Opinion | Judiciary's role in the conduct of cases under National Security Law

By Grenville Cross

Editor's note: Grenville Cross SC delivered an opening speech at a forum organized by the Law Society of Hong Kong on Tuesday (July 11). The following is the script of his remarks.

I am grateful to the President of the Law Society for inviting me to participate in today's forum, and I will share with you my thoughts on how the judiciary has conducted itself under the National Security Law (NSL), which was enacted just over three years ago. Before doing so, however, I will, for the benefit of those not familiar with our judicial system, provide a context.

National Security Law: Judicial oversight

Both before and after the reunification in 1997, Hong Kong's greatest asset has been the rule of law, operated by its independent judiciary. It is fortunate to have one of the most professional judiciaries in the Asia-Pacific Region, and its judges are invariably of the highest caliber. Whereas, before 1997, judicial independence was based purely on convention, it is now guaranteed by the Basic Law, the city's mini-constitution, which stipulates that the courts "shall exercise judicial power independently, free from any interference" (Art.85).

What this means, therefore, is that the city's judges now operate from a secure base that is, for the first time, constitutionally protected, and this is obviously reassuring for them. They dispense justice impartially, and they enjoy public confidence for the way in which they have ensured the continued success of the legal system after 1997. This is why, for example, in the World Justice Project's Rule of Law Index 2022 (the world's leading source for original, independent data on the rule of law), Hong Kong was ranked 22nd out of the 140 places surveyed, ahead, for example, of the US, at 26th, Italy at 32nd and Greece at 44th. This was no mean feat, and the judiciary deserves great credit for it, particularly the Hong Kong Court of Final Appeal (HKCFA).

The HKCFA, as the successor to the Judicial Committee of the Privy Council, oversees the legal system, and currently comprises four distinguished local judges and eleven eminent overseas jurists from other common law jurisdictions, Its overseas members, who sit as non-permanent judges, include two former Chief Justices of Australia (Robert French and Murray Gleeson), the former Chief Justice of Canada (Beverley McLachlin), and two former Presidents of the UK Supreme Court (Lords (Nicholas) Phillips and (David) Neuberger).

The HKCFA'S judgments are invariably impeccable, and are often cited with approval elsewhere in the common law world, which, given its expertise, should surprise nobody. Whereas one of its jurists, the UK's Lord (Jonathan) Sumption, has explained how the NSL "guarantees human rights," another, Canada's Beverley McLachlin, has said "the Court is completely independent and functioning in the way I was used to in Canada." She also observed, "There's no government influence, and, if there were, I wouldn't be there."

Although this positivity is the last thing that those elsewhere who claim that the rule of law is on its last legs want to hear, it is immensely reassuring for the people of Hong Kong, who trust their courts.

The HKCFA's latest recruit, appointed earlier this year, is the former Chief Justice of the Federal Court of Australia, Patrick Keane. When asked about his appointment, he explained: "how successful the Court has been in defending the rule of law." Quite clearly, jurists of this quality would not be serving on the HKCFA if the NSL had in any way affected their capacity to administer justice and uphold the rule of law in Hong Kong.

National Security Trials: Common law procedures

In national security trials, the roles of the participants are exactly the same as in other criminal cases, and the system is firmly rooted in the common law tradition. Whereas suspects enjoy the presumption of innocence, prosecutors only bring charges if there is a reasonable prospect of conviction on the evidence and it is in the public interest.

At trial, the accused person is entitled to the services of legal counsel, and he can cross-examine the prosecution witnesses and give and call evidence on his own behalf. There can only be a conviction if the prosecutors have established guilt beyond a reasonable doubt, a high threshold.

If convicted, the convicted person can, as provided for by the International Covenant on Civil and Political Rights (which is specifically protected by the NSL), challenge his conviction and sentence by an appeal to a higher court, up to and including the HKCFA.

National Security Trials: Designated judges

One of the NSL's provisions involves the choice of judges to try national security cases. The NSL requires the Chief Executive to designate judges "to handle cases concerning offence endangering national security" (Art.44). It has been suggested this means that only judges will be selected who can be relied upon to convict, but this could not be further from the truth.

Every designated judge comes from the existing judicial ranks, and will already have established his or her credentials. Under the Basic Law (Art.88), the Chief Executive appoints judges on the recommendation of an independent body, the Judicial Officers Recommendation Commission (JORC), chaired by the Chief Justice. The Basic Law further stipulates that judges and other members of the judiciary shall be "chosen on the basis of their judicial and professional qualities" (Art.92).

The JORC has itself particularized the qualities required for judicial appointment. These include honesty, integrity, industry, independence and intellectual capacity, outstanding competence as a lawyer and professional excellence, mastery of facts and law, vision, drive and leadership qualities, and an ability to work with others and command respect. Once, therefore, a judge has passed through all these processes, he or she will be qualified to undertake whatever cases are assigned, although some judges will obviously be more talented than others.

