Hong Kong Makes a Farce of Procedural Fairness

By Jerome A. Cohen

What is taking place in Hong Kong’s Magistrates’ Court regarding bail hearings for the 47 democratic politicians is already an unthinkable travesty of justice and apparently is about to get worse.

The defendants were locked up Sunday, roughly a month earlier than scheduled, in an obvious effort to prevent them from being able to comment in public when, in a few days, the NPC imposes major changes in Hong Kong’s electoral system. Moreover, in order to try to show their eligibility for bail, some of the most prominent political figures have now felt coerced into abandoning their democratic political party and even firing their lawyers.

The unprecedented marathon, almost around-the-clock, four-day hearing makes a farce of procedural fairness. No single magistrate can fairly deal with the individual circumstances of 47 different bail applications in such a short time. The court system should never have arranged such a chaotic judicial review that has made Hong Kong’s formerly revered judicial system look like the willing instrument of the police and prosecution. Did only one magistrate have the confidence of the new NSL regime? At least five should have divided the work load and dealt with these cases in an orderly environment that did not put such strain on the magistrate as well as the abused defendants.

And now it looks as though the prosecution is seeking to persuade the magistrate NOT to reveal the bases for the bail decisions he is about to render. This would be a shocking restriction on the public’s right to know what the proceedings have been about and what the justification allegedly is for keeping these defendants locked up for at least many months to come. This dangerous and specious argument was rejected on February 18 by High Court Judge Andrea Pang for the reasons stated in her February 23 opinion in the most recent Jimmy Lai bail case. She found that the usual restrictions on informing the public do not apply, as the law makes clear, when it appears that the interests of public justice require otherwise.

It would be scandalous if in the cases of the 47, which are far more important than even the landmark Jimmy Lai litigation, the court were to conceal the reasons for its controversial decisions.

The government’s actions in this case are outrageous. On the one hand, it claims urgency and the need to keep these democratic leaders locked up immediately. On the other, it at the same time tells the court that it is a long way from completing its investigation and needs a three-month delay in further proceedings—all while the accused rot in jail awaiting trials that may well ultimately acquit them since the charge of conspiring to subvert is based on their exercise of the political rights provided by the rules regulating the affairs of the Legislative Council. Hong Kong is becoming a judicial “never never land”!

Pressure Mounts on the Hong Kong Bar Association

By Jerome A. Cohen

Here is an important report summarizing the many efforts being made by Beijing and its Hong Kong minions to press Paul Harris into resigning from his new post as chairman of the Hong Kong Bar Association. This is only part of the broader campaign to try to neuter the Bar Association. If that proves successful, it will limit the capacity of independent courts to fulfill their duties. Judges need the help of good litigating lawyers in all controversies.

I don’t know Mr. Harris, but by all accounts, he is a very able lawyer, a dedicated law reformer, and a vigorous proponent of human rights. Beijing and the Hong Kong  government see him as a force to be crushed, especially after he began his tenure as Bar chairman by suggesting that certain provisions of the new National Security Law for Hong Kong be amended in order to make them consistent with Hong Kong’s constitutional values, the Basic Law, and the International Covenant on Civil and Political Rights that the Basic Law makes applicable to Hong Kong.

Harris, as the article points out, has the confidence of most members of the Bar Association. No one ran against him in the chairmanship election. One has to ask, however, why once again is the Bar chair not a local ethnic Chinese, as so often was the case in earlier years?  Is it because the Bar is already feeling intimidated by Beijing’s political pressures and abilities to restrict the professional prospects and even the personal freedom of even the ablest barristers in the city? We should note that the great legal light Martin Lee and Margaret Ng, another able lawyer and liberal political leader, stood trial today on charges of organizing and participating in unauthorized assembly. Both pleaded not guilty, and the trial has been adjourned until next month. At least they, unlike Jimmy Lai, are out on bail.

Free Speech in Hong Kong is Further Eroded

By Jerome A. Cohen

Activist Tam Tak-chi was arrested in September of this year

Here is an important Hong Kong Free Press essay on the case of activist Tam Tak-chi who was arrested in September of this year on a sedition charge. It is by Tom Kellogg and a Georgetown colleague who feels the need to adopt a pen name. Several points strike me as worth emphasizing.

