The Slow Grind of Justice in Hong Kong

For the territory’s imprisoned 47 democracy advocates, a Kafkaesque ordeal

Over the past 44 months, the wheels of justice have ground so slow for the mostly middle-class activists, former lawmakers, journalists, social workers and academics arrested in Hong Kong on January 6, 2021 and jailed a month later that it has become clear that authorities have been keeping people in jail for no other reason than to torment them. Defense lawyers have repeatedly expressed their objections in court to the slow prosecutions, which contrasted with speedily pressed charges on their arrest, to no avail. Human rights and press protection organizations consider the delays to be a deliberate strategy designed to stir up fear.

“The situation is getting pretty dire,” said Jonathan Price, a member of Doughty Street Chambers, the London-based international legal team representing the imprisoned Jimmy Lai Chee-ying, the publisher of the now-shuttered Apple Daily, formerly one of the most popular newspapers in Hong Kong. “This is a well-run modern economy, the richest in the region. These delays are not due to a lack of infrastructure. They say there are not enough judges. But this is a system that has run adequately for decades. It is dysfunctional, look at how long it has taken, or how uncertain it has been in terms of timing.”

The 47 were arrested in a sweeping early-morning raid across the city under the National Security Law imposed on the city by Beijing with “conspiracy to commit subversion,” for the apparent crime of organizing a July 11, 2020 primary election to choose its strongest candidates in a bid to win the 2020 polls for the Legislative Council, the city’s local government. More than 600,000 people turned out to vote. That followed a major humiliation for pro-Beijing forces in November 2019 when pro-democracy candidates swept 385 local district council seats out of 452, or 85 percent of those up for grabs.

After the arrests, most were detained for almost two years awaiting trial. From that point forward, there has been delay after delay. Only 13 of the 47 were granted bail. The trial actually came to a close on December 4, in a court in West Kowloon – months after the conclusion had been expected by their families. The final verdict had been expected at that point in three to four months. Many have pleaded guilty out of recognition that a verdict exonerating them is unlikely.

For example, mitigation hearings – hearings for those who have pleaded guilty but have the chance to explain mitigating circumstances – for several defendants, scheduled for July 30, were delayed until late August by Justice Andrew Chan Hing-wai, one of the designated national security judges presiding over the case, citing “unforeseen circumstances.” The last batch of activists entered their final pleas on September 3, with Justice Chan saying the 47 would be sentenced at a later date. That later date has been rolled into an uncertain future. There is no guarantee that it won’t be delayed again.

Similar delays have occurred in the multiple trials of Jimmy Lai, the 76-year-old democracy advocate and publisher of the rambunctious anti-government broadsheet Apple Daily that bedeviled and insulted the government in Beijing before authorities summarily closed it. Lai, a British citizen who remains in solitary confinement, has been detained since December 2020. He is serving a five-year, nine-month prison sentence on fraud charges widely regarded as trumped up over a lease dispute and is on separate trial under national security charges, which are almost certain to see him jailed for life, given the antipathy to him in Beijing.

Perhaps the biggest shock is that these proceedings emanate from a law enforcement and judicial system that had been in place largely since the British established the colony in 1841, and wasn’t replaced by Beijing when the British handed it back to them in 1997. Every one of the National Security justices named by the chief executive to try the cases – and who so far have been uniformly harsh to the defendants – was either educated in the UK or Hong Kong and spent decades in a system regarded as among Asia’s fairest and best. None was sent by Beijing.

Andrew Chan, for instance, graduated from the University of Bradford in the UK, received his LLB from the University of London External System in 1989, and in 1990 was called to the bar in both England and Hong Kong. John Lee Ka-chiu, who joined the Hong Kong police in 1977 at age 19 and is the fifth and current chief executive of the territory, was born and raised in Hong Kong and is an adherent of the Roman Catholic faith. In April 2021, Lee said Hong Kong's police forces would adopt PLA-style goose step marching in order to demonstrate "nationalistic sentiments" and to "strengthen awareness of national security."

“Inherent in democratic backsliding is the undermining or complete crushing of countervailing institutions that might constrain a would-be autocrat,” wrote Thomas Carothers and Benjamin Press in an October 20, 2022 study for the California-based Carnegie Foundation for International Peace titled Understanding and Responding to Global Democratic Backsliding. “Undemocratic figures take advantage of the many weaknesses that such institutions tend to have in developing democracies, weaknesses that include financial vulnerability, legal vulnerability, normative vulnerability, and the general lack of deep roots and habituation in the country’s political life. Backsliding does not necessarily mean the complete elimination of such institutions—some parts of them survive in all but the most extreme cases of backsliding. But it does mean substantial damage to most or all of them.”

Opportunistic authoritarians, they write, come to power via conventional political appeals “but later turn against democracy for the sake of personal political survival. Although motivations and methods differ across backsliding efforts, a key commonality among them is their relentless focus on undermining countervailing governmental and nongovernmental institutions that are designed to keep them in check.”

“What has really upset people, and caused distress and fear, is there was an assumption that it’s okay (to protest) because we have a fair police force who are not going to turn on us,” said Jonathan Price in a telephone interview from London. “‘And that they will be met with reasonable force. That is when things turned ugly. You have a system in Hong Kong, a judicial system in which people have proceedings in open court in wigs and gowns, an adversarial system. It looks like a sort of vigorously fair system and any member of the system educated in the United States and UK sees them using the same legal language, so it is easy to be reassured by that, and say they will eventually get it right. But these delays are one of the things that begin to unravel the lie – when you just stand back and look at the timelines, they are unfair and contrary to the rule of law. On a higher level, they ended up running the place into the ground.“

As of August 1, 301 people have been arrested for “cases involving suspected acts or activities that endanger national security” since Beijing’s national security law came into effect, the Security Bureau told the Hong Kong Free Press. In many countries where democracy has backslid, according to Carothers and Press, “often the democratic transitions only developed shallow roots.” But in Hong Kong, the police and the judiciary have had 183 years to develop their roots. That doesn’t explain John Lee, Andrew Chan, and their fellow officials.