Once the 47 suspects charged with subversive activity were committed for trial in the Court of First Instance, it was revealed that 29 will plead guilty. The trial of the remaining 18 will be held on a date to be fixed, and is likely to be lengthy. If, however, some of those who are pleading guilty agree to testify against the others, this may expedite the proceedings.
The prosecution alleges that the defendants participated in an unlawful primary election in July 2020, the purpose of which was to identify candidates to run in the (subsequently postponed) Legislative Council election in September 2020. If elected in sufficient numbers to command a majority, they would allegedly have vetoed the budget, paralyzed the Hong Kong Special Administrative Region government, and forced the chief executive to resign, thereby precipitating a constitutional crisis.
On Aug 13, 2022, the secretary for justice, Paul Lam Ting-kwok, issued a certificate indicating that the forthcoming trial will be held in the Court of First Instance without a jury by a panel of three judges. This procedure is provided for by the National Security Law for Hong Kong, which recognizes that circumstances can arise that render a jury trial inexpedient (Art.46). These include “the protection of State secrets, involvement of foreign factors in the case, and the protection of personal safety of jurors and their family members”.
Having reviewed the circumstances, Lam decided there should not be a jury trial, for several reasons. He cited the “involvement of foreign factors” in the case, his concern over the “personal safety of jurors and their family members”, and the “risk of perverting the course of justice if the trial is conducted with a jury”. In other words, he has, with the assistance of the police, conducted a risk assessment, and concluded that the interests of justice will be best served if the defendants are tried by a three-judge panel. Quite clearly, it would have been irresponsible of him to have disregarded the dangers, and there is no reason to suppose that he has not acted in complete good faith.
It is … extraordinary that China’s antagonists have so much to say about the use of three-judge panels in national security cases in Hong Kong, but nothing about nonjury trials in their own jurisdictions, and their double standards are contemptible
Although Lam’s decision was manifestly in the interests of justice, the usual anti-China critics responded hysterically. Whereas, for example, on Aug 22, the US-based Human Rights Watch claimed a trial by three judges would “deprive defendants of their fair trial rights”, the Inter-Parliamentary Alliance on China, which was created by the UK-based propaganda outfit, Hong Kong Watch, said that it showed “there is nothing left in regard to judicial independence in Hong Kong under the National Security Law”.
These pronouncements demonstrate an unawareness, firstly, that the Hong Kong Court of Final Appeal has previously decided that there is no such thing as a right to a jury trial in Hong Kong (Chiang Lily vs Secretary for Justice), and, secondly, that the Court of Appeal has explained that a jury trial is not the only means of achieving justice in the Court of First Instance (HKSAR vs Tong Ying Kit). Indeed, the vast majority of cases are tried by judicial officers sitting alone in the District Court and the Magistrates’ Court, and nobody has ever seriously suggested that defendants there do not receive fair trials. The 18 defendants, moreover, will be tried by three professional judges, and, as happens with the three-judge Court of Appeal, this will reduce the possibility of error, which should reassure everybody.
It is, moreover, recognized throughout the common law world that jury trials may be inappropriate in particular cases, including those involving national security. In the United Kingdom, for example, which harbors some of Hong Kong’s fiercest critics, the Criminal Justice Act was enacted in 2003, and this allows a trial to be conducted by a judge alone if it is decided there is a “real and present danger” of jury tampering occurring, and that, once steps are taken to neutralize the threat, the likelihood of it arising would be “so substantial as to make it necessary in the interests of justice for the trial to be conducted without a jury”.
In Northern Ireland, trials by a single judge are an established feature of the legal landscape. They were first introduced in 1973 for particular types of terrorist-related cases, and, at their peak, over 300 trials a year were being held without a jury. Although the scope for nonjury trials was somewhat restricted by the Justice and Security (Northern Ireland) Act 2007, the director of public prosecutions (DPP) can still certify that an indictable offense should be tried by a single judge if a risk exists of jurors being intimidated, and, for example, he issued 22 certificates for nonjury trials in 2017.
In 2015, when the Judicial Committee of the UK’s Privy Council considered an appeal from the Turks and Caicos Islands concerning nonjury trials, Lord Hughes said, “An order for trial by judge alone can be made where the interests of justice require it, just as in England it can only be made where it is necessary” (R vs Michael Misick). Exactly the same considerations apply in Hong Kong under the National Security Law, and a trial by judge alone can only be directed where this is justifiable in the interests of justice, and even then, only in cases where national security is involved.