One is how difficult it will be to maintain public attention and understanding as these HK prosecutions proliferate. Publicity about one case obscures developments in others. Joshua Wong, Agnes Chow, and Ivan Lam were sentenced the same week that information about Tam’s case came out, and those cases drew attention away from Tam’s. 

Moreover, as the Kellogg essay points out, it is increasingly difficult in practice to observe a distinction between prosecutions brought under regular Hong Kong laws and those now emerging under the new National Security Law. The Tam case is shocking in this respect. Tam is not being tried under the NSL. Yet the judge assigned to try his case is one of those judges on the tiny list of those sufficiently government-minded to be eligible to try NSL cases.

The denial of bail to Tam for the eight months before his scheduled trial means that he is already being severely punished for “crimes” for which he has not been convicted. Even the judge who inspires government confidence will have to contend with the presumption of innocence at trial and the further requirement that proof of conviction must be “beyond a reasonable doubt”.

It is troubling that Hong Kong criminal trials have distant trial dates while the accused are required to remain in jail. Jimmy Lai is also surely being punished during the long period before his trial, even though he too, at least in principle, may not be found guilty.

It is encouraging to see that some Hong Kong magistrates, despite the immense pressures that now descend on them, are still strictly putting the prosecution to its proof in accordance with the law. They undoubtedly will not be added to the list of approved national security judges.

Sadly, it is pathetic that pure speech, unlinked to acts or threats of violence, is now being punished in the name of “national security”, even if the speech is on college campuses. A Communist Party that used to preach the virtues of “criticism and self-criticism” is ridiculously fragile.

The PRC's "Rectification Campaign" Finds Its Way to Hong Kong's Courts

By Jerome A. Cohen

Here is a strong statement from Samuel Chu, Managing Director of the Hong Kong Democracy Council in Washington DC, criticizing the HK court’s decision to terminate the bail of Joshua Wong, Agnes Chow, and Ivan Lam instead of allowing them to remain free until sentencing on December 2.

I echo this criticism but hope for more information about the reasons for the defendants’ guilty pleas. Sometimes defendants plead guilty because they admit guilt as an act of civil disobedience committed in protest against injustice. Sometimes they plead guilty in order to induce the court to grant a lighter sentence than would be imposed after putting the state and themselves to the burdens and expense of a trial.

Here it seems they may have pleaded guilty in protest against what they anticipate would be an unfair trial before a court that they presume has fallen under the influence of Beijing’s intensifying efforts to restrict and emasculate the local judiciary, even in cases that do not come within the purview of the new National Security Law. 

As sometimes occurs in Mainland China, defendants in similar circumstances may nevertheless prefer to defend themselves in a trial, even though they know the trial will prove a farce, will be conducted in secret and without the participation of adequate defense counsel, and will result in heavier punishment.

Apparently, Joshua and his colleagues believe that recent events have demonstrated that Beijing has already succeeded in its intensifying pressures to bring Hong Kong judges to heel. We will have to read his explanation when available. 

Some pro-Beijing critics of the Hong Kong courts’ independence, however, believe that much more still needs to be done to root out those judges who are deemed to be disloyal, unpatriotic, unaware of the true nature of the constitutional system imposed by the Basic Law, unduly sympathetic to protesters or incompetent.

In an essay that was published today by The Diplomat, I mention some of the measures that are being contemplated in order to heed the unspecific but militant call for Hong Kong “judicial reform” recently issued by Zhang Xiaoming, deputy director of the Central Government’s Hong Kong and Macau Affairs Office.

We should note that, while Beijing is waging this campaign to reform Hong Kong’s judiciary, it has also recently launched a nationwide “rectification campaign” to weed out from the country’s judges, prosecutors and police all those “two-faced people” who are disloyal and dishonest to the Party. As many international media have reported, PRC political-legal officials have been ordered to “turn the blade inward and scrape poison off the bone”!

Hong Kong is not likely to be spared.

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.

The Latest from Grenville Cross on the HK 12

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.

Recent Hong Kong Developments

By Jerome A. Cohen

A variety of developments during the past  day or so. 

