Prosecutors in the case against Hong Kong's first national security suspect on Monday defended their decision to deny him a trial by jury, saying this is not a constitutional right in the territory.
Tong Ying-kit, 24, is charged with terrorism and inciting secession for allegedly driving his motorbike into a crowd of police officers while flying a protest flag on July 1 last year – the day after the security legislation came into effect.
Prosecutors are also planning to add another charge against him – dangerous driving causing grievous bodily harm – pending the court's approval.
They said there cannot be a jury for Tong's trial, citing the "personal safety of jurors and their family members", without elaborating.
But at a judicial review hearing, defence lawyers challenged what they called the "procedural impropriety, illegality and irrationality" of the jury decision made by the Department of Justice.
They said the justice secretary did not give them a notice of intention, a chance for the defendant to respond, or adequate grounds for the decision.
"The failure of SJ to accord procedural fairness when it was required makes the decision unconstitutional because it removes protection otherwise afforded by the Basic Law," Senior Counsel Philip Dykes said.
"Trial by jury helps ensure the independence and quality of judges... by ensuring that they, and not judges appointed by the executive, actually deliver a verdict in a prosecution started by the government... Trials by a body might afford a defendant some protection against laws which they find harsh or oppressive," he said.
But prosecutors argued that there is no duty under the law for the justice secretary to provide reasons for the decision, and defendants in Hong Kong do not have a constitutional or fundamental right to trial by jury.
They also said the Department of Justice has simply exercised its prosecutorial power as protected by the Basic Law, and the decision on a trial without jury is a mandatory direction for courts to follow, with limited scope for review.
Article 86 of the Basic Law says "the principle of trial by jury previously practised in Hong Kong shall be maintained".
The High Court reserved judgement on the matter until next week.