Death by a Thousand Cuts: Chipping Away at Due Process Rights in HK NSL Cases
Tong Ying-kit is virtually unknown outside of Hong Kong, but his case may mark an ominous turning point for human rights and rule of law in the former British colony. A High Court judge ruled on May 20 that Tong was not entitled to a jury trial in his pending National Security Law (NSL) terrorism case; instead, his case would be handled by a three-judge panel. The ruling marked a small but significant step backward for the rule of law in Hong Kong and is part of a larger trend of efforts by the Hong Kong government to dilute key due process rights in NSL cases.
Tong, 24, was arrested on July 1, 2020, after riding his motorcycle into a group of police officers during a pro-democracy protest on the 23rd anniversary of Hong Kong’s reversion to Chinese sovereignty. He was quickly charged with terrorism under the then brand-new National Security Law. He was also charged with the NSL crime of inciting secession because he was carrying a banner that the government deemed pro-independence. Additionally, Tong faces charges of “causing grievous bodily harm by dangerous driving” under the Road Traffic Ordinance. His trial will begin in June before Hong Kong’s High Court.
The NSL was drafted and passed by Beijing primarily to deal with key pro-democracy leaders like Jimmy Lai and Joshua Wong, both of whom have been charged under the NSL and are behind bars awaiting trial. Their high-profile political activities—and especially their advocacy in places like London, Washington and Brussels—have long irked Beijing. And yet, perhaps because his case involves an alleged act of violence, Tong’s case will be tried first.
The NSL gives Beijing a number of new tools to crack down on its perceived political enemies in Hong Kong. The law’s vague and overbroad criminal provisions have been used to target peaceful protesters and Hong Kong’s political opposition, while other provisions have been used to tighten Beijing’s control over Hong Kong’s government bureaucracy and its education system. But it also creates a new dilemma: how to ensure that Hong Kong’s world-class judiciary, justly famous for its commitment to the rule of law, will deliver guilty verdicts under the NSL, even when doing so would go against the human rights protections found in the Basic Law, Hong Kong’s mini-constitution? One could argue that cases like Tong’s are better handled outside the NSL. As far as is publicly known, Tong acted alone, and did not engage in the extensive planning and staging that is often a hallmark of acts of terrorist violence elsewhere in the world.
The charge of inciting secession against Tong poses a further dilemma: How can the charge, which seeks to criminally punish Tong merely for carrying an allegedly pro-independence banner, be reconciled with the Basic Law’s guarantee of the right to free speech?
In many ways, the NSL is a game-changer for Hong Kong’s legal system. Its four new criminal provisions are vague and overbroad, and they have already been used to bring charges against peaceful protesters and longtime opposition politicians. The law also dramatically expands the investigatory powers of the Hong Kong police and precludes any judicial review of the actions of newly created national security bodies.
But will those tools be enough? Courts have the power to narrow vague criminal laws, and expanded investigatory powers can’t help find evidence that doesn’t exist. Even the NSL itself refers to the need to protect human rights, a provision that the courts could use to block efforts to prosecute activists, opposition politicians and others merely for exercising their basic rights to free expression, association and assembly.
It seems clear that Beijing has anticipated this potential hurdle. Over the past few months, a new prong of Beijing’s strategy has emerged: chipping away at core due process protections, which in turn will make it easier to press judges to deliver guilty verdicts. The Hong Kong government, almost certainly acting in close coordination with the mainland Office for Safeguarding National Security, has taken steps to limit several key procedural protections in NSL cases. These include not just the right to trial by jury but also the rights to bail, to an attorney of one’s choosing, and to open and transparent judicial decision-making. Taken together, these moves constitute a direct assault on the rule of law in Hong Kong and may ensure that Beijing is able to achieve a number of criminal convictions in pending NSL cases that otherwise might prove elusive.
Take the right to a trial by jury, which has been a part of Hong Kong law for more than a century. The right is enshrined in Article 86 of Hong Kong’s Basic Law, which states quite clearly that “the principle of trial by jury previously practiced in Hong Kong shall be maintained.” In practice, cases before Hong Kong’s High Court have been routinely tried before juries, and neither prosecutors nor judges had the power to force a defendant to accept a non-jury substitute.