The most sinister is the announcement of the new hotline established by the national security police so that HK residents can make secret phone calls to inform the Mainland police about suspicious people and activities, with confidentiality guaranteed. This is an expected, further step toward bringing Mainland fear and repression to HK. I wish HK cinemas, TV and social media would broadcast the great German movie about the notorious Stasi–the former East German secret police–titled “The Lives of Others.”

Although the unsuccessful attempt by several HK protesters, already under indictment for summer NSL offenses, to gain asylum at the US Consulate General in HK understandably attracted publicity, even more significant is the associated news that they now will also be charged with violations based on more recently sent electronic messages.  As the hotline announcement boldly stated, the government’s eyes and ears are now everywhere!

The US Consulate General’s refusal to grant asylum was correct and predictable. Can we imagine how many other Hong Kongers might have wanted to follow suit? And recall the recent San Francisco PRC Consulate’s refusal to claim asylum for the PRC scientific researcher who, after sheltering there for a few controversial days, left the PRC mission and was then detained by the FBI. Reciprocity continues to be an important factor in US-China relations. Diplomatic asylum in someone else’s country can only be exercised in extraordinary and limited circumstances, as the US has famously done twice in Beijing, first in the 1989 case of  the popular human rights  speaker, Prof. Fang Lizhi, and then in the 2012 case of the blind barefoot lawyer, the courageous Chen Guangcheng.

The report that the Shenzhen Judicial Bureau has formally prohibited the activities of the five PRC law firms that have been trying to help the detained “HK 12” at the request of their families merely confirms earlier complaints expressed by the families. The hapless detainees, charged merely with “illegal border crossing” rather than more severe national security offenses, nevertheless remain incommunicado over two months after their detention began. The inscrutable and unfair processes of PRC justice grind on “in accordance with law,” as PRC spokespersons always assure us.

Update on Last Week's NPCSC Meeting

By Jerome A. Cohen

Here is the latest report from Changhao Wei’s “NPC Observer.” It, like Susan Finder’s “Supreme Court Monitor,” is an invaluable asset in helping us keep track of the work of Chinese legal and governmental institutions. This report discusses the past week’s output of the Standing Committee of the National People’s Congress. Its most recent meeting was noteworthy in several respects.

First of all, there was apparently no discussion of the possibility that the NPCSC might issue a clarification of the scope of Article 38 of the new National Security Law for Hong Kong. Article 38 has been widely criticized in Hong Kong and abroad because, on its face, it purports to condemn as criminal actions that are perfectly legal in the jurisdictions where non-permanent residents of Hong Kong have committed them. This goes beyond the reach of China’s code of Criminal Law and standard international practice. It remains to be seen to what extent the PRC will seek to implement Article 38. Beijing may be content for now with the in terrorem effect of the language, which has been considerable.

Additionally, the amendments to the PRC’s National Flag Law and National Emblem Law, undoubtedly inspired by events in Hong Kong and applicable to Hong Kong, should be studied for their impact on the Special Administrative Region’s socio-political-legal environment as well as the rest of the nation.

The substantial revision of the Minors Protection Law should interest human rights advocates.

Perhaps of great importance to many observers in the scientific, legal, economic, social and political fields, is a new Biosecurity Law that must have been stimulated at least in part by the Covid-19 crisis and the antecedent controversy and criminal case relating to CRISPR and gene-editing.

Thanks again to the NPC Observer, a periodical worthy of our support.

Henry Litton's Attack on HK Courts

By Jerome A. Cohen

Here is a recent attack on HK courts, by one of its most well-known retired judges. Henry Litton, formerly of the Court of Final Appeal, is a respected and able legal analyst who publicly called for the establishment of an independent commission to deal with the city’s chaos in the summer of 2019, a call that was not acted upon. Since then he has increasingly been critical of opponents of the HKG’s turn toward repression and implementation of the new NSL. Almost in tandem with former HK prosecutor Grenville Cross and former police investigator Tony Kwok, he has issued various op eds seeking to “reform” HK’s judicial system. It reminds me of the Mainland’s hoary admonitions that police, prosecutors and judges should operate like a single fist to suppress the opposition.

