A Hong Kong court has upheld a decision to try the city’s first national security suspect without a jury, saying a jury was not an “indispensable element” in a fair trial.

The Court of Appeal on Tuesday dismissed a challenge from Tong Ying-kit, who is the first man in Hong Kong to face trial under the Beijing-imposed security legislation.

High Court. Photo: Kelly Ho/HKFP.

The 24-year-old had challenged the Court of First Instance’s refusal to grant him a leave to launch a judicial review against a certificate from Secretary for Justice Teresa Cheng.

The justice chief ordered Tong to stand trial in front of a three-judge panel in the city’s High Court, instead of being tried by a group of jurors.

He is facing allegations of incitement to secession and terrorist activities, with “causing grievous bodily harm by dangerous driving” as an alternative offence to the terrorism charge.

In rejecting Tong’s challenge, the appeal panel said while a jury trial was a “conventional mode” of trial at the High Court, it was not the only means to achieve fairness in criminal procedure.

“Neither [the Basic Law nor the Bill of Rights] specifies trial by jury as an indispensable element of a fair trial in the determination of a criminal charge,” Chief Judge of the High Court Jeremy Poon and vice-presidents of the appeal court Wally Yeung and Johnson Lam said.

“When there is a real risk that the goal of a fair trial by jury will be put in peril by reason of the circumstances mentioned in the third ground, the only assured means for achieving a fair trial is a non-jury trial,” they added.

The rejection of Tong’s challenge came a day before he is set to face a 15-day trial at the High Court. The activist has been detained for almost a year, since his arrest during a protest against the national security law on July 1 last year.

He allegedly rammed a motorcycle displaying a protest flag reading “Liberate Hong Kong, revolution of our times” into three police officers in Wan Chai on the anniversary of Hong Kong’s handover to China. The slogan has been deemed illegal by the government.

‘Fair and timely manner’

Poon, Yeung and Lam also said paragraph 1 of section 42 of the security legislation stipulates that national security cases are to be handled in a “fair and timely manner.” Tong’s bid to launch a judicial challenge would delay or even derail the proceedings, they said.

Judiciary Court of Final Appeal
Photo: GovHK.

“It is because such a challenge will definitely breed elaborate and protracted satellite proceedings, thereby frustrating the directive of NSL 42(1) by delaying if not derailing the criminal process,” the judgement read.

The national security law enacted on June 30 last year outlaws secession, subversion, collusion with foreign powers and terrorist acts. So far, police have arrested 114 people and charged more than 50 of them under the sweeping legislation.

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Kelly Ho has an interest in local politics, education and sports. She formerly worked at South China Morning Post Young Post, where she specialised in reporting on issues related to Hong Kong youth. She has a bachelor's degree in Journalism from the University of Hong Kong, with a second major in Politics and Public Administration.