What this means, therefore, is that judges are selected without regard to politics, and on the basis of their character. When judges are, as in Hong Kong, selected by an independent body, it promotes respect for judicial authority. All judges designated to handle national security law cases will have been carefully vetted by the JORC before they were first appointed to the judiciary, and they will have excelled thereafter in their judicial careers.

During their careers, judges may be chosen to handle certain types of cases, as where a particular expertise is required. Some judges, for example, invariably handle criminal cases, and are not usually selected to try other matters. Sometimes judges are chosen to handle specialized legal areas, such as those involving admiralty issues, family law questions or judicial review. There is certainly nothing new in choosing "horses for courses," and, when the Chief Executive designates particular judges to handle national security cases, because of their impeccable credentials, there can be no legitimate concerns.

Since the Chief Executive, as a non-lawyer, will know little, if anything, about the qualities of the various judges, it follows, as the NSL envisages, that the Chief Justice is consulted during the designation process (Art.44). Those designated, who serve for one year, which may be extended, are not, as some people imagine, a special breed, but come from the existing judiciary, where they will already have proved their worth.

As the former Chief Justice, Geoffrey Ma Tao-li, explained when the NSL was enacted in 2020, the only criteria for the appointment of designated judges are their judicial and professional qualities, and this means that "judges should not be designated on the basis of any political considerations." It is noteworthy that judges of foreign nationality are not excluded from being designated judges, which is remarkably open-minded and certainly does not happen elsewhere.

Once judges are designated by the Chief Executive, the focus switches to the judiciary to decide who does what case. The assignment of particular cases is the responsibility of the court leaders themselves, not the Chief Executive. This is exactly the same procedure applicable to other criminal cases, and about which nobody has ever complained.

Once designated, judges adhere to their judicial oath, which requires them to "administer justice without fear or favor, self-interest or deceit," just as they do in all other criminal cases. As the current Chief Justice, Andrew Cheung Kui-nung, has explained, this means that "there is no question of the impartiality of our courts being affected by this special arrangement under Article 44". Judicial independence, moreover, is, he said, "constitutionally guaranteed by the Basic Law" (Articles 2, 19 and 85). It is clearly reassuring for everyone who values the rule of law that the national security trials have all been handled by professional judges of high standing, applying common law principles.

Given their extreme sensitivity, national security cases are only handled by judges of the highest quality. They will need to have demonstrated expertise, judgment and professionalism, and those judges designated so far have invariably proved their worth. As some national security cases involve highly sensitive material, the NSL provides, as an elementary precaution, that a judge will not be designated if "he or she has made any statement or behaved in any manner endangering national security" (Art.44).

Quite clearly, cases which may involve the nation's very survival cannot be handed out to any Tom, Dick or Harry. They must be entrusted to the very best of the city's judges, by which I mean judges of the highest quality with a proven track record for excellence. This is what is now happening, and nobody need to feel concerned.

National Security Trials: Three-judge panels

Although jury trials are the norm when serious cases are transferred to the Court of First Instance of the High Court, there has never been a right to trial by jury in Hong Kong, and most cases are tried without a jury. The NSL recognizes that circumstances can arise whereby a jury trial is not in the interests of justice.

Although a jury trial is certainly possible, there are situations in which another means of achieving justice is necessary, and it does not affect the fairness of the trial. Where, therefore, the Secretary for Justice issues a certificate directing that the accused 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," the NSL provides that the case will be tried in "the Court of First Instance without a jury by a panel of three judges" (Art.46).

After the Secretary for Justice has issued the certificate, that is normally the end of the matter. Once the Secretary concludes, for example, that the jurors or their family members are under threat and that a fair trial by jury is no longer possible, the only realistic remedy is a non-jury trial by a 3-judge panel. As the Court of Appeal explained in Tong Ying-kit's case (CACV 293/2021), which involved the first NSL trial, the Secretary's decision is a prosecutorial decision within the ambit of the Basic Law, which stipulates that the Department of Justice "shall control criminal prosecutions, free from any interference (Art.63).

The Court of Appeal also emphasized that the jury trial is not the only means of achieving justice in the Court of First Instance, and that the bulk of criminal cases are tried by judicial officers sitting alone in the District Court and the Magistrates Court. Indeed, it would have been perfectly consistent with the practice in the lower trial courts for the NSL's drafters to have decided that national security trials in the Court of First Instance would also be tried by a single judge, and nobody could seriously have complained. However, in their wisdom, and undoubtedly to allay concerns, the drafters decided that, if a national security case was not going to be tried by seven jurors, then a 3-judge panel was the preferred alternative, undoubtedly reasoning that, as in the Court of Appeal, three heads are better than one.