 This op-ed goes further than previous criticisms. It condemns the HK appellate court handling the region’s first NSL prosecution even though the court made a decision that the pro-Beijing forces deem correct! Why? Because Mr. Litton claims that the judges should not have given extensive consideration to the constitutional challenges that the President of the HK Bar Association and his colleagues launched against relevant provisions of the NSL on behalf of the accused, despite the fact that the judges ended by rejecting those challenges.

What seems to upset Litton is that the judges carefully considered and publicly commented on the arguments of defense lawyers who, he maintains, were “seeking to impeach national legislation in the regional courts.” This, rather than the lack of judicial clarity ostensibly revealed in the court’s judgment, seems to be what Litton mainly condemns. At stake is the legal power of HK courts to consider the constitutionality of a new PRC law specifically enacted for HK that cries out for invalidation in various respects. As Litton points out, the NSL itself makes clear that Beijing mistrusts the independence of HK judges, which is why so much propaganda is being mobilized to further curb their independence in various ways.

Tony Kwok Calls for the Erosion of Hong Kong's Judicial System

By Jerome A. Cohen

Here is the latest China Daily defense of the Hong Kong National Security Law, featuring an attack on HK’s judiciary as well as on Taiwan’s willingness to accept HK refugees. Former HK Independent Commission Against Corruption leader Tony Kwok, now at least nominally retired but long a cheerleader for harsh enforcement of a stern NSL, is not content with the restrictions that the NSL places on local judges handling NSL cases. He now advocates restricting the independence of those HK judges who continue to handle local cases of alleged “rioting” that do not fall under the NSL.

Earlier this year many pro-Beijing supporters assured us that there is no reason to fear an NSL, since there will always be the protection offered by the independent HK judiciary required to interpret and apply the law. Yet brief experience later this year has led to Beijing’s supposed “loss of trust” in HK’s judiciary, which is now being accused of standing between the people of HK and their peace and stability. A similar argument has recently been made in the SCMP by long-retired Court of Final Appeal judge Henry Litton, a pro-Beijing favorite of the HK business elite. I plan to comment separately on the Litton op-ed.

Kwok condemns a number of HK judges, none of them foreigners it should be emphasized, for granting bail to some accused and acquitting others. There is, he maintains, “clearly a prima facie case that these judgments are tarnished by their political bias in favor of the rioters.” The Chief Justice, he argues, should order an internal inquiry “to ascertain whether these judges are politically biased, or worse still, have questionable relationships with the defense counsels which they did not declare.” This suggestion, made wholly without evidence, is, of course, an outrageous slur not only against the judges but also against the  gallant HK bar that, together with the judiciary, represents the city’s last line of peaceful defense against Beijing’s new oppression.

Yet Kwok goes further, urging that HK judges be specially approved not only for handling NSL cases, as required by the new law, but also for dealing with ordinary “riot-related” cases. That would make it certain, he claims, that only “apolitical judges” would become involved, i.e., those who are likely to deny bail and to convict accused.

Most alarming among Kwok’s many recommendations and insinuations is his confidence in the interrogation methods that Mainland police are very probably using to “interview” the HK fugitives recently caught as they sought escape to Taiwan. Although Kwok seems understandably uncertain whether the suspects will be prosecuted in HK or the Mainland and for which offenses, he is in no doubt, quite correctly, that “these fugitives would unlikely keep their mouths shut under interrogation by Chinese mainland enforcement officials.” Kwok, never alluding to the well-documented incommunicado detention, torture, and coerced confessions that characterize mainland police “interviews,” as he prefers to call the process, tells us that such interrogation will be “fair because the mainland has long adopted a video recording system for all interviews of suspects.”

This assertion is the height of mischievous cynicism, since police easily evade that requirement. Moreover, PRC police – both ordinary and secret police – actually use extreme, persistent physical and mental tortures to force their captives to give pre-scripted video “confessions” that are then often televised in an effort to support the PRC’s false claims. Kwok should acknowledge, for example, the extraordinarily long and detailed statement issued November 20, 2019 by Simon Cheng Man-kit, the local employee of the HK British Consulate who, as he left the mainland, was forcibly detained last August for ostensibly “soliciting prostitution.” Cheng, now having obtained political asylum in the UK, was actually subjected to obscene tortures for two unbearable weeks in Shenzhen in “interviews” designed to extract information about the origins of last summer’s HK protests. His emotionally moving post-release account came as no surprise to students of PRC criminal justice.

