Hong Kong’s High Court ruled on May 20 there will be no jury allowed in the trial of 24-year-old Tong Ying-kit, a protester charged with violating the controversial Beijing-backed National Security Law (NSL). The move marks a major shift away from Hong Kong’s nearly 200-year-old common law justice system and towards one closer to communist China.
Last June, during the Communist Party’s National People’s Congress, Beijing gave the Chief Executive of Hong Kong the authority to personally assign judges to national security-related cases, a break from the long-standing common law tradition of case assignment by senior judges.
Tong was the first person to be charged under the NSL. Police say the then 23-year-old drove a motorcycle with a banner “Free Hong Kong, Revolution of our Times” to a protest in Wanchai, on July 1 of 2020, shortly after the NSL took effect. Tong was arrested after he allegedly drove into a squad of police officers and injured several of them on a narrow street.
Authorities charged Tong with “inciting others to secede from the state” and “terrorist activities” under the NSL. If convicted, Tong will face at least three years in prison and can even be sentenced to life imprisonment.
In February, Justice Secretary Teresa Cheng informed Tong’s legal team that the case would be heard by three judges, rather than a jury, due to “safety concerns for the jurors and their families.” Tong’s team filed an appeal and request for a jury trial soon after.
According to Hong Kong’s Stand News, Tong’s lawyer, Philip Dykes, said his client “had not been given the right to be heard before the [Hong Kong Justice] department made its decision, which was illegal and unreasonable. “
On May 20, Judge Alex Lee Wan-tang, a specially designated NSL judge, issued a written ruling rejecting Tong’s appeal for a jury trial, confirming the case would be heard by three designated NSL judges on June 23 at the High Court of Hong Kong.
Lee remarked that “The jury system should be abolished in criminal cases involving national security.”
In addition, Tong’s repeated applications for bail have been denied.
Hong Kong, once a British colony, has a 176-year history of handling cases through a well established system of common law. Under common law, a defendant will be granted bail unless the prosecutor can provide legal grounds or evidence that necessitates detention. In Tong’s case, however, the judge put the onus on Tong to prove he would not break the law if granted bail, marking another stark departure from traditional legal practices.
The Hong Kong judiciary is generally of the opinion that the Hong Kong government’s abolition of jury trials in NSL cases not only subverts the traditional judicial system and sets a precedent for the introduction of communist rule seen in mainland China, but also puts defendants accused of violating the NSL in a more passive position and makes it more difficult to protect themselves.
In an interview with Voice of America, Barrister Frankie Siu said, “In the past, we have used juries to handle serious cases. We know that there are no juries in the Magistrates’ Court or the District Court, but in the High Court, jurors are used to handling criminal cases. The principle is that since the cases are more serious, the decision should be made openly by the community, not by a single category of people.”
In mainland China, the judicial system is completely under the control of the Chinese Communist Party where the conviction rate for offenses classified by the Party as relating to national security is almost 100 percent.
Hong Kong’s NSL also includes provisions that allow for the elimination of juries, which generally consist of seven to nine jurors, under three circumstances: protection of state secrets, foreign power-related cases, and protection of jurors’ safety.
City leaders appoint judges
Judges are a key player in the National Security Law debate. Under the Basic Law, which has constitutional status in Hong Kong, judges are appointed by the Chief Executive of the Hong Kong SAR on the recommendation of the Judicial Officers Recommendation Commission, and are subject to the approval of the Legislative Council. Although not explicitly stated, for over 100 years, the more senior judges in the judicial system have been responsible for assigning judges to hear cases.
On June 20, 2020, the Standing Committee of the National People’s Congress (NPCSC) in Beijing unveiled the contents of the NSL, which state “the Chief Executive of the Hong Kong Special Administrative Region shall designate certain judges from among serving or qualified former magistrates, District Court judges, judges of the High Court, judges of the Court of Appeal, and judges of the Court of Final Appeal, and may also designate judges from among deputy or special judges to be responsible for handling the National Security Law.”
The National Security Law also requires Hong Kong to establish a “Committee for Safeguarding National Security,” chaired by Chief Executive Carrie Lam. The Committee is to be comprised of the Chief Secretary for Administration, the Financial Secretary, the Secretary for Justice, the Secretary for Security, the Commissioner of Police, the head of the National Security Division of the Police Force, the Director of Immigration, the Commissioner of Customs and Excise, and the Director of the Chief Executive’s Office.
According to the structure, the Committee will have a Secretariat headed by a Secretary-General who will be nominated by the Chief Executive and appointed by the Central People’s Government. Beijing will also establish a “National Security Office” in Hong Kong, which will be directly under the Central Government.
The bylaws of the NSL also stipulate that the NSL will supersede the local laws of the Special Administrative Region, with power of interpretation being vested in the NPCSC.
Former Chief Justice of the Court of Final Appeal, Geoffrey Ma, who retired in January of 2021, said at a forum at the Gray’s Inn, a British law school, that under the concept of judicial independence, it should be up to the judiciary to decide on trial judges, not someone who may have a political or other perspective or background.
Ma called having the Chief Executive appoint trial judges “strange.”
Hong Kong police have so far arrested 107 people under the guise of national security, 57 of which have been charged under the NSL. Almost all remain behind bars pending trial.