National security law: What you need to know about decision to hold trial without jury

Tony Cheung, Chris Lau and Jasmine Siu, South China Morning Post

Posted at Feb 12 2021 02:17 PM

News emerged earlier this week that the first person charged under Hong Kong’s national security law will be tried without the presence of a jury.

Tong Ying-kit, who stands accused of riding a motorbike into police during a July 1 demonstration last year, is considering challenging the Department of Justice’s request to have him tried by three High Court justices designated by the chief executive instead, a legal source previously told the Post.

Lawyers and legal scholars are already calling the arrangement unprecedented, and until it was made possible by the national security law last year it was unheard of for trials involving such serious allegations to be held without a jury at the city’s High Court.

Others acknowledge the existence of non-jury trials overseas, but have cautioned that there are shortcomings.

Here are some key questions surrounding the case.

Why did the city’s justice minister decide not to have a jury?
The legal source said Secretary for Justice Teresa Cheng Yeuk-wah made the decision because of concerns about the safety of jurors and their families, as well as the real risk the administration of justice might be impaired.

Is this allowed under the national security law?
Yes. Article 46 is the security law provision that stipulates the secretary for justice has the power to issue a certificate directing the replacement of a jury with a three-judge panel. But that was among the legislation’s provisions that attracted a cascade of criticism from legal experts when the law came into force last June – and some believe it can be challenged through a judicial review.

Have courts in Western countries tried national security cases in the absence of a jury?
Yes, but to a limited extent. The most notable example was the Diplock Courts in Northern Ireland between 1973 and 2007, which dealt with terrorist-related offences arising from conflict there between the 1960s and 1990s.

The non-jury setting still exists, although it is no longer automatic and requires the director of public prosecutions there to determine on a case-by-case basis.

But legal scholar Fiona de Londras, who specialises in human rights and security laws at the University of Birmingham, said the arrangement was slightly different from the rest of Britain.

“Terrorism trials are criminal trials and therefore treated as such,” she said.

While there may be exceptions when the court finds there is a situation of jury tampering, trials are generally conducted with a jury, even if it is conducted behind closed doors and protected by reporting restrictions when sensitive state information is involved.

De Londras said non-jury trials should be made exceptional and based either on a court order or the certification of an independent prosecuting body.

“Any deviation from the ordinary process – in this case jury trial – requires strong justification rooted in concerns about the integrity of the trial,” she said.

In Australia, jurors can be excused during closed-door hearings when a judge is to decide whether certain information involving national security is too sensitive to be revealed.

In Canada, crimes such as treason and sedition require a jury verdict unless suggested otherwise by the prosecution.

Singapore does not hold jury trials at all for criminal cases.

How about in Hong Kong? Are jurors present at all cases heard at the High Court?
All criminal cases heard in the Court of First Instance are tried by a judge, sitting with a jury of seven people or, where a judge so orders, nine.

The rules governing the formation and operation of a jury were specified in the Jury Ordinance.

Grenville Cross, the former director of public prosecutions, said jury trials were introduced in Hong Kong in 1845 by the Ordinance for the Regulation of Juries and Jurors as part of the English justice system. It was briefly suspended between 1941 and 1945 during the Japanese occupation.

Since Hong Kong was returned from British to Chinese rule in 1997, the system has been maintained under Article 86 of the Basic Law, the city’s mini-constitution, which specifies that “the principle of trial by jury previously practised in Hong Kong shall be maintained”.

The Post has spoken to a few veteran legal practitioners and scholars, including Cross. They all said they were not aware of any past incident in which a High Court criminal trial was conducted without a jury. “This is a new arrangement,” Cross said.

When will Tong’s lawyers challenge the decision in court, and is he likely to succeed?
The legal source said any potential applications would not be filed soon, after the Court of Final Appeal on Tuesday answered a crucial question on the extent of the city courts’ jurisdiction in connection with the new law.

The top court, in revoking media tycoon Jimmy Lai Chee-ying’s bail, said judges had no power to correct parts of the legislation alleged to run counter to the Basic Law, or the International Covenant on Civil and Political Rights as applied to Hong Kong.

What are the legal experts’ views on Cheng’s decision and Tong’s plans?
Professor Simon Young Ngai-man, associate law dean of the University of Hong Kong (HKU), believed that it was still plausible to judicially review Cheng’s decision. He said the top court’s verdict on Tuesday only meant it could not be argued that Article 46 had contravened the Basic Law.

Eric Cheung Tat-ming, another legal scholar from HKU, questioned Cheng’s reasons, when there was no evidence of any potential threat to jurors.

The scholar said the jury system was introduced as a safeguard to check against bad law, and Cheng’s decision had led to the natural consequence of giving the impression the government did not trust juries.

What was the government’s response?
Asked whether the decision would give the public an impression that her government did not trust the jury system, Chief Executive Carrie Lam Cheng Yuet-ngor argued on Tuesday that Beijing had already shown its trust in Hong Kong’s executive and judicial systems, by making the city responsible for enforcing the security law.

“This is a piece of national legislation and Hong Kong is the primary authority for implementing [it],” she said.

“That is already a very strong indication of trust.”

The justice department has declined to comment.

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