On July 27, the Court of First Instance in Hong Kong, consisting of a panel of three High Court judges, delivered judgment on the first case prosecuted under the National Security Law for Hong Kong, when it convicted restaurant worker Leon Tong Ying-kit on charges of terrorism and secession incitement by ramming his motorcycle, bearing the flag of a pro-independence slogan, through several police checkpoints before coming to a halt after striking and injuring three police officers on July 1, 2020, the Hong Kong Special Administrative Region Establishment Day and the first day of the implementation of the NSL.
Within minutes of the judgment, many international media quickly uploaded the news onto their websites, including the BBC, The Wall Street Journal, Nikkei Asia and The Straits Times, highlighting the first conviction under the NSL which they claimed would mean a curtailment of freedom of speech in Hong Kong, and emphasizing that it was a trial without a jury, etc.
It would have presented a more accurate and credible accounting of the trial had it been held in an open court under the glare of television lights. A picture tells more than a thousand words. To hear the verdict delivered by the chief judge in the solemnity of the courtroom would show how strictly we adhered to the common law system by arriving at the final judgement based entirely on evidence. The 62-page Reason for Verdict should further dispel any misunderstanding of our judicial system and the NSL by any foreign governments and media organizations.
While the NSL may not be drafted with the refined legal terminologies characteristic of Western common law jurisdictions, the NSL was drafted by the National People’s Congress of the People’s Republic of China. And this law is based on the continental (or Romano-Germanic) legal system, like Japan and many European countries, where the spirit of the law is regarded as more important than the rigid interpretation of the wording. This also occurs in common law. For example, the now-familiar common law offense of “misconduct in public office” has no legal definition on our statute books. It relies on the development of case judgments to spell out the legal requirements for conviction. Thanks to the three judges’ diligence, they have clearly fulfilled their difficult task in clarifying the law and evidence pertaining to the two offenses under the NSL.
It is noted that when the defendant (Leon Tong) was arrested by police, he exercised his right of silence throughout the police inquiry. At the court, he also chose to remain silent and not to enter the witness box for testimony and be subject to cross-examination. Such right of silence has long been abolished in many common law jurisdictions, including Singapore, and is nonexistent in the US military detention center in Guantanamo Bay!
In their Reason for Verdict, the court outlined all the necessary ingredients of the two offenses — incitement to secession and terrorism. The court compared vigorously the requisite elements of the offenses with the evidence presented in the trial before coming to the indisputable conclusion of conviction. The judges should be commended for providing a summary at the end of the Reason for Verdict for easy reference by laymen. It includes two important points. Firstly, the court ruled that the slogan “Liberate Hong Kong; revolution of our times”, although capable of carrying a secessionist meaning, may not in itself be an offense. One has to examine the circumstance of its display, so as to determine whether such a display of the words was capable of inciting others to commit secession. It thus provides a clear and reasonable boundary for the right to free speech. Secondly, in line with the common law rules, the prosecution must prove the mens rea of the defendant, that is verifying that the defendant understood the slogan to carry a secessionist meaning, and that he intended to communicate the secessionist meaning of the slogan to others and to incite others to commit secession. This is a heavy burden of proof for the prosecution.
The prosecution cited evidence where the defendant purposely displayed the slogan on his motorcycle and drove through several major thoroughfares on Hong Kong Island on the HKSAR Establishment Day as well as the first day of the implementation of the NSL, purposely disregarding all police checkpoints, before eventually deliberately crashing into a line of policemen, inflicting serious injuries to three officers. All these were unmistakable acts designed to incite others to secession and inflict serious violence against the police force — the undisputed vanguard of Hong Kong’s law and order — which is clearly an act of terrorism.
There were criticisms that this case was not tried by jury. This issue was challenged by the defense with the launching of a judicial review, which was dismissed by the High Court as well as the Court of Appeal. Hence the procedural justice was followed. As emphasized by the judges in their Reason for Verdict, “Although this is a case presided over by a panel of three judges, the legal principles such as the burden of proof, the standard of proof, the presumption of innocence and the right to a fair trial, apply in this case as much as they apply in any criminal case tried in the Court of First Instance with a jury. In fact, it has never been suggested that unfairness would result when a defendant is tried without a jury for, in our Magistrates’ Courts and district courts, all the cases are tried without a jury. Further, in the aforesaid judicial review application made by the defendant concerning the certificate, he frankly, and rightly so in our view, accepted that there could be a fair trial whether the case is tried with or without a jury.” The meticulous Reason for Verdict has demonstrated that there is no injury to justice despite this being not a jury trial, and in any event, this verdict is appealable to the Court of Appeal as well as the Court of Final Appeal. Any suggestion that the NSL has jeopardized the rule of law in Hong Kong by depriving the right of jury has no basis in fact nor merit.
Clearly, the judgment has set an excellent precedent for all future NSL cases, as guidance both for the prosecution as well as the defense. The public should now be warned not to shout or display any secessional slogans so as not to attract suspicion on themselves of such a serious offense, punishable with a maximum sentence of life imprisonment.
The Department of Justice should be congratulated for the successful prosecution of this case. It is a pleasant change to note that the Office of Public Prosecutions did not follow the old practice of engaging outside senior counsels to prosecute high profile cases. This practice demonstrates a lack of commitment of the prosecution chamber as it deprives its staff of the opportunity to gain valuable court experience. The prosecutor in this case is the acting deputy director of public prosecutions who has clearly done a commendable job, while confronting a very senior and experienced defense counsel.
It is noted that when the defendant was arrested by police, he exercised his right of silence throughout the police inquiry. At the court, he also chose to remain silent and not to enter the witness box for testimony and be subject to cross-examination. Such right of silence has long been abolished in many common law jurisdictions, including Singapore, and is nonexistent in the US military detention center in Guantanamo Bay! Such a right of silence for national security cases should be abolished to better deal with the threats to national security, particularly if foreign interference is believed to be involved.
A threatening call was made by an unidentified person after the judgment was made public to “bomb the three judges and to chop them to pieces!” Police should make every possible effort to catch the culprit. Under Section 24 of the Crimes Ordinance, anyone found guilty of such threatening behavior faces up to five years in prison. This ties in with most people’s belief that the opposition camp and their radical supporters are the main threat to our rule of law. Their nefarious intentions were made clear when they placed firebombs in different courts during the 2019 riots. It highlights the need for the proposed legislation on the registration of all cellphones’ personal particulars to facilitate police investigations into such heinous crimes.
Regarding this open challenge to the judiciary, I noticed a deafening silence from the Hong Kong Bar Association. They couldn’t even bring themselves to issue a token statement of condemnation of such an outright challenge to our judicial system!
Finally, I would urge the judiciary to seriously consider my earlier suggestion that the judges’ delivery of Reason for Verdict be televised live in open court. This would be a good first step to enhance transparency in the judiciary and strengthen public confidence in our rule of law.
The author is an adjunct professor of HKU Space, a council member of the Chinese Association of Hong Kong and Macao Studies, and a former deputy commissioner of the Independent Commission Against Corruption.
The views do not necessarily reflect those of China Daily.