There's no need for jury in security trial, judge rules

Top News | Wallis Wang 21 May 2021

Hong Kong's first national security law defendant will face trial without a jury, the High Court has decided after dismissing a judicial review.

Judge Alex Lee Wan-tang said Secretary for Justice Teresa Cheng Yeuk-wah has the "prosecutorial independence" to decide which cases should be tried by three national security judges instead of a jury without giving any reason.

Lee handed down the ruling yesterday on the judicial review filed by Tong Ying-kit.

The 24-year-old had earlier pleaded not guilty to inciting secession and engaging in terrorist activities after allegedly riding a motorcycle into a group of police officers while flying a flag with the protest slogan "Liberate Hong Kong, revolution of the times" on July 1 last year.

Tong has been remanded in jail custody pending a 15-day trial starting on June 23. The case will be heard by national security judges Anthea Pang Po-kam, Esther Toh Lye-ping and Wilson Chan Ka-shun without a jury.

Tong challenged the lack of a jury for his case, which was dismissed in court.

In the written judgment, Lee said before the enactment of the national security law a trial with a jury was the only mode of trial available.

But, he added, "the same is no longer true after the enactment of the [national security law], which caters for two possible modes of trial in the Court of First Instance as regards criminal proceedings concerning offenses endangering national security."

Jury trials, introduced in Hong Kong in 1845, have been used for 176 years.

Lee said the secretary for justice has the power to decide against using a jury if she believes the case involves state secrets or foreign factors and jury protection under the national security law.

"It is for [the secretary of justice and the secretary of justice] alone to decide whether the new mode of trial should be adopted in a particular case," Lee said.

There are no express provisions for the justice secretary to hear or notify the national security defendants before issuing a certificate to decide against using a jury and her decision is mandatory, he said.

"Any previous right to a jury trial in the Court of First Instance, if it existed, shall be abrogated in criminal proceedings concerning offenses endangering national security," Lee said.

"There is nothing inherently unreasonable in directing a trial by a panel of three judges sitting without a jury when there is a perceived risk of the personal safety of jurors and their family members."

Senior counsel Philip Dykes, who represented Tong, earlier said the Department of Justice's failure to explain why there is no jury trial for Tong ran against procedural justice. But Lee also refuted the claim and said it was not arguable.

"As regards the ground of procedural impropriety or unfairness, I am fully aware to the modern judicial trend in favor of giving reasons by administrative decision makers for their decisions," Lee said.

"However, the prosecutorial independence of the secretary of justice should not be put on the same footing as an ordinary exercise of discretion by an administrator."

Tong may face another charge of dangerous driving causing grievous bodily harm as the court will handle the prosecution's application for this on June 7.

The defense objected to the charge.

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