Hong Kong security law: Defendant in first trial files bid to overturn 'no jury' decision

The first person to be charged under Hong Kong’s national security law is to seek the right to launch a judicial review against a Department of Justice decision to prosecute him without a jury present, his lawyer told the High Court during a pretrial hearing on Tuesday.

Tong Ying-kit’s trial has been set for late June after the court refused an application by his legal team for its postponement pending the possible judicial review.

Tong was charged with acts of terrorism and inciting secession last July, on the day after the security law was passed. The defendant, who was 23-years-old at the time, was arrested after he allegedly drove a motorcycle displaying the slogan “Liberate Hong Kong, revolution of our times” into three policemen. He was later denied bail, with the court ruling he was a “flight risk” and risked re-offending.

At the same hearing on Tuesday, the Department of Justice announced it will summon a history professor from Lingnan University as an expert witness. Professor Lau Chi-pang is expected to explain to the court the slogan’s allegedly secessionist intentions based on a historical interpretation of the phrases.

Tong’s counsel Lawrence Lok applied for a postponement of his client’s trial pending the judicial review bid and to allow the defence adequate time to find its own expert witness, according to CitizenNews. The court however refused his application, ruling in favour of the need to expedite proceedings.

Secretary for Justice Teresa Cheng informed Tong’s legal team in early February of her department’s plans to prosecute him without a jury, citing concerns for the “personal safety” of jurors and their family members. Tong’s case will instead be tried by a bench of three national security law judges: Esther Toh, Wilson Chan and Anthea Pang.

protest slogan flag — Demonstrators hold a flag featuring the slogan “Liberate Hong Kong, revolution of our times” during a protest on July 1, 2020. File photo: Studio Incendo.

Article 46 of the security law allows cases to be tried without a jury in three circumstances: to protect state secrets, in cases involving foreign powers and for the personal safety of jurors and their family members.

The Hong Kong Bar Association raised concerns over the provision shortly after the law was passed, saying it took away “any residual discretion” of the courts to decide on the matter.

In June 2020, Beijing inserted national security legislation directly into Hong Kong’s mini-constitution – bypassing the local legislature – following a year of pro-democracy protests and unrest. It criminalised subversion, secession, collusion with foreign forces and terrorist acts, which were broadly defined to include disruption to transport and other infrastructure. The move gave police sweeping new powers, alarming democrats, civil society groups and trade partners, as such laws have been used broadly to silence and punish dissidents in China. However, the authorities say it has restored stability and peace to the city.