HK’s High Court readies ruling in first national security trial

27-Jul-2021 Intellasia | South China Morning Post | 9:48 AM Print This Post

Hong Kong’s High Court will hand down a verdict in the city’s first trial over national security law offences on Tuesday afternoon, shedding light on how the judicial system will handle prosecutions under the controversial legislation.

But the extent of the ruling’s impact remains unclear. A lower court judge adjourned the trial of a similar case on Monday after deciding to wait for the coming verdict, saying he was unsure how closely he would have to fully adhere to it.

The High Court ruling, slated for 3pm, will conclude the three-week trial at the Court of First Instance of Leon Tong Ying-kit on charges of secession and terrorism. Tong allegedly rammed his motorcycle into three police officers while flying a flag bearing a protest slogan on July 1 last year, the day after the security law took effect.

All eyes are on how the three-judge panel, composed of jurists from a list hand-picked by Chief Executive Carrie Lam Cheng Yuet-ngor, will apply the Beijing-imposed legislation and determine the fate of the 24-year-old in place of a jury. The defendant faces a maximum sentence of life in prison.

Defence counsel Clive Grossman SC had conceded Tong might well be convicted of careless driving but that was in “no way near” what anyone would consider an act of terrorism.

Prosecutor Anthony Chau Tin-hang argued that even if the court cleared Tong of the terrorism charge, he should still be convicted of the traffic offence. He said the risk created by affixing the flagpole to the back of the motorcycle could have blocked the view of other drivers or suddenly come off while the bike was moving.

The more contentious argument, however, was whether the protest slogan, “Liberate Hong Kong; revolution of our times”, constitutes an attempt to incite separatism.

Grossman argued the phrase was “too vague” to be capable of inciting separatism, adding it could also be used to promote solidarity among like-minded people.

In a report for the defence, Chinese University Professor Francis Lee Lap-fung and University of Hong Kong political scientist Elisa Lee Wing-yee argued the slogan did not necessarily carry a political message and could have several meanings, depending on people’s understanding and personal experiences.

But Chau argued the two scholars were neither experts in Chinese history nor the Chinese language.

In support of the prosecution’s case, Lingnan University historian Lau Chi-pang told the court the chant, properly understood in its historical context, must have been used by Tong to incite separatism.

Three out of 65 defendants currently awaiting trial on security law offences have been slapped with secession charges, with at least one over his use of the slogan.

The legality of the rallying cry is also tied to the cases of at least two defendants charged with sedition under the colonial-era Crimes Ordinance.

Opposition activist Tam Tak-chi, the first person to stand trial on sedition charges since Hong Kong’s handover from Britain to China in 1997, has been charged with 14 offences, including eight in relation to uttering seditious words. He chanted the slogan and made remarks deemed spiteful by authorities last year before the security law took effect.

Ahead of the District Court trial adjourned to Thursday, prosecutors on Monday revealed both sides would be calling the same experts as in Tong’s trial in supporting their respective interpretations of the slogan.

But how Tong’s case will affect the outcome of the pending trial remains unclear. Judge Stanley Chan Kwong-chi, who will preside over Tam’s hearing, questioned whether he should take the High Court’s judgment on the slogan’s meaning as completely binding on Tam’s case.

The verdict, he said, could not be said to be binding unless it came from an appellate court.

“If the Court of First Instance accepts 100 per cent of an expert’s opinion, can I accept only 50 per cent of it?” he said. “Do I have any discretion at all?”

Tong’s case was heard without a jury, contrary to the city’s common law tradition for criminal trials at the High Court.

In February, Secretary for Justice Teresa Cheng Yeuk-wah instructed the judiciary to exclude jurors from Tong’s trial by citing Article 46 of the Beijing-imposed legislation. She said the move was aimed at protecting the personal safety of jurors and their relatives, and to safeguard the administration of justice.

Tong appealed against the decision, arguing a defendant’s right to a trial by jury was protected under Article 86 of the Basic Law, the city’s mini-constitution. But he lost that legal bid last month.


Category: Hong Kong

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