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Published: 00:06, August 03, 2021 | Updated: 09:23, August 03, 2021
National security: Fair trial vindicates criminal justice system
By Grenville Cross
Published:00:06, August 03, 2021 Updated:09:23, August 03, 2021 By Grenville Cross

On July 1, 2020, within hours of the enactment of the National Security Law for Hong Kong, Leon Tong Ying-kit, a 23-year-old restaurant worker, plowed his motorbike into police officers who were trying to block his progress in Wan Chai, leaving three injured. Having driven from the Eastern Harbour Crossing during protests on Hong Kong Island, he ignored multiple police checklines, determined to publicize his cause. As he drove around, he prominently displayed a flag bearing the slogan “Liberate Hong Kong, revolution of our times”.

On July 27, after a 15-day trial before a three-judge panel in the High Court, Tong became the first person to be convicted of offenses under the National Security Law (HCCC 280/2020). He was found guilty of inciting others to secession (Art.21), arising out of the display of the flag to all and sundry, and of terrorist activities (Art.24), arising from the injuries he caused to the officers and the grave harm he caused to society in pursuit of a political agenda.  

In sentencing Tong, the court, after adjustment, imposed a total of nine years’ imprisonment, comprising six and a half years for incitement to secession and eight years for terrorist activity, with two and a half years of the latter sentence ordered to run consecutively to the former. It said the punishment should sufficiently reflect his culpability and society’s abhorrence of what he had done. It was necessary not only to punish Tong, but also to deter others. Fortunately for him, his terrorist culpability was not adjudged as being of the most serious, with the maximum being capped at 10 years’ imprisonment, and not life. Although this was a tough sentence, it was fully justified for crimes which brazenly contravened the National Security Law and disrespected the Basic Law, which stipulates that Hong Kong is an “inalienable part” of China (Art.1). 

At the trial, in which Tong chose not to testify in his own defense, much turned on the exact meaning of the slogan. Through their experts, the defense team argued that, apart from the independence meaning ascribed to it by the prosecution, it had less sinister connotations. It was also claimed that Tong’s collision with the police officers was not deliberate, and occurred because of police action in trying to stop him.

The prosecution case, however, was cogent, and the evidence was ably marshaled by the lead prosecutor, Anthony Chau Tin-hang, who told the judges that Tong had deliberately driven his motorbike “in defiance of law and order, with utter disregard for human lives”. Factual matters apart, he placed heavy reliance on the history scholar, Professor Lau Chi-pang, who analyzed the slogan’s origins, and said that “in the context of Hong Kong’s political language, these words were raised necessarily for the purpose of separating the HKSAR from the PRC”. Chau said the impact of Tong’s actions on the onlookers was clear, as they were “shouting, cheering and clapping their hands”.

In the event, the court concluded it was “sure” of Tong’s guilt of both offenses, and the legal ingredients of each had been proved. In delivering judgment, Justice Esther Toh Lye-ping, the senior judge, said “having regard to the natural and reasonable effect of displaying the flag”, and in “the particular circumstances of this case”, the display was “capable of inciting others to commit secession”. It had been displayed “in order to attract the attention of as many people as possible”, which is why Tong had followed a “convoluted route”. He “fully understood the slogan to bear the meaning of Hong Kong independence”, and it embodied his political agenda.

Tong’s failure, moreover, to stop at the various police checklines, eventually crashing into the officers, was “a deliberate challenge mounted against the police, a symbol of Hong Kong’s law and order”. His acts, which “seriously jeopardized public safety or security”, were intended to intimidate the public and were politically motivated, and thereby satisfied the terrorism charge. This conclusion, legally speaking, was no great surprise, as acts of this type, which have a political flavor, are, according to global norms, branded as terrorist in most places.   

Although this was a trial in the High Court, the judges gave detailed reasons for their verdict, which was unprecedented, as a jury never does so. This is, however, the same procedure that applies in the District Court and the Magistrates’ Court, where the trier of fact sits alone. When a judge gives reasons for a verdict, everybody understands its basis, and, in the event of a conviction, the defendant and his lawyers can scrutinize the reasons for grounds of appeal, and Tong’s lawyers will undoubtedly be doing this.

In their reasons, the judges highlighted the legal directions they had given themselves, in order to make it clear that correct procedures had been followed. They indicated their awareness that the prosecution must prove its case beyond reasonable doubt, that a suspect has a right of silence upon arrest, and also a right not to give evidence at trial. They also noted what inferences could be drawn from the evidence, that each charge had to be considered separately, and the extent to which Tong’s earlier traffic convictions affected his right to a “good character” direction.

