Opinion | National Security: New mechanisms ensure fair trials

By Grenville Cross

After the National Security Law for Hong Kong was enacted on June 30, 2020, the international efforts to demonize it were aided and abetted by their local proxies. Whereas some critics concentrated on the offense provisions, others picked up on the procedural changes.

While the UK's then-foreign secretary, the hapless Dominic Raab, blasted away at everything in sight, the former governor, Chris Patten, worked himself up into a frenzy over what he called the "comprehensive dismantling of the rule of law, the independence of the judiciary".

What particularly irked some people was the provision which, in Court of First Instance national security trials, enables the secretary for justice to "issue a certificate directing that the case shall be tried without a jury on the grounds of, among others, the protection of State secrets, involvement of foreign factors in the case, and the protection of personal safety of jurors and their family members" (Article 46). Once the certificate is issued, the case becomes triable "in the Court of First Instance without a jury by a panel of three judges".

In its critique of the legislation, the Hong Kong Bar Association, then chaired by Philip Dykes, complained that "the right to trial by jury can be taken away by the Secretary for Justice on certain grounds without any residual discretion in this regard being left with the courts". It then sought international endorsement of its stance, and the International Association of Lawyers (UIA) duly obliged, declaring that the new law "poses a grave threat".

The UIA, moreover, chose to spice things up, presumably as a favor to the HKBA. Having announced that "we join with the HKBA, a collective member of the UIA, in noting with concern" the legislative provisions, it then highlighted "the deprivation of the right to trial by jury before the Hong Kong courts by simple, unreviewable decision of the Hong Kong government, without any judicial recourse". This, however, was a gross misrepresentation, not least because, in 2010, the Hong Kong Court of Final Appeal had decided, in the words of then-chief justice, Andrew Li Kwok-nang that "it is clear that there is no right to trial by jury in Hong Kong" (FAMC 65/2009). If, therefore, the UIA, like others before it, was led up the garden path by the HKBA, it must be hoped that, by now, somebody has put them straight.

That "somebody", however, will not have been the HKBA's new chairman, Paul Harris, who took office on Jan 21, and chose immediately to stir things up. When asked about his objectives, he said he would be seeking "modifications" of the National Security Law, apparently imagining that the National People's Congress Standing Committee would oblige him. Having indicated that he was "particularly concerned" over the provisions which allow criminal suspects who cannot be safely tried in Hong Kong to be tried on the Chinese mainland (Article 55), and confer exemptions upon personnel from the Office for Safeguarding National Security while discharging their duties (Article 60), he announced that he was also unhappy with three- judge panels replacing juries in some circumstances.

On Feb 5, however, after Tong Ying-kit, in the first such case, was committed to the Court of First Instance for trial for allegedly inciting secession and terrorist activity, contrary to the National Security Law, the secretary for justice, Teresa Cheng Yeuk-wah, notwithstanding Harris, issued a certificate, directing "that the case shall be tried without a jury". This, she explained, was necessary for the protection of the "personal safety of jurors and their families". If, moreover, there was a jury trial, there was, she indicated, "a real risk that the due administration of justice might be hampered".

After Tong applied to judicially review Cheng's decision, he was denied leave by Justice Alex Lee Wan-tang, who concluded that his case was not "reasonably arguable" (CACV 473/2021). Tong, however, on Dykes' advice, then appealed, but this was also dismissed, with the Court of Appeal explaining that, although jury trial is the usual mode of trial in the Court of First Instance, it is not the only means of achieving justice (CACV 293/2021). As the jurors and their families were under threat, there was a real risk, the court found, that a fair trial by jury would be imperiled, and the only assured means for achieving a fair trial was a non-jury trial by a three-judge panel. Since the Basic Law vests the control of criminal prosecutions in the Department of Justice (Article 63), the only way in which Cheng's decision was judicially reviewable was on the basis that there was dishonesty, bad faith or some other exceptional circumstance, and Tong alleged none of these.

But, although some people in the UK and elsewhere objected to Tong being tried by a three-judge panel, they were unconcerned by events closer to home. At the same time as Tong, ex-soldier Dennis Hutchings, 80, was being tried by a single judge in a non-jury trial in Northern Ireland. He was accused, at Belfast Crown Court, of attempted murder and causing grievous bodily harm, arising out of a fatal shooting during Northern Ireland's Troubles, in 1974. However, he died suddenly of a heart attack, on Oct 18, and the trial concluded.

In Northern Ireland, which, like Hong Kong, has endured terrorist-type activities and subversion, it is sometimes necessary to dispense with juries, and this is permissible under the Justice and Security (Northern Ireland) Act 2007. When this happens, the trials are conducted by one judge only, and not by three as in Hong Kong. These non-jury courts are known as "Diplock courts", after Lord Diplock, the judge who first recommended them, and they handle particular offenses. They were introduced in 1973, and, at their peak, over 300 trials a year were being held without a jury. The director of public prosecutions can, if he considers there is a risk of jurors being intimidated, certify that a trial on indictment should be tried by a single judge, as he did with Hutchings. In 2017, for example, the DPP issued 22 certificates for a non-jury trial.

Like Tong, Hutchings was aggrieved over being denied a jury trial, but, when he appealed to the UK Supreme Court, he also got nowhere ([2019] UKSC 76). Delivering judgment, Lord Kerr said it should not be assumed that trial by jury was "the unique means of achieving justice in the criminal process", and that a jury trial "can in certain circumstances be antithetical to a fair trial". When those circumstances arose, he said, the only assured means of "ensuring that the trial is fair is that it is conducted by a judge sitting without a jury".

Although, moreover, the European Convention on Human Rights 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 this (Taxquet v Belgium, 2012). The court has also noted that, while Article 6 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 v Ireland, 1980). When, therefore, there is an appeal, the court's task is confined to considering whether the system adopted has led in a particular case to an outcome that is compatible with the ECHR.

After Tong had been convicted, the usual mischief-makers mobilized. The Patten protege Benedict Rogers, operator of the London-based propaganda outfit Hong Kong Watch, announced that the verdict was "heartbreaking", and would set a "grim precedent" for "political trials", which, if nothing else, shows his credentials as a serial fantasist are as strong as ever. What, however, is most extraordinary is that, whereas the likes of Raab, Patten, Harris and Rogers profess angst over three-judge trials in Hong Kong, they ignore the single-judge trials occurring on their own doorstep. While they shed crocodile tears for the likes of Tong, the situation of people like Hutchings is of no interest.

However, putting hypocrisy to one side, Tong's case has been a groundbreaker. On the one hand, it has established that, while prosecutorial independence is constitutionally protected, the issuing of a certificate is nonetheless judicially reviewable if mala fides exists. On the other, it has shown that the legal system is capable of adapting itself to new challenges, while still upholding the most basic principle of criminal justice, the right to a fair trial.

All in all, therefore, Tong's trial has been a positive experience, with the rule of law being the big winner. Those who prophesied doom and gloom have been proved wrong, and the experience will enrich everybody involved in criminal justice. The National Security Law has not only saved Hong Kong from ruin, but has also provided legal mechanisms which are practical, realistic and, above all, fair.

(Source: China Daily)

The author is a Senior Counsel, Professor of Law and criminal justice analyst, and was previously the Director of Public Prosecutions of the Hong Kong SAR.

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