Hong Kong's Transformed Criminal Justice System: Instrument of Fear

Several of us were recently asked to write essays for Taiwan’s Academia Sinica on developments in Hong Kong. These will be formally published in March but, in view of the pace of events and the importance of the topic, we have been authorized to make our views available now.

HONG KONG’S TRANSFORMED CRIMINAL JUSTICE SYSTEM: INSTRUMENT OF FEAR

By Jerome A. Cohen*

Abstract

This essay demonstrates how recent, comprehensive changes in Hong Kong’s criminal justice system have transformed it into an instrument of fear that has understandably intimidated a formerly vibrant society into political silence. An intensive surveillance system now reaches every aspect of society. Aggressive criminal investigation techniques now invade formerly protected freedoms of expression. Aided by reversal of the traditional presumption in favor of bail pending trial, government now punishes people under the new National Security Law (NSL) by detaining them for months or years before cases are finally decided. Recent restrictions on Legal Aid limit prospects for independent criminal defense. Political operatives now decide whether and what types of NSL prosecutions should be brought. Trial by jury has been eliminated for major NSL offenses, and only judges who are deemed politically reliable can adjudicate such trials. Also, appellate judges are under various pressures, and constitutional issues that were formerly thought to be the exclusive province of the Hong Kong courts are now dictated by the Standing Committee of China’s National People’s Congress. Moreover, increasingly, local criminal procedures that do not fall under the NSL are nevertheless being adversely affected by the current obsession with national security. The NSL era’s transformation of criminal justice has effectively suppressed popular protests and democratic practices.

KEYWORDS: national security, surveillance, criminal justice, investigation, bail, jury, defense lawyers, prosecutors, judges, Constitutional Law, human rights.

Full text (PDF): http://publication.iias.sinica.edu.tw/60105122.pdf.

New HK Anti-Doxxing Law Gives Government Sweeping Powers

By Jerome A. Cohen

Day after day the legal outrages pile up as Beijing tightens the noose on Hong Kong. Ten more freely elected, pro-democracy district councilors have just been disqualified from office. The local government simply ruled, without any explanation whatever, that their oaths of office were invalid!

At the same time, the prosecutions of six former staff members of Apple Daily and Next have been transferred by the government from the HK Magistrates Court to the HK High Court, thereby making them eligible for potential life sentences if, as likely, they will be convicted of violating the National Security Law for HK.

Most surprising and shocking is HK’s new anti-doxxing law amendment. It makes disclosure of personal data without consent, with an intent to cause psychological harm, a crime punishable by a fine up to HK $ 1 million and five years in prison. It also expands the punishment process beyond the existing HK legal system by empowering an administrative official new to criminal justice – the Privacy Commissioner for Personal Data—to initiate and undertake criminal investigation of possible violations. The amendment only vaguely defines the offense, and the Commissioner does not have to go through the better-regulated police. The department is empowered to bypass the Department of Justice by itself making the decision to initiate prosecutions. 

The new law also authorizes the Commissioner to access electronic devices without a warrant in “urgent circumstances” (as defined by the Commissioner). Moreover, the new law purports to have extraterritorial effect, authorizing the Commissioner to notify internet service companies anywhere in the world to take down material the Commissioner deems to be doxxing! This report summarizes this development and the earlier warning issued by tech companies against adoption of this amendment because of its curbing of free expression. It will be important to see how Google, Facebook, Twitter, and others react now and whether the Commissioner will move to suppress doxxing by pro-Beijing forces as well as pro-democracy elements.   

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.

Some Hong Kong National Security Bail Decisions Are Delayed

By Jerome A. Cohen

Here is an SCMP report on this morning’s bail hearing before the Hong Kong High Court. Several items are worth noting.

In rejecting the request of one defense lawyer to grant interim bail to his client pending conclusion of the Court’s week-long review of the Chief Magistrate’s decision to grant bail to a minority of the 47 detained democratic figures, Judge Toh is quoted as saying: “This has to be done properly. Things done in haste are sometimes when mistakes are made.” Was this not a so subtle criticism of the lower court’s handling of the original applications of the entire 47 suspects? Or simply the statement of a truism that should obviously have been recognized by the lower court before deciding to inflict a black eye on Hong Kong justice?

Did the prosecution offer any clues about why it decided, sua sponte, not to pursue its appeal of the granting of bail to four of the fifteen suspects by the lower court? This is an essential point if the public is to glean any guidance from these events about the government’s interpretation of how the National Security Law is to be applied. Why were these four suspects belatedly favored by the prosecution? If defendants and their lawyers can know this, then they will be better able to argue for bail in other cases.

And what about the appeals from denial of bail by the twenty-five suspects whose cases the media seems to ignore?

I hope that, after taking a week to consider the arguments on both sides and conducting further hearings, Judge Toh will not only issue written decisions but also detail her reasoning and how it applies to her decision in each case. This would improve upon the performance of Judge Pang in denying Jimmy Lai’s most recent request for bail review.