By Jerome A. Cohen
Here is another piece in China Daily by the former Director of Public Prosecutions for the Hong Kong Government, the formidable lawyer and defender of the new national security regime in the SAR, Grenville Cross. He is always worth reading, since he offers detailed insights into the operations of HK’s justice system and also into prospects for future enforcement. Although much of the current piece becomes a diatribe against protests in America and the UK and their unrealistic appeals for the immediate return of the HK 12 to HK, there are a few points worth noting.
Cross makes a valiant effort to equate criminal justice in Mainland PRC with criminal justice in HK, America, and the UK and makes the obvious point that “criminals who break the law in China must expect to face justice…Those who commit grave offenses will be placed on trial, and it is no different in China. Criminal justice must be respected and politicking by malevolent foreign forces can never be allowed to interfere with the due process of law in any part of China.”
Ringing words but abysmally hollow in their application to Xi Jinping’s PRC regime. Criminal justice is very different in China!
In his recitation of relevant facts, Cross mentions the shock and concern expressed by the HK families of the detainees but he fails to mention that a basic reason for their anguish was that, on September 30, five weeks after their family members had been detained incommunicado, the PRC was still preventing their access to Chinese defense lawyers the families had retained. Nor does Cross mention that now, another month later, the PRC has formally forbidden involvement of the five Chinese law firms that have been retained to assist the suspects. And he says nothing about the government’s promise to appoint defense lawyers satisfactory to the government (if not the accused). That, as often occurs, will happen once the police investigation is complete and the suspects, often after torture and other pressures, have been forced to confess, sometimes on TV.
It would indeed be wonderful if those detained in China could expect “justice.” It would indeed be wonderful if a PRC trial were a fair trial and if PRC criminal justice deserved respect, but it is the current Communist leaders, not foreign politicians, who are interfering with “due process of law” in China. If Xi Jinping, given his efforts to rely on China’s past as justification for its present, were to openly justify torture, which was first legally abolished by Chinese reformers over a century ago but is still widely practiced on the Mainland, would Cross continue to ask the world to respect “Chinese justice”? And Xi does openly preach and practice Party control over the courts.
Yet the families of the detained might glean some glimmer of hope from the Cross essay. Although Cross fails to mention that, at the outset of the case, the PRC could have exercised its right to send the suspects back to HK for prosecution on the more serious charges facing them there, he does mention that they will be sent back after the Mainland criminal “proceedings” are over. The PRC has discretion, of course, to decide the point when that will be. The defendants could be returned to HK to serve whatever punishments are meted out by the PRC courts or they could be made to first complete their sentences in the Mainland.
For most defendants in this case the difference may not be great. By the time the trial proceedings are concluded, the one-year prison sentences that most of the 12 can expect may almost have already been served while awaiting trial, since none has thus far been granted the PRC equivalent of bail. But the difference could be significant for the two suspects who have been charged with organizing the illegal border crossing, not merely taking part in it, since they face a maximum seven-year sentence.