Margaret Ng's Statement at Conclusion of Today's Trial

Margaret Ng’s wonderful statement, made under enormous pressure, deserves the broadest distribution and will be a powerful indictment of the Communist application of law in Hong Kong. I don’t know whether the Judge’s reasoning in granting her, Martin Lee, and Albert Ho suspended sentences was in recognition of their distinguished careers dedicated to political freedom and the rule of law or whether it was on the ground of age, other factors, or a combination. There were also slight sentencing differences in each case. Martin, by far the oldest, drew a month less than others.

Margaret embodies the best combination of training in journalism initially, and then law and philosophy, followed by a lifetime of application of these skills in the political-legal trenches of Hong Kong warfare. She has been an invaluable player. My mind goes back to over forty years ago to the lunch we had when she asked whether it was wise to add the study of law to her repertoire. She would have been a force without it, but legal skills enhanced her capacity, as we witnessed today. Ironically, after the early Court of Final Appeal decision in the groundbreaking post-Handover Ng Ka Ling case, when she was given the relatively rare opportunity for foreigners to testify in Washington before the Senate Committee on Foreign Relations, I think I annoyed her by taking a different view of the wisdom of the CFA’s decision. But her arguments were well-made and persuaded many, I believe.

What now needs to be confirmed by experts in Hong Kong criminal justice is the set of restrictions under which people serve the term of their suspended sentence. What types of conduct can result in termination of suspension and imposition of imprisonment? Will Margaret, Martin, Albert and others continue to be free to fully express their views and to meet anyone they wish to? I assume this is a question of traditional Hong Kong law, since these prosecutions were not brought – they could not be because the events occurred in 2019 – under the National Security Law. Yet, we have seen that NSL policy regarding denial of bail was cited by a Hong Kong court in a case that was prosecuted under traditional HK law. Have the suspended sentence rules regarding conduct been altered? What are they?

Not an April Fool's Joke: Decision on the Nine HK Leaders Released

By Jerome A. Cohen 

Here at last is the decision in the long-awaited prosecution of the 9 prominent HK democratic leaders for their participation in the August 18, 2019 protest against the proposed extradition/rendition law. 89 pages to wade through, but an apparently reasoned opinion by Judge Amanda Woodcock. Unlike some of her colleagues handling earlier cases, she may emerge from this with added prestige from handling a controversial case in a responsible way, even though the outcome is politically disappointing to many of us. As the wife of KH Leung, always the most demonstrative of the protesters, said: “It was expected.”

There are many questions about the case, at least in my mind, and I hope that closer observers of Hong Kong justice will aid our understanding. I have never understood why Mr. Au and YC Leung pleaded guilty while the other 7 decided to go to trial. Perhaps Au wanted to take responsibility for leading the march and thereby relieve the others from guilt. YC Leung, a moderate, may have hoped for a lenient sentence by not contesting the charges. But breaking with the other 7 seemed puzzling. The judge did continue to grant him bail, together with most of the others, pending completion of the mitigation hearing that will give them a chance to obtain lenient sentences on April 16.

The maximum sentence will be five years, which no one will receive, I believe. But sentencing will challenge the judge to distinguish among varied cases. One pro-Beijing supporter has voiced support for giving Jimmy Lai a life sentence, impossible in this case but not at all impossible, given his age and the accumulated prosecutions to which he is being subjected.

The granting of bail between now and April 16 was certainly the right choice. But it makes one wonder why Joshua Wong and Agnes Chow were not also granted bail before their mitigation hearings in a previous, similar case. The court this time wisely rejected bail denial but did amend the terms to prevent legal fleeing of the jurisdiction.

It is notable that Paul Harris, the new president of the Bar Association who is under vicious attack from Beijing forces, represented YC Leung and managed to get in a plea for leniency before the mitigation hearing was postponed until April 16. I do not know who is representing Martin Lee, Jimmy Lai, Margaret NG, Albert Ho and the others. It will be interesting to see the arguments made on behalf of leniency for each of them, given differing circumstances. Martin Lee is 82. I think he deserves a suspended sentence of some sort, and not only because of age. Albert Ho is also a respected friend and distinguished civil rights campaigner, as is Margaret Ng, not to mention the other ex-legislators. These lawyers will also face collateral non-criminal sanctions that often follow criminal conviction.