Will Jimmy Lai Be Transferred to the Mainland for Prosecution?

By Jerome A. Cohen

Jimmy Lai during an interview on May 29, 2020.

Today’s New York Times has a five-paragraph AP story reporting Jimmy Lai’s remarks about relaxing a bit when he realized the officers who arrested him were not speaking Mandarin, “since he was worried he could be sent to mainland China, where the legal system has fewer protections.” Of course, it is much too early to know whether Lai will indeed be sent to the mainland (he is currently out on bail). The system established by the National Security Law did not purport to restrict the role of the HK police but to enhance it by establishing a special local unit that operates under the guidance of mainland security specialists. It would have been inefficient, as well as unnecessarily incendiary, to have mainland police arrest Lai and the other suspects. Perhaps there were mainland advisor-observers among the 200-odd police who descended on the Apple Daily and other relevant premises. It will probably be a matter of weeks or months before a decision is made about whether the central authorities will complete the processing of the case or allow it to be completed by the HK Department of Justice’s special new prosecution unit and the specially convened local court (without a jury). Much will be determined by the evidence that has been seized as well as Beijing’s assessment of the likely impact on HK and the world community of the momentous decision to transfer Lai to the mainland for further interrogation, investigation, trial and sentencing.

 At this point Beijing may be “crossing the river by feeling the stones.” Perhaps it will test the way toward central prosecutions by first sending suspects in other NSL cases to the Mainland. It is also quite likely that the adverse public reaction thus far will lead to Lai and others remaining in HK for final disposition. The fact that fraud is included among possible charges adds to the government’s options if NSL conviction should seem problematic, and fraud would be prosecuted locally unless inextricably linked to NSL activity.

Yet, if I were Lai’s HK counsel, I would be quietly consulting well-connected mainland lawyers about possible future contingencies, to the extent that mainland defense experts have been allowed to learn what the central authorities may have in mind for NSL processing. I don’t think that the Communist Party’s Political-Legal Commission (PLC) that controls the mainland prosecution, defense bar and courts will be available for consultation by defense counsel at this point, although experience demonstrates that the PLC will eventually not be shy in telling Lai’s defense lawyers what they can do and say and what they cannot!

The Impact of HK's NSL on Canada-China Relations

By Jerome A. Cohen

Yesterday the Canadian Parliament’s Special Committee on Canada-China relations held a three-hour session regarding the new Hong Kong National Security Law (NSL). I joined several others, including Michael Davis, Samuel Chu and Annie Boyajian, to discuss the impact that the NSL will have on foreign citizens in the China mainland, Hong Kong, and Canada. I urged the Canadian government to do more to protect Chinese-Canadians in light of the increased risk of arbitrary detention and other acts of harassment and intimidation. There was also brief reference to extradition problems. You can watch the recording here and read the news report here.

Virtual CFR Meeting on Hong Kong—Autonomy and National Security

By Jerome A. Cohen

In the last few months, Hong Kong has undergone significant and troubling changes. The new National Security Law (NSL) has already had a huge impact on many aspects of society, and more changes are likely to come. On Wednesday, the Council on Foreign Relations held a virtual meeting moderated by Nancy Yao Maasbach, and I joined Victoria Tin-bor Hui and Christopher Patten to discuss the NSL, the delayed Legislative Council elections, and how history has impacted the current situation. You can watch the recording here.

Jimmy Lai's Arrest and the Future of Hong Kong Criminal Procedure

By Jerome A. Cohen

PAUL YEUNG/BLOOMBERG

The recent arrest of Jimmy Lai for “alleged foreign collusion” is of special interest to me since I invited him and Martin Lee to join me in a breakfast discussion of Hong Kong at the Winston Lord Round Table on the Rule of Law and US Foreign Policy in Asia at the Council on Foreign Relations on October 25, 2019. I had never met Lai and was hoping that he would be as feisty as his reputation. I was disappointed because, although he was perfectly intelligent and thoughtful in his remarks, he was quite restrained, even though I urged him to speak out more vigorously. Martin, on the other hand, fortunately, was his usual dynamic, informative and outspoken self. 