In Ireland, a European Union member state, the right to trial by jury is granted by the Irish Constitution (Art.38.4), although it is not absolute. The Constitution allows the Parliament to establish “special courts” with wide powers when the “ordinary courts are inadequate to secure the effective administration of justice, and the preservation of public peace and order” (Art.38.3). In 1972, after “the Troubles” erupted in Northern Ireland, the Special Criminal Court (SCC) was created to handle terrorism-related crimes, invariably involving the Provisional Irish Republican Army.
If a case is tried by the SCC, there is no jury, and the defendant, as in Hong Kong, is tried by a three-judge panel. It is up to the DPP to decide if a case should be tried by the SCC, and he is not required to provide reasons. However, even though “the Troubles” ended with the “Good Friday Agreement” of 1998, the SCC has not only continued to operate, but has actually expanded its jurisdiction into other areas. It now handles not only national security cases, but also cases that endanger the administration of justice, as where jurors face intimidation, and cases involving serious and organized crime. This, without complaint from the EU, goes way beyond anything possible in Hong Kong for restricting jury trials.
In New Zealand, concerns over jury tampering led to the Criminal Procedure Act 2011. This enables the court, upon the prosecution’s application, to order that a defendant be tried by a judge alone without a jury if there are reasonable grounds for believing that intimidation of potential jurors has occurred or may occur, and that the effects of that intimidation can only be effectively avoided by a single-judge trial. The act also entitles a judge to order that a trial be conducted by a single judge if it is likely to be lengthy and complicated, which, again, is impermissible in Hong Kong.
In Australia, moreover, a trial by judge alone is also now permissible, where the interests of justice so require, in states such as New South Wales, Victoria, and Queensland.
As is generally recognized, the requirement of a fair trial is not determined solely by the defendant’s interests, but also by the public interest that a case be properly tried
Although the European Union has always been critical of Hong Kong’s national security legislation, the way in which trials are handled within the bloc highlights its double standards. In Greece, for example, by virtue of the Greek Constitution and the Code of Criminal Procedure, felonies are tried by a “mixed court” that consists of three professional judges and four lay judges, who determine the facts and the appropriate penalty. However, some serious felonies, including terrorism, are not tried by a “mixed court”, but by the three-judge Court of Appeal, without the lay judges, and this approach has passed muster.
In 2003, for example, members of the Revolutionary Organization 17 November, a far-left urban guerrilla grouping, were tried by the Greek Court of Appeal, the reason being that the felonies of terrorism and organized crime fall within the jurisdiction of the Court of Appeal, and not the “mixed court”. As in Ireland, therefore, the jury trial can be dispensed with not only in national security cases but also in serious crime cases. The EU has happily accepted this situation, although it objects to it in Hong Kong, the reason being, hypocrisy apart, that European jurisprudence has endorsed nonjury trials.
Although the European Convention on Human Rights (ECHR) guarantees the right to a fair trial (Article 6), the European Court of Human Rights has indicated that a State enjoys considerable freedom in choosing the means of ensuring it (Taxquet vs Belgium). The court has explained that, while Article 6 of the ECHR provides the right to a fair trial, it “does not specify trial by jury as one of the elements of a fair trial hearing in the determination of a criminal charge” (X&Y vs Ireland). In other words, the court has made clear that “there is no right under Article 6.1 of the Convention to be tried before a jury” (Twomey vs The United Kingdom). This means that, when there is an appeal, the court’s function is confined to a consideration of whether the system adopted at the trial has contributed to an outcome that is compatible with the ECHR, and in determining fairness, its focus is not on the mode of trial itself.
It is, therefore, extraordinary that China’s antagonists have so much to say about the use of three-judge panels in national security cases in Hong Kong, but nothing about nonjury trials in their own jurisdictions, and their double standards are contemptible. As is generally recognized, the requirement of a fair trial is not determined solely by the defendant’s interests, but also by the public interest that a case be properly tried. The restrictions possible in jury trials involving national security in Hong Kong are reasonable and not automatic, and are far more limited than those permissible in many other places, including the EU and the UK.
Apart, therefore, from saving Hong Kong from ruin, the National Security Law has provided it with mechanisms for the trying of cases that are practical, realistic and fair; and it is only those who endanger national security that have anything to fear.
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.