Hong Kong’s Department of Justice (DoJ) is planning to amend the law to allow appeals against not-guilty verdicts in national security cases tried at the city’s High Court, local media has reported. To date, no one tried under the national security law has been acquitted of their charges.
Currently, the prosecution cannot appeal against a Court of First Instance decision to acquit a defendant, even in cases under the Beijing-imposed national security law. According to existing legislation, the justice department can raise questions of law to the Court of Appeal, but the appeal court’s decision would not impact the initial not-guilty verdict.
Unlike other criminal cases handled at the Court of First Instance, national security cases handled at the High Court can be tried without a jury, but instead by a panel of three handpicked judges.
There are currently two ongoing national security trials at the High Court. One involves 16 democrats who organised or took part in an unofficial primary election for the then-postponed Legislative Council election are being tried for allegedly conspiring to commit subversion.
In a separate case, pro-democracy media tycoon Jimmy Lai pleaded not guilty to four charges under the security law and the colonial-era sedition law, including collusion with foreign powers. The trial against him will resume in September.
Local outlets including Ming Pao and HK01 reported that the DoJ was proposing to amend the Criminal Procedure Ordinance such that the prosecution could “appeal by way of case stated,” meaning that the appeal court could overturn an acquittal and order a retrial.
Appeal by way of case stated are currently only available for cases handled at magistrates’ courts and the District Court.
Ming Pao reported that the DoJ said in a document read by the media outlet that not allowing the prosecution to appeal acquittal decisions from the Court of First Instance was a “loophole.”
The department also said there was “no reason” to bar appeals against High Court cases when the prosecution was allowed to do so at the District Court and magistrates’ courts.
The proposed amendment would not impact cases involving a jury at the High Court, the DoJ said according to HK01. It would also not harm the protection against double jeopardy, meaning that no person would be prosecuted twice for the same crime.
Chan Chak-ming, president of the Law Society, a legal group regulating the city’s solicitors, said in a statement on Thursday night that the DoJ was conducting a consultation on its proposal.
The president also said that the group had received relevant documents, and that its “relevant specialist committees will study the proposal in detail and will provide our submissions to the DoJ in due course.”
HKFP has reached out to the DoJ for comment.
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