Case of great significance

FOUR parents of babies that have fallen victimto tainted Sanlu formula have taken theirclaims against Fonterra Brands (China), theHong Kong branch of Fonterra, a New Zealandcompany, to the Small Claims Tribunal in Hong Kong.

Babies that have fallen victim to Sanlu formula arefound throughout China. Many parents have sought tosue the company. However, the courts have passivelydealt with their applications or even thrown them out.No sooner had the scandal broken out than theauthorities of Hebei, where Sanlu was based,assembled lawyers from all parts of the province todissuade them from taking up Sanlu victims' cases.More than a hundred lawyers of twenty-two provinces,municipalities and prefectures have offered Sanluvictims legal assistance through the Open ConstitutionInitiative. Repeatedly suppressed by the authorities,the organisation is now defunct. Xu Zhiyong, a lawyerwho was its legal person representative, was oncetaken into custody.

Zhao Lianhai, a parent who has worked vigorouslytogether with other parents in fighting for their rightsand has founded the Home of the Kidney StoneBabies, is in an even sorrier plight. He was arrestedlast November. Last March, he was charged with"provoking a serious disturbance" and brought to trialin Beijing. The court has yet to rule on the case. If he isfound guilty, he may be jailed for a term not exceedingthree years. The day he appeared in court, his wifewas barred from the courtroom, and his five-year-oldson, all in tears, loudly cried, "Papa! Papa!" The scenewas very sad indeed. By describing the difficultiesparents of kidney stone babies have encountered insafeguarding their rights, we intend only to point outthat, if they continue to fight for their cause on themainland, what has happened to Zhao Lianhai willhappen to others. The four parents sought a new pathwhen they decided to bring their claims to the SmallClaims Tribunal in Hong Kong.

They have sued Fonterra's subsidiary in the SARfor damages because the company had a 43% stake inSanlu. Helen Clark, who was Prime Minister of NewZealand, revealed that Fonterra became aware inAugust 2008 that Sanlu formula was tainted but thelocal authorities had blocked a plan to recall theproduct. The scandal did not come to light until Clarklearned of the problem and directly contacted thecentral government of China in early September. Notuntil 11 September 2008 did the mainland authoritiesannounce a recall. It is on these grounds that the fourparents have put forward claims for HK$12,000 toHK$33,000 from Fonterra.

The Tribunal has yet to rule on the case. Theirsuccess would be of immense significance.

First, the precedent would allow all other parentsof babies that have fallen victim to Sanlu formula tomake their claims here. Second, parents of victimshave suffered repression on the mainland in assertingtheir rights. If Hong Kong's legal system gives themjustice, mainlanders will have a way of taking legalaction to protect their rights in Chinese territory.

Many state-owned and private mainlandbusinesses are listed in Hong Kong. Many of themhave Hong Kong subsidiaries. If the Tribunal finds forthe parents, victims or relatives of victims of anaccident (for example, a mining accident) involvingsuch a company may sue its subsidiary here fordamages. Will this be the case? This is why theparents' case is important and worth attention.

Mainlanders try to protect their rights, while themainland authorities are bent on maintaining stability.On the mainland, the need to maintain stabilityoverrides that to protect civil rights because laws arenot justly enforced and the law serves political needs.Under "one country, two systems", Hong Kong has anindependent system of law and justice. This is itsadvantage. It is what Hong Kong relies on to maintainits prosperity and stability. The fact that the parentshave come all the way to Hong Kong to sue Fonterrafor damages underscores the appeal of Hong Kong'srule of law. If the mainlanders succeed in assertingtheir rights, Hong Kong's system of law and justice willradiate influence to the mainland. This was probablybeyond Deng Xiaoping when he conceived the idea of"one country, two systems". One may say this wouldbe evidence of the vitality of "one country, twosystems".

明報社評 2010.05.05

三鹿毒奶索償案 香港成為內地人維權新途徑

4 名三鹿毒奶粉案受害嬰幼兒家長，入稟本港小額錢債審裁處，向三鹿集團第2 大股東、新西蘭恆天然集團在香港的分公司索償。

三鹿毒奶粉受害嬰幼兒遍佈全國，先後有不少家長在各地入稟法院，控告三鹿集團，但是法院都消極處理或不予受理。事件揭發之初，三鹿集團所在地的河北省當局第一時間召集全省律師開會，阻止當地律師代理受害者訴訟。全國22 個省市區逾百名律師，透過「公共利益同盟」給毒奶粉受害者提供法律幫助。現在組織幾經當局打壓，已經解散，其法人代表許志永律師一度被拘押。

至於受害嬰幼兒家長之一的趙連海，積極聯繫其他家長維權，組成「結石寶寶之家」，他的處境就更慘了。趙連海去年11 月被拘押，今年3 月底以「尋釁滋事」罪名在北京受審，迄今未宣判；若罪成，最高可判囚3年。當日趙連海受審，他的妻子不能到法庭旁聽，5 歲兒子在法庭外哭叫爸爸的情狀，使人動容。我們詳述毒奶粉受害家長維權行動之艱辛，只是要指出，他們若在內地繼續抗爭，趙連海的遭遇將不是孤例。所以，他們這次來港入稟審裁處索償，是另闢蹊徑。

家長入稟控告新西蘭恆天然集團在香港的分公司，要求賠償，主要是恆天然擁有三鹿43%股權，而新西蘭總理克拉克曾透露2008 年8 月初恆天然集團得知三鹿奶粉有問題，但是地方當局阻撓回收，克拉克9 月初得知事態，直接與北京中央政府接觸，事件才揭發。到9 月11日，內地才宣布回收三鹿奶粉。4 名家長基於這種情况，入稟向恆天然集團索取1.2 萬至3.3 萬元賠償。

此案尚待審裁官判決，家長若申索成功，意義重大。首先是三鹿毒奶粉其他受害者，都可以援引來港申索。另外，受害者家長在內地維權處處碰壁，遭到打壓；如果香港的法制可以給他們得到公道，對於內地人士而言，不啻在中國領土範圍內，找到一條可循法律手段維權的途徑。

現在內地許多國企和民企來港上市集資，他們在本港都有港人代表和業務，三鹿受害者家長在港若勝訴，這些國企和民企的業務若在內地出事（例如煤礦事故等），理論上，遇事者或其家屬就可以來港循民事程序，向出事國企或民企在港的公司索償。事態會否如此演變，正是此案重要和值得關注之處。

內地人士設法維權，官方致力維穩，維權不敵維穩，主要是執法不公，法律為政治服務；香港實行「一國兩制」，獨立公正的法律和司法體制是香港的優勢，也是香港維持繁榮穩定之所賴。三鹿毒奶粉案受害者家長不辭跋涉來港申索，突顯了香港法治制度的吸引力，如果內地人士維權創下成功先例，則香港的法制、法治輻射內地，這大概超逾了當年鄧小平構思「一國兩制」時的想像，可以理解為「一國兩制」具有生命力的事例。

Glossary

override /??ʊv ?'raId/be more important than.

underscore /??nd ?'sk ɔ:(r)/show (something) to be true.

beyond

If something is beyond a person, it isimpossible for the person to imagine,understand or do it.