If, moreover, a party is aggrieved by a decision of the Secretary for Justice to issue a certificate dispensing with a jury trial, it can be challenged by means of judicial review in some circumstances. These arise if it can be shown the decision was taken in bad faith, or it resulted from an unlawful prosecution policy, or it was otherwise perverse. So safeguards exist against any possible abuse.

Although the NSL's 3-judge panel provision has attracted criticism, it has invariably come from people unfamiliar with developments in other common law jurisdictions. After all, Hong Kong's legislation is by no means unique, and, for example, in the UK, the Criminal Justice Act (2003) allows a trial to be conducted by a judge alone if it is decided there is a "real and present danger" of jury tampering, 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, single-judge trials were introduced in 1973, for terrorism-related cases, and, at one time, over 300 such trials were being held a year. Although restrictions were introduced 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. In 2017, for example, the DPP issued 22 certificates for non-jury trials.

In 2015, when the Judicial Committee of Britain's Privy Council considered an appeal from the Turks and Caicos Islands, 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". Like considerations apply in Hong Kong, and a 3- judge trial is only ordered where the interests of justice so require, but only in cases where national security is engaged.

In Ireland, juries can also be dispensed with, and the Constitution allows 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." In 1972, after the so-called "troubles" erupted in Northern Ireland, the Special Criminal Court (SCC) was established to handle terrorism-related crimes in the Republic of Ireland.

When a case is tried by the SCC, there is no jury, and the defendant, as in Hong Kong, is tried by a 3-judge panel. The DPP decides 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 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. Quite clearly, this goes way beyond anything possible under Hong Kong's National Security Law, yet it is rarely mentioned.

In New Zealand, moreover, concerns over jury tampering led to the Criminal Procedure Act 2011, and this enables a court to order that a defendant be tried by a judge sitting 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, a trial by judge alone is also now permissible in places like New South Wales, Victoria and Queensland, if the interests of justice so require, often in cases involving jury intimidation.

Although the European Convention on Human Rights (ECHR) guarantees the right to a fair trial, the European Court of Human Rights has decided that States have considerable leeway in deciding how to ensure it. It has held there is no right to a jury trial, and that the focus should ultimately be on whether the trial, howsoever conducted, was fair. It has explained that the ECHR's right to a fair trial "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).

It is, moreover, illuminating to briefly consider what role juries have to play in three former British colonies, geographically close to Hong Kong. In Singapore, the legal system is based on the English common law, but trials, whether involving national security or other types of crime, are conducted by a single judge, with trial by jury having been abolished altogether in 1969.

Singapore also retains the death penalty, and the authorities can deploy preventive detention of up to two years in national security cases, and this may be renewed. Judicial review of decisions taken under the Internal Security Act are only possible to ensure procedural compliance, and Singapore, unlike Hong Kong, has not signed up to the ICCPR.

In Malaysia, the legal system is predominantly based on the English common law, although there are also secondary legal systems affecting certain legal areas, such as Islamic Law and Customary Law. As in Singapore, trials, whether involving national security or other types of crime, are conducted by a single judge, with trial by jury having been abolished for all crimes in 1995. Provision is also made for the preventive detention of suspects and for the denial of bail to those charged with national security offenses. The death penalty still exists, and the country is also not a party to the ICCPR.

In Brunei Darussalam, the legal system is based largely on the English common law, and there is also a Syariah court that deals with Islamic Law cases. Trials, of whatever type, are conducted by single judges without juries, and the courts can impose the death penalty. As with Singapore and Malaysia, the country has not adopted the ICCPR.

It is paradoxical, is it not, that those elsewhere who complain the loudest about non-jury trials in national security cases in the Court of First Instance in Hong Kong never have a word to say about non-jury trials in Australia, Brunei Darussalam, Ireland, Malaysia, New Zealand, Singapore or the United Kingdom. As to why that is, please feel free, in an era of great global rivalry, to draw your own conclusions.

When viewed comparatively, therefore, it is clear that Hong Kong's jury trial restrictions are limited and reasonable. They ensure that trials cannot be corrupted or otherwise undermined, and this, whatever the critics may claim, is in the public interest. The use of 3-judge panels has not affected the fairness of the trials, and just outcomes remain the objective of the judiciary in all the cases it handles.

Conclusion

Although some of the NSL's provisions concerning the judiciary are novel, the legal system has successfully accommodated them. The fundamental principles of criminal justice have not been affected, and national security trials are fairly conducted along traditional lines. The judiciary has assimilated the new procedures, and has not had to compromise its basic values in doing so. The NSL has not only proved Hong Kong's salvation after the turmoil of 2019-20, but has also provided mechanisms for the trying of cases that are realistic and fair, and facilitate just outcomes.

In one capacity or another, I have been involved with Hong Kong's legal system for 45 years, and I can assure everybody that its judiciary is as experienced, as independent and as professional today as it has ever been, and this means that the rule of law is in safe hands.

The speaker is a senior counsel and professor of law, and was previously the director of public prosecutions of the Hong Kong SAR.

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