CCP Wants ‘100% Guarantee of Conviction’ in Hong Kong National Security Law Trials, Re-Interprets, Distorts HK Law

Police ask supporters to leave during the court hearing of Tong Ying-kit, the first person charged under a new national security law near the High Court, in Hong Kong, on July 30, 2021. (Tyrone Siu/Reuters)

The trial of the 47 primary election democrats, suspected of violating the National Security Law (NSL), is currently being heard at the High Court of Hong Kong.

In contrast, the trial of Jimmy Lai Chee-ying, founder of the now-defunct Apple Daily and Next Media Group, is said to begin in September.

Following the government’s revision on restricting overseas lawyers from representing national security-related suspects and defendants, the Hong Kong government has again proposed to edit another  Criminal Procedure Ordinance law to ensure the prosecutors would get a favorable appeal.

The proposed ordinance, once passed, will mean the Department of Justice can file for an appeal should the Hong Kong High Court find a defendant not guilty in any national security law case.

The Hong Kong government also plans to allow The Court of Appeal to issue an order for retrial.

Local commentators on current affairs point out that the amendment to the Criminal Procedure Ordinance shows that the Chinese regime does not trust the national security, law-appointed judges. The government is concerned that the appointed judges, who received legal training in the West, may accidentally make a mistake on trial verdicts.

On April 21, the Department of Justice of Hong Kong proposed to amend the Criminal Procedure Ordinance so that if any of the three NSL-appointed judges acquit or conclude any defendant not guilty, The Justice Department may file an appeal, using Section 84 Appeal by way of case stated within 14 days, to overturn an acquittal of the Court of First Instance.

Once the prosecutors have submitted the appeal application, the High Court can detain the defendant, grant bail, and apply for a warrant to arrest the defendant.

President of the Law Society of Hong Kong, Chan Chak-ming, and Chairperson of the Hong Kong Bar Association, Victor Dawes SC, have confirmed with the media that they have also received the related documents and will offer their consultation advice to the DOJ accordingly.

The Department of Justice responded to The Epoch Times in response to its inquiries on April 22, and the department said it was consulting its stakeholders.

According to the department, the new proposed appeal mechanism is to appeal “by way of a case stated,” which blueprints Section 84 of the District Court Ordinance. The request, however, must only involve legal matters.

The Department of Justice also added that the Legislative Council must legislate the new appeal mechanism as soon as possible. Once the stakeholders’ opinions are reviewed and considered, the proposal will be forwarded to the Panel on Administration of Justice and Legal Services of the Legislative Council for further deliberation.

Aiming for 100% Convictions in NSL Cases

Guest Professor Chan Man-ming of the Faculty of Law at the University of Hong Kong emphasized that in the past, the Court of First Instance of the High Court did not have a case-stated appeal since a jury decided on verdicts.

However, no jury exists in any of the NSL trials.

The professor reckoned that if the three appointed judges somehow “misinterpreted the law” and acquits a defendant against the regime’s wishes, the prosecutors might appeal on legal principles.

Chan asked, “Does it mean all national security trials must end with a guilty verdict to guarantee the absence of any loophole?”

Secretary for Security, Chris Tang Ping-keung, said at a public event on April 13, that since the NSL came into effect on June 30, 2020, about 250 people had been arrested.

Of the 250 arrestees, 151 civilians and five companies have been prosecuted, and 71 trials are complete, all resulting in conviction.

CCP May Lack Trust In Their Hand-Picked NSL Judges

Hong Kong Current Affair Commentator and lawyer Sand Pu spoke of the proposal on April 21.

Pu said, “This amendment proposal reflects the CCP does not trust their so-called appointed judges at the Hong Kong High Court. That is because the appointed judges received western legal training; the CCP worries that there may be unexpected outcomes in the verdicts.”

Pu then explains that the Political and Legal Affairs Commission of the CCP, has branches to supervise mainland China’s judges.

The vast majority of national security trials are based on unclear, so-called legal concepts, including subversion, incitement, conspiracy, and separatism, which are political issues, and have nothing to do with objective facts.

Unlike the District and Magistrates Courts in Hong Kong, Pu highlighted; usually, juries would attend criminal trials at the Court of First Instance of the High Court. The juries would spend a long time deliberating the facts and legal issues. Therefore everyone respected the selected jury’s judgment on the cases.

That is why prosecutors can only appeal per legal dispute.

The National Security Law clearly stated that no jury would be present in national security-related trials. The CCP was only willing to hand over the verdict power to a small group of limited, assigned judges that it could control.

Common Law Is An Empty Shell

Former RTHK satire show host and media professional Ng Chi-sum described the amendment as “terrifying” on April 21. Ng suspected that if the Hong Kong Government wanted to try until convicted and criticized, the Common Law would be an empty shell.

From assigning NSL cases to only approved judges, closed-door trials without juries, to banning overseas lawyers from representing NSL-charged defendants, as well as detaining defendants for two years before trials, Ng questioned if Hong Kong judges could still defend the rule of law since Hong Kong judicial system was no longer independent.

In 2022, Jimmy Lai Cheei-ying, founder of the now-defunct Next Media Group, was approved to hire British counsel Tim Own to represent Lai. Despite the Department of Justice’s opposition, it lost all three appeals at the Court of Final Appeal of Hong Kong.

The Hong Kong Government, at the same time, urged the CCP’s National People’s Congress to “interpret the law” and require the Hong Kong Chief Executive to sign off an approval certificate before granting any defendant to hire any overseas lawyers for trials related to national security.

The HKGov subsequently proposed and revised the Legal Practitioners Ordinance of Hong Kong following “the interpretation of the Beijing government.” The amendment also allows the government to determine if an acting or practicing barrister or board would endanger the national security of Hong Kong and the CCP.

The Committee of the Legal Practitioners Bill Amendment, 2023 of the Legislative Council, quietly consulted the public opinion in writing for only seven days, from March 31 to April 6 (5 p.m.). However, the public consultation only lasted four days since the period spanned the Ching Ming Festival and the weekend.