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.

Hong Kong's New Secret Police "Hotline"

By Jerome A. Cohen

This article helps put flesh on the bare bones of the initial announcement of the unprecedented secret, anonymous HK “hotline” for reporting suspected NSL violations to Hong Kong’s new secret police. For the first week of implementation, harvesting an average of 1,400 pieces of information per day seems to be a promising start for the Mainland-dominated national security unit.

There is evident Hong Kong Government interest in seeing whether this local equivalent of the former East German “Stasi” secret police “hotline” might soon equal or surpass the “hotline” HK police established last year for tips concerning alleged acts of violence, which is now up to 3,000 tips per day!

Yet this HK secret police innovation need not look to the practice of the discredited and overthrown East German regime. As the report points out, the PRC’s Ministry of State Security (MSS), which controls the new HK unit, has been successfully running a similar operation throughout the Mainland since 2017. However, that institution has apparently been so troubled by the receipt of many “malicious reports” that it issued a warning in April that such anonymous accusations could result in “legal consequences”. Nevertheless, the MSS does not want to discourage would-be tipsters and has begun to pay cash rewards to reliable informers. It would be good to know the criteria for compensating informers.

I wonder how long it will be before the HK counterpart offers similar cash rewards and follows another MSS precedent by establishing “a reporting platform” like the one the MSS established in the Mainland soon after it began operating the national “hotline”.

The Continuing Attack on China's Human Rights Lawyers

By Jerome A. Cohen

Human rights lawyer Ding Jiaxi

The title of this latest valuable message from IAPL Monitoring, “Rights lawyer Ding Jiaxi remains under police investigation,” sounds much too innocuous to encapsulate what is taking place. “Remains under police investigation” does not do justice to the gross injustice being perpetrated by the Linyi Public Security Bureau (PSB), the PSB that so abused the blind “barefoot lawyer” Chen Guangcheng in so many ways from 2005 until his extraordinary escape in 2012. 

Human rights lawyer Ding has been held incommunicado for almost one year since his detention following the small HR lawyers meeting last December in Xiamen. If the experience of so many others is a guide, he is undoubtedly being subjected to tortures of various kinds.

What is interesting about this latest sad report of the plight of “disappeared lawyers” is the apparent refusal of the local procuracy to accept the PSB’s recommendation for prosecution on two occasions, presumably because the police are not deemed to have made out the case for “inciting subversion of state power”. In these circumstances Ding should be released free and clear or at least granted the PRC equivalent of “bail” if there is need for the investigation to continue. 

The PSB rejects this proper course and continues to try again. The procuracy should order the PSB to at least grant the defense lawyer’s request for bail. Yet, in order to avoid embarrassment and accountability for the police and to avoid sanctions against the procuracy itself, it continues to send the case back for more evidence. The procuracy is caught in a dilemma, trying to do its duty to carry out the legal protections prescribed in the PRC Criminal Procedure Law to prevent an unjustifiable indictment and yet not run afoul of the Communist Party’s insistence that the police, procuracy and courts operate as “a single fist” in such cases.

I assume the Linyi City Party Political-Legal Committee will resolve the problem since, legally, the procuracy cannot continue at this point to keep sending the request for prosecution back to the police for further “investigation”.

DING’S LAWYERS GROUP WAS A MODERATE CIVIL SOCIETY ORGANIZATION. If I were a Hong Kong lawyer working for civic, political and legal reforms, I would take note of the Mainland precedents and be very worried about Hong Kong’s deteriorating constitutional prospects and my own future. For example, Dennis Kwok, the able and dynamic lawyer representing the Hong Kong legal profession in the Legislative Council until his Wednesday ouster by the NPCSC, intends to return to law practice and continue, as a citizen as well as a barrister, his opposition to the new National Security Law. Should he be prepared for detention and “investigation” for alleged “inciting subversion against state power”? Now that the Mainland security organizations have come to dominate HK, will he be subjected to the same incommunicado “investigation” procedures and punishments as Mainland lawyer Ding?

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.

Hong Kong University's Uncertain Path Forward

By Jerome A. Cohen

The appointment of Fu Hualing as Dean of the Faculty of Law of Hong Kong University is gratifying not only because of widespreadas acting dean respect and friendship for Dean Fu but also because of its possible positive significance for Hong Kong's continuing struggle. The dean of HKU's impressive law school has long been in a position to have an important public impact. This imposes a responsibility that Hualing is admirably equipped to fulfill, especially after two years as acting dean that have been a "trial" in more ways than one. 

