The Post-National Security Law (NSL) era (III) : Does handling everything “in accordance to the law” make it legitimate?

Within a month of the NSL coming into effect in Hong Kong, the police began to launch multiple high profile operations to arrest civil activists. Following the recent arrests of more than 10 people for participation in social movements and violating the NSL, the police have placed some exiled activists on its wanted list. Next Media founder Jimmy Lai and ten others were arrested under the NSL on Monday 10 August in a large police operation involving 200 police officers storming the Next Media building on a search. Society was shocked to its core. At the same time, it was announced that the NSL was superior to the common law system in Hong Kong, being a national law. Doubts about the transparency and justice of trials have risen among the legal profession. There was fear that even the defence counsel might be implicated. Hong Kong citizens could easily fall into legal traps while constantly living under white terror. Judicial independence is severely impacted.

The right of bail denied

Hong Kong entered the post-NSL era after the law came into effect on 30 June 2020. The following day saw 10 people arrested under the NSL, including the first case involving a 23 year-old man who drove his motorcycle into the police while carrying a pro-independence flag. The man was charged with inciting secession and engaging in terrorism. The defendant was denied bail until his case is put on trial on 6 October. The defendant applied for habeas corpus recently to fight for his right of bail under the NSL. [Note: As of 22nd August, the High Court has denied the defendant habeas corpus and bail. The two judges repeated the same political tone of the Chief Executive to dismiss concerns about judicial independence.]

Barrister Lawrence Lau, who has frequently defended protesters in the past, mentioned in an interview with RFA that the first NSL trial case was a difficult journey for the defendant because the NSL was unconstitutional and contradicted the common law system.

Lau said, “Under article 42 of the NSL, bail shall not be granted to a suspect unless the judge has sufficient grounds to believe that the defendant will not continue to commit acts endangering national security. This is contradictory to the essence and spirit of the common law. Under common law, a person’s freedom is considered noble. Secondly, a person is assumed to be innocent until proven otherwise. This is the principle of ‘presumption of innocence’. Therefore, one is entitled to enjoy the right of freedom as an integral part of one’s human rights. However, under the NSL, it already assumes that the suspect is guilty at the time of arrest and therefore the arrest is ‘rightful’. In accordance to this, the person is not entitled to bail.”

Mass arrest of dissidents

Lau worries that there will be many more similar cases and then a gradual buildup of legal precedence. There are many grey areas in the interpretation and the application of the legal rationale. Authorities can weaponise the NSL, through arbitrary and indiscriminate interpretation of the law, as a sharp political suppression tool against any opposition voice.

In fact, after the first arrest on 1 July, the police launched another round of arrests for “organising, planning, implementing or participating in secession activities” under article 20; and “inciting, aiding and abetting and financing secession” under article 21 for the first time. 3 men and 1 woman, all former members of Studentlocalism, were arrested, including Tony Chung, the former convenor. The police stated that these people declared on social media that they had established an organisation promoting Hong Kong independence and its aim was to establish a Republic of Hong Kong. The police emphasised that if a case is serious, the convicted could face up to 10 years behind bars. The police claimed they had the rights to collect DNA samples of the arrestees.

After this, the police put six exiled activists Nathan Law, Wayne Chan, Simon Cheng, Ray Wong, Honcques Laus and Samuel Chu [Note: Chu is an American Chinese having lived in the US for 25 years) on its wanted list.  The police allege that they were inciting secession and colluding with foreign countries or powers to endanger national security. In a response to the allegations, Nathan Law (a former standing committee member of Demosisto) announced an “official severance of ties with his family”. 

On Monday 10 Aug, the founder of Next Media Jimmy Lai, his two sons Timothy Lai and Ian Lai along with three senior executives of Next Media including chief operating officer KH Cheung, chief administrative officer WK Wong and the general manager of Next Animation Studio Kith Ng were arrested for colluding with foreign countries and powers or conspiring in commercial fraud. In a high profile operation involving 200 officers, the police searched and raided the Next Media building. On the same day, two other activists including “Hong Kong Story” member Wilson Li, who organised “Stand With Hong Kong” and Andy Li, another Studentlocalism member, were also arrested for alleged collusion with foreign countries and power. Agnes Chow, a former Demosisto member, was also arrested on the same day. In addition, according to reports from Epoch Times, several of their journalists were stalked by national security agents.

Clashes with the existing legal system

Lau considers the NSL a national law which dominated the common law. “Its autocratic devious claws will extend to the legal, educational, media and other sectors that are influential and may be seen as threats.” Moreover, the definitions of the crimes under the NSL are vague and uncertain. Anyone could fall into the legal traps by speech and acts for any reason. For example, even an opinion poll conducted for the preliminary election within the pan-democratic camp was threatened by the Secretary for the Constitutional and Mainland Affairs Erick Tsang as a possible ‘breach’ of the NSL. Lau pointed out that such allegation was “a casual interpretation of the law”. Furthermore, there is a lack of transparency concerning the trial process under the NSL. As a barrister trained under the common law, these came as huge psychological and cultural shocks.

Despite all this, Chief Executive Carrie Lam emphasised many times that she did not consider the NSL as a violation of judicial independence nor a change to the current legal system.

The NSL stipulates that it is not suitable to have open trials for cases involving state secrets. The Secretary of Justice could order closed hearings in the absence of juries heard by judges nominated by the Chief Executive. To date, the government has not disclosed the names of the six judges appointed by the Chief Executives to preside over NSL cases. Lau believed that even if the government fully disclosed the judges’ identities, judicial independence would still be undermined.

