Sun, Aug 28, 2022 page8

• The fall of Hong Kong’s impartial judiciary

  • By Wu Ching-chin 吳景欽
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  The trial of Next Media and Apple Daily founder Jimmy Lai (黎智英), who is being prosecuted under China’s National Security Law for Hong Kong, began this week before a panel of three Hong Kong High Court judges, without a jury. The Hong Kong Department of Justice says it will not affect the fairness of the trial. Is that really true?

  Since Hong Kong’s return to China, it has maintained its British-style common law system. Its emphasis on safeguarding due process and strict evidence rules have resulted in its judiciary being highly respected for its impartiality and independence.

  With regard to serious offenses, to avoid judges making arbitrary judgements, jurisdiction in the first instance lies with the High Court, and such cases must be tried by a jury, regardless of whether the defendant pleads guilty. The jury decides whether the facts of the crime exist, while the judge is decides which laws apply and hands down the sentence.

  In consideration of Hong Kong’s relatively small population, its juries usually have seven members, but judges may adjust the number to nine, depending on the type of case. The absolute minimum number of jurors is five, which is only allowed if some jurors die or are discharged.

  As for the jury’s appraisal of guilt or non-guilt, if there are five jurors, a verdict must be based on the unanimous decision of all of them, whereas if there are seven or nine jurors, a majority decision of at least five or seven jurors respectively is required to reach a verdict. If the jury cannot reach a unanimous verdict or fails to reach the threshold for a majority verdict, this results in a hung jury, in which case the judge would discharge them and the Department of Justice would decide whether to empanel a new jury.

  As well as requiring the jury to carefully determine the facts of the crime, these regulations also prevent vexatious proceedings.

  Thus, although the penalty provisions of the National Security Law are vague, arbitrary convictions can be prevented through the application of a meticulous jury process, which emphasizes procedural safeguards. Furthermore, under a jury system, a jury may find a defendant not guilty by refusing to apply a law that it finds unjust.

  This right to refuse to apply unjust laws, known as jury nullification, is the most important means and manifestation of the jury system’s resistance to authoritarianism and dictatorship.

  However, precisely because the jury system has such a character of resisting authoritarianism, Article 46 of the National Security Law stipulates that “in criminal proceedings in the Court of First Instance of the High Court concerning offenses endangering national security, the Secretary for Justice may 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.”

  This regulation infringes on the public’s right to a jury trial, and allows the judiciary to be trampled on by the executive. It completely deprives ordinary people of their most powerful means of resisting unjust laws.

  Furthermore, Article 44 of the National Security Law stipulates that, to handle cases concerning any offense endangering national security, Hong Kong’s chief executive must designate judges from among those who have never “made any statement or behaved in any manner endangering national security.”

  In other words, such cases must be tried by so-called “politically correct” judges. It is obvious where such an arrangement will lead. It signifies a great loss regarding judicial impartiality in Hong Kong.

  Wu Ching-chin is a professor in Aletheia University’s Department of Law and director of its criminal law research center.

  Translated by Julian Clegg
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