What one Americans case says about the future of the courts in Hong Kong

December 7, 2019, was near the end of a year of turmoil in Hong Kong. Since the spring, people had been protesting an extradition bill opponents saw as a threat to Hong Kong’s autonomy. The unrest bifurcated the city: you were yellow, with the protesters; or blue, with the police.

Those were the undercurrents in Hong Kong when, walking through the Causeway Bay Station on December 7, 2019, Samuel Bickett saw a man hitting a teen with a baton.

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

A video of the encounter shows a bystander asking the man in English whether he’s with the police. He first denies he is, until finally saying yes. At that point, Bickett had grabbed the baton to try to disarm him. The two tussled. Bickett was convicted of assaulting a police officer and sentenced to four months and two weeks in prison.

Bickett, a 37-year-old American who then worked for Bank of America Merrill Lynch in Hong Kong, has been out of prison on bail since August as he appeals his conviction and sentence.

A hearing is scheduled for Monday morning local time. Bickett wants justice for himself. But his case is not just his own â€" it intersects with Hong Kong’s own turmoil, driven by Beijing’s ever-tightening crackdown on the city’s democratic freedoms. It has become another marker of the lack of accountability for the police and of the deep concern around the deterioration of the rule of law.

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

The Chinese Communist Party has sought to erode the separation between the two systems. In the aftermath of the 2019 protests, it intensified its efforts to dismantle it entirely. Covid-19 restrictions quelled Hong Kong’s mass demonstrations, and in the summer of 2020, Beijing imposed a national security law targeting crimes, such as secession, subversion, colluding with foreign powers, and terrorism. It portended a dragnet 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 yelled pro-Hong Kong independence slogans in public.

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

That manipulation â€" things like punishing political activists or pressuring businesses to turn over information under the national security law â€" is happening because “Beijing has been using different techniques to warn the courts if they do not behave,” Lai said.

A prison van arrives at the West Kowloon courthouse in Hong Kong on September 23, 2021, when 47 pro-democracy defendants appeared in court, charged with conspiracy to commit subversion under the Beijing-enacted national security law. Isaac Lawrence/AFP via Getty Images

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

Bickett says he tried to intervene because he feared the man with the baton would attack other people. In a video of the incident, a bystander approaches the officer, later identified as Yu Shu-sang, and asks him in English, “Are you popo?” a slang term for cop. The officer responds “no.” And though the plainclothes officer later says “yes,” according to Bickett and his appeal documents, the officer also denied he was police multiple times before what was captured on the video. Bickett says he did not hear the “yes,” and even if he had, he would have doubted it because of the repeated denials.

The two ended up in a struggle for the baton. Bickett says he hit the officer in self-defense, and that Yu Shu-sang’s refusal to identify himself and his unreasonable use of force (the teen, it turns out, was suspected of fare jumping) violated the Hong Kong police force’s own ethics code. (Hong Kong’s Department of Justice declined to comment on individual cases.)

Ultimately, the magistrate in Bickett’s case decided that Yu Shu-sang was a reliable witness, and though he had denied being a police officer at first, “popo” was a “disrespectful reference” and had a “degrading meaning” and so “the fact that he denied to be called as such does not cause me to think he was trying to conceal 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] was acting in the execution of his duty.” As for Bickett, the magistrate wrote, his actions were “a serious threat to public order.”

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

Bickett was not a protester, just a guy going holiday shopping with a friend. But the case has resonated because it may be less of an isolated incident than a glimpse into a police force able to operate with impunity. “It seems this is another typical case of the court having tried to perform impartially, but is actually partially in favor of the law enforcement,” Lai said.

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

That question â€" of who is above the law â€" is not unique to Hong Kong. This debate also happens in places like the US, very much so in cases involving police officers.

But Bickett’s case and appeal have unfolded alongside Beijing’s campaign to undermine Hong Kong’s autonomy and freedoms. A man shouting pro-independence slogans is convicted of “inciting secession.” The ex-CEO of Apple Daily, a now-shuttered media company, was denied bail, in part because the US government and other governments spoke out against his arrest. A university tried to remove a statue commemorating the Tiananmen Square massacre.

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

“My sense is that [Hong Kong’s rule of law is] on life support â€" but the prognosis is not very good,” said Martin Flaherty, a professor of international law at Fordham University. Part of the reason why, he said, was because all the trappings of Hong Kong’s system â€" based on the British model â€" are still there. Judges are writing 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 pinpoint the breaking point with clarity.

Bickett’s case will be one of the many testing points along the way, but it also might not offer a clear-cut conclusion. If he is remanded to prison, will that be because the judge who hears his case fully believed he was in the wrong? Or because he embarrassed the police? If he is exonerated, maybe that will be a last gasp for Hong Kong’s judicial system. Or maybe there are cynical reasons: Bickett has been outspoken, and he is an American; maybe it isn’t worth it to send him back to prison.

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

Some of that is still be in place. But Flaherty said that Bickett’s case was a shot across the bow â€" China still wants your business, but not if it comes at the cost of challenging the government. “All of you foreign businessmen and lawyers, if you keep your nose to the ground and just make money, just do contracts, just go out to expat bars and get drunk and don’t bother anybody, you’ll be fine,” he said. “But the minute you come anywhere close to something that is political â€" which would include standing up to the police â€" you’re going to be in trouble.”

“And the fact that you’re a foreigner is not going to help you,” Flaherty added.

Bickett, as an attorney, built his career on having faith in the law. He is not optimistic about the outcome of his appeal. “The fact that I can’t really control whether I’m going to end up in prison or not, or what’s going to happen to me in the courts, has made me accept that the most important thing to me is making sure that it counts for something,” Bickett said. “If I’m going to go through this, I don’t want to do it in silence.”

Bickett wants to make this ordeal count for something. Many Hongkongers do not have that option, or the privilege to do so. As an American in Hong Kong, Bickett has the ability to leave. Although, the way he sees it now, it may end up being his only choice. “It’s just not safe, for one thing,” Bickett said. “And then, for another, I’m a lawyer, right? What is a lawyer going to do in a place where nobody cares about the law?”

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