The judgment was, therefore, meticulous and closely reasoned, and observed the legal niceties. It made a reality of the fair trial guarantees contained in the National Security Law itself, which, as anybody who has studied it will know, is human rights heavy. It not only incorporates the International Covenant on Civil and Political Rights (Art.4), but also stipulates that an accused person is presumed to be innocent, has a right of defense, and enjoys all of the traditional trial rights which “under the law shall be protected” (Art.5).  

The trial, therefore, has laid to rest the concerns expressed by mischief-makers over the National Security Law affecting a defendant’s right to a fair trial. This claim was an integral part of a scare campaign mounted by the protest movement and its foreign allies, who hoped not only to demonize the new law, but also to undermine the criminal justice system. The outcome is a triumph for the rule of law, and nobody, hopefully, will be happier than the United Kingdom’s foreign secretary, Dominic Raab, who, on June 30, said he was concerned that the law was not being used “to protect public security”, but only to “crush rights and freedoms”.

Given his interest in the city’s safety, Raab should also be greatly relieved that the court’s judgment will have ramifications that will indeed help to “protect public security”. It places the fanatics on notice that, if they deploy the slogan in public places in future, they will be liable to prosecution for secessionist activity, and this will defuse tensions and promote public security. In January, moreover, Raab described the arrest of national security suspects as a “grievous attack” on the city’s rights and freedoms, but, with Tong’s conviction, he can now sleep easy, as he knows that only meritorious prosecutions are being pursued.

Once the verdict was announced, however, the usual suspects mobilized, traducing, for want of a better target, the city’s highly acclaimed judiciary. Whereas the serial fantasist, Benedict Rogers, operator of the anti-China propaganda outfit Hong Kong Watch, claimed the convictions made “a mockery of claims of judicial independence”, his protege, the criminal fugitive and convicted felon Nathan Law Kwun-chung, declared, from his foreign hideaway, that the judicial system had been “weaponized to suppress”. Quite clearly, neither of them had read the Court’s judgment, let alone tried to understand it, and this was also true of Yamini Mishra, Amnesty International’s Asia-Pacific regional director, who, for want of anything better to say, announced that it was an “ominous moment for human rights in Hong Kong”.

Shortly after the verdict was delivered, the High Court received a call from a man who said he would “use a bomb” against Justice Toh, and planned to “bleed” and “kill” the other two judges, Anthea Pang Po-kam and Wilson Chan Ka-shun. This outrage obviously vindicated the secretary for justice’s decision to have the trial conducted without a jury, given her concerns over the personal safety of the jurors. After the threats, the Department of Justice immediately announced that the police “would leave no stone unturned to apprehend the culprit so as to safeguard the city’s public peace and safety”, which should also have delighted Raab.

However, even though he is always quick to pontificate whenever criminal suspects are arrested, he could not even manage a squeak of concern on his beloved Twitter after the three judges were threatened. But this should surprise nobody, as his indifference to judicial safety is now legendary. Nothing, for example, was heard from him on Dec 30, 2020, when the chief magistrate, Victor So Wai-tak, was threatened with being bombed to death, along with his family, after he refused bail to the Apple Daily owner, Jimmy Lai Chee-ying. He also kept quiet when, on May 28, after she had imprisoned Lai and his confederates for unauthorized assembly, Judge Amanda Woodcock received intimidatory threats, directed at both her and her family.  

Although nobody expects anything sensible from the likes of Rogers, Law and Mishra, there was a time when the British foreign secretary would have been the first in line to condemn attacks on the city’s independent judiciary. Any attempts to intimidate judges are, after all, a direct challenge to the rule of law, and Raab’s silence is shocking. If he regards the arrest of criminal suspects as a “grievous attack”, what has happened, one wonders, to his superlatives when threats are made to murder the city’s judges. Instead of cozying up to the protest movement and whitewashing suspected criminals, he needs, just for once, to demonstrate that integrity still counts for something in British politics, and that the UK’s foreign policy in the Far East is based on more than hypocrisy.

One thing, however, is absolutely certain. With or without the support of Raab and his ilk, Hong Kong’s judiciary will uphold the rule of law, come what may. Its judges will continue, in accordance with their judicial oath, to “conscientiously, dutifully, in full accordance with the law, honestly and with integrity, safeguard the law and administer justice without fear or favor, self-interest or deceit”.

Indeed, Tong Ying-kit has just been the beneficiary of a trial that could not have been fairer, and this is a vivid demonstration that the doomsters have been peddling myths. The criminal justice system has come through its latest challenge with flying colors, and this will be welcomed by everybody who cherishes the rule of law in Hong Kong and values its freedoms.

The author is a senior counsel, law professor and criminal justice analyst, and was previously the director of public prosecutions of the Hong Kong SAR.

The views do not necessarily reflect those of China Daily.

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