On the same day as the above announcement, two scholars from mainland China were appointed as vice-presidents of HKU. It is ironic that the news of these two university-level appointments, both scholars formerly associated with the University of California at Berkeley, came out just as we learned of Dean Fu’s appointment. Interestingly, all three people involved are “mainlanders” well-known outside of the mainland.

HK has long drawn upon former Berkeley scholars for educational leadership. In the early ‘60s it invited the distinguished economist Professor Li Choh-ming, then chairman of Berkeley’s Center for Chinese Studies, to be the first head of the then new Chinese University of Hong Kong. (He would be deeply saddened to see the damage recently inflicted on the beautiful campus he fostered.)

I do not know the two new HKU vice-presidents, but I do know Law Dean Fu Hualing and echo the many voices that welcome his appointment as the best possible choice for an important institution. For two years, Professor Fu has been ably serving as acting dean as HKU floundered in its deliberations over the deanship.

How he will choose to exercise his new authority and prestige in the current HK crisis will be very much worth watching. He is well aware, of course, that one of his many distinguished predecessors in the post, another leading expert on justice and human rights in China, Professor Johannes Chan, was later denied a more senior university-wide position and then couldn’t even obtain a visa to enter Macao!

So often, wonderful scholars are selected to be law school deans in difficult circumstances that significantly diminish their possibilities for further scholarly attainment. Let's hope that Hualing can continue to follow Chairman Mao's admonition to "walk on two legs". Good luck, Hualing!!

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.

More about the prosecution of the "Hong Kong 12"

By Jerome A. Cohen

Now that the arrests of the Hong Kong 12 have been approved, after 37 days of incommunicado detention, there is not likely to be much news about the case emanating from the PRC for a few months, unless international pressure stimulates Beijing to a quicker than usual response. But the pot continues to boil on the HK side. 

Yesterday’s Wall Street Journal has a good article entitled “China Snatched the ‘Hong Kong 12’ Off a Speedboat, Giving Protest Movement New Life.” It reports that families of the detainees continue to call for their return to HK (instead of being prosecuted in the mainland), a fruitless demand at this point. More interestingly, it notes that the families claim that it took five days before they learned that the suspects were being held in Shenzhen and quotes the father of one of the suspects to the effect that the families have still been told nothing about their case, apparently either by the HKG or PRC officials. 

It has previously been reported that the PRC has not allowed PRC lawyers retained by the families to enter the case and indeed has used the usual methods to prevent their participation. More recent, however, is the father’s claim that the PRC lawyers reportedly imposed on the suspects “have never contacted us. They wouldn’t even tell us the lawyers’ names.”  

It is quite possible that no lawyers have yet been assigned to the case, since the interrogations of the suspects and investigation are apparently not yet complete. Usually in the PRC, as a matter of practice, defense lawyers are not permitted to enter the case at least until the police have obtained confessions and believe the basis for indictment is well-prepared. At that point, there is little that lawyers can do to advise the suspects except to prepare them for what is to come, and the possibilities for lawyers to conduct their own investigation from witnesses and obtain other relevant defense information are highly restricted. Even then, lawyers are often not permitted to try to act until after indictment, and only cursorily, before being permitted to appear in the eventual trial, largely as window dressing.

In the meantime, HK attention is growing with respect to reports that the HK police may have played a secret but active role in alerting PRC police colleagues to the suspects’ plan for escape from HK to Taiwan. It will be important to see how the story unfolds.

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.

Updates on the Case of the Hong Kong 12

By Jerome A. Cohen

Here is the SCMP’s rapid reporting on the case of the Hong Kong 12. Mainland Chinese authorities have accused them of illegal border crossing and organizing crime. This is just the closing of the first phase of the long criminal process that lies ahead. We now know at least a few things about the case.

The “HK 12” were apparently not subjected to “residential surveillance at a designated location” on suspicion of national security violations. That could have kept them in incommunicado detention for up to six months before the regular criminal process began. Indeed, as the charge approved by the procuracy confirms, they are not being charged with national security violations under either PRC national law or the new NSL for HK, as some had speculated they might be and as a Wolf Warrior of the Ministry of Foreign Affairs seemed to suggest would be appropriate. That would have raised legal complexities of a controversial nature as well as international political temperatures.

