Although the National Security Law for Hong Kong prioritizes human rights, this is invariably disregarded by its critics. It not only highlights the role of the International Covenant on Civil and Political Rights in its application (Art.4), but also requires the expeditious conduct of cases. It stipulates that national security suspects “shall be entitled to a fair trial before a judicial body, without undue delay” (Art.58).
On Feb 28, 2021, 47 individuals were charged with conspiracy to commit subversion by holding an unofficial primary in July 2020, ahead of a subsequently postponed Legislative Council election. Of the 47 accused, 13 have been granted bail, and concerns have been expressed over the time it is taking for the trial to begin. As is customary, reporting restrictions are in place to ensure there is no possible prejudice to the trial, and there have been only limited updates about the pretrial proceedings, which are ongoing.
On Aug 4, 2022, the secretary for justice, Paul Lam Ting-kwok, promised to act on “legitimate” concerns over the delay in the prosecution of the 47 suspects, but he also pointed out that the proceedings so far have been extremely lengthy. Although prosecutors are now having to carry a far heavier workload, he explained that the Department of Justice is working with the Judiciary and the defense lawyers to resolve the problem of long waiting times, and this is clearly encouraging.
The chief justice, Andrew Cheung Kui-nung, is also acutely aware of the problem of trial delays in relation to all types of criminal cases, and is taking remedial measures. Indeed, the time between the filing of the indictment in the Court of First Instance and the hearing of the case was 167 days in 2019, 349 days in 2020, and 383 days in 2021. However, these figures do not necessarily tell the full story, and, if there is an upsurge of cases, as occurred after the insurrection of 2019, or if cases are vast, as with that of the 47 suspects, it will invariably be difficult to arrange early hearing dates.
On Jan 24, 2022, at the Ceremonial Opening of the Legal Year, Cheung explained that the Judiciary’s “workload is always heavy, and manpower is tight”, adding that “all this must be firmly borne in mind in any discussion of further improving judicial efficiency and output”. He nonetheless indicated his plans to ameliorate the situation overall, including more judges, improved case management, and an extension of the Judicial Assistant Scheme to provide support for more judges, and his plans will hopefully bear fruit in the near future.
When, moreover, Cheung was asked about the trial of the 47 national security suspects, he said the courts could not sidestep necessary procedural steps “for the sake of having a speedy trial”. By this, he was apparently referring to the committal proceedings, which are an integral part of the mechanism by which a case is transferred from the Magistrates’ Court to the Court of First Instance. If the committal proceedings are contested, it can greatly slow the case’s progress.
If they were genuinely interested in the plight of the 47 alleged subversives, the critics would ... have been reassured that they will only be convicted if guilt is proved beyond reasonable doubt after a trial before an independent judge
However, a proper perspective must be maintained, and the bulk of cases are invariably tried within a reasonable time frame, meaning within a year or thereabouts. Thus, for example, Tong Ying-kit, who is the first person to have been convicted of national security offenses, was sentenced to nine years’ imprisonment after a contested trial in July 2021, barely 12 months after the crimes occurred on July 1, 2020.
Although the problem of trial delays is one that exists throughout the common law world, some malevolent entities have sought to sensationalize the situation in Hong Kong. Whereas any case with 47 defendants is bound to proceed slowly, there is absolutely nothing sinister about this, although they have suggested otherwise.
In May, for example, the European Commission and the European Union’s high representative, Josep Borrell, produced a Hong Kong report that was grossly biased, and asserted that “long pre-trial detentions, sometimes in solitary confinement, are also a major source of concern”. In a like vein, Hong Kong Watch, the London-based anti-China propaganda outfit, decried “a clear case of arbitrary detention of pro-democracy activists”, and called for an investigation by “senior United Nations officials”. Not to be outdone, the US-based Hong Kong Democracy Council, a Hong Kong Watch affiliate, declared that “remand has risen as a means of keeping political opponents in long-term pretrial detention”.
Although these various organizations have agendas of their own, they are united in their hostility toward the National Security Law, which explains the glaring omissions in their commentaries. All of them, for example, have ignored the lengths to which both the chief justice and the secretary for justice are going to expedite the hearing of criminal trials of all types. They also disregarded the fact that whenever there is a large case involving numerous witnesses and multiple defendants, delays are inevitable in any jurisdiction. Although, moreover, the decision to remand suspects in pretrial custody is solely one for the Judiciary, applying objective legal criteria, they pretended politics was at play.
Indeed, as they are only interested in denigrating Hong Kong, the critics have made no attempt to place the situation in a comparative context. On Aug 8, 2022, for example, it was reported in The Times that, in response to a freedom of information request from the campaign group Fair Trials, the UK’s Ministry of Justice had disclosed that in England and Wales, as of June, 3,879 suspects, representing 27 percent of the total of all remanded prisoners, had been held detained for longer than permitted by the custody time limits. Another 1,177 people had been held for longer than a year, and 533 had been in custody awaiting trial for more than two years. In response, the senior legal and policy officer of Fair Trials, Griff Ferris, said there was no justice in a system that imprisons people awaiting trial for months and years, particularly as many will ultimately be acquitted after trial.
In the United States, moreover, the situation is even worse. According, for example, to Cal Matters, the independent newsroom that analyzes California policy and politics, there are currently 44,241 people held in pretrial custody, which is three-quarters of all inmates. At least 1,317 people have been waiting in custody for more than three years, of whom 332 have been waiting for longer than five years. Of the 32 counties that supplied data, it was reported that 5,796 people had been detained for more than a year, despite not having been convicted or sentenced.
However, even though the delays in the UK and the US are far graver than anything seen in Hong Kong, they have attracted no comment, let alone criticism, from the European Commission or Josep Borrell. And even though their home turfs are involved, the delays have been ignored by both Hong Kong Watch and the Hong Kong Democracy Council. Although those who live in glass houses should not throw stones, these inveterate hypocrites are obsessed with slandering Hong Kong’s legal arrangements no matter what.
If they were genuinely interested in the plight of the 47 alleged subversives, the critics would have welcomed the news that every effort is being made to expedite their trial. They would also have been reassured that they will only be convicted if guilt is proved beyond reasonable doubt after a trial before an independent judge. Their crocodile tears, however, are meaningless, and they only see the case as a propaganda opportunity.
The author is a senior counsel and law professor, and was previously the director of public prosecutions of the Hong Kong SAR.
The views do not necessarily reflect those of China Daily.
HONG KONG NEWS