Hong Kong journalist-turned activist Gwyneth Ho, charged under the national security law, has said that only open court proceedings can safeguard her “best interest.” Her remarks came after she withdrew an application for bail following a judge’s refusal to lift restrictions on news reporting of the hearing.
The former Stand News reporter explained her decision on Facebook on Wednesday evening, hours after she appeared before designated national security judge Esther Toh in the High Court.
According to local media, Ho sought the court’s approval to remove reporting restrictions at the start of the bail hearing, but her request was rejected by Toh. The 31-year-old activist then instructed her lawyer Douglas Kwok to withdraw her application for bail pending trial.
She is one of 47 pro-democracy figures awaiting trial for conspiracy to commit subversion, an offence under the national security law . So far, only 13 of them have been granted bail, with the others detained since they were charged on February 28.
In Hong Kong, section 9P of the Criminal Procedure Ordinance bars the media from publishing details of a bail hearing. Only basic information such as the name of the defendant, their counsel and the magistrate or the judge involved, the offence and a list of bail conditions can be included in news reports.
Such restrictions may be waived in the “interests of public justice.” Otherwise, violators can face a maximum HK$50,000 fine and six months behind bars.
In a post shared by her Facebook page administrator, Ho questioned the “openness” of her bail hearing on Wednesday, saying only around 100 people were present in court. Without media reports, the public would have difficulty understanding the arguments presented by the person applying for bail and the prosecutors, she said.
“Using today as an example, [the court] refused to let my representative barrister Douglas Kwok make an oral submission about the 9P application. If I were a member of the public attending the hearing, I actually would not really understand the rationale of the prosecution and the defence,” Ho’s Facebook post read.
The ex-journalist argued that even though the court would hand down a written judgement – usually months later – to explain the reasons for granting or refusing bail in national security cases, the brief document did not show how the judges arrived at their ruling.
The threshold for granting bail is tougher in national security cases, with judges required to evaluate whether there are sufficient grounds for believing the defendant would not continue to commit acts endangering national security if bail is granted.
The stringent threshold was confirmed by the city’s top court in February, when it ruled that Article 42 of the security legislation created a “specific exception” to the general rule in favour of extending bail.
Ho said that under current procedures, judges do not need to disclose the principles and standards adopted in reviewing whether a national security suspect meets the threshold. The “strict” reporting restrictions would “seal” the judge’s response and their questions to the submissions made in court away from public knowledge, she said.
“If we proceed with the bail application under the 9P restrictions, it will only in effect maintain this situation of judges ruling behind closed doors, and the public falling into fear and hopelessness because of information deficit,” Ho wrote.
“Therefore under condition that the application for revoking the 9P restrictions was rejected, I decided to withdraw the current bail application.”
She said she believed that only by making the procedure of her bail application hearing public can her “best interest” as a defendant be protected. “What is truly harming my interest is not media reports, but the judicial proceedings that disregard injustice.”
Ho was originally represented by barrister and activist Chow Hang-tung, but she was forced to make a last-minute replacement after Chow herself was arrested at her chambers a few hours before the hearing.
The lawyer and vice-chief of the Hong Kong Alliance in Support of Patriotic Democratic Movements of China had publicly defied a police request for information under the Beijing-imposed security law. Three other key members of the alliance were rounded up as well.
The 47 were charged with organising and participating in an unofficial legislative primary election in July 2020 aimed at selecting democratic candidates for an upcoming Legislative Council election.
Some of the defendants who have been granted bail were seen collecting documents from Wan Chai Police Headquarters on Wednesday, as the prosecution served the long-requested committal bundles on defendants and their legal teams.
The defence will have around two weeks to study the files – which give details of the charges they will face – before the group returns to court on September 23, when the case is set to be transferred to the High Court.
Correction 16.09.2021: a previous version of this article incorrectly stated that only 12 of the 47 defendants have been granted bail. It should be 13.