The first person in Hong Kong charged under the national security law, Tong Ying-kit, on Tuesday lost another legal challenge against the secretary for justice’s decision to deny him a trial by jury – with the Court of Appeal upholding a lower court’s ruling.
Tong’s trial is set to begin on Wednesday.
The 24-year-old is charged with terrorism and inciting secession for allegedly driving his motorbike into a group of police officers while flying a protest flag on July 1 last year – the day after the security legislation came into effect.
Tong is also facing an alternative charge to that of terrorism – causing grievous bodily harm by dangerous driving.
In refusing him a trial by jury, the secretary for justice has cited the “personal safety of jurors and their family members” under Article 46(1) of the national security law.
Tong’s application for a judicial review against the decision was thrown out last month by High Court judge Alex Lee, who said he agreed with prosecutors that an indictment does not give defendants in Hong Kong the general or constitutional right to a jury trial.
In appealing that decision, Tong’s lawyer, Senior Counsel Philip Dykes, argued that the court had erred in ruling that there was no constitutional right to a jury trial at the High Court – pointing to principles in place before the enactment of the national security law.
Dykes also argued that that the court had mistakenly ruled that Department of Justice’s decision to invoke Article 46(1) of the national security law was a prosecutorial decision protected from interference under the Basic Law.
Dykes submitted that ordinary procedural justice demands that the secretary hear from the defendant before she makes a decision.
But in his judgement, Justice Jeremy Poon upheld the lower court’s reasoning, and the decision to issue a non-trial jury certificate under the national security law is not open to a conventional judicial review challenge.
He said the decision was only amenable to challenges on the limited grounds of dishonesty, bad faith, and exceptional circumstances, which the applicant had failed to satisfy.
The judge also said neither the Basic Law nor the Bill of Rights specifies trial by jury as an indispensable element of a fair trial.
“When the personal safety of jurors or their family members is under threat, it will seriously undermine the integrity of the criminal process. This is where the paramount importance of a fair trial comes into play,” he said.
“Granted jury trial is the conventional mode of trial in the Court of First Instance, it should not be assumed that it is the only means of achieving fairness in the criminal process.”
Justice Johnson Lam, meanwhile, held that if there were a conflict between the national security law and the Criminal Procedure Ordinance, the security law shall prevail.
“In light of this reasoning, even assuming there is any right to jury trial for prosecution brought by way of indictment, such right had been curtailed by [Article 46].”