Hong Kong’s Court of Appeal upheld on Tuesday a court decision to deny a trial by jury to the first person charged under a new national security law, a landmark decision that marks a departure from the global financial hub’s common law tradition.
Last month, the Court of First Instance in the High Court ruled that Tong Ying-kit would face a trial without jury, citing “a perceived risk of the personal safety of jurors and their family members”. His lawyer appealed.
“Although jury trial is the conventional mode of trial in the Court of First Instance, it should not be assumed to be the only means of achieving fairness in the criminal process,” according to a summary of the decision by judges Jeremy Poon, Wally Yeung and Johnson Lam.
“When personal safety of jurors and their family members is under threat and due administration of justice might be impaired, there is a real risk that the goal of a fair trial by jury will be put in peril.”
Police say Tong carried a sign reading “Liberate Hong Kong, revolution of our times” and drove his motorbike into officers during a protest on July 1, knocking several down on a narrow street before falling over and getting arrested.
It was the first day on which the security law that Beijing imposed on the city, targeting what China deems as secession, separatism, terrorism and collusion with foreign forces, was in force. Tong, 24, was charged with inciting separatism and terrorism.
In February, Secretary for Justice Teresa Cheng informed the defendant’s legal team his trial would be heard by three judges appointed for national security cases instead of a jury, citing risks to jurors’ safety.
Tong then filed for a judicial review of the decision, which High Court Judge Alex Lee in the Court of First Instance rejected.
Hong Kong’s Judiciary describes trial by jury as one of the most important features of the city’s legal system, a common law tradition designed to offer defendants additional protection against the possibility of authorities overreaching their power.
Article 46 of the new law – drafted by Beijing, where courts are controlled by the Communist Party and conviction rates are close to 100% – states three instances in which juries can be scrapped: protecting state secrets, cases involving foreign forces and protecting jurors’ safety.
Tong has also been denied bail. Hong Kong’s common law has traditionally allowed defendants to seek release unless prosecutors can show lawful grounds for their detention.
In another departure from common law practices, the burden is now placed on the defendant to prove they will not break the law if released on bail.
The trial is due to start on Wednesday.