Hong Kong’s first case of alleged violation of Hong Kong’s version of national security law will be tried without a jury. The ruling by Hong Kong’s High Court on Thursday (May 20) marks a major shift in the common law justice system that has been in place in Hong Kong for nearly 200 years.
The defendant in the case is 24-year-old Tang Ying-kit. Hong Kong police said Tang, then 23, was driving a motorized vehicle in Wanchai, Hong Kong, on July 1 last year, when he participated in a protest involving more than 300 people with the slogan “Restoration of Hong Kong, Revolution of the Times. Police said Tang was arrested after he drove his car into police officers, injuring several of them in a narrow street.
Authorities have charged him with violating Hong Kong’s national security laws, “inciting others to secede from the state” and “terrorist activities. If convicted on these charges, Tang could be sentenced to up to life in prison.
In February, Secretary for Justice Eva Cheng informed Tang’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. Tang objected to this and filed an application for a jury.
On Thursday, Justice Lee Yun-teng, a designated judge under Hong Kong’s national security law and a judge of the Court of First Instance, issued a written ruling rejecting Tang’s application to set aside the decision not to have a jury and announced that the case will be heard by three designated judges at the High Court of Hong Kong on June 23.
Hong Kong has a 176-year history of using common law to handle serious criminal cases. The Hong Kong judicial profession considers the trial of cases by jury to be an important feature of the Hong Kong judicial system. Hong Kong adopts the common law of the Anglo-American system, and its jury system and case-following approach to adjudication provides greater flexibility and protection to defendants than the mainland law adopted in mainland China.
In mainland China, the judicial system is completely under the control of the Chinese Communist Party, and courts there find guilt at a rate of almost 100 percent. The state security law provides for three circumstances in which juries can be eliminated: to protect state secrets, in cases involving foreign affairs, and to protect the safety of jurors.
The Hong Kong version of the national security law transposes mainland judicial customs to Hong Kong, designating three judges rather than a jury to hear the case.
Judge Li Yun-teng said the jury trial system of the Court of First Instance in the past should be abolished in criminal cases involving national security.
Tang’s repeated applications for bail have been denied. Under common law, a defendant can be granted bail unless the prosecutor can provide a legal reason why he must be detained. Rulings denying bail require that defendants bear the burden of proving that they would not break the law if granted bail, another departure from common law practice.
Observers point out that the CCP’s push for national security laws in Hong Kong is essentially an attempt to silence dissenting voices. Since the Hong Kong government proposed amending the ordinance to establish a repatriation mechanism with Taiwan, Macau and mainland China, a massive anti-China sending protest has erupted in Hong Kong. The campaign, which lasted more than six months, demonstrated to Beijing the strong will of Hong Kong people to pursue democracy and resist dictatorship.
Critics say this is why Xi is determined to push through the national security law in Hong Kong, even at the risk of betraying international commitments and undermining “one country, two systems.
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