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Published: 01:46, May 17, 2023 | Updated: 10:27, May 17, 2023
Hong Kong should not tolerate proposed US sanctions on its judges
By Tony Kwok
Published:01:46, May 17, 2023 Updated:10:27, May 17, 2023 By Tony Kwok

A highly-regarded, world-renowned retired Singaporean top diplomat, Kishore Mahbubani, recently visited Hong Kong. 

He spoke at a forum on the city’s political reality, where he warned that Hong Kong should be prepared to be subject to more US sanctions amid the escalating rivalry between China and the US, as sanctions have become a convenient weapon for the US to use against its rivals and anyone who does not toe its political line. He warned that sanctions might include the US seizing Hong Kong’s reserves illegally, pointing to how the US illegally snatched $330 billion in Russian reserves and assets frozen by sanctions and held abroad.

He is right. Coincidentally, the US Congressional-Executive Commission on China (CECC) released a report on Friday, calling for sanctions on 29 Hong Kong judges presiding over national security cases.

The report and proposed sanctions are undoubtedly politically motivated. They have become low-cost aggressive tools that the US Congress can readily employ against any foreign officials who refuse to play ball. Such moves have inevitably escalated US-China tensions by attempting to undermine Hong Kong’s Judiciary and damage the reputation of the city’s rule of law.

An analysis of the US report revealed little of substance but exposed a tenuous reliance on a few court cases to support Washington’s wild accusations.

For example, the report arbitrarily calls 1,198 convicted people “political prisoners”, conveniently neglecting to clarify that only 71 individuals have been charged and convicted under national security offenses, while the rest were convicted for rioting, wounding, illegal assembly, arson, etc. They were mainly caught red-handed and arrested during the riots for carrying lethal weapons, hurling bricks or petrol bombs, targeting laser pointers at police officers’ eyes, and committing arson in public, at court buildings and banks. Some defendants were involved in the most severe offense of manufacturing bombs, including the highly destructive TATP bombs. The report also neglected to mention that many of these offenders had pleaded guilty and expressed remorse for their misconduct. The report has distorted facts to present a false and misleading account of our law enforcement and judiciary officers.

Another court case mentioned in the report is the ongoing trial of 47 defendants charged with conspiracy to commit subversion. But the report merely said they were conducting “a peaceful primary election”. What it deliberately left out is the key fact that those who participated in the “primary election” had to give an undertaking, if elected, to block all government bills and budgets to paralyze government operations. It also failed to highlight the fact that 31 of the defendants have chosen to plead guilty, with some agreeing to give evidence as prosecution witnesses. All these developments hardly constitute an unfair trial or a breach of defendants’ rights.

Understandably, the report intentionally omitted the US government’s clandestine role in the Hong Kong insurrection through its various agencies specializing in assisting foreign dissidents. It has since come to light that the protests were financed by two US government agencies — the National Democratic Institute for International Affairs and the National Endowment for Democracy — in its failed attempt to launch a “color revolution” in Hong Kong.

In calling for sanctions on judges, the report claimed: “Hong Kong judges play a role in establishing a de facto parallel legal system where basic procedural rights such as trial by jury and presumption of innocence are routinely violated.”

As Grenville Cross, a senior counsel and former director of public prosecutions of HKSAR, pointed out, all defendants in national security trials in Hong Kong are entitled to the same fair trial before an independent court as anyone charged with a criminal offense would enjoy, where the presumption of innocence applies. Nobody will be convicted unless guilt has been proven beyond a reasonable doubt, while those convicted have the right to appeal to the Court of Final Appeal.

It should be pointed out that a trial by jury has never been considered a right in the Hong Kong judicial system, nor in most common-law jurisdictions. Most international courts, such as the International Criminal Court of the United Nations, do not have a jury system and instead are presided over by a panel of judges. In Hong Kong, since the British era, over 95 percent of prosecutions have been overseen by a single judge or magistrate. In the case of national security trials in the High Court, the current system is presided over by a panel of distinguished judges, and their judgments are subject to appeals to higher courts. There is no evidence of any travesty of justice in the system.

Well, who should know better whether the accused in Hong Kong are given a fair trial than the two professional legal bodies — the Hong Kong Law Society and the Bar Association? The Law Society said the US report made “unfounded allegations” and condemned any moves to exert pressure through the implementation of sanctions against judges who are assigned to handle certain types of cases as an affront to the rule of law and judicial integrity.

Similarly, the Bar Association “sternly deplored and condemned” the US report and stressed that there is no basis at all to call into question the integrity and independence of Hong Kong judges, whose selection, appointment and discharge of their constitutional role and duties are, and must remain, free from any political considerations and interference.

Hong Kong’s Judiciary also strongly condemned the report, labeling the move “a flagrant and direct affront to the independence of the court”. Its spokesman added that “the rule of law and judicial independence in Hong Kong is guaranteed under the Basic Law. All judges must abide by their oath to exercise their judicial power independently and professionally in every case, including cases relating to national security, strictly on the basis of the law and evidence, and nothing else.”

The State Council’s Hong Kong and Macao Affairs Office condemned the report as “shameless and despicable and further proof that America was the biggest saboteur of Hong Kong’s rule of law and independent judiciary. It further exposed the arrogant, barefaced, ugly true face of US hegemony.” The HKSAR government also condemned the report in similar language.

Indeed such a report can only bring disgrace and shame upon the US Congress. They should also know that Hong Kong was ranked 22nd out of the 140 jurisdictions surveyed in the World Justice Project’s Rule of Law Index 2022, well ahead of the US at 26th. The US government and Congress are in no position to criticize Hong Kong’s rule of law system.

Nevertheless, Hong Kong should take Mahbubani’s advice to heart and be prepared for unjust sanctions. One way is for all Hong Kong residents and businesses to stay away from US financial institutions to ensure their assets cannot be arbitrarily frozen by the US government. Hong Kong think tanks should urgently conduct studies to see how we can counter US sanctions and unite all residents to fight American bullying.

Also, as Mahbubani suggested, Hong Kong must reach out and educate Americans about the true situation in Hong Kong, in particular, about how the National Security Law has restored stability to the city, enabling its residents to resume their productive lives. This can be part of what Chief Executive John Lee Ka-chiu has instructed his officials to do — tell Hong Kong stories well to the outside world.

In the same vein, former chief executive Leung Chun-ying recently suggested that Hong Kong legislators should speak up more at international level. Now is the time for them to demonstrate their commitment.

The author is an honorary fellow of HKU Space and a council member of the Chinese Association of Hong Kong and Macao Studies.

The views do not necessarily reflect those of China Daily.

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