Over the next few months, it will be very important to try to observe the procedures in these new types of Hong Kong criminal cases. To what extent will court procedures be open for public observation? Will prosecutors be obligated to reveal in open court the bases for the  arrests? Will defense counsel be allowed to inform the public about the details of the proceedings? Many questions have already arisen. For example, regarding the six overseas activists abroad recently placed on the Wanted for Arrest list (one is a US citizen), has the PRC implemented the Interpol notification process? If so, with what responses from various countries thus far? 

For Lai’s case, will there now be a move to transfer him and his co-defendants to the Mainland for investigation and trial? By what procedures? Secret or public? With any possible resort to HK courts? In a case that arose a few days earlier, are the four arrested suspects who are 21 and younger to be charged for their Internet messages alone or for other conduct? How will their cases be processed? If HK’s Director of Public Prosecutions has just resigned because of the refusal of his bosses in the Department of Justice and higher in the HK Government to allow him to know about NSL prosecutions, how much will the HK Bar, the media and the public be allowed to know about such matters?

I hope the courageous Jimmy Lai’s confidence in his prison future is not misplaced. In an interview with AFP, he said that “he is prepared for prison. If it comes, I will have the opportunity to read books I haven’t read.” He has said he will not leave Hong Kong. But can he be sure? If transferred for detention, interrogation and trial on the Mainland under the NSL, he will leave HK against his will.

Moreover, is he correct in assuming that, if imprisoned, he will catch up on his reading? Mainland jails and prisons are not as lenient as some Hong Kong counterparts. Ask the two Canadian Michaels what books they have been reading, even though the lights may still be kept on in their cells 24/7! Ask human rights lawyer Wang Quanzhang what he read during his five years of torture. Ask artist Ai Weiwei what he read during his months of “residential surveillance” at a designated location, even though he had to be released before prosecution because of political pressures.

If Apple Daily manages to continue to publish, I hope it can report on what has been too largely ignored to date— the underlying reasons why the HK Director of Public Prosecutions (HKDPP) resigned. What does this foretell for Jimmy Lai and many others that the HKDPP is not only not allowed to decide who gets prosecuted under the NSL, but he is not even allowed to know what is going on in the decision-making process! Good luck, Jimmy!!

The Telling Resignation of Hong Kong’s Director of Public Prosecutions

By Jerome A. Cohen
David Leung has resigned as Director of Public Prosecutions (DPP) and will leave on December 31, citing disagreements with the Secretary of Justice. The most important functions of the Office of Hong Kong’s Secretary of Justice are carried out by the DPP and his staff. With respect to HK’s rule of law, that job has been more important than any judgeship or other judicial work. The DPP’s office is the most important place where discretion has to be exercised regarding whether or not someone in HK should be punished and, if so, for what offense. Prosecutors often have enough evidence to technically justify a conviction, but, as the head of the HK Bar Association recently recognized, there are often good reasons for not bringing a prosecution. Courts and even juries often have little discretion in deciding the cases brought before them. That’s why, once prosecutors decide to indict, conviction rates are generally very high not only in dictatorships like China and Russia but also in democracies like Japan and the United States (where plea bargaining generally prevails in practice rather than trial on the merits).

David Leung’s resignation as DPP tells us a lot about the changes required in HK justice under the National Security Law. Although during his leadership his office successfully carried out many unpopular prosecutions because, after independent examination of each case, he decided, rightly or wrongly, that respect for the rule of law, including the exercise of discretion, justified prosecution. He steadfastly argued against police or politicians influencing the decisions to prosecute. That independence apparently led Beijing and its local minions to lose confidence in him. The NSL removes NSL prosecutions from the DPP’s consideration and places them under special Beijing-controlled arrangements. The new regime refuses to allow him to even know about the operations of the new unit within the DOJ for the handling of NSL offenses. This is a pathetic situation. We are not yet told who is making the decisions about whether to prosecute alleged NSL violations. Who has been appointed to head the new special NSL office within the DOJ, and what influences is that person subject to? This is the real crux of the struggle for judicial independence, although the NSL has also taken steps to curb the powers of HK judges and juries to the extent they will still be allowed to handle NSL cases.

