By Jerome A. Cohen
This is wonderful news to learn about the acquittal of seven accused protesters who were charged with “rioting” under traditional HK legislation that is separate from the new National Security Law for HK. One has to admire the courage as well as the analysis of Judge Sham in concluding that the HK Government failed to meet its burden of proving the offense beyond a reasonable doubt. One also has to recognize the vigorous, talented defense presented by able HK barristers, who are still free to challenge the prosecution, at least in cases that are not brought under the NSL.
We won’t have to wait long to learn the consequences of Judge Sham’s decision. Judge Sham can expect to be excoriated by pro-government critics such as Tony Kwok, Grenville Cross and Henry Litton.
Will HK’s judicial administration, which is trying to support the independence of its judges without increasing Beijing’s hostility toward the courts, treat Judge Sham the way it did his colleague Judge Ho, who, after deciding against the prosecution in another recent case, was transferred to a higher-paying job that removed him from deciding cases? To engage in such a ploy again would subject the court system to justifiable criticism from liberal observers as well as from HK judges themselves.
What impact Judge Sham’s decision will have on the HK Department of Justice and its Director of Public Prosecutions (DPP) will be important to note. There are almost 700 more “rioting” cases slated to come before the courts. Will the DPP review them all in the light of Judge Sham’s decision and give up on prosecuting those cases that seem as unpersuasive in their evidence against the accused as in the acquittal of the “Hong Kong 7”? Will the DPP instead try to prosecute some of these remaining cases as lesser offenses?
The DPP himself has been under enormous pressure from the pro-Beijing camp because of public criticism of his department, by former deputy police commissioner Tony Kwok and others, for allegedly being insufficiently zealous in bringing prosecutions against so-called “rioters” and other protesters. Indeed, the DPP has announced his resignation, to take effect at year’s end, apparently because, among other things, he has been frozen out of prosecutions to be brought by the DOJ against alleged violators of the NSL at the behest of the new security-focused unit that the NSL has implanted in the DOJ.
Questions abound. Will other HK judges follow the example of Judges Sham and Ho? And how much pressure will now be brought on HK human rights barristers and the very dynamic Bar Association that has repeatedly pointed out the many legal failings of the NSL?
Given their long record of repression of human rights lawyers in Mainland China, the agents of the Ministry of Public Security and Ministry of State Security now publicly ensconced in HK by the NSL are not likely to show much tolerance for continuing shows of independence by HK’s human rights lawyers and judges.