Instead, the case seems en route to being treated as a regular criminal case of illegal border crossing, a crime, to be sure, but not ordinarily a major one. Of course, after up to seven more months or so of police investigation, the police, when they seek the procuracy’s approval of indictments, may decide to change the charges to harsher offenses or add further offenses to the current charge of illegal entry. The procuracy might or might not agree or may, on its own volition, change or add to the charges. But it is unlikely that this will happen, especially since the local Party political-legal committee, under central Party guidance, has undoubtedly arranged matters between police and procurators (prosecutors) so far as the evidence has been revealed.

At this stage, it is likely that ten of the twelve will receive one-year sentences after conviction by the local district or even intermediate court, with the sentence running from the date of detention. That sentence can be suspended or reduced, however, depending on a variety of circumstances including the extent of the defendant’s confession, contrition and cooperation with the investigation as well as the defendant’s health and willingness to forego an appeal.

The two accused of organizing may well draw three-year sentences and possibly longer ones, although, again, much depends on their post-detention behavior and physical and mental condition. The most immediate challenge for the PRC is how to deal with the embarrassment created by the denial of access to defense lawyers chosen by the families of the suspects. Further steps may be taken to silence the lawyers chosen by the families. Those can range from detaining the would-be lawyers, threatening them with disbarment and closing of their law firms as well as harm to their families etc. The authorities will surely attempt to deny the would-be lawyers further access to the families and the media. The Party may decide to have the lawyers chosen by the police put on a show designed to create a more favorable impression than usual. Possibly the families may be allowed a visit or a representative of the HK government might even be permitted to visit, but the latter seems unlikely. Too many departures from the usual practice might be seen as setting unfavorable precedents for future cases and not establishing sufficient deterrent against future offenses of this type. 

At this point there is not much that any defense lawyer can accomplish in a case of this nature except to perhaps reduce the likelihood of any further torture and coerced confessions by meeting with and observing the suspect, if only in the circumscribed circumstances allowed. Eventually, if permitted, defense lawyers might prove helpful at whatever type of “trial” is allowed, and this will be another challenge for the Party. 

Hong Kong Further Erodes Freedom of Speech

By Jerome A. Cohen

Tam Tak-chi. Photo: Tam Tak-chi, via Facebook.

Earlier this week, the activist Tam Tak-chi was denied bail after being charged with “uttering seditious words and disorderly conduct.” Tam is reportedly the first person charged with sedition in Hong Kong since its 1997 “handover” to China. There is a risk for the Hong Kong government in bringing this case under pre-existing local sedition legislation, since the facts cry out for judicial protection of speech, and the HK courts may seize the occasion to demonstrate that, no matter the constraints imposed on them by the new National Security Law (NSL), when not under the NSL, they still maintain their independence despite HK’s newly-repressive climate. Two points are worth emphasizing.

First, it would be interesting to know how the decision to prosecute was made in the Department of Justice (DOJ), specifically whether it was approved by the current Director of Public Prosecutions, who has announced his resignation as of the end of the year because of apparent DOJ refusal to allow him, rather than the special NSL group newly-established within the office, to deal with NSL cases. He reportedly hasn’t even been allowed to know about NSL decisions concerning prosecution until they have been made. I wonder how optimistic he is about the successful prosecution of Tam under ordinary, pre-NSL HK law.

The second point to focus on is the denial of bail, which to me is the most immediately disturbing aspect of the case. I hope to know what’s been made public about the denial of bail and whether the bail appeal process has now run its course. The outcome of the legal contest that lies ahead is uncertain and will tell us a lot about the impact of recent events on HK’s judiciary and the extent to which Beijing will tolerate HK judges’ independent responses to the new challenges. In the interim, however, this HK political activist will be detained in jail, at least for two more months, and is already being punished long before it is determined whether he deserves it. This certainly prevents him from further exercising freedom of speech, inhibits his full opportunity to fashion his legal defense and disrupts his normal life and work and that of his family and colleagues. The prosecution power is a dreadful one.

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!

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.