Postponement of the Upcoming Hong Kong Legislative Council Election

By Jerome A. Cohen

It was recently announced that Carrie Lam has invoked an emergency ordinance to postpone the September Legislative Council (LegCo) elections by one year. This follows the disqualification of twelve opposition candidates earlier this week. But if the Hong Kong government was going to postpone the election, why bother to disqualify candidates? That seems an unnecessary addition to the challenges with which the HKG and its Beijing masters are confronting their people and the democratic world, since the disqualifications drew significant international condemnation. But the disqualification decisions should be seen as one further step in an unfolding campaign to establish Beijing’s new Hong Kong regime beyond peradventure. 

There may well be more disqualifications, for example, even though the election has been postponed. That may be followed by a decision that current members of LegCo who have been disqualified for the next election will not be allowed to continue to serve in the newly-extended one-year LegCo term. Moreover, the reasons given for the disqualification of these candidates fit them easily into the categories of conduct now made criminally punishable by the National Security Law (NSL), especially inciting secession, subversion and foreign interference. 

The latest statement of the PRC’s HK Liaison Office makes clear its felt need to entirely eliminate these supposedly unpatriotic people from the political process. So this may be the prelude to further prosecutions of democratic figures, not for relatively minor alleged violations of assisting in unlawful public assemblies prior to July 1, but for far more serious NSL crimes. Of course, as the HKG brazenly assures us, supposedly none of these actions in any way restricts the political freedoms of the HK people! 

Furthermore, authorities have now released a wanted notice for six political figures outside HK who are suspected of inciting secession and colluding with foreigners to harm national security. What does this portend for their colleagues now in HK? Even those in HK who are barristers had better seek out local counsel specializing in the HK criminal process as now drastically altered by the NSL. Hope for the best but prepare for the worst. 

What Will Become of HKU’s Law School?

By Jerome A. Cohen

Tomorrow’s decision about the sacking of Professor Benny Tai will have significance well beyond the Law School and Hong Kong University. Last April, Professor Tai was convicted on two charges of causing a public nuisance during Occupy Central in 2014. On Tuesday, HKU’s governing council will decide whether he can keep his job as an associate professor of law. HKU’s increasingly distinguished Law School, a bit over fifty years since its belated founding, has been struggling for several years over how to cope with all the pressures inflicted by 1 Country, 2 Systems. The implications of tomorrow’s decision will be profound. Although the university faculty has recommended against sacking, it is widely expected that the governing council, stacked with pro-Beijing political figures, will reject that recommendation. Either way, the ripple effects of the decision will reach much of the entire community, certainly the educational establishment at various levels.

Professor Benny Tai PHOTOGRAPH BY BOBBY YIP/LANDOV

One of the most immediate questions is whether it will affect the forthcoming decision to formally confirm the acting deanship of the exceptional Professor FU Hualing, who has nobly sought to hold the school together for the past two years following its inability to select an outside candidate. Whatever the outcome of tomorrow’s decision, and I am rooting for Professor Tai, I hope it will free the voices of many of the able, multinational law faculty, who until now, for both personal and professional reasons, have tried to remain relatively discreet in the face of doubts and provocations relating to the new National Security Law. Hong Kong needs the benefits of their robust public legal debate.

The NSL Is Already Changing Hong Kong. How Far Will It Go?

By Jerome A. Cohen

Although I always thought that the 2005 Anti-Secession Law was much-ado-about-nothing, the National Security Law (NSL) is very different. Whereas Taiwan was relatively unaffected by the passage of the Anti-Secession Law, the NSL is already having a huge impact on many aspects of life in HK, but quietly. For example, will scheduled courses in Chinese politics and modern history be taught in the coming academic year and how? Appointments and promotions made as originally anticipated? Will people exercise their freedoms as before? Beijing is waiting to assess the immediate impact. 

