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Opinion | National security arrests: Criminal justice dominant throughout entire process

By Grenville Cross

After 55 individuals were arrested on January 6-7, on suspicion of subversive activity, there was an outcry in some places. The US Secretary of State, Mike Pompeo, for example, in another of his knee-jerk reactions, threatened retaliation against the officials involved, and restrictions on the Hong Kong Economic and Trade Office in Washington, DC. The case, however, is still at a very preliminary stage, and it is far too early to say if any of the arrestees will actually be prosecuted, let alone convicted.

Once the police receive a complaint that a crime has been, or may have been, committed, they are duty-bound to investigate, unless it is frivolous or otherwise bogus. However, before they can arrest anybody, they are legally required to have a "reasonable suspicion" that the suspect is involved in a crime, which is quite a low threshold. Having interviewed the suspect and pursued other inquiries, they may conclude that there is no case to pursue, and that will be it.

If, however, the police consider there is sufficient evidence, they will submit the case to the Department of Justice for legal advice. Before prosecutors can authorize a prosecution, they must be satisfied that there is a "reasonable prospect of conviction", which is a higher test than the one used for arrest. If prosecutors give the go-ahead, the test at trial will be even higher, with guilt having to be proved "beyond reasonable doubt".

As things stand, the police suspect that the arrestees were involved in a sophisticated plan to paralyze the government and bring chaos to society, with even force being contemplated. As a prelude, opposition forces held their so-called "35-plus" primary last July, designed to whittle down the 52 individuals who wished to stand as candidates in the forthcoming legislative council elections, subsequently postponed. This would ensure that only those candidates with the best chance of winning would stand, thereby avoiding split voting.

Although primary elections, of course, are held in many places to select the most suitable candidate to contest an election, it appears that was not the real intention here. The purpose was to select candidates who were prepared, once the opposition-controlled over 35 seats in the 70 seat legislature, to reject not only the government's funding proposals, but also its annual budget, regardless of the social damage this would cause. Once this happened twice, the chief executive would, under the Basic Law, be forced to resign, provoking a constitutional crisis, including confrontation with the central authorities. The blueprint for what was envisaged was contained in the "ten steps to real 'laan chau'", meaning "mutual destruction", which was the brainchild of an academic, Benny Tai Yiu-ting, but this was not all.

Ahead of the "35-plus" primary, an activist group, which included the professional agitators Joshua Wong Chi-fung and Nathan Law Kwun-chung, issued a joint statement, which sought to build on Tai's blueprint, and others were urged to sign up. They planned to use the budget veto in order to blackmail the government into agreeing to the discredited "five demands" of the protest movement, including an inquiry into the police force and the dropping of criminal charges against rioters and others being prosecuted for protest-related violence. Although the more moderate candidates were chary of signing up to this, realizing it was contemptuous of the rule of law and might also result in their future disqualification, the Civic Party, even though dominated by lawyers, meekly signed up.

The "35-plus" primary was held on July 13, just two weeks after the National Security Law for Hong Kong was enacted, on June 30. Before the primary, the chief executive, and others, warned the organizers and the candidates that it was potentially subversive, as its rationale was to seize control of the legislative council and vote down government proposals, irrespective of their merits. This warning, however, was ignored, and the primary, in which 610,000 people voted, resulted in extremists, bent on chaos, being selected. There was, moreover, more to this than met the eye, as subsequently became apparent.

According to the police, once their investigations got underway, they discovered that the primary's organizers allegedly made financial payments to the participants, which seems extraordinary. The payments ranged from HK$4,000 to HK$290,000, and this obviously requires explanation, not least because the exchange of money is not, certainly on this scale, customary in any normal primary. If proved, it may, moreover, be suggestive of bribery. As investigations continue, the police have frozen HK$1.6 million related to the poll, and the plot thickens.

Whereas six of the suspects were arrested on suspicion of subverting state power by organizing primary elections designed to paralyze the government, the others were suspected of participation in the conspiracy. A plan to bring the government down, if backed up violence or other criminality, would undoubtedly be subversive. According to the Secretary for Security, John Lee Ka-chiu, "they had a 10-step mutual destruction plan, in which they would mobilize mass-scale riots in streets, together with other actions to paralyze the society, coupled with international sanctions". If these elements are established, the challenge for the police will be to fix the arrestees with the necessary knowledge of what was afoot, whether by direct evidence or inferentially.

Quite clearly, the factors Lee listed are relevant in proving subversion under the National Security Law (Art.22(3)). In this case, although the "mutual destruction" project never reached its finale, it was planned, and this, if proved, will suffice. The basic ingredients, therefore, include planning, by the use of force, the threat of force or other unlawful means, to subvert state power, by seriously interfering in, disrupting or interfering with, the work of the city's government. When the "35-plus" strategy and the "10 steps" plan are taken together, a prima facie case of subversion is certainly discernible, although the prosecutors, before they proceed, will need to satisfy themselves that they constitute an unequivocal plan of action.

In some criminal cases, it is not always necessary to prosecute everybody who is implicated, particularly if their role is minor. Although 55 people have been arrested, they do not all have to be prosecuted, even if there is enough evidence to do so. The masterminds are the real culprits, and if lesser figures are prepared to assist the prosecution by giving evidence against them, it may be in the public interest to give them an immunity from prosecution. In particular, if they can shed light on any of the extra-parliamentary activities which were contemplated to create mayhem, this could greatly assist the prosecutors.

A fully focused prosecution, moreover, which concentrates on the principal suspects, has much to commend it. Once the trial, assuming there is one, gets underway, the defendants are likely to raise intensive legal arguments over the impact on the case of the human rights guarantees contained in the Basic Law and the Hong Kong Bill of Rights, and distractions are best avoided. This apart, a trial with multiple defendants and a mass of evidence can result in confusion, which the accused can turn to their advantage, as has sometimes happened in, for example, fraud prosecutions. Quite clearly, a prosecution which is over-sized and unwieldy can be a nightmare for the triers of fact, particularly if there is a trial by jury. Although a series of consecutive trials is a possible means of resolving this, it is normally undesirable. When the same witnesses are required to testify multiple times about the same events in different trials, problems of recollection and consistency invariably arise, which affects the reliability of the evidence, and can result in inappropriate acquittals.

It is not likely that any suspects will be charged in the near future, and the decisions must not be rushed. Before anybody is prosecuted, the evidence will have to be fully assessed, and the impact of likely lines of defence evaluated. Prosecutors, after all, are gatekeepers, who must ensure that only meritorious cases proceed to trial. If, however, they conclude that a prosecution is appropriate, they must do their duty, without regard to possible reactions. Their ultimate challenge is to uphold the integrity of the prosecutorial system, and thereby the rule of law, in the face of those who wish to harm their city and undermine their country.

 

Grenville Cross is a Senior Counsel and Professor of Law, and was previously the Director of Public Prosecutions of the Hong Kong SAR.

The views do not necessarily reflect those of DotDotNews.

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