The NPCSC's Telling Silence

By Jerome A. Cohen

This Xinhua release in today’s China Daily is, of course, of great interest, if only because of its silence about the NPCSC’s failure to mention whether the four democratic Legislative Council (LegCo) members who have been banned from re-election will be allowed to serve for the remaining one-year minimum of the existing LegCo term. The NPCSC’s silence on this issue means that the four will be permitted to continue for the extended year. This is the bone that Carrie Lam has thrown in an attempt to pacify the masses for the postponement of September’s election and the disqualification of the four from future service. Politically this may seem a shrewd move since the four cannot do much damage in the current LegCo, which remains under government control. As members of a popular majority in the next LegCo, they might have been a strong voice for democracy. Legally and logically, however, the decision seems inconsistent and a travesty exposing the real reasons for the disqualification.

Worthy of notice is the penultimate paragraph of the Xinhua story, which reports the full support given to the NPCSC’s newest decision by the “founding president of the  Small and Medium Law Firms Association of Hong Kong”. This is an organization I have never heard of and may have been recently created. Perhaps its support is designed to counter the embarrassment caused by the failures of both the HK Bar Association and the HK Law Society to voice similar support.

In this connection it is useful to note another action of the NPCSC reported in today’s China Daily – the decision to allow HK and Macao lawyers to practice law in the nine major cities of Guangdong Province once they qualify like Mainland lawyers. This won’t make the local competition happy but gives an incentive to HK lawyers to support “the second Handover”.

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!!

Grenville Cross for the HKG's Defense...or Offense?

By Jerome A. Cohen

Once again, a pro-PRC publication offers us the opportunity to hear from Mr. Grenville Cross, a very able lawyer and former Director of Public Prosecutions for Hong Kong, in defense of the latest restriction on political freedoms in the SAR. This time the issue discussed – the one-year postponement of the Legislative Council (LegCo) election – presents the occasion for a more plausible excuse than some of the other HKG and PRC actions Cross has advocated and defended. What is most notable here is that, rather than devote space to the more detailed consideration of the postponement that the issue merits, Cross extends his brief to an attack upon the Pompeo-led US condemnation of PRC actions re HK including the election’s postponement. Many in the US may find this diversionary attack more persuasive than his defense of the election postponement decision.

In discussing the postponement, Cross cites examples of similar decisions having been made in other countries including the UK. Yet he fails to mention the several recent contrary examples closer to HK where East Asian countries have successfully held elections after taking due precautions to prevent dangerous increases in the spread of Covid-19. Moreover, he also fails to mention anything about the pros and cons of resorting to written ballots. Certainly, written ballots, despite Donald Trump’s pathetic attempts to discredit them, could be used to accommodate those Hong Kongers who wish to stay home but nevertheless vote and those who cannot or will not return from residence on the Mainland or elsewhere. Indeed, since I give great weight to the risks that crowds bring to spread of the virus, I have expressed wonder about the merely modest attention that has been accorded the feasibility of resort to written ballots for everyone eligible to vote in HK. (In November, my wife and I will use written ballots to vote against Trump in NY!)

In the second part of his essay, where Cross extends his brief, or his mandate, to the USG counterattack, he demeans his arguments and himself by referring to critics of the postponement at home and abroad as “anti-China elements” who have “attempted to make sordid political capital” out of a government decision that supposedly had nothing to do with politics, only public safety. The criticisms of democratic Legislator Claudia Mo and disqualified candidate for LegCo Joshua Wong, instead of being answered, are dismissed as “the poisonous ramblings” of people who are simply “grandstanding and pleasing their foreign backers”. Any responsible opposition leader would not oppose but would agree with the government, Cross maintains.

If, as he claims, Joshua Wong is merely “a professional agitator”, should we dismiss Cross as “a professional apologist”? It would be good to know the extent to which he may be influencing the new office within the HK Department of Justice that decides on NSL prosecutions and that excludes the current Director of Public Prosecutions, a more independent-minded successor to Cross who has just announced his resignation, from even knowledge of the prosecutorial decisions being made.

As a final point in his argument, Cross abandons his broader political slashing and returns to political-legal analysis, implying, undoubtedly correctly, that the forthcoming special session of the NPCSC, in extending the current LegCo’s term by the necessary one year to fill the postponement gap, will disqualify from further LegCo service all current LegCo members who have been or will be disqualified from standing for election in the postponed LegCo election. What responsible opposition leader can complain about this further example of the new HK “rule of law”?

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.