Yet Article 46 of the NSL allows for some cases to be tried without a jury if the secretary for justice believes that such a move is necessary to guard state secrets, to prevent foreign interference, or to protect the safety of would-be jurors and their family members.
Legal experts, both in Hong Kong and beyond, acknowledge the role that jury trials play in guarding against politically motivated prosecutions—when prosecutors know that they will have to convince a group of disinterested citizens of a defendant’s guilt, they will be less likely to try to prosecute individuals merely for criticizing the government.
The right to trial by jury also plays a key role in preserving judicial independence, by ensuring that judges cannot be so easily pressured by government officials to deliver guilty verdicts. Hong Kong’s Court of Final Appeal—essentially the city’s Supreme Court—has itself affirmed this point in a 2001 case, noting the role that juries play in bolstering judicial independence.
Tong’s counsel, prominent defense lawyer Philip Dykes, also raised the direct connection between jury trials and judicial independence during the May 10 hearing on the prosecution’s move to hear Tong’s case before a judicial panel. “Trial by jury helps ensure the independence and quality of judges … by ensuring that they, and not judges appointed by the executive, actually deliver a verdict in a prosecution started by the government,” Dykes said. Dykes also noted that jury trials “might afford a defendant some protection against laws which they find harsh or oppressive.”
In Tong’s case, the prosecution has claimed that the elimination of the jury was necessary to protect the safety of potential jurors and their family members. Yet the jury system has worked well in Hong Kong for decades, including in high-profile cases against other pro-democracy activists. Prominent pro-independence activist Edward Leung was tried by jury in a rioting case in 2018, for example. His trial proceeded smoothly, with no reports of any efforts by outside actors to pressure members of the jury. Leung was eventually convicted and sentenced to six years in jail.
As the Leung case and many others like it demonstrate, Hong Kong prosecutors are highly experienced in making their case to a jury, and the system as a whole includes ample protections to protect jury members from intimidation or retaliation. Why, then, are the authorities seeking to eliminate the jury in Tong’s case? Is it because they fear that a jury might be more likely to conclude that Tong’s alleged actions don’t meet the high bar for a terrorism conviction? Or have they concluded that juries are indeed more insulated from the rising political pressure that is being brought to bear on Hong Kong’s judiciary?
Whatever the reasoning behind the government’s move, the decision in Tong’s case sets a troubling precedent. Now that Tong’s trial will move forward without a jury, the government will almost certainly press for most if not all other NSL trials to also forego juries, aided by the fact that the decision in Tong’s case grants significant leeway to prosecutors over such questions.
Sadly, it’s unlikely that the government will stop at jury trials. Further efforts to trim procedural rights will likely emerge in the months to come. Many observers in Hong Kong fear that the government will push for some NSL cases to be closed to the public and the media, for example. Though closed trials are permitted by Article 41 of the NSL, such a move would nonetheless represent a significant step backward for judicial transparency in Hong Kong.
Taken together, the government’s efforts to limit due process rights will deeply compromise the right of those accused of NSL crimes to a fair trial. In essence, the government is attempting to create a dual-track criminal justice system in Hong Kong. The first track will be for “normal” non-NSL crimes, in which Hong Kong’s judicial system will operate more or less normally. The second track, for NSL crimes, will look quite different. Cases tried on this second track will be less transparent and less concerned with the procedural rights of defendants, and they will likely be seen in the eyes of the Hong Kong public as failing to deliver fair and just verdicts.
In other words, Tong Ying-kit may be the first NSL defendant to be denied his right to a jury trial, but he almost certainly will not be the last. The international community should take note. Judicial independence in Hong Kong is under enormous strain, and the worst may be yet to come.
(This article is co-authored with Thomas E. Kellogg, and published in Lawfare on 28 May 2021. Available at: https://www.lawfareblog.com/contributors/eyanholai )