In the meantime, the NSL has aroused far greater international concern than perhaps anticipated, so Beijing has another motive for proceeding slowly rather than via the “Operation Thunderbolt” that former Hong Kong deputy police commissioner Tony Kwok recommended. Prosecutions under the NSL may be a later manifestation of the new regime. Besides, there are the existing prosecutions under the pre-July 1 regime. E.g., Benny Tai may lose his appeal. Joshua Wong may also go to prison without the need to apply the NSL. But the clock is ticking on the September Legislative Council election, and this will likely be the first public shoe to drop in seriously implementing this all-encompassing, vague NSL. No nasty Central Government criminal prosecutions are yet necessary, but “merely” a succession of technical, administrative steps that will ultimately emasculate the election. The process will seem relatively soothing and assuring compared to the spectacle that would be created by dragging Martin Lee and Dennis Kwok to Beijing for incommunicado detention and secret trial.

The Impact of the Hong Kong National Security Law—Outside of Hong Kong

By Jerome A. Cohen

Recently, the State Department warned US citizens in China to “exercise increased caution” in light of the new Hong Kong national security law although it cautiously does not mention the law by name. We are all waiting to see how the PRC interprets Article 38 of the new NSL for HK that on its face purports to cover speech and other conduct by anyone anywhere that the PRC claims to have violated the HKNSL.

The notice is available to all Americans who might plan to travel to China as well as those already there. It is interesting that it warns that consular access might be denied. Even the two Canadians, Michael Spavor and Michael Kovrig, who were detained 18 months ago, had Canadian consular access until this past January when it was cut off allegedly because of Covid-19. The problem is that the PRC version of consular access is very limited. Meetings usually occur once a month at best, they are short, and it is not permitted to even discuss the case that led to the detention. Moreover, PRC commitments to allow appointment of a defense lawyer are not honored. 

The PRC may modify the NSL's extraordinary breadth by announcing additional prerequisites to prosecution in the law itself and/or by demonstrating in its application of the law or through informal public statements that it recognizes that the literal wording goes too far and won’t be applied. But, so far as I know, it has not yet done any of these things. PRC authorities may be scrambling to come to a conclusion about what to do to meet the rising world concern and opposition.

In the interim, Article 38 has certainly had a strong deterrent impact in many countries and is already affecting the calculations of many NGOs and ordinary citizens abroad about their plans and conduct. The State Department is of course most immediately concerned about Americans currently within China’s borders, presumably including Hong Kong, since they are subject to immediate enforcement of the broadest interpretation of 38 if that is the path the PRC decides to pursue. But it should surely notify anyone who, although not currently in China, is planning to travel there, including those who may merely be planning to pass through en route to further destinations.

It is interesting to see the emphasis on private electronic communications. The email warns citizens that they may be detained or deported “for sending private electronic messages critical of the Chinese government.” What is the State Department’s premise? That emails and phone calls wholly between persons outside China are susceptible to PRC monitoring and potentially subject to prosecution? Internet chats? Direct communications between someone outside China and someone inside? “Only” communications wholly within China? The NSL has already had an impact outside of Hong Kong, but it is still unclear what the full impact will be. However, I suppose we have to be grateful that the HKNSL has done a lot to alert the world to the dangers of arbitrary detention in China that too many have long ignored. 

The new national security law for Hong Kong: “Do what we say and you will be fine and even happy.”

By Jerome A. Cohen 

Here’s an RTHK interview with my former student Professor Albert Chen—who is a member of the Basic Law Committee—about the new national security law, 'Security law is like a new social contract'. 

As every law professor should know, a contract is one voluntarily entered into by the parties to the contract. Perhaps earlier one might have optimistically said that, despite the unequal bargaining powers of the parties, the Basic Law established a social contract since, over a very long negotiating process, the UK and even representatives of the people of Hong Kong took part in the different stages of the negotiating process. But the new national security law is in no possible sense a contract. It is a secretly drafted, extremely vague, non-negotiable political and social diktat that has immediately shrunk freedoms in Hong Kong.

The new “rule of law,” enforced by Mainland police and their local minions, is “Do what we say and you will be fine and even happy.” People will gradually lose even their freedom to be silent. Sadly, the time for benign optimism has plainly passed.