I wonder how they will deal with prospects for appealing the convictions. Appeal is unlikely to be successful in view of a previous decision of the Court of Final Appeal, but the defense has access to able counsel, and appeal, while very expensive for the defendants, may give them further time to be free on bail and to mobilize further public support.  The constitutional questions involved may benefit from updated consideration by the CFA, although prospects for modification or reversal in the current political climate seem grim.

Bail Decisions Must Give Reasons

By Jerome A. Cohen

Here is a report on the outcome of the three days of most recent bail hearings involving the HK 47. Only 11 have been granted bail. Because of the unfairly restrictive HK rules against media reporting and commenting, we know little about the crucial details.

Why have some been granted bail and most others denied? In democratic systems judicial decisions must be based on reasons. Presumably the judge will give her reasons in a written opinion to be delivered in a few days. One hopes her opinion will really do so rather than merely list factors to be considered and then simply announce the individual decisions without explaining why the application of the various factors has led to the various outcomes. 

Moreover, why did the Government give up its opposition to bail for four of the suspects? That would be very important to know for purposes of dealing with the many other cases.

Note that those granted bail “are banned from making any speech or committing any act that MAY BE SEEN as breaching the security legislation”. “May be seen”? By whom? Police or prosecutors? Eventually the courts? The NSL is so expansive and hopelessly vague that this is an impossible standard. Moreover, does this restriction include not only “subversion” and all other possible violations of the NSL but also possible violations of Hong Kong’s pre-NSL security legislation ban such as that on “sedition”?

The result thus far in this most recent NSL prosecution is that 36 democratic activists will continue to be imprisoned for many months and perhaps years while awaiting the conclusion of their cases, even though it is quite possible, if HK judges and defense lawyers can maintain their independence, that they will eventually be acquitted! Moreover, all those who have been granted bail have been silenced and neutered for this entire period even though they too may be acquitted. 

Is it any wonder that those Hong Kongers opposed to the NSL who have not yet been prosecuted have in many – not all – cases been silenced too? Unless, of course, they have managed to flee abroad.

Bail for Some, Denial for Most

By Jerome A. Cohen

Only 15 out of 47 Hong Kong opposition figures were granted bail after a marathon hearing lasting four days. As one protester observed, this decision could be characterized as “sheer political calculation,” something for everybody. Bail for roughly one-third of this extraordinary pack – throwing a bone to the democracy campaigners ­­– and denial for roughly two-thirds, which should keep the Beijing forces from running amok against the courts.

But what was the basis for the judge’s decisions? Why did some defendants win bail, but most did not? Will the public ever know? Why has it been denied this critical knowledge? The judge’s explanation of why he rejected defendants’ request to suspend the usual prohibition against media reporting is ludicrous. He told the defendants he was rejecting their request in order to safeguard the defendants’ interests! How thoughtful! I wonder why the defendants’ able lawyers did not think of this before making their request!!

This SCMP report is faulty in failing to state that the usual prohibition is permitted to be suspended whenever the court believes that it is in the interests of public justice to do so. This is what Judge Anthea Pang decided in the most recent Jimmy Lai bail case. Why did Chief Magistrate So not make the same decision in a case that involves not merely one person but 47? Again, the public is not allowed to know how he differentiated all these cases from Lai’s.

There are many things still unknown about this weird prosecution. For example, we know the government appealed the granting of bail. Did none of those denied bail appeal? If not, why not? Apparently some 25 have appealed.

In the meantime, the bail appeals will now be heard in the next day or two. Will the public also be denied knowledge of the reasons for the outcome?

What a great charade this is for the government! In the name of protecting the rule of law it prosecutes a huge number of democratic politicians for exercising the political rights that the Basic Law system prescribed for conducting LegCo affairs and free elections. Eventually, if the courts have any backbone left, the government may lose its case. But in the interim the government can inflict horrendous punishment on these democratic politicians, silencing even those who may be allowed to remain on bail for the next three months while the government completes its investigation before trial and probably for the years required for completing the judicial process.

