When I started prosecuting in Hong Kong in 1978, I discovered that the right to a fair trial, a basic human right in common law legal systems, was greatly valued in this jurisdiction. The Hong Kong system mirrored that of England and Wales, and the fair trial principles of the common law world were applied in courts at all levels. For example, everybody enjoyed the presumption of innocence, there was a right to counsel, anybody accused of a crime could challenge the prosecution’s evidence and give and call evidence of their own, evidence unfairly obtained could be excluded from consideration, and there would only be a conviction if guilt was proved beyond a reasonable doubt. Anybody aggrieved by a conviction or sentence could challenge it in an appeal court. Some appeals even made their way to the Judicial Committee of the Privy Council in London, then Hong Kong’s ultimate appellate tribunal.
This was the system I entered, and as time went by the rights enjoyed by residents gradually increased. In 1991, the Hong Kong Bill of Rights Ordinance was enacted, domesticating the provisions of the International Covenant on Civil and Political Rights (ICCPR). In public prosecutions, there was a seismic shift in favor of the rights of criminal suspects. It became more difficult for prosecutors to obtain convictions, and we had to work far harder to prove the guilt of those we prosecuted. This was demonstrated by the first Court of Appeal judgment on the impact of the Bill of Rights Ordinance (R v Sin Yau-ming, 1991).
By way of background, when I started prosecuting in Hong Kong, prosecutors were able to rely on “reverse onus” presumptions. For example, once the prosecution proved that an accused person had 0.5 grams of an unlawful drug in his possession, he was presumed to be guilty of unlawfully trafficking in the drug, unless he could rebut the presumption, which many found difficult. What this meant, therefore, was that the prosecution did not have to prove unlawful trafficking, and could simply rely on the fact of possession of the half gram and the mandatory presumption. This made it far easier for prosecutors like me to secure convictions. To be acquitted, the accused person was effectively compelled to give evidence, and an onus was placed on him to prove his innocence.
In the Court of Appeal, this presumption was struck down because it infringed “the right to be presumed innocent until proved guilty according to law” (Art 11(1), the Bill of Rights Ordinance). As it was the responsibility of the prosecution to prove its case, a presumption that compelled an accused to testify was incompatible with the right to a fair trial. Although prosecutors argued that the presumption was legitimate as it concerned matters peculiarly within the knowledge of the accused, namely, the reason why he possessed the drugs, the court decided the facts to be presumed did not rationally and realistically flow from what was proved. Although, as the court explained, no one doubted that drug trafficking was a serious problem in Hong Kong, the prosecution could not establish that possession of 0.5 g of heroin meant it was more likely than not the accused had it for the purpose of trafficking — if, for example, he was a drug addict, it could be for his own use over several days. In consequence of the court’s judgment, many other presumptions also fell by the wayside, and life for prosecutors was never quite the same again.
When the National People’s Congress enacted the Basic Law of the Hong Kong Special Administrative Region in 1990, there was an emphasis on continuity. This was no more evident than in relation to the legal system and the human rights regime. This ensured that, once the Basic Law became operational on July 1, 1997, Hong Kong’s legal arrangements, tried and tested as they were (and treasured by its residents), were able to continue operating as previously.
As I look back, I can say that human rights in Hong Kong are far better protected now than when I first arrived here almost 50 years ago. Not only are they constitutionally underpinned, but the culture of the legal world is far more human rights friendly. Human rights imperatives guide public prosecutors considering prosecutions, private practitioners formulating defenses, and judges deciding how to achieve just outcomes
The Basic Law not only preserves the common law (Art 8), but stipulates that the provisions of the ICCPR remain in force and are to be “implemented through the laws of the Hong Kong Special Administrative Region” (Art 39). Moreover, everybody who is charged with a crime is entitled to a fair trial “and shall be presumed innocent until convicted by the judicial organs” (Art 87). If, moreover, the Basic Law’s fair trial protections are disregarded in the gathering of evidence, the Hong Kong Court of Final Appeal has held that trial courts have a discretion to exclude the tainted evidence (HKSAR v Mohammed Riaz Khan, 2010). The inclusion of fair trial guarantees in the Basic Law was reassuring for everybody who believed that the fundamental rights to which people were accustomed before Hong Kong’s return to China should continue thereafter, and so it has proved.
This, for example, was vividly demonstrated in the recently concluded national security trial of the former media magnate, Jimmy Lai Chee-ying. He enjoyed the presumption of innocence, chose a high-powered team of six barristers to defend him (including Senior Counsel Robert Pang and King’s Counsel Marc Corlett), challenged the evidence upon which the prosecution relied, and gave evidence in his own defense. He was only convicted after the Court of First Instance had carefully evaluated the evidence and concluded he was guilty beyond a reasonable doubt. He has now chosen not to appeal, although he could certainly have exercised this right had he wished to do so.
Indeed, the way in which Hong Kong’s independent Judiciary operates under the Basic Law was vividly demonstrated on Feb 26, when the Court of Appeal quashed Lai’s two fraud convictions dating from 2022, and set aside his sentence of five years and nine months’ imprisonment (CACC 223/2022).
Although the Hong Kong SAR National Security Law (NSL 2020) and the Safeguarding National Security Ordinance (SNSO 2024) have been criticized in some foreign capitals, every Western country has national security legislation of its own. Some of their laws, including the United Kingdom’s National Security Act (2023), have rightly been called draconian. However, although some of the Hong Kong national security legislation is based on Western models, including the sabotage, technology crime and extraterritoriality provisions, which mirror the UK’s, there is one stark difference.
Whereas Hong Kong’s two national security laws are human rights heavy, those elsewhere have little or nothing to say about human rights protections. In both the NSL (Art 4) and the SNSO (Art 2), the need for human rights to be respected in their application is highlighted. The importance of protecting the guarantees embodied in the ICCPR is also emphasized. Both laws state unequivocally that human rights must be “respected and protected”, which is good news for everybody involved in criminal justice. Anybody who, for example, searches the UK’s National Security Act (2023) for similar provisions, will be disappointed.
When, moreover, the State Council issued its third white paper on Hong Kong on Feb 10, it went out of its way to stress the importance of human rights in maintaining national security in the HKSAR. The national security laws were not to be enforced in a heavy-handed way that intimidated residents and stoked concerns, but with as light a touch as the circumstances allowed. This was why the white paper said “Respecting human rights is a salient feature and important experience of the HKSAR’s efforts to safeguard national security and must be adhered to over the long term”.
In Part V, the white paper emphasized that Hong Kong’s national security efforts are “not aimed to pursue absolute or generalized security”, meaning a balanced approach is vital. If it were otherwise, a police state could result, and traditional rights could be imperiled. This is why the white paper acknowledged that Hong Kong has in place “sound provisions on the protection of human rights and freedoms enjoyed by all Hong Kong’s residents in accordance with the Basic Law and the relevant provisions of the international covenants applicable to Hong Kong”.
In other words, the central authorities have gone the extra mile to reassure everybody that residents who are law-abiding have nothing to fear from legislation designed to counter individuals who want to damage the “one country, two systems” policy and weaken China.
As I look back, I can say that human rights in Hong Kong are far better protected now than when I first arrived here almost 50 years ago. Not only are they constitutionally underpinned, but the culture of the legal world is far more human rights friendly. Human rights imperatives guide public prosecutors considering prosecutions, private practitioners formulating defenses, and judges deciding how to achieve just outcomes.
The author is a senior counsel and law professor, and was previously the director of public prosecutions of the Hong Kong Special Administrative Region.
The views do not necessarily reflect those of China Daily.
