned offence into account, in deciding on an appropriate punishment.

Judicial review of pardon

39. If a pardon is granted, it must be legally justifiable. The UK's former justice secretary, Kenneth Clarke, once said that the subject of the pardon must not be "tainted with unclean hands". The grant of a pardon is, therefore, judicially reviewable, even if it involves an element of policy, most obviously by the offender's victim.

40. In 1993, the UK's Queen's Bench Division observed: "The court had jurisdiction to review the exercise of the royal prerogative of mercya decision by the Home Secretary which was infected with legal errors ought not to be immune from legal challenge merely because it involved an element of policy or was made under the prerogative".8

41. The refusal of a pardon has also been held to be judicially reviewable.9

Conclusion: Pardon and commutation of sentence

42. Once people realize that a pardon does not expunge a conviction, much of its supposed allure may disappear. In any event, a strong legal justification must exist before a pardon or a commutation of sentence is justifiable. If people have been convicted of very serious crimes and received condign punishment from the courts, they must, whether young or old, expect to serve their sentences, whether of imprisonment, or, in the case some youthful offenders, an order for detention in a detention, training or rehabilitation centre, or a reform school. This ensures that they pay their debt to society, and lets everyone know that actions have consequences, and that nobody is above the law.

43. This apart, to dispense pardons or commutations of sentence to people who have been convicted of serious offences arising from the civil disturbances after long trials would be a waste of time and money. There would also, unless every single such offender were to be treated in this way, be practical difficulties. If only some offenders were to be selected, the whole process could get bogged down in claims of arbitrariness, with some people complaining that they had not also benefited from executive clemency.

44. If, moreover, those convicted of political violence, perhaps young offenders, were to be pardoned or to have their sentences commuted, it would inevitably cause other offenders, youthful or otherwise, convicted of generalized violence or other serious crimes, to feel aggrieved, and their grievances would be legitimate. Political violence is no less reprehensible than other types of violence, and may actually be graver, as where it involves terrorist type activity, such as manufacturing petrol bombs, which some 15-year-olds were reportedly doing during the recent occupation of the Chinese University of Hong Kong.10

45. Although there may be occasions when a pardon or a commutation of sentence is appropriate for someone convicted of a protest-related crime, these will be rare, and exceptional circumstances will be required. Examples might arise where the offender is gravely ill, or has provided important assistance to the authorities in the combat of crime, or has shown particular bravery which has helped others. These are the criteria engaged whenever a question of pardon or commutation arises in respect of a criminal convicted of a general crime, and protest-related crime cannot be treated differently.

46. Once again, as with amnesty, the victims of crime would feel cheated of justice if the culprits were pardoned for no good reason. Appeasement of those responsible for the criminality is no justification, and nothing positive would result. There is no reason to suppose that the making of any further concessions to those responsible for the crimes listed above (see paragraph 10), would be efficacious.

D. Final Observations

47. Whether in regard to amnesty, pardon or commutation of sentence, the integrity of the criminal justice system must be protected. Any temptation to manipulate established procedures in the hope of political advantage must, therefore, be resisted. Since no proper basis exists for resorting to either device, they should both be excluded from consideration.

1. The other three demands are: A retraction of the description of the protests as riots; an independent investigation into police brutality; the implementation of universal suffrage.

2. Bryan A Gardner (Blacks Law Dictionary).

3. Du Toit v Minister for Safety and Security [2010] 2 LRC 623 @ [26].

4. Police Force Ordinance (Cap 232), Section 10.

5. Criminal Procedure Ordinance (Cap 221) Section 15(1).

6. R v Foster (Barry) [1985] QB 115 [p 71].

7. Criminal Procedure Ordinance (Cap 221) Section 83.

8. R v Secretary of State for the Home Department, ex parte Bentley [1993] 4 All ER 442.

9. R v A [2012] 2 Cr App R 8.

10. South China Morning Post, November 16, 2019.

(HK Edition 11/26/2019 page8)