Neither these unfortunate 47 nor Jimmy Lai will be able to protest this week’s NPC transformation of Hong Kong’s electoral system. And have we heard from Martin Lee, Margaret Ng and the many other lawyers and democrats who would normally be playing an active role in opposing this oppression? What bail restrictions are they suffering?

Seven Acquitted of "Rioting" Charges in Hong Kong

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.

Hong Kong Universities Ramp Up Suppression of Dissident Views

By Jerome A. Cohen

This is a helpful report on the Shiu Ka-chun case. Hong Kong Baptist University recently told Shiu, an opposition lawmaker who was involved in the 2014 Occupy Central protests, that it would not renew his lecturing contract, with no reasons given and no opportunity to be heard. I know nothing about Shui but sympathize with his comments about HKBU’s refusal to renew his teaching contract. He described the decision as “political persecution.”

Activists Lee Wing-tat, Chan Kin-man, Benny Tai, Chu Yiu-ming, Tanya Chan and Shiu Ka-chun arrive at the court for sentencing in Hong Kong in April 2019. Reuters

Indeed, no opportunity for him to ask why or present his case? No waiting until the judicial appeals process on his criminal conviction for participating in the Occupy Central movement has run its course? No reasons for HKBU’s decision, even though it is a publicly funded university? The university is hiding behind the shameful excuse that it is remaining silent in order to protect the “privacy” of the harmed teacher, while hiding its reasons from the very person whose privacy is ostensibly being protected. “Privacy” is a pathetic excuse for the public university to hide behind.

Simultaneously, pro-democracy activist Professor Benny Tai was fired today from Hong Kong University by a HKU council vote of 18-2. Note that Nathaniel Lei, an undergraduate representative on the council who spoke out against the decision, pointed out that if Tai wins his appeal, the council decision “may be reviewed.” We should not hold our breath, of course, that the appeal will be successful or that success might lead to reversal of the academic decision. Additionally, how should we interpret the failure of Vice-Chancellor Zhang Xiang to vote? A gesture of opposition to the council action? Or of impartiality or political paralysis? Note the hypocritical discretion of the university council in identifying the matter solely as “a personnel issue concerning a teaching staff member.” What a joke to claim that this is purely an internal matter and that outsiders should respect the university’s autonomy! Cheers for the council’s endorsement of “impartial due process”! And recall the rejection by the council of the nomination of former law Dean Johannes Chan, a great person, for higher university responsibility!

For me these cases are a matter of special interest because of the contrast it presents with my own experience at Harvard during the height of the Vietnam war controversy in America. In 1968, I believe, the TODAY show asked me to debate with Assistant Secretary of State Averell Harriman the right of the US air force to bomb Hanoi hospitals that reportedly were plainly marked with Red Crosses on the roof. Harriman himself and some wealthy Harvard alumni reacted strongly to various university authorities the next day about my criticisms of the US government. However, Harvard President Derek Bok told me to go on doing what I thought was right. He did not abstain!

The Hong Kong High Court’s judgment on the mask ban is a splendid example of what it means to put “government under law”

Jerome A. Cohen

Yesterday the Hong Kong High Court declared the Government’s mask ban unconstitutional. Here’s the full text of the judgment.

It is a great and important opinion by the two-judge court of first instance. It is a supreme example of the excellence of the Hong Kong court system and the flesh that it puts on the general bones of the rule of law. It demonstrates “government under law” in a vivid, albeit lengthy, way that is wholly alien to the People’s Republic of China. The reasoning and analysis on display here are a tribute to the Hong Kong Judiciary and to the members of the Bar and the Law Society who facilitated the Court’s remarkable response in so short a time.

Of particular interest are the Court’s references to the International Covenant on Civil and Political Rights, the UN Human Rights Committee and the European Court of Human Rights, although the decision is based on traditional English and Anglo-American legal principles and practices. It is inconceivable that a PRC court might invalidate a formally promulgated government norm on the ground that it constitutes an insufficiently justified infringement on freedoms of expression. Indeed, Chinese courts are not even allowed to consider any Constitutional issues. What a contrast with the Taiwan Constitutional Court that in recent years has done so much to protect political and civil rights!