Hong Kong's Show Trial

Does pleading guilty get you freed?

Hong Kong's legal system has become a tale of two cities. In one, discernible only to officials and their supporters, nothing has changed and the rule of law continues as strong as ever.

In the other, more visible, or at least more reportable outside the city, the rule of law has effectively been supplanted for some cases by a mainland-style system in which the police decide who is guilty and the courts merely read the confession and pass the sentence.

This week, for example, 47 pro-democrat politicians were committed by a magistrate for trial in the High Court on national security charges. The Secretary for Justice announced that the case would not – as criminal cases in the High Court usually are – be heard before a jury. Instead there would be three judges, from the government-selected list of national security judges.

The defendants, an official spokesman pointed out, had not had their rights infringed in any way. This was a strange way of describing an arrangement in which the judges are effectively picked by the prosecution.

The case concerns events in 2019, as street disorders – provoked initially by a bill which would have sent selected offenders to mainland courts and later by police violence – were winding down, stifled by restrictions on gatherings brought in to curb the Covid-19 pandemic.

Conventional pro-democratic politicians of the usual speaking and voting kind had been rather upstaged by the street-fighting wing of the movement. But for upcoming elections to the city's Legislative Council they made a special effort to get their act together.

This took the form of a scheme to avoid internal conflicts. There would be a primary election in which anyone in Hong Kong could vote, to select candidates. There was some rather implausible talk of achieving a pro-democratic majority – an outcome the system was carefully designed to prevent – and what might be done with it.

Attention turned to an obscure section of the Hong Kong Basic Law, which deals with a possible situation in which the legislators fall out with the Chief Executive. The law says that if the legislature refuses to pass the annual budget resolution the CE must call a new Legislative Council election. If the resulting replacement remains reluctant then the CE must resign.

This appears to be a routine bit of democratic constitution-writing. But to mainland officials the idea of forcing the resignation of Beijing's anointed choice for CE is something between sacrilege and treason.

While the primary election was still imminent, the National Security law arrived. This is a now-notorious piece of mainland legislation imposed on Hong Kong, which manages to be both vague and draconian.

Some people suggested that the primary might be a violation of the national security law but even pro-government lawyers – some of whom have changed their minds since – doubted this. Some of the candidates had explicitly endorsed the five demands of the street movement; some had not. Some of them had expressed support for the plan to force the resignation of the CE, while others had not.

The fact was that the only way to run in the election with any credibility as a pro-democratic candidate was to run and be selected in the primary.

The primary turned out to be a great success. More than 600,000 citizens voted. Losing candidates, with some grouching, conceded that they would not run. Having already been crushed in elections to the District Councils the government's supporters were looking forward to another depressing experience.

But democratic routines mean little to the mainland officials who increasingly pull the strings to which the Hong Kong government is attached. The elections were postponed for a year. During that year another piece of imposed legislation changed the election system, which now includes a purged electorate for most seats, and two committees to vet candidates for their “patriotism”.

The first elections under this new system duly produced a 90-member legislature in which only one (one!) member had not run as a government supporter of one kind or another.

Meanwhile in January last year all the candidates in the primary, along with the leading organizers, were arrested and charged with national security offences. Scandalously they were all wheeled as a group into the same magistrates court, resulting in a four-day ordeal of lengthy sittings lasting into the evening.

Under the national security law bail must be refused unless the suspect can prove he or she will not infringe the national security law while free. This is a difficult standard and the carefully selected specialist national security judges are not disposed to make it any easier. 

Most of the accused were denied bail. Those who were allowed it were still returned to prison pending an appeal by the (also specialist) national security prosecutors, who – it appears – are encouraged to leave no pound of flesh uncollected.

And most of the 47 have been in custody ever since. An initial trial date in July 2021 was deferred for 11 weeks at the request of the prosecution. Further adjournments were granted in September, November, and this year in February, March, April, and June. Under statutory restrictions on the reporting of bail proceedings very little could be reported of various people's efforts to achieve bail. The magistrate also forbad reporting of the committal proceedings - where the prosecution has to show it has a case – until a similar restriction in another case was over-ruled by the High Court.

So we have only the vaguest idea of why this has all taken so long. But sluggish prosecutions are part of the new normal. There is a scurrilous rumor in remand prisoner circles that the preferred prosecution technique is to postpone your trial until you agree to plead guilty.

As indeed some of the 47 have done. Many observers may be tempted to attribute this to doubts that they will receive a fair trial. Indeed that seems a low priority in official circles, judging by the waves of prejudicial reporting which wash over national security defendants, published with impunity in the pro-government media.

The transition to the High Court does not mean that the defendants’ ordeal is nearly over. According to the government radio station “The Judiciary’s website showed that case management hearings will be conducted in September and November for the 47 defendants.” Home by Christmas, perhaps?

This will only be the second National Security trial in the High Court and the first was also held without a jury. The Secretary for Justice explained his decision as caused by the case's “involvement of foreign elements”, concern over the “personal safety of jurors” and the “risk of obstructing the administration of justice of the case is heard with a jury.” 

Could that last one be a polite legal way of saying that a jury faced with a nakedly political prosecution might not give the desired verdict?