Lau stated that the government had its consideration when choosing judges. Apparently it was Carrie Lam, the Chief Executive, who would nominate. However, the Chief Executive is accountable to the central government. Given that the central government puts great emphasis on the NSL, we could easily imagine what kind of judges Carrie Lam would nominate.

Lau also pointed out that central government openly violated the principle of One Country Two Systems by establishing the National Security Office in Hong Kong to “supervise and direct how the Chief Executive would handle national security affairs”.

Article 22 of the Basic Law states that the departments of the Central People's Government and local governments in mainland China cannot exercise their power in Hong Kong. The National Security Office has become an unauthorized body hanging over the head of the Hong Kong government. It is simply the traditional communist practice to appoint a party political commissar besides the city mayor. The power rests with the party commissar. [Note: In the case of Hong Kong, the de facto party political commissar would be the head of the Liaison Office to whom the head of the National Security office Zheng Yan-Xiong reports or sits parallel to under different reporting lines within the communist party.]

Public perception of the judiciary

Philip Dykes, who expressed his concerns over the NSL multiple times in the past, indicated during an interview that there was a lot of concern over the NSL and its social impact. It would be hard for the government to salvage the public confidence on the legal system. He believed that issues relating to the NSL would balloon over time.

Dykes stated that it was about public perception. The public might think that the politically appointed judges would be inclined to deliver favourable verdicts to the government. Even if the lawyers consider the judges fair and just, there will still be the issue of public perception.

There have been many public controversies concerning the verdicts of Anti-ELAB movement cases. The verdicts of many judges were seen as emotionally charged. The public is skeptical about the impartiality of the court decisions on these political cases. The judiciary has so far received 3 complaints of a similar nature against magistrates. 

Among those complaints, a third form teenager was charged for throwing two petrol bombs. Magistrate Kelly Shui put the young boy on probation. The complaint about Magistrate Shui was that the reason of her sentence was biased or contained political comments. 

In another case involving a primary school teacher being held guilty for assaulting the police, Magistrate Debbie Ng stated that the testimonies given by three police officers were different, indicated that there was no collaboration among each other. She felt therefore the testimonies of the 3 police officers were honest and reliable. As observed, the defendant had mental issues. 

Complaints were filed against Magistrate Ng for being prejudiced and biased. In the case of the social worker Lau Ka-Tung being sentenced for a year for obstructing government administration at protest, the Principal Magistrate Don So was complained for pre-conceptualising with prejudice and bias. In reply to the enquiry by RFA, the judiciary received several thousand similarly-natured complaints as of today.

According to the Hong Kong Judiciary Annual Report 2019, there were 368 cases of complaint against individual judges at all levels out of the 513,148 filed cases. The number of complaints against magistrates jumped fivefold compared to the year before. [Note: There were 303 complaints against the Chief Magistrate in 2019 compared to 50 in 2018.]

Barrister Lawrence Lau emphasised that it was important for the verdict to manifest justice in the society so that the public could understand the legal rationale of the court’s decisions. Therefore, the judges need to act in a balanced and objective way. If there were emotional elements in the verdicts, justice would be seen as compromised in the eye of the public. The public would lose confidence in the quality and reputation of the judiciary.

Human rights lawyers in Hong Kong to be targeted next?

Mainland China human rights lawyer Teng Biao was interviewed by RFA via video conference. He worries about the disappearance of freedoms and the rule of law in Hong Kong under the NSL. He also expressed concerns that the lawyers in Hong Kong who took up NSL defence cases might be implicated. From their experiences in mainland China, the NSL is a political suppression tool against dissidents. The crimes charged under the NSL were “almost 100% unjust case”. Many political and conscientious criminals were charged for threatening national security in China, such as human right activists Liu Xiaobo, Hu Jia, Gao Zhi-Sheng and the 709 Human Rights lawyers.

Teng Biao stated that since 1997 and the post-Umbrella Movement era, the central government has taken steps to rapidly deprive Hong Kong of its freedoms and rule of law. If the situation continues to deteriorate, it will not take long for lawyers in Hong Kong to face the same threat that human rights lawyers in mainland China have been facing.

Teng Biao is a famous human rights lawyer in mainland China. He was one of the first promoters of Charter 08. He has been actively promoting the amendment of the Chinese constitution since 2003. He was abducted by Chinese national security agents three times in the past and now lives in exile in the USA.

Lawrence Lau, who is recognised as part of the first group of human rights defence lawyers in Hong Kong, lamented that the legal profession could only “work in fear” and be prudent under the current high pressure political environment. Yet he emphasised that he “certainly would not leave Hong Kong at this moment”. He just hopes to do his best to work for justice in Hong Kong because “he will regret leaving”.

Source: https://www.rfa.org/cantonese/features/hottopic/feature-justice-08102020073332.html

Editor’s Note: On 21 August, the High Court overturned the “no bail” assumption of Article 42(2) of the NSL but also dismissed the application of habeas corpus by Tong Ying-Kit on the grounds of incorrect application procedure to challenge Chief Magistrate So Wai-Tak’s order to continue holding the defendant in custody. The High Court was of the view that the applicant should apply for a review of refusal of bail under section 9J of the Criminal Procedure Ordinance, Cap. 221. For further reference: https://legalref.judiciary.hk/lrs/common/ju/ju_frame.jsp?DIS=130336&currpage=T